The Rule of Law

The Institutional Framework: International Criminal Courts and Tribunals

This is Security Council Report’s third Cross-Cutting Report on the Rule of Law. The entire report can be downloaded in PDF.

Introduction

The subject of Security Council Report’s third report on the rule of law is the institutional architecture that the Security Council has established and used to advance the rule of law.

The report analyses in detail the establishment of the two ad hoc international criminal Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as their International Residual Mechanism (MICT), and their relationship with the Security Council. It also examines the mixed tribunals, Special Court for Sierra Leone and Special Tribunal for Lebanon, which the Council has been involved in establishing. The report also reflects on the Council’s relatively short yet complex relationship with the International Criminal Court (ICC).

Through these case studies, the report concludes that the Council has proven resourceful over the last 20 years in establishing a framework, or “tool box”, to contribute to international peace and security through institutional innovation and creativity. It has established subsidiary bodies in the form of ad hoc criminal tribunals, has provided support to the Secretary-General in concluding an agreement with Sierra Leone to establish the Special Court for Sierra Leone and has brought into force the agreement between the UN and Lebanon on the establishment of the Special Tribunal for Lebanon. It has also taken advantage of the legal power given to it in the ICC Statute to refer situations to the Court under Chapter VII of the UN Charter.

At the same time, the Council has been inconsistent in following up on these significant steps and providing the proper institutional support to these bodies to enforce its own decisions and ensure the successful completion of the tasks it has entrusted to these judicial institutions. However, its August 2014 visit to The Hague, the international law capital of the world, where the judicial bodies have been located, seems to signal a degree of Council consensus about the importance of the rule of law in addressing international peace and security.

Conclusions

Security Council discourse and practice in the last two decades strongly suggest a general understanding that promoting accountability is an important tool at its disposal in discharging its primary responsibility for the maintenance of international peace and security and that, conversely, impunity and immunity can undermine international peace and security. Over the years, responding to a variety of situations and demands, the Council has displayed considerable flexibility and creativity adopting a variety of institutional measures to make use of this tool:

• In establishing the two ad hoc criminal Tribunals, the Council proved both innovative and resourceful in creating institutions to try the perpetrators of heinous crimes, albeit after failing to prevent or stop them by other means. Despite initial questions of legality from some, the Tribunals would play a most significant role in developing international criminal law from a normative standpoint. From an institutional standpoint, they provided a forum to promote accountability in two war-torn regions where atrocious crimes were committed and many of the worst offenders were prosecuted and convicted.
• When Sierra Leone requested the Council to establish an internationalised criminal court to try RUF members for crimes committed during the civil war, the Council worked with the Secretary-General and in turn requested him to conclude an agreement to that effect with Sierra Leone. With the blessing of the Council, the SCSL was established and brought to justice several perpetrators from all sides of the conflict, including Liberian President Charles Taylor.
• The Council attempted to follow the Sierra Leone model when it was requested to establish a tribunal to try those responsible for the Hariri assassination. However, when internal politics prevented the ratification of the agreement with the Secretary-General to establish the tribunal, the Council took another innovative and proactive step. At the request of the Lebanese prime minister (with the backing of the majority of the Parliament) and against the wishes of the Lebanese president, the Council brought the agreement into force, thus establishing the STL and eliminating the need for Lebanon to ratify it.
• The Council was given a unique role in the ICC Statute to refer and defer certain situations to and from the Court. Despite a rocky start in the relationship between the two institutions, the Council referred the situations in Darfur and Libya to the ICC, thus taking advantage of the existing institutional framework to promote accountability. Furthermore, the creation of the ad hoc Tribunals was a catalyst for the renewed interest of the international community in establishing a permanent international criminal court.

