International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Spring 2017 Issue

Global Judicial PERSPECTIVe


The Security Council and the International Criminal Court

Richard J. Goldstone

By: Richard J. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor Monitor

The African Union and some African States have protested the alleged bias of the International Criminal Court (ICC) toward Africa. In support of this allegation reliance is placed on the fact that eight of the nine situations currently before the Court relate to African States. This is a hollow argument - four of those situations were referred to the ICC by African governments themselves, two were referred by the Security Council, with the support of the African members of the Council. Only the remaining two situations are the consequence of the Prosecutor using his or her own power to seek an investigation by the Court. It has been more a case of Africa using the ICC than the ICC choosing to prosecute in African situations.

A more convincing argument also advanced by some African States and their leaders is the unfairness of the ICC not having before it investigations into the  notorious and far more egregious war crimes that have been committed and are still being committed in Syria and those that were committed in Sri Lanka. The reason for those glaring omissions is firstly, the lack of jurisdiction absent  ratification of the Rome Statute by those States and, secondly, the protection afforded to Syria and Sri Lanka by one or other permanent member of the Security Council. The ICC can only assume jurisdiction over war crimes committed in Syria or Sri Lanka by way of a referral by the Security Council under Article 13 of the Rome Statute together with its peremptory powers under Chapter VII of the Charter of the United Nations. The result is certainly unfairness and imbalance in the manner in which the investigation of the most serious war crimes come before the ICC.

The appropriate response to the ignominious shield given by some permanent members of the Security Council to war criminals is not to withdraw from Rome Statute. It is rather to shame and hold to account those member states who exercise their veto in such a brazen and shameless way. That conduct should receive far more open criticism in the halls of the United Nations and especially in the Security Council. That conduct reflects badly on the Security Council itself. It makes a mockery of the equality of nations that underlies the Universal Declaration of Human Rights and the United Nations Charter.

There is yet a more serious criticism of the Security Council with regard to its relationship to the ICC. In order for the Council to refer a situation to the ICC under Article 13 of the Rome Statute, it must determine that there is a threat to international peace and security and that the referral is for the purpose of removing that threat. The ICC is not bound to accede to such a referral. The ICC Prosecutor, under Article 53 of the Rome Statute, may decline to institute an investigation where she or he comes to the conclusion that “there is no reasonable basis to proceed” or that “an investigation would not serve the interests of justice.” In the cases of both situations referred to the ICC by the Security Council, Sudan and Libya, the Prosecutor instituted an investigation, and the Court issued arrest warrants directed to individuals in each of the respective States.

Those two Security Council referrals have been anything but to the credit of either the.Council or the ICC. The first problem relates to the terms of the Security Council resolutions which embodied the requests. In order to avoid a veto from the United States, the Security Council, firstly, resolved that the referrals would not bind any member states, (other than Sudan and Libya, respectively), that had not ratified the Rome Statute. This was to ensure that nationals of the United States, and especially its military personnel, were not subject to the jurisdiction of the Court. Secondly, the resolution explicitly provided that no United Nations funds might be used to assist the ICC with regard to the situations referred to it. Sufficient members of the Security Council considered that these unmeritorious and indeed extortionate conditions were worth the price demanded by the United States for not exercising its veto. In the case of Sudan, the United States abstained and in the case of Libya it voted in favour of the relevant resolution. To its credit Brazil abstained in the first case to protest the Council having acceded to the demands of the United States.

The next setback for the ICC arose from the referral of the situation of Sudan and the war crimes allegedly committed in its Darfur region. Sudan refused any


cooperation with the ICC. Indeed, the Government of Sudan demeaned the Security Council by denying the validity of its resolution and hence the jurisdiction of the ICC. The result has been that, after lengthy investigations and charges of genocide and crimes against humanity brought against leaders of Sudan, including President Omar Al-Bashir, and serious efforts to arrange for their arrest, the Office of the Prosecutor, in the face of abject failure, has had to suspend its proceedings against Sudan. To its discredit, the Security Council has adopted a supine attitude with regard to the blatant disregard by Sudan of its obligations under the United Nations Charter. It has taken no steps at all to support the ICC which, after all, has been acting on its referral.

In the case of Libya too, none of the persons against whom warrants of arrest have been issued by the ICC has appeared in The Hague. In respect of one of them, Abdullah Al-Senussi, former Libyan intelligence chief, the ICC has recognised the complementarity rights of the Libyan courts and declined to confirm its own jurisdiction. In respect of a second defendant, Saif al-Islam Gaddafi, a former Libyan political figure and a son of late Libyan leader Muammar Gaddafi, the Libyan government was not able to transfer him to The Hague as he had been arrested and appears to have remained under the control of a rebel group operating in Libya.

According to a November 2016 statement issued by the Prosecutor of the ICC, new arrest warrants are being sought under seal in the Libya situation. She has stated that “Timely execution of these new arrest warrants will be crucial, will require coordinated efforts by States, and may also require support from the Council.” She pointed out that the additional funding required for these further cases will come at the expense of other crimes in other situations and for this reason also the assistance of the Council is important. She added: “I appeal to this Council to recognise the collective responsibility arising out of your referral and to support financial assistance by the United Nations for my Office’s Libya investigations in 2017. The Libyan people deserve no less.” Based on its policies to date, the support she is seeking from the Security Council is unlikely to eventuate. Certainly the prospects of the Council lifting the bar on UN funds being allocated to assist the ICC are remote.

The experience of the ICC with regard to referrals from the Security Council has thus been a dismal one. I would suggest that, without more vigorous support from the Council, further referrals on the terms of the two past resolutions are unlikely to be more successful. Apart from the significant costs issue, the lack of political support from the Security Council in the case of Sudan has left the ICC unable to enforce the mandate it received from the Council. Under Chapter VII of the United Nations Charter, the Council is authorised to take enforcement action not involving the use of force. Sanctions can be imposed on states, groups or individuals. The range of sanctions includes comprehensive economic and trade sanctions and more targeted measures such as arms embargoes, travel bans, and financial or diplomatic restrictions. None of those measures has ever been considered by the Security Council even in the face of the aforementioned contemptuous attitude of Sudan for its Charter obligations.

If there is another referral of a situation by the Security Council to the Prosecutor of the ICC, I would suggest that before considering whether there is a reasonable basis to proceed or whether it is in the interests of justice to proceed the Prosecutor should debate with the Security Council the terms of the referral. The costs issue should be pressed and the Prosecutor should insist on the United Nations being responsible for at least a proportion of the costs to the ICC of it accepting the referral. There should be a negotiation on which members of the United Nations will be bound by the resolution. Above all, the resolution should commit the Security Council to lend appropriate support to the ICC with regard to its requests and orders being respected and implemented by the relevant State or States. I fully appreciate that it would be difficult for the Prosecutor to make such an approach to the Security Council. On the other hand, a Security Council referral is very much a political step and there is no reason for the Prosecutor not to negotiate its terms. It would be advisable for this issue to be raised as soon as possible with the Secretary-General in order for him to advise the Security Council appropriately in the event of another referral being considered by the Council.

The ICC is going through a difficult period when it is subject to many criticisms and its efficacy is being debated in many capitals around the world. It should, at all cost, avoid another debacle arising from a deficient resolution of the Security Council referring another situation to it.

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© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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