International Justice

CJ354 Endicott College

The ICC & Security Council: Can They Work Together?

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?


One response to “The ICC & Security Council: Can They Work Together?

  1. amyg414 November 5, 2012 at 8:36 pm

    It’s quite interesting that this is the first time the UN Security Council has thoroughly analyzed its relationship with the ICC since the court was created some ten years ago, especially when, as you’re mentioned, the Security Council referred the Darfur (2005) and Libya (2011) situations to the ICC. The fact that they failed to address many problems that have undermined the legitimacy of the ICC in their assessment is also quite revealing with respect to how complicated, or strained, the relationship between the ICC and the Security Council is.

    I agree with the assessment that the ICC will be difficult to sustain when investigative and trial costs of referrals made by the Security Council are met solely by the parties to the Rome Statute. However, I believe that the number of situations that will be referred by the Security Council will be limited. There are many situations—including Burma, Chechnya and Gaza—that have not been referred to the ICC as a result of the veto powers of the permanent members of the Security Council. I do certainly feel that there is therefore some merit to the criticism that the Security Council referral process is politicized. This is particularly evident in the rapid referral process that occurred with the Libya case. Further, it seems as though Darfur was referred by the Security Council because it was unwilling to intervene in a more active way itself following outcry over crimes which constituted human rights violations.

    I’m glad you mentioned that the Security Council being able to stop ICC investigations and prosecutions for 12 months undermines the ICC’s independence because this is something that struck me during our lectures and readings from this section of the course. If the Security Council can turn proceedings off (even if they referred the situation), and then defer the proceedings again this certainly undermines the legitimacy and independence of the ICC. Further, the Security Council turning proceedings on and off will more than likely be seen as politically motivated.

    I suppose there’s no easy way to definitively determine what the future of the relationship between the ICC and the Security Council will be. I do think that Security Council referrals to the ICC will be limited, and perhaps this is best to avoid politicization and the undermining of the ICC’s legitimacy.

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