Missing the Mark: The ICC on its Relationship with the UN Security Council

(Photo: Spencer Platt/Getty Images North America)

Last week, for the first time since the International Criminal Court (ICC) was established, the United Nations Security Council debated its relationship with the Court. After two Security Council referrals (Darfur 2005 and Libya 2011), it was high time that the relationship was critically analyzed. Unfortunately, key issues which have undermined the independence and legitimacy of the ICC were left largely unaddressed.

There are many problematic issues with regards to the relationship between the ICC and the UN Security Council. Broadly, most fall under three categories: the potential tensions and dilemmas between peace-making/conflict resolution and international criminal justice; the inevitable selectivity that only some situations of mass atrocity will be referred by the Council to the ICC while other cases, which are just as deserving, will not; and the political constraints imposed by the Security Council on the ICC when it decides to refer a case to the Court.

The first problem is considered in the so-called “peace versus justice” debate. Included  is the issue of political will amongst Security Council states to back-up referrals with effective support. As readers will know, this blog is, to a large extent, dedicated to the relationship between international criminal justice on conflict resolution. With regards to selectivity of cases, it is my view that it is largely out of the control of the ICC but it is also compounded by the selectivity entrenched within the political constraints imposed on the ICC within Security Council referrals. As a result, this post focuses on the ICC’s seeming unwillingness to confront the Council’s political tailoring of referrals.

In a draft academic article on this subject, I argue that the language of the Security Council’s referral of Libya to the ICC is likely to undermine the Court’s independence, impartiality and, thus, its legitimacy. I focus in particular on three issues. First, Resolution 1970 includes a reference to Article 16 which allows the Security Council to stop the ICC’s investigations and prosecutions for 12 months (renewable yearly). Second, the referral explicitly excludes the ICC from investigating or prosecuting any citizens of states which are not members of the ICC. Third, Resolution 1970 stipulates that the Court can only investigate crimes after 15 February 2011.

All of these issues, for various reasons (see here), amount to the Council tailoring the ICC’s mandate to its political whims. Others are also concerned. At a recent conference, Christian Wenaweser, the former President of the ICC’s Assembly of States Parties, stated that there was “pretty much everything wrong” with the language inResolution 1970.

Sudanese President Omar al-Bashir (Photo: Reuters)

Much of the political wording of Resolution 1970 is simply copied and pasted from Security Council Resolution 1543, which referred Darfur to the ICC. One might also add that, in both the Libya and Darfur case, the Council has refused to provide any funding for the Court’s work and has subsequently provided little-to-nothing in diplomatic and political support.

It should thus come as no surprise that after two referrals, the political manipulation of the ICC by the Council isn’t exactly a secret. For example, Human Rights Watch touched directly on the question of political vocabulary and language, declaring that

“The two Security Council referrals to the ICC, Resolutions 1593 and 1970, have included provisions that are damaging to the court, Human Rights Watch said. Both referrals imposed the entire financial burden of the new investigations and prosecutions on the court and its member countries. They also allowed exemptions for the nationals of non-member third countries should they be implicated in serious crimes committed in the referred country.”

In this context, one might expect that the ICC to be eager to confront the Security Council about the language the Council has deployed in its referrals and request it to refrain from using such vocabulary in the future. Unfortunately, that was not the case.

Neither the Office of the Prosecutor (OTP) nor the President of the ICC commented on this question. The OTP danced around the edges of the issue, stating in its speech to the Council that:

It is important to underscore the need to respect the Office of the Prosecutor’s independence at all times. Once the Security Council decides to refer a situation to the Prosecutor, the judicial process has been triggered and the matter is fully in the hands of the Prosecutor and the Judges. The only way to stop the procedure is one of legal means, by invoking Article 16 of the Rome Statute. Efforts to interfere with the independent exercise of the Office’s mandate would only serve to undermine the legitimacy and credibility of the judicial process, thus giving credence to allegations of politicization.

Still, the OTP made no reference to the language of either Resolution 1970 or 1543.

