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​What is the future of relations between the UN Security Council and the International Criminal Court?

Encouraging UN Security Council Support of ICC Cases Starts with Practical Steps

Frustration aside, there are practical steps that may encourage better coordination between the Security Council and the ICC on current cases in Darfur and Libya, as well as more wholesale changes that would ensure greater Security Council support of the ICC into the future.

by Honorable Navanethem Pillay

The past few decades have seen States and civil society alike criticize the UN Security Council’s lackluster or nonexistent response to pressing humanitarian crises. Many have rebuked the Security Council’s inaction on the continuing atrocities in places like Syria, North Korea, Palestine, Iraq, Myanmar, and Sri Lanka. This is not to say that the Security Council lacks the power to act appropriately in the face of mass atrocity crimes. However, as exemplified during my tenure as UN High Commissioner for Human Rights, there are and continue to be conflicts characterized by mass violations of human rights where justified calls for Security Council action have gone unheeded.

While it may be unrealistic to expect decisive and regular action on multifaceted issues from an international political body that operates in a highly complex geopolitical environment, mass atrocity crimes are (or should be) a special category of concern. The Security Council is duty bound to navigate roiling political waters to arrive, one way or another, at meaningful responses to large-scale atrocities wherever they occur.

It is particularly frustrating to see the Security Council abrogate this duty with respect to conflicts of which it is already seized. Its referrals of the situations in Darfur and Libya to the International Criminal Court (ICC) are cases in point. In both situations, the Security Council acted properly when it concluded that ICC involvement was necessary to maintain international peace and security. Yet, history informs us that invoking the jurisdiction of an international criminal tribunal like the ICC is only the first step. The experience of the ad hoc tribunals for the former Yugoslavia and Rwanda demonstrated to the international community that the benefits of justice on peace can be realized only when a tribunal’s investigations and prosecutions have the robust support of States, and where applicable, of the Security Council. Yet the Security Council’s inaction in response to the non-compliance with ICC arrest warrants and other judicial orders indicates that the Security Council is permitting politics to impede prosecution of the very cases it found necessary to authorize to maintain peace and security.

Frustration aside, there are practical steps that may encourage better coordination between the Security Council and the ICC on current cases in Darfur and Libya, as well as more wholesale changes that would ensure greater Security Council support of the ICC into the future.

First, the ICC could explore the creation of an informal yet stable mechanism to supply the UN Sanctions Committee with information on ICC fugitives in Sudan and Libya. The Committee (and the sub-committees created for each Security Council resolution imposing sanctions on a given country or non-state actor, such as Al-Qaida) is a subsidiary body of the Security Council tasked with overseeing the implementation of sanctions authorized by the Security Council. With respect to Darfur and Libya, the Security Council has authorized the use of asset freezing, travel bans, and arms embargos, and it is up to a panel of experts (one for each country) to determine how best to implement these targeted sanctions worldwide.

Were the ICC to give information to the panel of experts through the good offices of ICC States Parties that sit on the Committee (or by some other process or construct), it would be possible for sanctions to be placed directly on Sudanese and Libyan fugitives. Asset freezes, for instance, would place limitations on these ICC fugitives that could compromise their power sufficiently to result in their arrest. At the moment, none of the Darfur defendants, for example, is subject to sanctions, even though all would clearly qualify. Eventually, this practice could pave the way for the establishment of an official UN Sanctions Committee ICC fugitive and/or indicted list, just like its terrorists list, which would automatically levy travel bans and other sanctions against those on the list.

The ICC Assembly of States Parties could also create a formal mechanism (such as a subcommittee, caucus, or working group) whereby present members of the Security Council that are also ICC State Parties meet regularly to discuss relevant issues, particularly as they relate to the Libya and Darfur cases. (Ten of the 15 current Security Council members would qualify—a proportion that has remained roughly stable for several years now.) With improved comprehension and coordination amongst these States, it is more likely that the Security Council as a whole will be better briefed on relevant issues, which in turn should foster greater cooperation. Further, this new mechanism would have the United Kingdom and France as long-term members by virtue of their status as permanent Security Council members as well as ICC States Parties, which would ensure the mechanism’s stability and continuity.

Moving beyond these practical steps, a more difficult question is how to change Security Council-ICC relations fundamentally in order to achieve greater UN political and financial support of the ICC and more consistent ICC referrals. One idea is the France/Mexico-led initiative for the five permanent UNSC members to pledge not to use their vetoes voluntarily when faced with atrocity crimes, which Human Rights Watch’s Richard Dicker discusses in his Arguendo submission herein.

It may be an understatement to call this initiative “ambitious” given that the permanent UNSC members view their veto prerogative as sacrosanct. However, it is this kind of ambition that over time will alter the culture of the UNSC, making it one day unthinkable (and thus a political non-option) to veto resolutions that refer allegations of genocide, crimes against humanity, and large-scale war crimes to the ICC.

Creating a “Responsibility Not to Veto,” while a lengthy and difficult process, may actually be the most suitable way to improve UNSC-ICC relations, given that customs and norms are pillars of the international legal order. This initiative also ties in well with the UNSC Code of Conduct formulated by the 27 UN Members States that are a part of the Accountability, Coherence, and Transparency initiative. Whereas the Responsibility Not to Veto initiative targets permanent UNSC Members States, the Code of Conduct is a pledge signed by any UN Member State obligating them not to vote against a resolution aimed to prevent or respond to atrocity crimes, if elected to the UNSC. To date, 100 plus UN Member States have signed this pledge. States, international organizations, and civil society ought to give serious consideration to supporting these initiatives.

It is also no secret that tension exists between the Council and the Court in light of their respective and overlapping mandates on atrocity accountability. Ideally, this tension would have been avoided by establishing a more streamlined mechanism for enforcing international criminal law, or at least clearer rules governing the UNSC-ICC relations. Putting aside the ideal however, this tension is certainly not insurmountable, particularly if it is understood as an organizational and logistical challenge as opposed to an existential one. Overlapping mandates can not only be managed, but more importantly, can be a much needed asset when considering that there is a need for more atrocity accountability in the world, not less. In order to end impunity for atrocity crimes and bring justice to the countless victims of ethnic cleansing, mass rape, torture, and other gross inhumanities, it may be the case that more mandates are exactly what is required.

Honorable Navanethem Pillay

The Honorable Navanethem (Navi) Pillay served as United Nations (UN) High Commissioner for Human Rights from 2008-14. Prior to this position, Ms. Pillay was elected in 2003 as a judge on the International Criminal Court. In 1995, Ms. Pillay was appointed as acting judge on the South African High Court, and in the same year was elected by the UN General Assembly to be a judge on the International Criminal Tribunal for Rwanda, where she served a total of eight years, the last four (1999-2003) as President. She currently serves on the Board of Advisors of the ABA’s International Criminal Court Project.