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In Hindsight: The Security Council and the International Criminal Court

July marked the 20th anniversary of the signing of the Rome Statute establishing the International Criminal Court (ICC). The statute established the ICC’s jurisdiction over genocide, crimes against humanity and war crimes. 17 July also marked the activation of the court’s jurisdiction over the crime of aggression, as decided by the 16th session of the ICC Assembly of States Parties held between 4 and 14 December 2017. 

At the culmination of the Kampala Review Conference of the Rome Statute in June 2010, the Assembly of States Parties adopted resolution RC/Res.6 amending the statute, defining the crime of aggression for the purposes of the statute. The crime of aggression was defined as planning or participating in certain forms of use of force (for example, military invasion, occupation or annexation) by a state against the sovereignty, territorial integrity or political independence of another state.

Perhaps the most contentious and politically sensitive issue in the negotiations over the amendment to the Rome Statute was the role that Security Council action might play with respect to how the court would approach crimes of aggression. And, while France and the UK are the only permanent Council members that are also states parties to the ICC statute, China, Russia and the US all sent delegations to participate in unofficial talks that took place at the margins of the conference. It was agreed, on the one hand, that the court may exercise jurisdiction over the crime of aggression without a Council referral, while, on the other, a prior determination of the Council that an act of aggression had occurred should not prejudice the findings of the court, even in the case of a Council referral.

One final concession was made to obtain the agreement of the permanent members (P5), namely that where a state party has declared that it does not accept the court’s jurisdiction over the crime of aggression, the court can exercise this particular jurisdiction in respect of that state party only where there has been a referral by the Security Council. During its 16th session, the assembly further decided that the court does not have jurisdiction in respect of the territory or nationals of any state that has not accepted the amendments resolution (i.e. has not positively deposited an instrument of ratification or acceptance of the amendments with the Secretary-General) for the crime of aggression unless there is a UN Security Council referral. This was the position advocated by the majority of state parties, including some traditionally known for their support of the jurisdiction of the court, such as Canada, France, Japan, Norway and the UK.

The Rome Statute gives the Security Council a unique jurisdictional role. Article 13(b) of the statute grants the Council the power, acting under Chapter VII of the UN Charter, to refer to the ICC situations in which crimes under the jurisdiction of the court have taken place. Article 16 of the statute, on the other hand, allows the Council to defer an investigation or prosecution for one year through a Chapter VII resolution, for reasons relating to the maintenance of international peace and security.

The role of the Council vis-à-vis the ICC and the complexities of implementing its referrals have been widely debated among Council members. Among the areas of controversy has been the failure to refer some situations in which mass crimes were allegedly committed.  The Council has also been relatively indifferent towards states’ non-cooperation with the ICC on existing referrals, refraining from taking action on the 13 decisions of the court regarding the non-compliance of UN member states. Among the 2018 Council members, eight—Bolivia, Côte d'Ivoire, France, the Netherlands, Peru, Poland, Sweden and the UK—are parties to the Rome Statute.

So far, the Council has referred only two situations to the court under Article 13(b): the situations in Darfur, in resolution 1593 (2005), and in Libya, in resolution 1970 (2011). These resolutions placed the financial burden of the investigations exclusively on the ICC and excluded from ICC jurisdiction foreign nationals operating under Council authorisation. While imposing an obligation on parties to the conflict to cooperate fully with the ICC, the resolutions merely urged states other than Sudan and Libya to cooperate with the ICC, noting that they were under no obligation to do so. 

In the most recent attempt by the Council to activate the court’s jurisdiction, China and Russia vetoed a resolution referring the situation in Syria to the ICC on 22 May 2014. Currently, a group of NGOs have begun to push for the Council to adopt a resolution referring Myanmar to the ICC. While some members are supportive of this idea, it is understood to be a non-starter for China at present.

Council decisions over the years have included some statements in support of the ICC in both thematic and country-specific resolutions. For example, the Council called on Côte d’Ivoire to cooperate with the court in resolution 2045 (2012). In resolution 2106 (2013) on women, peace and security, it acknowledged that the court has strengthened the fight against impunity for the most serious crimes committed against women and girls.

This trend has shifted in the last few years, as non-states parties among both permanent and elected Council members have pushed to limit ICC-related language in Council decisions or to eliminate it completely, as seen most recently in the negotiations over resolution 2423 of 28 June concerning the renewal of the mandate of the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), and the adoption of resolution 2427 of 9 July on children in armed conflict.