Former ICC Chief Prosecutor Luis Moreno-Ocampo presenting at the UN Security Council last year (Photo: Mario Tama/Getty)

ICC President Judge Sang-Hyun Song also largely steered clear of the issue, although he did discuss the question of cooperation and financing investigations put in motion by the Council:

For the ICC to effectively deal with situations referred by the Council under Chapter VII, it needs to be able to count on the full and continuing cooperation of all UN members, whether they are parties to the Rome Statute or not. This includes not only cooperation in investigations and the gathering of evidence, but also in areas such as the execution of arrest warrants and tracing the assets of suspects. In making any future referrals, it would be very helpful if the Security Council could underline this obligation of full cooperation, without which it is very difficult for the ICC to discharge the mandate the Council has given it.

An area of concern for many ICC States Parties has been the financial implications of these referrals. This complex issue is principally for UN members to consider. Clearly it will be difficult to sustain a system under which a referral is made by the Security Council on behalf of the UN, but the costs of any investigation and trial proceedings are met exclusively by the parties to the Rome Statute.

Undoubtedly, these were important and timely remarks. But it remains curious that neither organ of the Court decided to voice its concern with that which, in many respects, has the greatest potential to undermine the ICC’s judicial independence and legitimacy, namely the political constraints applied by the Council to the Court’s mandate. In particular, it is troubling that the question of the ICC being instructed that it cannot investigate citizens of non-state parties was virtually ignored.

While deeply problematic, the bright side of the Darfur and Libyan referrals is that they are opportunities for the ICC to learn and improve. But such learning requires a willingness to critically assess past practices and not externalize blame. The fact remains that the ICC and many of its proponents readily accepted – and in some cases even celebrated – the Darfur and Libyan referrals. Perhaps there was something to celebrate, but certainly not everything and certainly not the highly politicized language within in Resolutions 1543 and 1970.

Of course, it is important to remember that the ICC is a relatively young institution. We cannot discount that a lot of what it does, it does for the first time. There are bound to be tough times and difficult lessons for the Court. But Libya was the second UN Security Council referral and there is something to be said about the old adage: “Fool me once, shame on you. Fool me twice, shame on me.” In the case of accepting the political tailoring of the Security Council, being a novel institution is no longer a sufficient excuse.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Darfur, ICC Prosecutor, International Criminal Court (ICC), Libya, Libya and the ICC, Sudan, UN Security Council. Bookmark the permalink.

7 Responses to Missing the Mark: The ICC on its Relationship with the UN Security Council

  1. Maya says:

    Mark, thanks for bringing up this timely issue. It’s an interesting debate to be had. Based on your report, I get the impression the ICC missed an opportunity to put some pressure on the Security Council, or at least did it in too diplomatic a fashion?

    Personally, I find Song’s comments right on point. The obstacles he mentions are indeed keeping the ICC from playing a more active role in Libya – and Cote d’Ivoire, which is in many ways the forgotten situation of the last twelve months, with all the attention that’s being lavished on Qaddafi and Son.

    I am not sure I follow your point about ‘political vocabulary.’ You seem to be talking less about vocabulary or language, and more about the substance of what is being prescribed in these resolutions. I don’t mean to be nit-picky, but when someone talks about vocabulary or semantics, I think they’re talking about the form not the substance. But you in fact seem to be taking issue with what the SC is and isn’t authorizing, and not *how* this is articulated? Maybe you could clarify this for me.

    On substance, I sympathize with your second concern, i.e. about the immunity agreements that are still mentioned in the 2011 referral. There is absolutely no legal argument to be made in favor of this practice. It must stop.

    But I am less sure you have it right regarding points 1 and 3. As I’ve said before in the comments section of this blog (in fact, in one of your other posts to which you’ve linked in the body of this very post), I am not sure the SC can, in fact, authorize retroactive investigations and prosecutions under the Rome Statute. Presumably it cannot as the principle of non-retroactivity is firmly anchored in general human rights law, international humanitarian law, and international criminal law (outside the Rome Statute). The Rome Statute itself famously does not allow any prosecutions for crimes committed before 2002, and since Libya was not, and is not, a Party to the Statute, outside of the SC referral, I am not sure how the SC can just ignore this fundamental principle of criminal law. For those who think this is a technical legal point, vide the DC Circuit’s decision in Hamdan last week: http://opiniojuris.org/2012/10/16/d-c-circuit-material-support-for-terrorism-not-a-war-crime-prior-to-2001/ This is a different context, and slightly different body of law (customary), but the ramifications of a violation are anything but trivial. Even US courts are loath to ride roughshod over lex retro non agit.