On the other hand, although the Council has been decisive in establishing or using institutional tools to uphold the rule of law and accountability, it has also taken certain action (or refrained from action) that has hindered these institutions in their quest for accountability. It has often subsequently failed to follow through, or in some cases, it has shown indifference to impunity. This was evident in several case studies:

• Following the establishment of the ad hoc international Tribunals, the Council was slow to ensure state cooperation. On several occasions, it answered the request of the Tribunals’ officials for assistance with enforcing state cooperation with vague and meaningless rhetoric, leaving them to their own devices. Instead, the Council focused on completion and minimizing financial expenditures. This latter goal is of course a valid and important objective, but the Council did so while disregarding, so it seems, the primary goal of these Tribunals—upholding individual accountability.
• After its Article 13(b) referrals of the situations in Darfur and Libya to the ICC, the Council has not followed through with any consistency to pressure the relevant states to abide by their obligations to cooperate with the Court. In both cases, the Court has transmitted official findings of non-compliance to the Council.
• There have been several situations and conflicts in which the Council should have reasonably taken action to uphold accountability, but it has failed to do so. In this context, it has failed to resort to the institutional “tool box” that is at its disposal for this very purpose. Thus, for example, a draft resolution referring the situation in Syria to the ICC failed, and discussions regarding referrals of other situations, such as the DPRK and South Sudan, have gained no traction in the Council.
• The Council, for both political and financial reasons, also created institutional and procedural difficulties for the various courts by the terms of its conduct:
• With respect to the SCSL, against the protest of the Secretary-General, the Council insisted that the Court be funded by voluntary contributions. This proved to be highly problematic as the Court kept running out of funds, which possibly affected the quality of its work.
• With respect to the STL, a similar approach was taken whereby the Tribunal is funded by voluntary contributions and the Lebanese government, thus creating a permanent risk of shortage of funds.
• With respect to the ICC referrals, the referrals included several conditions that were problematic in their own way. First, the financial burden of the referrals was to be borne by the ICC and not the UN. Second, the nationals of non-parties to the Rome Statute participating in UN peacekeeping missions were excluded from the jurisdiction of the ICC. Third, the referrals did not obligate member states (beyond Sudan and Libya) to cooperate with the ICC.
• The Council has yet to decide on a proper forum to regularly communicate and exchange information with the ICC Prosecutor in a meaningful way.
• With respect to the ad hoc Tribunals, in recent years the Council has only been able to agree on the extension of judges’ terms for limited amounts of time, despite the needs of the Tribunals for extensions in order to finalise their work. This is related both to frustration about the pace of work of the Tribunals and Russia’s objection to the jurisprudence of the ICTY.

Indeed, at the time of the creation of the ad hoc Tribunals, the Council was probably unaware of the financial support they would require over the years. The estimates of the life span of the ad hoc Tribunals, as with the SCSL, were unreasonably short, creating much frustration when deadlines were not met. However, some of these frustrations were at least somewhat due to the Council’s own questionable decisions and actions. For example, the Council was indifferent on the whole to states’ lack of cooperation with the Tribunals in apprehending fugitives, their lack of assistance and at times their interference with the investigations of the Office of the Prosecutor, all of which contributed to delays in the Tribunals’ work. With the SCSL, the Council insisted that the Secretary-General reduce its planned budget (and foreseen activity) in such a way that extended its life span. For example, by only allowing one trial chamber, it was inevitable that the SCSL would operate much longer than the original three-year estimate.

A more fundamental dissonance is the difference between fast-shifting political priorities, which means the Council must direct its attention to new crises on a regular basis, and the much slower pace of the wheels of justice. What the Council has come to realize, perhaps the hard way, is that while it has moved on to the next crisis, the criminal institution it created, or the ICC in other cases, will still be in the midst of fulfilling its task of bringing perpetrators to justice while granting them the full due process that the law requires. This process takes time and requires the support of the Council. Without that support, justice is either slowed down or in other cases completely dormant.