African countries, including ICC state parties, have also been critical of the ICC over the years. The AU has taken the position that the ICC is overly focused on African situations and should not prosecute incumbent heads of state, which has resulted in several African Council members adopting a more negative position towards the court. Negative attitudes towards the ICC became particularly evident when a deferral of the Kenya situation came to the fore on 15 November 2013.

In 2010, the ICC prosecutor initiated an investigation into the grave violence that followed the disputed 27 December 2007 elections in Kenya, a state party to the Statute. On 8 March 2011, six high-profile individuals, including then recently inaugurated President Uhuru Kenyatta and Deputy President William Samoei Ruto, were issued summonses by the ICC for the alleged commission of crimes against humanity. Kenya then urged the Council to assert its power to defer its case from the ICC but was told firmly by Council members that they would not act to defer.

However, following a 21 September 2013 terrorist attack in Nairobi that left 67 people dead and more than 200 injured, the AU and the vast majority of its members renewed their efforts to defer the cases against Kenyatta and Ruto, reasoning that this action was required for the maintenance of international peace and security. This renewed effort highlighted the claim by some countries that the ICC is overly focused on Africa, even serving as a new form of Western colonialism over the continent. The draft resolution to defer ICC action received only seven votes in favour (Azerbaijan, China, Morocco, Pakistan, Russia, Rwanda and Togo) and eight abstentions (Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, UK and the US) and thus failed to be adopted (S/PV.7060). It reflected African willingness to push the issue, however, and to force Council members to choose sides, while also demonstrating that no Council member was willing to cast a negative vote on an issue of major significance for African states. The charges against both Kenyatta and Ruto were later dropped by the court on evidentiary grounds.

The anti-ICC stance has led Burundi, the Gambia and South Africa to announce their withdrawal from the Rome Statute, although only Burundi has followed through on this announcement. African states continue to oppose the court’s jurisdiction over some incumbent high-ranking officials, including heads of state. Over the years, several African state parties to the ICC statute have refused to extradite Sudanese President Omar al-Bashir, for whom there is a pending ICC arrest warrant. In the most recent case, the ICC found on 11 December 2017 that Jordan was in contempt, having failed to execute the court’s request for al-Bashir's arrest while he was attending the League of Arab States summit in Jordan. Jordan’s appeal against this decision is pending. 

During its 30th ordinary summit, the Assembly of the AU requested on 29 January that its members in New York immediately place on the General Assembly’s agenda a request to seek an advisory opinion from the International Court of Justice on the question of the obligations of ICC state parties with respect to the immunities of senior officials. Acting on behalf of the African states, Kenya has recently proposed to add to the General Assembly agenda an item titled “Request for an Advisory Opinion from the International Court of Justice on the consequences of the legal obligations of States under different sources of international law with respect to immunities of Heads of State and Government and other Senior Officials”, a proposal still pending at press time. 

To date, the Council has only once formally discussed its relationship with the ICC. On the initiative of Guatemala, the Council held an open debate with this focus on 17 October 2012 (S/PV.6849).

On 6 July, Council members that are also parties to the Rome Statute hosted an Arria-formula meeting to discuss the relationship between the Security Council and the ICC. The briefers were Assistant Secretary-General for Legal Affairs Stephen Mathias; Judge O-Gon Kwon, president of the Assembly of States Parties; ICC Prosecutor Fatou Bensouda; Toussaint Muntazini Mukimapa, special prosecutor of the Special Criminal Court of the Central African Republic; and Ambassador Issa Konfourou, permanent representative of Mali to the UN. Due to the current climate in the Council regarding the ICC, the organisers decided to hold an Arria-formula meeting rather than seeking agreement to a formal Council meeting.

The meeting, titled “UNSC-ICC Relations: Achievements, Challenges and Synergies”, was seen as an opportunity for briefers and participants to speak about ways of improving the relationship but also to highlight positive aspects of the existing cooperation between the two institutions. Bensouda made several suggestions for improving the relationship between the two bodies, including concrete follow-up mechanisms for non-compliance. France raised the possibility of inviting states found to be in non-compliance to meet with the Council. Russia, for its part, said that the ICC has failed to deliver and make progress on the situations referred to it by the Council. It added that as investigations into these referrals are stagnant, there is no need for the prosecutor to brief the Council on them twice a year, as is current practice. The US did not attend the meeting.

The fact that the prospect of a formal Council meeting focused on its relationship with the ICC is out of the question for several Council members, the views members expressed at the 6 July Arria-formula meeting and the fact that some did not attend all reflect the deep divide among Council members—and the wider UN membership—regarding the importance of the ICC, its performance, and its proper role in the maintenance of international peace and security.

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