    Regarding article 16 — again, I am not sure the word ‘political’ is enough to cast doubt on the legality of SC measures. The Rome Statute clearly gives the SC the power – i.e. it is LEGAL to do so – to defer prosecutions under certain circumstances. The circumstances may indeed be highly ‘political’ and may thus give rise to serious concerns… but that’s if the SC actually invokes its art. 16 powers. It has never done so! How is is ‘political’ for the SC to state for the record that it has certain legal powers under the Rome Statute? Are you worried that the ICC will be intimated by the SC reminding it of its Rome Statute powers?

  2. ASGaland says:

    Dear Mark, thank you for this once again really interesting post. It has to be acknowledged, indeed, that you are one of the most reliable resources in keeping tracks about events that involve issues related to the relationship between international criminal justice and conflict resolution. The SC referrals to the ICC are one of these instances where international criminal justice is supposed to play a great role in conflict resolution.

    At the time of drafting the Rome Statute, the SC relation with the ICC was framed in an equivocal way. After intense negotiations, it was finally agreed in Rome that the supreme organ of the United Nations, in its capacity as the primary responsible for the maintenance of international peace and security would be allowed to take part in this immense project of creating an International Criminal Court. More specifically, the SC was given the unique power and discretion to balance the interest of justice against the interest of peace. No other actor within the international community has this competence with respect to the exercise of jurisdiction by the ICC. To be sure, neither States nor the OTP is allowed to refer a situation regarding a State not party to the ICC or defer an investigation or prosecution of the Court.

    While the SC meeting you are commenting is titled “Peace and Justice, with a special focus on the role of the International Criminal Court”, we should bear in mind that Article 13 (b) and 16 of the Rome Statute reflect the special role of the SC in respect with peace and justice. The two referrals to the ICC show that the SC has assumed – albeit weakly – its role with regards to justice. On the other hand, the African Union calls on the SC to defer the situations in Darfur and Kenya show that some states sometimes believe the ICC is impeding the pursuit of peace and stability, and that the SC should assume its role with regards to peace. While the SC ignored these demands, I do have to remind Maya who in its response to your post says that SC has never invoked its Article 16 power that it did so 2 times. Indeed, Resolutions 1422 and 1487 “request, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period {…} not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise”.

    While Resolution 1422 and 1487′ legality is arguable (was there a threat to international peace and security requiring the SC to invoke its Chapter VII powers), I do not completely agree with you when you criticize the fact that Article 16 is referred to in Resolution 1593 and 1970. This is an article of the Rome Statute which the SC might use if international peace and security requires it at a later stage. As the references to Article 16 are in the preambular paragraphs of resolutions 1593 and 1970 they do not alter the referrals under Article 13 (b) which are contained in the operative paragraphs. On the other hand, some have suggested that the SC should refer to Article 27 in the operative paragraphs of the resolution in order to ensure that the issue of immunity of State officials be settled without controversies such as the ones witnessed in the Al Bashir case.

    Concerning the issue of the ICC being instructed in the referrals that it cannot investigate citizens of non-state parties, I fully agree with you that it should have been discussed. This tailoring of the jurisdiction ratione personae of the Court due to the diplomatic vagaries of the SC is indeed unacceptable. As you know Brazil and Philippines harshly criticized operative paragraph 6 of resolution 1593 during the meeting to vote on the said resolution; it is unfortunate these two countries did not intervene at the SC meeting that we are now discussing.

    Regarding the date of 15 February 2011 as the date from which the ICC may investigate and prosecute crimes that occurred in Libya, there are reasonable arguments that can be put forward to justify this. Events prior to this date might be falling within the jurisdiction ratione materiae of the Court, and this without necessarily violating the principle of Nullum Crimen Sine Lege as many of the crimes and modes of liability contained in the Rome Statute are customary international law. However, the events that occurred ante 15 February were not part of what the SC deemed as requiring it to invoke its Chapter VII power on the February 26, 2011, the date resolution 1970 was adopted. All the preambular paragraphs of resolution 1970 are referring to facts and considerations that were related to “the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and […] the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government .” If the referral would have been retroactive to let us say July 2002, the ICC might have been investigating and prosecuting events totally unrelated to what led the SC to act on February 26, 2011.

