Some of the best responses to both failed and successful UN Security Council resolutions are seldom read or heard because they come from small or middle-power states and because they get lost in the fray of big-power rhetoric. Just one notable example is Brazil’s insistence, following both the Security Council’s referral of Darfur (2005) and Libya (2011) to the International Criminal Court (ICC), that exempting citizens of non-states parties fundamentally undermines the ICC as an institution and international criminal justice as a project.
Last week, in response to the failed referral of Syria to the ICC, Argentina’s Ambassador to the UN, Ambassador María Cristina Perceval lambasted the Security Council. But she did so not simply for its failure to refer Syria to the Court. Instead, Perceval slammed the Council for its insistence in propagating referrals which undermine the ICC and which entrench a system of uneven, selective justice. In doing so, Perceval covered many of the key – and crucial – concerns within the proposed referral. Below is the relevant section of her hard-hitting and eloquent statement. Hopefully the Security Council – and the ICC itself – take note.
Following our political resolve, our ethical responsibility and respect for international law, Argentina voted in favour of the referral of the situation in Syria to the ICC. Our sole, firm and clear objective was the investigation and prosecution by the Court of perpetrators of crimes under the Rome Statute and the recognition of the inalienable right of victims to “truth, memory, justice and reparation”.
But at the same time Argentina decided not to cosponsor this initiative, because it was also our objective to preserve the integrity of the Statute, which requires that referrals by this Council be formulated in the adequate terms so as to not to undermine the legal foundations of the Rome Statute or its validity as well as the Court’s effectiveness.
On the one hand, there seems once and again to be the purpose that we accept the exercise of selectivity when it comes to justice; that we are not surprised that faced with comparable situations where heinous crimes are committed are considered to be susceptible of being referred to the Court while not others.
On the other, there seems to be the purpose that we accept the belief that undermining the integrity of legal instruments does not in any way hinder the objective of achieving justice. Sometimes recourse is made to very sophisticated arguments, although mainly applying the pragmatic principle that the end justifies the means. But we learned from experience that not every means leads to the objective sought.
To Argentina, as well as many other Members, normal recourse to arbitrariness, legal regression and pragmatism without values are not valid options.
In our view, every heinous crime has to be taken to justice, wherever it is committed and by whomever. Just as with human rights it is not possible to maintain we respect some but not others, we cannot maintain we defend the applicability of some provisions of a norm, but not its entirety.
Already in 2005, when this Council adopted Resolution 1593 (2005) referring the situation in Darfur to the ICC and being Argentina one of its members, we maintained that certain elements of the resolution should not become permanent. But today we face the same scenario, as the text of the draft: a) reflects the intention that the referral dealt with today affects certain subjects while not others; b) it admits exemptions from the material scope of the Court’s jurisdiction and from the obligation to cooperate with the Court, and c)it includes a provision indicating that the Council “recognizes” that the expenses arising from this referral will not be defrayed by the United Nations but by States Parties to the Rome Statute or voluntary contributions, thereby contravening the provisions of the Rome Statute.
Is it necessary to remind that the Security Council has the power to oblige all Members of the United Nations -Parties and Non Parties to the Rome Statute- to cooperate with the Court?
It is disappointing that this Council does not put that ethical obligation into practice.
As regards exemptions to the jurisdiction for nationals of States non-Parties to the Statute and the non-financing of the referrals by the United Nations, I must state not only the firm objection of Argentina to this kind of provisions but also our understanding of their operation, including in the two referrals already made:
According to the Rome Statute, the Court, in a referral, exercises its jurisdiction over nationals of Parties and non-Parties of the Rome Statute. No pronouncement of the Security Council has the power to amend the Statute so as to grant immunity to nationals of States non-Parties committing Statute crimes in a situation referred to the Court. That is to say, nothing in the text of paragraph 7 or of any other paragraph of the draft just voted would have had the power to alter the norms of the Statute with regard to neither the jurisdiction of the Court in the situation nor the fact that, in case a decision is needed, the Court is, in the end, the judge of its own jurisdiction.
As regards the financing of the referrals, the provision included in paragraph 8 does not conform to the Rome Statute and the Relationship Agreement between the U.N. and the Court, and it is blatantly unfair. Argentina disagrees with the approach of the Council attempting to indicate that the expenses of the referral will not be defrayed by the United Nations. The Council cannot arrogate to itself a power it does not have, such as that of deciding on the financing of a referral. According to the Charter, that is a competence of the General Assembly. This is clear even in the text of paragraph 8, which refers to General Assembly resolution 67/295. The General Assembly, following the Relationship Agreement with the Court, decide in a timely manner on the financing of referrals made by the Council.
I would like to conclude by expressing that this is an extremely delicate and painful session. What we should have done in good faith and failed, which is to “speak with one voice”, was finally done by impotence: countless victims have heard this Council was unable to reach agreement for stopping an annihilating violence and also to eradicate a humiliating impunity, and to recover Syria’s lost peace.
But, “the noble mission and the role of the International Criminal Court in a multilateral system that aims to end impunity, establish the rule of law, promote and encourage respect for human rights and achieve sustainable peace, in accordance with international law and the purposes and principles of the Charter of the United Nations”, as recalled in the Kampala Declaration does not allow us to assume as a fact that we will never achieve what we have not been able to achieve until now.
Injustices are too many for us not to be fully confident that this Council, sooner than later, will change both its idea of power and its ways.