Rule of Law
Expected Council Action
An open debate on strengthening the rule of law in the maintenance of international peace and security is planned in February. In addition to member states at large, the Secretary-General will likely address the Council. A presidential statement is expected as an outcome.
In recent years, rule of law and justice issues have gained prominence in Council thinking and discussions about long-term solutions. They have also influenced the design of its operations in the field and are now part of mainstream Council discussion and action.
Rule of law and international justice issues also have become a focus in a number of other thematic issues in the Council—such as protection of civilians; children and armed conflict; and women, peace and security—and are referred to when evaluating resort to sanctions under Chapter VII of the UN Charter.
The Council held its first thematic debate on the rule of law in 2003, followed by debates in 2004, 2006 and 2010. The last open debate on the rule of law as a general thematic issue was held on 19 January 2012 (S/PV.6705 and Resumption 1). In a presidential statement following the debate, the Council recognised that sustainable peacebuilding requires an integrated approach that strengthens the coherence between political security, development, human rights and rule of law activities (S/PRST/2012/1). It also reaffirmed the Council’s opposition to impunity for serious violations of international humanitarian law and human rights law. The Council requested the Secretary-General to report within 12 months regarding the effectiveness of UN system-wide support for promoting the rule of law in conflict and post-conflict situations. (For more on the issue, please see Security Council Report’s 18 January 2013 Cross-Cutting Report on the Rule of Law: The Security Council and Accountability.)
Key Developments since the 2012 Debate
Several developments relating to various aspects of the rule of law have taken place at the Council since the 19 January 2012 debate.
On 24 September 2012, the General Assembly adopted a “Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels” (A/RES/67/1). The declaration stated that impunity would not be tolerated for genocide, war crimes and crimes against humanity, violations of international humanitarian law and gross violations of human rights law. Such violations must be investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice through domestic mechanisms or, where appropriate, regional or international mechanisms, in accordance with international law. The declaration also recognised the contribution of the Security Council to the rule of law while discharging its primary responsibility in the maintenance of international peace and security.
On the initiative of Guatemala, on 17 October 2012 the Council held an open debate on “the promotion and strengthening of the rule of law in the maintenance of international peace and security,” which focused particularly on the relationship of the Council with the International Criminal Court (ICC) (S/PV.6849 and Resumption 1). This was the first debate focusing on Council overall interaction with the ICC rather than specifically on the two referrals agreed to by the Council, under Article 13(b) of the Rome Statute of the ICC, in resolutions 1593 (2005) on Darfur and 1970 (2011) on Libya.
Speaking in the Council were the Secretary-General; the President of the ICC, Judge Sang-Hyun Song; and Phakiso Mochochoko, from the Office of the Prosecutor of the ICC. Fifty states and the EU participated in the debate. The debate produced several calls for the Council to improve its interaction and cooperation with the ICC, including effective follow-up on its Article 13(b) referrals to ensure its own credibility and the legitimacy of international criminal justice, especially regarding cooperation with the ICC. Another suggestion was to establish a subsidiary body of the Council on the ICC or to amend the existing mandate of the Informal Working Group on International Tribunals to include the ICC. On 20 November 2012, Liechtenstein sent the Council a letter, also signed by Costa Rica and Jordan, proposing the establishment of such a body to systematically address questions arising from the relationship between the Council and the ICC or to expand the mandate of the Informal Working Group to this effect (S/2012/860). Some Council members suggested that the ICC Prosecutor should brief the working group, but that divided the Council.
On 30 January 2013, Deputy Secretary-General Jan Eliasson briefed the Council on the rule of law, followed by consultations among members (S/PV.6913). The briefing was to coincide with the Secretary-General’s report requested in the 2012 presidential statement, but the report was delayed and was eventually submitted to the Council only on 11 June 2013 (S/2013/341). The report concluded that a strategy for evaluating the rule of law did not exist and developing such a strategy should be a goal of the UN system, a task the Secretary-General intends to undertake.
