What's In Blue

Posted Mon 17 Jul 2023

Arria-formula Meeting on “The 25th Anniversary of the Rome Statute: the Contribution of the International Criminal Court to the Maintenance of International Peace and Security”

Tomorrow afternoon (18 July), there will be an Arria-formula meeting on “The 25th anniversary of the Rome Statute: the contribution of the International Criminal Court (ICC) to the maintenance of international peace and security”. The meeting was organised by Japan and Switzerland and co-sponsored by Security Council members Albania, Ecuador, France, Gabon, Ghana, Malta, and the UK and incoming Council members Guyana, the Republic of Korea (ROK), Sierra Leone, and Slovenia. The expected briefers are: Silvia Fernández de Gurmendi, President, Assembly of States Parties to the Rome Statute; Deborah Ruiz Verduzco, Executive Director, Trust Fund for Victims; Dapo Akande, Professor of Public International Law, University of Oxford; and Melinda Reed, Acting Convenor, Coalition for the ICC.

All member states and permanent observers have been invited to participate in the meeting, which will begin at 3 pm and take place in the ECOSOC Chamber. The meeting will be broadcast on UNTV, making it the second Arria-formula meeting to be streamed on UNTV in the last week after Russia’s 13 July Arria-formula meeting on “Migrants, refugees, and asylum seekers crossing borders on land and at sea: new wave of crisis” was webcast via the official UN channel.

In line with established practice, the webcasting of an Arria-formula meeting on UNTV can be blocked if a single Council member objects. Beginning with the 17 March Arria-formula meeting on the human rights situation in the Democratic People’s Republic of Korea (DPRK), no Arria-formula meetings had been broadcast on UNTV in recent months prior to Russia’s 13 July meeting, due to objections from Council members.

Japan and Switzerland have prepared a concept note for the meeting, which says that the ICC’s work relies on two fundamental principles: the principle of complementarity and the principle of cooperation. The concept note explains that, in accordance with the principle of complementarity, the ICC may only exercise jurisdiction where the states concerned are unwilling or unable to do so, and argues that collaboration between the ICC and member states is therefore crucial, particularly in obtaining evidence, facilitating witness protection, and enforcing the ICC’s orders. The concept note also highlights the Council’s powers to refer matters to the ICC and to suspend ICC investigations, and emphasises the role that the ICC’s work can play in facilitating restorative justice.

According to the concept note, the meeting will provide an opportunity for member states to reiterate their commitment to the Rome Statute and “consider the way in which the Court contributes to peace and security in a holistic approach to justice by way of complementarity and cooperation.” Several guiding questions are outlined in the concept note, including:

  1. Over the last 25 years, how has the ICC contributed to the maintenance of international peace and security?
  2. How can member states better support the ICC to expedite the fulfilment of its mandate?
  3. How do you assess the ICC and the Security Council’s collaboration and how could it be improved to achieve international peace and stability?
  4. How does the ICC contribute to restorative justice, in particular through its engagement with victims, and how does that relate to sustainable peace?
  5. How can regional organisations and other stakeholders such as civil society organisations support the ICC?

The Council has to date 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 urged states other than Libya and Sudan 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 other than Libya and Sudan from the ICC’s jurisdiction, among other matters.

In May 2014, China and Russia vetoed a draft resolution that would have referred the situation in Syria to the ICC. Just over a year later, in September 2015, France and Mexico presented the “Political Statement on the Suspension of the Veto in Case of Mass Atrocities” to the General Assembly, which proposed that the permanent members of the Council enter a “collective and voluntary agreement” to refrain from using the veto in cases involving mass atrocities. At the time of writing, more than 100 member states have signed the statement.

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 to the ICC some situations in which atrocity crimes have allegedly been committed and the Council’s relative indifference towards member states’ non-cooperation with the ICC on existing referrals. (The Council has often ignored reports from the ICC regarding member states’ lack of cooperation.)

The Council remains divided over the work of the ICC. Albania, Brazil, Ecuador, France, Gabon, Ghana, Japan, Malta, Switzerland, and the UK are states parties to the Rome Statute, while China, Mozambique, Russia, the United Arab Emirates (UAE), and the US are not. This distinction largely reflects how members view the ICC’s work, with the notable exception of the US, which has been supportive of the ICC’s efforts in Libya and Syria. Over the years, many of the Council’s African members have also expressed concern that the ICC unfairly targets member states on their continent.

Russia, which has regularly criticised the ICC, has expressed even stronger opposition since the ICC’s 17 March announcement that it had issued arrest warrants for Russian President Vladimir Putin and Russia’s commissioner for children’s rights, Maria Lvova-Belova, for allegedly committing the war crimes of unlawful deportation and unlawful transfer of children from Ukraine to Russia. On 13 July, during the Council’s semi-annual briefing on the ICC’s Darfur-related activities, Russia described the ICC as an “obedient tool in the hands of the west” and said that “it is high time we recognised frankly that the ambitious project of creating a truly universal and impartial international court has failed. We invite states that sincerely seek rightfulness, inevitability of punishment and national reconciliation to reflect on strengthening national justice and to stop participating in this politicised structure”.

Before that briefing, Japan and Switzerland delivered a joint statement on behalf of Council members and incoming members that are states parties to the Rome Statute (Albania, Brazil, Ecuador, France, Gabon, Ghana, Guyana, Malta, the ROK, Sierra Leone, Slovenia, and the UK).  Among other matters, the statement underlined “the important role played by the ICC in international peace and security” and reaffirmed the signatories’ “support for the [ICC] as an independent and impartial judicial institution”. A joint statement on behalf of these member states is also being prepared in connection with tomorrow’s Arria-formula meeting.

Sign up for What's In Blue emails

Subscribe to receive SCR publications