This panel was convened at 12:45 pm, Friday, April 11, by its moderator, Gabrielle Kirk McDonald of the International Criminal Tribunal for the former Yugoslavia and the Iran-U.S. Claims Tribunal (retired), who introduced the speakers: Adejoke Babington-Ashaye of the World Bank Administrative Tribunal; Saira Mohamed of the University of California at Berkeley School of Law; and Maria Varaki of Hebrew University. *
POLITICIZING THE INTERNATIONAL CRIMINAL COURT: REDEFINING THE ROLE OF THE UNITED NATIONS SECURITY COUNCIL IN THE AGE OF ACCOUNTABILITY
By Adejoke Babington-Ashaye ([dagger])
The UN Security Council plays a prominent role in the functioning of the International Criminal Court (ICC). Although the ICC is a judicial institution distinct from the UN system, the Security Council, through provisions in the ICC's governing treaty (the Rome Statute), can refer situations to the ICC Prosecutor for investigations or prosecutions. This power, contained in Article 13(b) of the Statute, enables the Council to transcend the nationality and territoriality pre-conditions necessary to trigger the Court's jurisdiction. Through Article 16 the Security Council can prevent the initiation or continuation of investigations or prosecutions for a renewable period of 12 months following the adoption of a resolution under Chapter VII of the UN Charter. In exercising its referral and deferral powers, the Security Council must act under Chapter VII of the Charter, specifically Article 41, which provides that the Council may decide what measures not involving the use of force are to be employed to give effect to its decisions. Between June 2002 and April 2014, the Security Council expressly invoked its deferral powers on three occasions and referred two situations to the Prosecutor: Darfur (2005) and Libya (2011).
In this paper I will consider the arguments that this relationship between the ICC and the Security Council has become politicized. I will review the drafting history of the Rome Statute to assess how this relationship was originally envisioned and whether the political undertones of such a relationship were apparent. I then will consider how the Council has applied its powers. Finally I will propose recommendations to redefine the relationship to improve the Court's effectiveness, with particular emphasis on the Prosecutor's discretionary powers under Article 53 of the Rome Statute.
Ideally a relationship between the ICC and the UN Security Council would serve multiple interests. In drafting the Rome Statute, the International Law Commission (ILC) considered that since the UN Charter confers upon the Council primary responsibility for the maintenance of international peace and security, referral powers would provide the Council with a standby permanent tribunal through which it could adopt international criminal justice as a means of fulfilling this mandate. Upon review of the travaux preparatoires, the political undertones of such a relationship were apparent throughout the drafting phase of the Rome Statute. Concern was frequently expressed by delegates that the Court's activities could be affected * by political decisions taken in other forums. Such a relationship, it was argued, could introduce into the Rome Statute a substantial inequality between states members of the Security Council and those who were not members, and between permanent members who hold veto powers and other states. It appears that the possibility that the Security Council's relationship with the ICC may become politicized was implicitly accepted.
The Council has since used its referral and deferral powers in a manner which confirms the political nature of its relationship with the Court. The three deferral resolutions were adopted between 2002 and 2003 at the behest of the United States, a permanent member of the Security Council, to protect peacekeepers who are nationals of nonstates parties to the Rome Statute. The legality of these deferral resolutions purportedly adopted pursuant to Article 16 is questionable. The Security Council must act under Chapter VII on behalf of all UN members in invoking its deferral powers. Chapter VII first requires a determination under Article 39 of the Charter that a threat to peace, breach of peace, or an act of aggression has occurred. Only then can the Council decide, pursuant to Article 41, which measures to adopt. Such a determination was not made. Although some argue that a formal determination under Article 39 is not necessary, I am of the view that a situation necessitating deferral of investigations or prosecutions must at the very least objectively exist. In all three resolutions, no such situation existed. As was clearly stated by the European Union, neither peacekeeping nor the ICC constitutes a threat or obstacle to peace.
Regarding the referrals, three common features raise questions about the manner in which referral powers have been used. While most welcomed the referral of the situations in Darfur and Libya, many were concerned by (1) limited mandated state cooperation; (2) exclusion of financial responsibility for any investigations and prosecutions carried out by the Prosecutor; and (3) exclusion of the Court's jurisdiction over nationals of nonstates parties. These common features, which were tailored to protect U.S. political interests, have greatly affected the Court's effectiveness. State cooperation and financial resources are essential to international criminal justice. In excluding financial responsibility for situations it referred, the Security Council shifted the obligation to member states of the Court, which is under financial constraints. The Security Council has enjoyed two "free rides" despite Article 115 of the Statute, which states that the General Assembly may approve disbursement of UN funds in relation to the expenses incurred due to referrals by the Security Council.
Instead of providing the Court with universal jurisdiction as many hoped, the relationship between the Court and the Council has, on the contrary, negatively impacted the Court's ability to dispense justice properly. Since the adoption of these resolutions, the Security Council has failed to provide the requisite support to ensure that states execute outstanding arrest warrants. In 2011, China, a permanent member of the Council, hosted President Al-Bashir of Sudan, who is accused of genocide, war crimes and crimes against humanity. Accepting such a state visit confirmed the belief that the Security Council was unlikely to take serious steps to enforce outstanding arrest warrants.
Likewise, the referral of the situation in Libya could be considered a "detournement de procedure," punitive and politically motivated rather than a genuine recourse to the Court. The referral formed part of a litany of sanctions against the Gaddafi regime. Had Gaddafi and other Libyan leaders accepted several compromises offered, it is unclear that the situation would have been referred to the ICC notwithstanding reasonable grounds to believe that crimes under the Court's jurisdiction were committed. That the Security Council perceived the referral as an end in itself is apparent from the fact that, less than a month later, military intervention in Libya was approved, and the Council has remained passive as challenges to the admissibility of the cases unfold.
Redefining the relationship between the Court and the Security Council is essential to improving the perception of both institutions and the effectiveness of the Court. Until there is universal ratification and implementation of the Rome Statute, there continues to be a need for a third party with powers to bind states to have recourse to the Court. The problem is not with Articles 13(b) and 16 per se, but rather with the opaque and unequal manner in which it has been applied and the undemocratic nature of the Council. As a result of the Council's politics, "accountability free-zones" have been created where deserving situations, such as the situation in Syria, have not been referred to the Court, and regimes are protected by permanent members of the Council.
I propose therefore that the ICC take charge of the dynamics of its relationship with the Security Council by, on the one hand, building...