A recurring issue confronting Council members has been the request that the ICC proceedings against President Uhuru Kenyatta and Deputy President William Samoei Ruto of Kenya be deferred for a year. Council members held an interactive dialogue with Kenya on 23 May 2013 and with an AU high-level contact group regarding an AU request for a deferral on 31 October. The issue was discussed again by Council members under “any other business” during consultations on 11 November, and consultations on the matter were held on 12 November. Notably, when the issue was brought before the Council by Kenya in 2011, Council members were generally in agreement that a deferral was unwarranted. Yet during the more recent meetings there seemed to be a split in the Council regarding the AU request. A draft resolution (S/2013/660) on a deferral was finally put to a vote on 15 November by Morocco, Rwanda and Togo but was not adopted as only seven Council members voted in favour and the remaining eight abstained (S/PV.7060).
An issue for the Council is to be able to develop a more enduring and sustained focus on issues of justice and rule of law, as it has done with other thematic issues regularly on its agenda.
An important emerging issue is cooperation between the Council and its subsidiary bodies and international justice mechanisms, such as the ICC.
An increasingly important issue is what the Council can do to support and strengthen national rule of law and transitional justice within its mandates.
One option is adopting a presidential statement simply focusing on areas covered in the debate without asking for any follow-up action.
Another option is a presidential statement that makes specific recommendations for greater Council involvement, with an in-depth focus on institution-building and national capacities.
Requesting a follow-up report on the rule of law from the Secretary-General is a likely option.
Council and Wider Dynamics
Lithuania intends to circulate a concept paper for the open debate. In order for the discussion to be more practically oriented, Lithuania wishes to steer the meeting to focus on the vital role of Council-mandated missions in addressing the root causes of conflict and supporting host countries in ensuring stability by strengthening rule of law institutions in conflict and post-conflict settings.
Council members in general are supportive of the debate and see the relevance of the rule of law to the Council’s work. As with some other recent thematic debates, there is general awareness that the Council must be cautious not to appear to encroach on the jurisdiction of other UN organs. Some Council members may try to limit the scope and language of the expected presidential statement in accordance with their view of the Council’s mandate under the UN Charter. References to the ICC may prove difficult to agree on following the political fallout from failed draft resolution on the Kenya deferral.
|Security Council Presidential Statements|
|19 January 2012 S/PRST/2012/1||The Council adopted a statement on justice and the rule of law as “an indispensable element for peaceful coexistence and the prevention of armed conflict.”|
|11 June 2013 S/2013/341||This was the annual rule of law report on measuring the effectiveness of the support provided by the UN for the promotion of the rule of law in conflict and post-conflict situations.|
|23 August 2004 S/2004/616||This was the Secretary-General’s report on the rule of law in conflict and post-conflict societies.|
|Security Council Meeting Records|
|15 November 2013 S/PV.7060||This was a meeting to vote on a draft resolution (S/2013/660) on the ICC deferral of President Kenyatta and his deputy, the resolution was not adopted, with only seven Council members voting in favour and the remaining eight members abstaining.|
|30 January 2013 S/PV.6913||Deputy Secretary-General Jan Eliasson briefed the Council on the rule of law.|
|17 October 2012 S/PV.6849||This was the open debate on the promotion and strengthening of the rule of law, with a focus on the ICC.|
|17 October 2012 S/PV.6849 (Resumption 1)||This was the open debate on “the promotion and strengthening of the rule of law in the maintenance of international peace and security.”|
|19 January 2012 S/PV.6705||This was an open debate on the promotion and strengthening of the rule of law in the maintenance of international peace and security.|
|19 January 2012 S/PV.6705 (Resumption 1)||This was the last open debate on the rule of law.|
|15 November 2013 S/2013/660||This was a draft resolution on a deferral of the ICC proceedings against President Uhuru Kenyatta and his deputy.|
|20 November 2012 S/2012/860||This was a letter to the Council proposing the establishment of a body to systematically address questions arising from the relationship of the Council and the ICC, or to expand the mandate of its informal working group on international tribunals to this effect.|
|24 September 2012 A/RES/67/1||This was a General Assembly resolution adopting the “Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels”.|
|3 February 2014 S/2014/75||This was a concept note circulated by Lithuania for the open debate on the rule of law.|