UN’s obstruction of its own mandate
October 22, 2012
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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.