In a time of multiple crises and seemingly intractable armed conflicts characterized by devastating tolls on civilians, international response has been paralyzed by divisions between the most powerful of the world’s governments. Reflecting—and contributing to—this downward slide, dynamics in the United Nations Security Council have deteriorated significantly in the last few years. The Security Council, which was created to address threats to international peace and security, is failing to deliver, and civilians in Syria, Yemen, and South Sudan are paying the price. In this context, the prospects for constructive Council action involving the International Criminal Court (ICC) have dimmed. At the same time, there are a few positive initiatives that should be maximized in advancing justice for the gravest crimes.
Consistent with its authority to do so under the Rome Statute, the Council has twice referred situations to the ICC: in March 2005, the Darfur region of Sudan, and in February 2011, the deteriorating situation in Libya. The referral of Darfur set a major precedent, showing that the Council could act on behalf of victims of grave crimes by extending the reach of justice—through the ICC—to countries that were otherwise outside the Court’s authority. The referral was all the more significant in the face of the prior hostile posture of the United States toward the very existence of the nascent court. The Libya referral built on that precedent, although in the wake of the Council’s subsequent resolution authorizing military intervention in the country, the referral came to be seen through a more political lens.
Since the Libya referral, conditions on the Council have changed noticeably. In May 2014, in a 13-2 vote, Russia and China both vetoed a resolution to refer the horrific situation in Syria to the ICC. This was a devastating loss for victims in Syria and a testament to the extent to which political interests trump accountability for some of the most shocking crimes. Significantly, the referral resolution was publicly supported by a multi-regional group of more than 60 UN member states led by Switzerland. This setback underscored, in situations of mass atrocity, an obvious flaw in Security Council referrals to the ICC: the veto-wielding authority of the Council’s permanent five members.
The Syria vote came on the heels of the Council’s stark failure to make its Darfur and Libya referral resolutions effective. Indeed, the Council has done next to nothing to support the Court in implementing the very judicial mandate that the Council triggered. The Council has taken no action against the government of Sudan for its failure to cooperate with the Court despite a judicial finding on non-cooperation by ICC judges, which was sent to the Council. The Security Council has not responded to the ICC judges’ finding of non-cooperation against the Democratic Republic of the Congo and Malawi regarding their failure to arrest and surrender Omar al-Bashir during his visits there. Nor has the Council said anything about the obligation of Libyan authorities to surrender Saif al-Islam Gadaffi to the Court. This inaction is driven by the Council’s political imperatives and divides with regard to the ICC’s investigations. This ‘on again, off again’ support makes the ICC seem like an instrument for achieving political ends through judicial means.
The Security Council has shown two other noticeable flaws in relation to the ICC: (i) selectivity, and (ii) substantive shortcomings in the referral resolutions.
As to selectivity, it not only failed to refer Syria to the ICC, the security Council has not even considered referral to the Court of other situations where grave international crimes have occurred. There is no coherence, let alone consistency, in the way it engages with the ICC. As a result, the Court is depicted as a tool of some permanent members—particularly the United States—on account of Washington’s strong advocacy for justice for the most serious international crimes in certain situations, but not others, like Israel-Palestine. Meanwhile, the Russians and the Chinese, never supporters of genuine accountability, have protected allies from Damascus to Pyongyang from judicial scrutiny. By shielding governments and insurgents from the ICC, these three permanent members have created a virtual ‘accountability free zone’ for some countries and perpetrators. Obviously, ICC officials did not create these circumstances, but the Court is blamed for them.
In addition, the two successful referral resolutions have contained provisions that prevent the equal application of the ICC’s Rome Statute. Both referral resolutions allowed exemptions for nationals of non-states parties should they be implicated in serious crimes committed in the situation referred. This loophole codifies a double standard of justice. Perceptions of such double standards are heightened by the fact that neither China, Russia, nor the United States is party to the Rome Statute. As non-states parties and their use of veto power, they are insulated from the Court that they have twice mandated to investigate crimes on the territory of other non-states parties. Moreover, both referrals imposed the entire financial burden of investigation and prosecution on the Court and its states parties, as noted by Ambassador Rapp in his submission to this forum.
In the face of all this, there are some positive trends taking shape that are worth noting. These incipient developments suggest the potential for movement in ways that are distinct from, but closely connected to, the Security Council-ICC relationship.
Using the 70th anniversary of the United Nations as a platform, on October 23, the member states of ACT (Accountability, Coherence and Transparency) launched a “Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes.” ACT is a group of 27 mid- and small-sized UN member states committed to enhancing the effectiveness of the Security Council through the improvement of its working methods. The ACT Code of Conduct is aimed at both permanent and elected members of the Council as well as any other UN member state that may become a Council member in the future. The Code contains a broad pledge to support timely and decisive action by the Security Council to prevent or end genocide, crimes against humanity, and war crimes. That general pledge is underscored by a more specific commitment not to vote against any credible resolution before the Council that is aimed at ending or preventing these crimes. The Code calls on the United Nations Secretary-General to bring such situations to the attention of the Council and draw on the expertise of Office of the High Commissioner for Human Rights in doing so. At its launch, 104 UN member states associated themselves with the ACT code, including both France and the United Kingdom.
This initiative exists side-by-side with an effort by France and Mexico calling for a suspension of the veto at the Council in cases of mass atrocities. Their initial statement declares that, “We consider the Security Council should not be prevented by use of the veto from taking action with the aim of preventing or bringing an end to situations involving the commission of mass atrocities.” More than 70 UN member states have associated themselves with the French-Mexican declaration. These two initiatives supplement one another and both are important. As multi-regional initiatives, both efforts stand to offer a much needed counter-narrative to the Council’s failure to do the right thing in the face of unspeakable crimes. But this will only happen if both groups of involved states—and there is much overlap—play an active, ongoing role on behalf of principle. To give their declarations effect, they need to be a consistent multi-regional voice against mass atrocity crimes. To evolve into a meaningful “bloc,” as many of these UN member states as possible need to convey their views at relevant moments. While not leading to any imminent changes in Council practice, these two initiatives could raise the political price and stakes for both inaction and veto. Underscoring these efforts, on September 26, The Elders also issued a call urging the members of the UN Security Council to act more effectively to prevent mass atrocity crimes.
There are also openings for the Council to support prosecution of serious crimes beyond the ICC. For example, this year, Security Council resolution 2217 committed the resources of the UN peacekeeping force in the CAR (MINUSCA) to assisting the country’s newly-created Special Criminal Court. While the ICC is conducting investigations into violent crimes across the Central African Republic, the designation of services and in-kind support from the United Nations peacekeeping mission to a hybrid court (composed of national and international jurists) that is part of the national judicial system is an important step that could go beyond the ICC’s investigations there. Where appropriate, such measures in support of national or hybrid courts should become a regular feature of UN peacekeeping missions. The MINUSCA renewal resolution sets a precedent for U.N. funding to hybrid courts that function concurrently with the ICC. With implications far beyond CAR, this marks a possible milestone on the path to UN funding for Council justice.
The landscape may not be especially favorable at this time for many of the much-needed improvements in the Council-Court interaction, but pressing these existing openings could contribute to real, if smaller, gains in practice. They will certainly advance the larger changes that are needed to put the Council-Court relationship on a better footing. Meanwhile, inconsistent practice on ICC referrals and inadequate support to ICC investigations triggered by the Council should be called out. Timely appraisal of these failures will, it is hoped, contribute to improvements over the long haul, which given the ICC’s status as a permanent institution, are well worth pressing for.