Wednesday, August 12, 2015

The Relationship between the ICC and the UN Security Council

Recent events in Ukraine and Syria have spurred interest in the UN Security Council's ability to request a referral of a situation to the ICC.   Kenyan officials have also drawn attention to the Council when they seek out a request by the Council for a deferral of the situation in Kenya.  This post intends to inform readers about the historical and present relationship between the ICC and the UN Security Council.
The International Criminal Court (ICC) was established at a United Nations (UN) conference as an independent international organization.  While the two organizations share common goals of preventing and responding to mass atrocities, they operate independently of one another.  However, the Rome Statute includes two provisions regarding the UN Security Council which coincide with the responsibilities of the Council as established in the UN Charter.
Chapter VII of the UN Charter grants primary responsibility to the UN Security Council to maintain international peace and security.  The ICC’s Rome Statute instructs ICC judges on how to respond to a Security Council request for a referral of a situation before the ICC, even if these situations involve non-state parties to the Rome Statute.  The Rome Statute also instructs the Court on how to respond to a request for a deferral of a situation by the Security Council.  If the Council finds that ICC involvement would interfere with a situation on the Council’s agenda, it can defer the situation for up to a year, and the request can be renewed indefinitely.  While the ICC can reject a request for a referral, it cannot reject a request for a deferral.  The Security Council is acting under Chapter VII of the UN Charter when it refers and defers situation; thus, this authority does not come from the Rome Statute. 
The UN Security Council issued two situation referrals since the ICC’s establishment in 2002.   The referrals are issued through resolutions.  UN Security Council resolutions are binding upon UN member states.  As of August 2015, there are 193 member states of the UN, and there are 123 states parties to the Rome Statue of the ICC.   Furthermore, any resolution that is vetoed by one of the 5 permanent members of the Security Council (United States, Russia, China, United Kingdom, and France) will not be passed.  It is important to be aware that these resolutions differ from resolutions passed by the UN General Assembly.  General Assembly resolutions are non-binding, and so they act as recommendations to member states.
The Security Council issued its first referral to the ICC in March 2005, following a report by the UN International Commission of Inquiry on violations of international humanitarian and human rights law in Darfur.[i]  Resolution 1593 was passed 11-0 with four abstentions from the U.S., Algeria, China, and Brazil.  In the resolution, the Council demands that the government of Sudan and related parties to the conflict in Darfur cooperate with the ICC.  The Council also urges all states to cooperate, while recognizing that non-state parties to the Rome Statute do not have an obligation to do so.  The Council also encourages the ICC to support domestic efforts to promote the rule of law in Darfur.  Furthermore, the resolution says that states contributing to international activities in the Sudan that are not parties to the Rome Statute shall have exclusive jurisdiction over its nationals, unless that right is waived by the state.  The resolution also notes that expenses incurred in connection with the referral are to be covered by parties to the Rome Statute or states that have contributed voluntarily; the UN would not cover any of the expenses.  These two provisions were included at the strong request of the United States.  The Prosecutor opened an investigation in June 2005.  Several arrest warrants were issued in the years following, including one for Omar al-Bashir, the President of the Republic of Sudan, who recently evaded arrest when attending a meeting of the African Union in South Africa.
Security Council Resolution 1970 referred the situation in the Libyan Arab Jamahiriya to the ICC in February 2011.  The resolution passed unanimously, and the section regarding the ICC contained much of the same wording as Resolution 1593.  However, it contains a more comprehensive condemnation of the situation.  Apart from the ICC referral, the resolution also contains instructions for an arms embargo on the Libyan Arab Jamahiriya, as well as a travel ban and asset freeze on a number of individuals.  Furthermore, the Council called upon UN members to “facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance in the Libyan Arab Jamahiriya.”[ii]  The Prosecutor opened an investigation in March 2011.  Three arrest warrants were granted in June 2011, one of which remains active as of August 2015.  Muammar Gaddafi’s case was terminated following his death.  He was the Libyan Head of State at the time.  Abudllah al-Senussi’s case was dismissed after the Appeals Chamber confirmed Pre-Trial I’s decision that the case was inadmissible before the ICC.  The final warrant is for Saif al-Islam Gaddafi, the son of Muammar Gaddafi, for two counts of crimes against humanity.  Saif al-Islam Gaddafi remains in the custody of Libyan officials who refuse to hand him over to the court, despite the binding Security Council Resolution.  In July 2015, a Libyan court convicted a number of officials who had served under Muammar Gaddafi, including Saif al-Islam Gaddafi and Abdullah al-Senussi.  They were both sentenced to death.  Many have questioned whether these legal proceedings and the detention of these individuals are fair and humane.   Furthermore, Libya’s bid to prosecute Saif al-Islam Gaddafi had been rejected by ICC judges.
Critics argue that the Security Council has not done enough to support the Court in these two situations.  The ICC does not have the same type of enforcement mechanisms as the Council, and these critics contend that the Council should have a greater role in enforcing ICC arrest warrants.  Fatou Bensouda, the Chief Prosecutor of the ICC, criticized the Council in December 2014 for failing to be “spurred into action,” noting that the Council has never provided a “strategic recommendation” to her office in regard to the situation in Libya.  She called upon the Council again in June 2015 to establish greater efforts in ensuring that Sudan complies with the Council’s resolution.  She also urged states parties to establish a better way to arrest individuals wanted by the ICC.[iii]
In that December 2014 statement, Bensouda also stated that “UN reports are an important and unique source of public information that [the Office of the Prosecutor] relies on for its activities in most situations.”[iv]  However, the ICC is an independent organization which conducts independent investigations.  The findings of a UN report do not determine the outcome of an ICC investigation.

[i] UN Security Council, Security Council Resolution 1593 (2005) on Violations of International Humanitarian Law and Human Rights Law in Darfur, Sudan, 31 March 2005, S/RES/1593 (2005)
[ii] UN Security Council, Security Council resolution 1970 (2011), 26 February 2011, S/RES/1970 (2011)
[iii] UN Security Council, 7478th Meeting Coverage, 29 June 2015, SC/11954
[iv] Bensouda, Prosecutor of the International Criminal Court, Statement to the UN Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005), 12 December 2014,

Written by Michaela Dougherty