What's In Blue

Posted Thu 23 Jun 2022

Arria-formula Meeting: “Reflections on the Relationship Between the International Criminal Court and the Security Council”

Tomorrow (24 June) at 10 am EST in the ECOSOC Chamber, there will be an Arria-formula meeting on the relationship between the International Criminal Court (ICC) and the Security Council. The meeting is being held one week before the 20th anniversary of the entry into force of the Rome Statute, the founding treaty of the ICC. It is being organised by Ireland, with co-sponsorship by Council members Albania, Gabon, Ghana, France, Mexico, Norway, and the UK, as well as incoming members Ecuador, Japan, Malta, and Switzerland. ICC Prosecutor Karim Asad Ahmad Khan, Director of the Coalition for the International Criminal Court Secretariat Liz Evenson, and President of the International Peace Institute Zeid Raad Al Hussein are expected to brief. All member states and permanent observers are invited to participate and will deliver their statements after the briefers and Council members.

Ireland has prepared a concept note ahead of the meeting, which notes that the Rome Statute endowed the Council with the ability to refer matters to the ICC, thereby extending the ICC’s jurisdiction. The concept note argues, however, that the Council’s referral powers have never reached their full potential, primarily because the veto power of the permanent members has prevented the Council from referring some situations to the ICC in which atrocity crimes appear to have been committed. In May 2014, for example, a draft resolution that would have referred the situation in Syria to the ICC was vetoed by China and Russia.

The concept note says that tomorrow’s meeting provides an opportunity for member states to reiterate their commitment to the Rome Statute, consider how the ICC can contribute to accountability and the fight to end impunity, and highlight the ICC’s achievements, such as its contribution to improving compliance with international human rights law and international humanitarian law. It also suggests several topics for discussion, including:

  • The relationship between the Council and the ICC, including how to improve the relationship;
  • Existing Council referrals to the ICC and how to better support them;
  • Identifying and reflecting on the obstacles to Council referrals under Chapter VII of the UN Charter;
  • Considering alternatives to Council action, including where referrals have been blocked by the veto power;
  • How to best promote universal ratification of the Rome Statute.

Council members remain divided on the ICC. Among the permanent members of the Council, China, Russia and the US are not state parties to the Rome Statute, and over the years, many of the Council’s African members have expressed concern that the court unfairly targets countries on the continent. The Security Council has referred two situations to the ICC: the situation in Darfur, in resolution 1593 of 31 March 2005, and the situation in Libya, in resolution 1970 of February 2011. Both resolutions obliged the parties to each conflict to cooperate fully with the ICC and also urged states other than Sudan and Libya to cooperate with the ICC. Some academic commentators have criticised these resolutions, including for recusing the UN from financial obligations regarding the referrals and imposing the financial burden solely on the ICC and for excluding nationals of non-state parties to the Rome Statute from the ICC’s jurisdiction, among other matters.

The relationship between the Security Council and the ICC and the implementation of Council referrals to the ICC have been widely debated by Council members and academia. Among other issues, these debates have focused on the Council’s failure to refer some situations in which atrocity crimes have allegedly been committed to the ICC and the Council’s relative indifference towards member states’ non-cooperation with the ICC on existing referrals. Reports from the ICC regarding member states’ lack of cooperation in this regard have often been ignored by the Council.

The Council held an open debate on the role of the ICC on 17 October 2012. Then Judge of the ICC Sang-Hyun Song and Phakiso Mochochoko of the Office of the Prosecutor of the ICC briefed. The relationship between the Council and the ICC was discussed during an open debate on working methods that took place on 23 October 2014. During this debate, then-Prosecutor of the ICC Fatou Bensouda briefed Council members on the value of strengthened cooperation between the Council and the ICC, particularly regarding follow-up on referrals. In July 2018, the Netherlands organised an Arria-formula meeting titled “UNSC-ICC Relations: Achievements, Challenges, and Synergies”. During the discussion, France raised the possibility of inviting states that do not comply with requests for cooperation from the ICC to meet with the Council, while Russia said that the ICC has failed to deliver and make progress on the situations referred to it by the Council. The US, which has persistently criticised the ICC, did not attend this meeting.

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