Bridging the divide between the ICC and un security council

• Author: Michael Scharf/Laura Graham
• Position: Dean of the Law School and Joseph C. Hostetler?BakerHostetler Professor of Law, Case Western Reserve University School of Law/Ph.D. University of Aberdeen, J.D. Case Western Reserve University School of Law
• Pages: 977-1030

BRIDGING THE DIVIDE BETWEEN THE ICC AND UN

SECURITY COUNCIL

MICHAEL SCHARF AND LAURA GRAHAM*

ABSTRACT

Since its inception, the International Criminal Court has had a troubled rela-

tionship with the UN Security Council, which has only grown more fractious in

recent years. The antipathy is serving to undermine and weaken both the power of

the Council and the viability of the Court. What are the sources of this friction

and what are the possible remedies? This Article seeks to answer these questions by

analyzing the instances where the Security Council has cooperated or referred situa-

tions to the Court and those instances where at least one Permanent Member has

vetoed or threatened to veto a resolution that would refer a situation or pro-

vide assistance to the Court. The Article then explores several proposals for

surmounting the Council’s immobility and improving the relationship between

the two organizations to foster increased accountability and international peace

and security.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978

II. THE GROWING TENSIONS BETWEEN THE SECURITY COUNCIL AND

ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980

A. The Golden Age of Accountability 1990s-2000s . . . . . . . . . . 980

B. Tribunal Fatigue and the GWOT. . . . . . . . . . . . . . . . . . . . 983

1. Hybrid Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983

2. Global War on Terror (GWOT). . . . . . . . . . . . . . . 985

C. The Negotiation of the Rome Statute . . . . . . . . . . . . . . . . . . 986

D. The Early Years of the ICC . . . . . . . . . . . . . . . . . . . . . . . . 989

1. The Darfur Situation . . . . . . . . . . . . . . . . . . . . . . . 990

2. The Libya Situation . . . . . . . . . . . . . . . . . . . . . . . . 992

E. The Ebb Tide of Accountability 2012-2020 . . . . . . . . . . . . . 993

* Michael Scharf, Dean of the Law School and Joseph C. Hostetler—BakerHostetler Professor

of Law, Case Western Reserve University School of Law; Co-founder and Managing Director of

the Public International Law & Policy Group; formerly Attorney-Adviser for U.N. Affairs, Ofce of

the Legal Adviser, U.S. Department of State.

Laura Graham, Ph.D. University of Aberdeen, J.D. Case Western Reserve University School of

Law; Assistant General Counsel Federal Bureau of Investigation, U.S. Department of Justice

Attorney General’s Honors Attorney Program; formerly Assistant Professor, Trinity College

Dublin; Lecturer, Tufts University; Visiting Professional, International Criminal Court. V

C 2021,

Michael Sharf and Laura Graham.

977

1. Strongman Politics. . . . . . . . . . . . . . . . . . . . . . . . . 993

2. Propaganda Wars . . . . . . . . . . . . . . . . . . . . . . . . . . 995

3. Noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . . 999

4. Vetoes, Threats of Vetoes, and Inaction . . . . . . . . 1000

a. Syria Situation. . . . . . . . . . . . . . . . . . . . . . . . . . 1001

b. Myanmar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004

c. Yemen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005

III. PROBLEMS CREATED BY THE SECURITY COUNCIL-ICC DIVIDE . . . . . 1007

A. Loss of Legitimacy for Both Organizations. . . . . . . . . . . . . . 1007

B. Lack of Accountability for Perpetrators of the Worst Atrocities. 1009

C. Stalemate on the Council: A New Cold War? . . . . . . . . . . . . 1010

D. Power Shift . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011

1. The General Assembly’s Creation of the IIIM . . . . 1011

2. Humanitarian Intervention . . . . . . . . . . . . . . . . . . 1016

IV. SOLUTIONS AND POLICY PROPOSALS . . . . . . . . . . . . . . . . . . . . . . 1019

A. Changes to the Veto Power . . . . . . . . . . . . . . . . . . . . . . . . . 1019

1. Uniting for Peace Resolution. . . . . . . . . . . . . . . . . 1019

2. The Accountability, Transparency, and Coherence

Group

Code of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . 1022

3. Recognize Unlawful Nature of Vetoing Jus Cogens

Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023

B. A Missionary Function for the ICC’s Registry. . . . . . . . . . . . 1024

C. New Sanctions Paradigms. . . . . . . . . . . . . . . . . . . . . . . . . 1026

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028

I. INTRODUCTION

At the conclusion of a diplomatic conference in June 1998, 120

states voted in favor of the Rome Statute creating a permanent

International Criminal Court (ICC) to investigate and prosecute

war crimes, crimes against humanity, and genocide.

1

The treaty

entered into force in 2002 after receiving the requisite sixty ratif‌ica-

tions.

2

Since its inception, the ICC has had a troubled relationship

with the United Nations Security Council. Indeed, only two of

the Security Council’s Permanent Five (P5) members – France and

the United Kingdom (U.K.) – have ratif‌ied the Rome Statute. The

United States had participated in the negotiations that led to the

1. See Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/Conf. 183/

9, 2187 U.N.T.S. 9 [hereinafter Rome Statute].

2. See Rome Statute, at art. 126(1).

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978 [Vol. 52

Rome Statute, then voted against it before signing the treaty under

the Clinton Administration in 2000 and then un-signing the treaty

under the Bush Administration in 2002 amidst the “Global War on

Terror” (GWOT).

3

Q&A: The International Criminal Court and the United States, HUM. RTS. WATCH (Sept. 20, 2020,

12:00 AM), https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states#.

China also voted against the Rome Statute in

1998,

4

and although Russia had signed the treaty in 2000 and ini-

tially cooperated with the Court, it never ratif‌ied the treaty and with-

drew its signature in 2016 after the ICC announced an investigation

into Russia’s actions in Crimea.

5

Shaun Walker and Owen Bowcott, Russia withdraws signature from international criminal court

statute, T HE GUARDIAN (Nov. 16, 2016, 9:14 AM), https://www.theguardian.com/world/2016/

nov/16/russia-withdraws-signature-from-international-criminal-court-statute.

Thus, the relationship between the

majority of the Council’s permanent members and the Court has never

been harmonious, but recent crises to international peace and security in

Syria, Myanmar, and Yemen have signif‌icantly deepened tensions and

exposed the costs of dysfunction.

What accounts for the unwillingness among the Security Council’s

permanent members towards working with the ICC to pursue justice

for the world’s worst atrocities? And what are the possible antidotes to

this dysfunctional relationship? This Article seeks to answer these ques-

tions by examining the instances where the Security Council has coop-

erated or referred situations to the Court and several instances where at

least one P5 member has vetoed or threatened to veto a resolution that

would refer a situation to the Court or would provide assistance to the

Court in the form of enforcing targeted sanctions against countries

that refuse to comply with the Court’s orders and arrest warrants. This

Article begins by exploring the historic relationship between the

Security Council and ICC, revealing the deepening tensions between

the two institutions since 2012. Next, this Article addresses the prob-

lems created for both the Council and the Court due to the growing

friction. Finally, the Article provides potential solutions and policy rec-

ommendations for improving the relationship to support increased

accountability and cooperation to help resolve current challenges to

international peace and security.

This Article argues that the Security Council’s inability to muster the

votes to respond to cases of mass atrocity or enforce the orders of the

ICC serves to undermine both the legitimacy of the Council as an arbi-

ter of international peace and security and the viability of the Court in pur-

suing accountability for atrocity crimes. Responsibility for the dysfunctional

3.

4. Id.

5.

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