    Unfortunately, the selectivity of the SC in its referrals is not only reflecting the constraints the UN Charter imposes on the SC but is also emblematic of the reasons ”why the call for SC reform grows louder as the days go by.”

  3. Mark Kersten says:

    Maya and ASGaland,

    Many thanks for your thoughtful and thought-provoking comments. I found them very useful in shaping my own thinking on these matters and I am certain the will shape my future writing on this subject. I want to respond to two issues in particular.

    First, the question of Article 16. I agree with you that it isn’t inherently problematic that a legal article that exists within the Rome Statute is invoked in a UNSC Resolution. In a longer academic article on the subject, I discuss this issue at greater length. However, it seems to me that proponents of the ICC would like to do everything possible to prevent Article 16 from being invoked. In this light, the reference to Article 16 in UNSC Resolutions is a step back towards the politicization of the Court through decision-making by the Council.

    With regards to the February 15 limitation, I appreciate your points that it may 1. be defensible and 2. it may be problematic to extend the jurisdiction of the Court prior to that date. However, I still believe that a political implication of restricting the Court’s jurisdiction is protection from investigation of some states for their complicity in serious crimes from (approx.) 2002-2011. The question that still needs to be answered is whether the members of the UNSC purposefully chose February 15 to avoid unsavoury actions being exposed and whether extending jurisdiction back to 2002 was discussed and rejected. I would be interested to know if such debates also occurred for the Darfur referral.

    Many thanks again!


    • Maya says:

      Mark, I think you’re missing the mark here (to quote from your title and engage in some punning!):

      “With regards to the February 15 limitation, I appreciate your points that it may 1. be defensible and 2. it may be problematic to extend the jurisdiction of the Court prior to that date. However, I still believe that a political implication…”

      Sorry, but once again – this is not a political question. It is purely legal. One cannot play fast and loose with fundamental principles of law or else the law has no value. As a lawyer, I can’t stress how important this is. Here’s an analogy to illustrate my point: it is clear that the 2002 cut-off date for the ICC’s investigations of international crimes is completely arbitrary. Crimes were committed before that date, and there’s no reason why the victim of a rape committed in 2001 should not obtain redress while the victim of rape in 2003 can invoke the Rome Statute.

      Sure, this is arbitrary, and sure it has political ramifications.

      But it is a purely legal issue. Your insisting that we can analyze the 15 February cut-off date in political terms only makes sense if the Rome Statute and international law allows the Rome Statute to authorize retroactive investigations in the first place. My understanding is that does not, but – as I’ve said before – I may be wrong about this. I haven’t yet heard any convincing argument to the contrary, and Garland’s comment about these being “crimes under customary international law anyway” (to paraphrase) is not very persuasive. The Rome Statute wasn’t meant to codify customary law, nor is it clear that the ICC has jurisdiction over customary international crimes – in contradistinction to codified Rome Statute crimes. Sure, there is overlap, but once again this is a technical legal point and it must be viewed separately.

      Despite this discussion being technical and legal, I think it obviates the need for any discussion of ‘the political.’ Again, to use an analogy: I haven’t seen any articles or books developing elaborate arguments against the arbitrary 2002 cut-off date, examining the political ramifications thereof, etc. — and there’s a simple reason for that. It’s a waste of time. The law says 2002 and nobody – the Prosecutor, the Security Council, God (some may disagree with the last point) – can change that. So my friendly advice is, before you write an article examining the political ramifications of something that in legal terms is a non-issue, make sure there is a legal discussion to be had. In my opinion, you wouldn’t gain any academic prestige by writing an article that examines the ‘political ramifications of the Rome Statute’s lack of jurisdiction over crimes committed before 2002.’ It’s a non-issue in legal and practical terms, and so ‘the political’ is moot.

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