Last week, Mark Kersten posted to Justice in Conflict about recent discussion within the UN Security Council (SC) regarding the relationship with the ICC. Admittedly, there are inherent tensions between the SC and the nature of the Court (such as questions of sovereignty, institutional independence, financial responsibilities, etc.) but many of these questions and tensions cannot go unanswered much longer.
The SC has referred 2 cases to the ICC since its inception 10 years ago (Darfur, Libya) which (one would assume…) delegates authority of investigation and prosecution to the Court. Though, Kersten points out that the language within these referrals, particularly the Libyan referral, “undermines the Court’s independence, impartiality and, thus, its legitimacy.” Article 16 of the Rome Statute, referenced in Resolution 1970, “allows the SC to stop ICC investigations and prosecutions for 12 months (renewable yearly), the referral explicitly excludes the ICC from investigating or prosecuting any citizens of states which are not members of the ICC.” These limitations on the ICC’s ability to conduct a thorough investigation coupled with the potential threat of ceasing all investigations, as Kersten rightly concludes, undermines the Court’s independence and legitimacy.
A further issue to be considered, and is also raised by Kersten, is the issue of funding. The SC has referred two cases to the ICC and simultaneously refused to provide funding to conduct investigations. Even the President of the ICC’s office mentioned this issue in a public statement, “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.”
As stated above, the SC recently discussed the relationship of the Court and the Council, but many of these particular issues in question were unaddressed. Although the ICC is a young institution, it will quickly find that it cannot sustain to have referrals from the SC without the cooperation, in funding and policy, to independently pursue international justice.
What do you think the future of the Security Council and the ICC look like?