In Hindsight: The Council and the ICC
The Rome Statute establishing the International Criminal Court (ICC) gives the Security Council a unique jurisdictional role. Article 13(b) of the Statute grants the Council the power, acting under Chapter VII of the UN Charter, to refer situations in which certain crimes may have been committed to the ICC. Article 16 of the Statute, on the other hand, allows the Council to defer a situation for one year through a Chapter VII resolution, for reasons relating to the maintenance of international peace and security.
Thus far, the Council has referred the situations in Darfur in resolution 1593 (2005) and Libya in resolution 1970 (2011) to the ICC. The resolutions, however, placed the financial burden of the investigations exclusively on the ICC, excluded foreign nationals operating under Council authorisation from ICC jurisdiction and did not obligate any states other than Sudan and Libya, respectively, to cooperate with the ICC.
The role of the Council vis-à-vis the ICC—and the complexities of the implementation of its referrals—is a widely debated topic and an ongoing discussion. Much focus has been given to the absence of other referrals where mass crimes were allegedly committed and the relative indifference towards non-cooperation with the ICC on existing referrals.
Nevertheless and despite the fact that China, Russia and the US are not parties to the Rome Statute, Council decisions in recent years have increasingly included statements in support of the ICC in both thematic and country specific resolutions. Most noticeably, the US attitude towards the ICC had changed to modest support in recent years. This trend shifted, however, in the last few years, when certain elected Council members joined China and Russia in order to limit ICC related language in Council resolutions or eliminate it completely.
Negative attitudes towards the ICC became particularly evident when a deferral of the Kenya situation came to a fore on 15 November 2013. Since 2011, Kenya had urged the Council to defer its case from the ICC but was told firmly by Council members that no action would be taken. Following the 21 September 2013 terrorist attack in Nairobi, the AU and the vast majority of its members renewed their efforts to defer the cases against President Uhuru Kenyatta and Deputy President William Samoei Ruto. This renewed effort highlighted the claim that the ICC is overly focused on Africa and provides a new form of western colonialism over the continent. The most vocal Council member in this regard was Rwanda, who with Morocco and Togo, tabled the deferral resolution (S/2013/660). The draft received only seven votes in favor and failed adoption, but symbolised African willingness to push the issue and force Council members to choose sides on this issue. The other eight Council members abstained.
While the failed Kenya deferral was a low point regarding Security Council interaction with the ICC, recent months have seen a remarkable comeback of the ICC on several Council matters. Rwanda, for example, was amenable to language on the ICC in its 16 April resolution on the prevention and fight against genocide (S/RES/2150), thus demonstrating a slight ease in its attitude towards the ICC.
On the DPRK, Australia, France and the US convened an “Arria-formula” on 17 April to meet with a Human Rights Council’s commission of inquiry which recommended a referral of the situation by the Security Council to the ICC. However, while most Council members expressed support for a referral in principle, there seems to be little appetite among Council members to push for Council action in the face of strong opposition expected from China (and Russia), especially when their support is needed for Council action on the non-proliferation front.
On Libya, relations between the government and the ICC have been tense following the decision by the ICC that Saif Al-Islam Qaddafi should be tried in The Hague and not in Libya. Qaddafi, who is being held by the Zintan militia, is currently being tried in absentia in Tripoli. With a decision from the ICC on non-compliance pending, Council members may have to address Libya’s inability to cooperate with the ICC. However, Council members are unlikely to take a strong position against the already fragile government in Libya.
And finally in Syria, calls for a referral of the situation by the Council to the ICC have been longstanding, including in a 14 January 2013 letter sent to the Council by Switzerland on behalf of 57 member states (S/2013/19).
Most recently, France, with the support of several other Council members, drafted a resolution to refer the situation in Syria to the ICC. The referral was limited to widespread violations of human rights and international humanitarian law by the Syrian authorities and pro-government militias, as well as the human rights abuses and violations of international humanitarian law by non-State armed groups, in order to address US concerns over jurisdiction (mainly relating to the Israeli occupation of the Golan Heights).
While containing some of the same language used in previous referrals, new elements included recalling the guidance issued by the Secretary-General on contacts with persons who are the subject of arrest warrants, a guidance that several UN officials failed to follow with respect to other ICC indictees. The draft also expressed the Council’s commitment “to an effective follow up” of the referral.
Cosponsored by 65 states, the draft resolution (S/2014/348) was put to a vote on 22 May and vetoed by China and Russia, yet received 13 votes in favor, including from the African Council members.
It is possible that the Council will not take further ICC-related action on these issues, but the renewed central role of the ICC in Council discussions is noteworthy given the recent negative attitudes of some Council members towards the ICC. The failed Syria referral contains language which reflects lessons learned from previous referrals, while at the same time perpetuates some problematic elements of past referrals on financial implications and jurisdictional exclusions. Its failure also exemplifies the intersection between justice and politics in the relations of the Council with the ICC.