That said, the Council has proved capable of taking action to support the work of these judicial institutions and cooperate with them in various ways, albeit not always consistently. Here are some examples:

• The Council has on many occasions attentively taken into account the requests of the principals of the ad hoc Tribunals, introduced amendments to their statutes and authorised various steps to assist their proper function—for example, by adding a trial chamber to the ICTY, by creating a pool of ad litem judges and by extending judges’ terms on various occasions upon the request of the principals of the Tribunals.
• The Council created the informal working group on the international criminal tribunals to discretely meet with the Tribunals’ principals on a regular basis.
• The Council has authorised its peacekeeping mission in the DRC to cooperate with the ICC to apprehend fugitives.
• The Council provided for a guard unit to the SCSL from its peacekeeping forces at the request of the Secretary-General.
• With respect to both the ad hoc Tribunals and the SCSL, the Council was involved in creating residual mechanisms to continue the necessary tasks that remain as these former institutions finish their work.
• The Council has refrained from deferring the situation in Darfur from the ICC despite political pressure to do so. On the other hand, its lack of action on Sudanese non-cooperation has created a de facto state of deferral. Indeed, the ICC Prosecutor has become so desperate that she informed the Council that she is suspending her investigations regarding Darfur and shifting her limited resources elsewhere.
• The Council has consistently refrained from deferring the situation in Kenya from the ICC, despite repeated pressure from Kenya and the AU. When a draft resolution deferring the situation came to a vote, only seven Council members voted in favour while eight abstained, and the resolution failed. However, what was initially a consensus position against a deferral of a situation, which the Council was not responsible for referring to the ICC in the first place, turned into a slim majority. Moreover, those not voting for the deferral abstained rather than dissented, thus failing to send a strong message in support of the ICC with their vote.

These examples demonstrate that the Council is capable of providing these various institutions with political backing and practical solutions when there is a political will among its members. Looking forward, the Council has shown that it is resourceful in coming up with institutional tools to maintain peace and security. The Council can create its own subsidiary bodies, bring into force agreements establishing tribunals or support the Secretary-General in his endeavours to establish a court. The Council has also been provided with the ability to refer situations to the ICC, including in the future for the crime of aggression.

With its power to refer situations to the ICC, in the future it could contemplate doing so in several more cases than it has so far. In general, this means that the Council no longer has the need to create ad hoc tribunals as it did in the 1990s. Council members would be particularly uninterested in another ad hoc tribunal due to the financial burden involved in creating such a body. Nevertheless, until the ICC establishes itself as a truly credible criminal court, capable of fulfilling the tasks entrusted to it, such an option cannot be completely disregarded.

Another viable option is a “hybrid”, “mixed” or internationalised” criminal court, combining both national and international attributes, such as the STL and the SCSL. In the case of the SCSL, it was able, with the exception of the Taylor trial, to operate within the community it was serving. However, if the Council does choose to go down this road, ensuring that the body has the financial resources it needs to fulfil its tasks will be key.

Although the ad hoc tribunals are at their final stage of existence and the SCSL operations have ended, phasing in both cases into their respective residual mechanisms, they must not be viewed as institutions of past history. Even though the existence of the ICC lowered significantly the odds that the Council will replicate the ad hoc tribunals, these bodies offer the Council and others an opportunity to draw lessons from the Council’s establishment of and interaction with these institutions for future scenarios where accountability mechanisms may be contemplated. This is because international criminal judicial organs are bound to share certain commonalities in structure, logistics and procedure that are transferable from one conflict to another. Thus the experience from past institutions is likely to provide valid guidance for future situations requiring accountability measures where the Council responds.

Whatever form or institutional measure the Council decides to take, it will be critically important for the Council to follow through on its own decisions and provide support and assistance where needed to the judicial institution. It will also be important to obligate member states to cooperate with these institutions. Without such consistent institutional cooperation and backing, the court or tribunal will find it hard to fulfil the task entrusted to it by the Council. As for the Council, if the judicial institution fails to deliver, the Council is bound to realise that its own legitimacy and authority will be in jeopardy.