Interactive Dialogue with the ICC Prosecutor
Tomorrow morning (7 May) the Security Council, at the request of Guatemala, is scheduled to hold an informal interactive dialogue with the International Criminal Court (ICC) Prosecutor, Fatou Bensouda. Although scheduled to provide a periodic briefing on the work of the ICC in Libya the following day (8 May), Bensouda will have the opportunity to engage in a broader and potentially less scripted exchange on the situation in Libya with Council members through the interactive dialogue format. Council members will also exchange views with the ICC Prosecutor on cooperation between the Council and the ICC and ways to enhance the Council’s support to the work of the Office of the Prosecutor. (As a closed meeting, the interactive dialogue format is likely to allow greater exchange between Council members and the Prosecutor than the public briefing format. The format of consultations was not available as non-UN officials cannot participate in consultations. Rule 39 of the Provisional Rules of Procedure of the Security Council, which indicates that Secretariat officials “or other persons” may be invited to provide information to the Council, does not apply because consultations are not governed by the Provisional Rules of Procedure.)
Although this is the first time Council members will have an interactive dialogue session with an ICC Prosecutor, this format has been used in the past to discuss ICC proceedings. On 18 March 2011, Council members agreed to hold an informal interactive dialogue with Ambassador Macharia Kamau (Kenya) to discuss the ICC proceedings against six Kenyan nationals, with AU representatives also attending.
The 17 October 2012 open debate on the rule of law, organised by Guatemala as the then President of the Council, focused on the role of the ICC more generally. It produced several calls for the Council to improve its interaction and cooperation with the Court (S/PV.6849 and Resumption 1, see our 18 January 2013 Cross-Cutting Report on the Rule of Law: The Security Council and Accountability, pp.4-5). As a follow-up to the open debate, Guatemala attempted to invite the ICC Prosecutor to a meeting of the Working Group on International Tribunals in early 2013, but some permanent members opposed this initiative, arguing that the ICC is not part of the Working Group’s mandate as it is not an ad hoc tribunal. Subsequently, the format of an interactive dialogue session was chosen as a response to some Council members’ interest in finding new ways of interacting with the ICC. (Only 7 Council members are parties to the Rome Statute of the ICC.)
On Libya, Bensouda is expected to give an update on the ICC proceedings against Saif al-Islam Qaddafi and former intelligence chief Abdullah al-Senussi. The situation in Libya was referred to the ICC by resolution 1970, and Council members will have in front of them the fifth periodic report, dated 3 May, from the ICC Prosecutor to the Council regarding implementation of resolution 1970.
Relations between Libya and the ICC have been tense since the end of the revolution. Libya challenged the jurisdiction of the ICC on 1 May 2012 claiming that the two ICC indictees were already under investigation in Libya. After the ICC ordered Libya on 6 February 2013 to surrender al-Senussi, Libya filed a second admissibility challenge on 2 April. Although the Office of the Prosecutor asserted on 24 April that al-Senussi is being investigated for the same charges by both Libya and the ICC and that he therefore should be prosecuted at the national level, there is still no ruling in this regard by the ICC Pre-Trial Chamber.
Council members will likely be interested in further information on the cooperation of the Government of Libya with the ICC, as well as the current judicial actions in place to determine the genuineness of national proceedings against the two ICC indictees in Libya. Also, Council members might be keen on learning more about the ongoing investigations in relation to gender crimes allegedly committed by pro-Qaddafi officials currently outside of Libya. The Prosecutor is also investigating war crimes and crimes against humanity allegedly committed in Tawergha by Misrata militias, as well as the alleged persecution of specific ethnic groups on the basis of their perceived affiliations.
It is expected that the Council will also discuss cooperation between the two bodies and ways to enhance the Council’s support to the work of the Office of the Prosecutor in a broader context than Libya. It seems that China and Russia opposed having a dialogue on general issues, preferring to focus strictly on Libya.
The discussion may also cover how the Council could assist the Court in carrying out its mandate, cooperate with states in which situations have been brought to the ICC, as well as cooperate with other states in the implementation of arrest warrants. The need for greater follow-up once a situation is brought before the ICC may also be part of the discussion.