International Justice

CJ354 Endicott College

UN’s obstruction of its own mandate

In preparing for our upcoming topic, the International Criminal Court, I came across an article in Reuters, discussing the statement by Song, the President of the Court, relating to the lack of support by the UN Security Council in cases of referral. Upon looking into the cases of Libya and Darfur, it became evident to me that most challenges faced by the Court are related to a lack of cooperation on the part of governments in question. As Song states, action must be taken by the Council to emphasize the importance of the assistance of its member states in its own cases. Otherwise, the referral of these mandates to the ICC is deemed senseless, which unfortunately has been the case in too many situations.

The article goes on to exemplify such cases. With respect to Darfur, following the indictment of Omar Hassan al-Bashir by the Court, African states voted not to cooperate with the decision, and even ICC member states, who are obliged to carry out the Court’s verdicts, let Bashir travel independently through their borders. In the Libyan case, on the other hand, Libyan authorities refuse to hand Gaddafi to the ICC to provide a fair trial on the basis of the charges in said war crimes. In trying to adjudicate him in its national courts, Libya will cause his trials to not be fair or impartial, thereby, in a sense, obstructing justice. As the mandate was referred to the Court by the Security Council, it has the power to pursue the case despite the fact that Libya is not a state party to the Rome Statute of the ICC. It will be decided by ICC judges whether Gaddafi should be extradited to the Hague or dealt with in Libyan trials, however in either case, the Security Council’s full support in ensuring the cooperation of the authorities of their own member state.

In a situation where the lawyer appointed by the ICC for Gaddafi can be detained in Libya based on allegations of espionage, there should be no need to highlight the crucial importance of the Council’s contribution to the case in dealing with their own member states, and taking action if necessary. However, in response to vague statements such as the one by the Secretary General himself, simply repeating the unease expressed by Song as if it constitutes a concrete solution, it seems like there is little that can be done.


2 responses to “UN’s obstruction of its own mandate

  1. Brian Wilkinson October 22, 2012 at 10:42 pm

    While it seems fairly safe to say military intervention for the purpose of extradition isn’t a practical (or legal) means to deal with this problem, I feel there are certainly steps that can be taken to ensure countries cooperate with referral.

    Why not consider economic sanctions? Freezing foreign bank accounts or cutting off access to international aid would have a serious effect on developing countries or those with a smaller GDP. For more economically powerful countries, limiting trade can have an immediate and significant impact on a country’s economic climate, which can bring it back to the negotiating table (see Iran over the past six months, dealing with an international embargo and a massively inflating currency). Countries who have limited trade opportunities, whether because of a nascent economy or limited exports, or whose leaders have a personal monetary stake in economic success will be more responsive to these types of sanctions (and, by and large, the countries engaged in the Darfur referral situation, fall into this category).

  2. blairebyg October 22, 2012 at 10:57 pm

    I think another case where this predicament has become particularly relevant and problematic is in the ongoing case of Syria. Because Syria cannot be referred to the ICC without the full support of the Security Council (Syria is not a signatory of the Rome Treaty and so cannot be referred by the prosecutor alone) the structure of the ICC is rather useless in this situation where so many human rights violations are occurring.

    This editorial ( by Bernard Kouchner that appeared in the New York Times in June of this year echoes the frustrations expressed by Song and emphasizes the need for support from human rights organizations, the UN secretary-general, and the victims of the crimes in Syria. However, regardless of how much ongoing support there is for the referral of Syria to the ICC, nothing can be done unless Russia and China agree, which is most likely not going to occur.

    I think this cases such as these really highlight the major weaknesses of the ICC and bring to the forefront the issue of international military intervention and whether it’s necessary in situations such as these, where there seems to be no compelling solutions. I think this Al Jazeera editorial concerning military intervention in Syria provides some interesting points about whether intervention may provide a better solution:

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