Introduction

The relationship between the International Criminal Court (ICC) and the United Nations Security Council (UNSC) is a particularly difficult one, with academics describing it as ‘contentious’ [1] and ‘uncomfortable’ [2]. Although in theory, there should be no conflict between the two institutions, the reality of the relationship has given rise to concerns regarding the extent to which the ICC and the UNSC can mutually uphold international peace and justice. This brief article will explore the complex relationship between the ICC and the UNSC, focusing on the impact this relationship has had on the conflict in Darfur.

The ICC was established by the Rome Statute and became operational in 2002. The ICC was created for the purpose of prosecuting individuals accused of committing the most heinous of crimes – genocide, the crime of aggression, war crimes and crimes against humanity. Sixty ratifications were required for the Rome Statute to enter into force [3], explaining why the process took four years. The ICC is limited to investigating situations within its jurisdiction, including but not exhaustive to: territorial jurisdiction; national jurisdiction; and whether one or more of the States involved are parties to the Rome Statute [4].

Article 13(b) [5], provides the UNSC with the power to refer situations to the ICC, acting under the UN Charter [6]. This is currently the only way to universally extend the ICC jurisdiction to any state, regardless of whether the state is a party to the Rome Statute or not. Thus, the UNSC are the only body who possess the power to refer situations to the ICC, where the ICC alone would not have the jurisdiction.

 

The Darfur Situation: A Failure of the UNSC and ICC to Uphold Peace and Justice

The conflict in Darfur was described as a threat to international peace and security under Article 39 of the UN Charter [7] and therefore, the UNSC decided in 2005 to refer the situation in Darfur to the ICC [8]. This was historic as it was the first time they had made such a referral. This was not only a major advance for the court, but also for the relationship between the ICC and the UNSC, by providing the opportunity for justice – the ICC did not otherwise have the power to prosecute those responsible as Sudan was not a party to the Rome Statute. César Mayoral (the Argentinian member of the UNSC) after voting in favour of the resolution, believed that Resolution 1593 (2005) gave strong support to the ICC and had in fact demonstrated progress within the United Nations to ensure the success of an international system; one in which the ICC was an essential component [9].

However, instead of taking this opportunity to set a strong and credible precedent for any future similar situations under the Rome Statute whilst establishing the ICC as an ally, the UNSC instead did not follow through with the referral they had made [10]. There was a lack of support from the UNSC post-referral, particularly in terms of the arrest warrants issued. The UNSC should have recognised that the lack of co-operation from the Government of Sudan with the ICC constitutes a further threat to international peace and security; recognition of such would have reinforced the UNSC’s commitment to international peace and justice [11] alongside exhibiting their support for the ICC. The Chief Prosecutor of the International Criminal Court, Fatou Bensouda, over a decade after Resolution 1593 (2005), commented on the situation and stated that ‘the victims’ quest for justice was still far from realised and grave crimes continue to be committed, resulting in further victimisation and suffering’ [12]. Thus, demonstrating the severe consequences this lack of support has had for the people of Darfur.

 

The UNSC-ICC Relationship: The Cause of the ICC’s Lack of Legitimacy?

In addition to the lack of post-referral support, is also important to acknowledge some contradictory aspects of the resolution itself which further compromise the principles of peace and justice alongside compromising the legitimacy of the ICC. Paragraph 7 of the resolution [13] provides that no funding in relation to the Darfur referral shall be provided by the United Nations and instead it should be the responsibility of the parties to the Rome Statute to contribute to the cost if they wish to do so. This therefore contradicts with Article 115(b) of the Rome Statute[14] which provides that referrals by the UNSC should be financed by the Security Council and not the parties to the Rome Statute. On that basis, the UNSC appear to be incorporating their own national interests, regardless of those outlined in the Statute. Thus, casting doubt on the legitimacy and the enforceability of the Rome Statute and ultimately the ICC, alongside jeopardising the success of the resolution.

Additionally, the UNSC’s resolution in 2005 also incorporated an immunity agreement for US personnel, ensuring their non-surrender to the ICC [15]. This is a particularly controversial agreement and one which was greatly opposed by the European Parliament, who suggested that it was incompatible with European Union membership [16]. This immunity agreement gave the US blanket immunity from ICC jurisdiction, contradicting an establishing feature of the ICC which was to prevent impunity. The Rome Statute states that ‘immunities…which may attach to the official capacity of a person…shall not bar the Court from exercising its jurisdiction over such a person’ [17]. It is therefore clear that an immunity agreement is ‘most certainly incompatible with the Rome Statute’ [18], thus demonstrating a significant weakness in our international criminal law system. If there is internal conflict between the two main institutions of international criminal law, and in particular, contradictions regarding the foundations upon which international criminal law is based (particularly with the Rome Statute and the creation of the ICC), there is no way of ensuring external conflict will be dealt with both effectively and efficiently. It is therefore difficult to comprehend how international justice can ever be achieved when the ICC and the UNSC are so contradictory.

 

Conclusion

In conclusion, although the ICC is committed to acting independently, the situation in Darfur shows that perhaps there is a greater need for political support, and more specifically from the members of the UNSC [19]. The situation in Darfur had a paradoxical effect from the very beginning; with a closer relationship between ICC and the politics of the UNSC weakening not only the independence of the ICC but also the legitimacy of international peace and justice. However, without pursuing justice through the power of politics, some significant international crimes would never be tried, thus again failing to fulfil the values of peace and justice to a high enough standard [20].

Although the relationship between the ICC and the UNSC is a difficult one, it is vital that the ICC is supported by the permanent members of the council so to maximise its effectiveness. The situation in Darfur is a prime example of a lack of support, leading towards a weak and ineffective international justice system and ultimately injustice for those in Darfur. Over 10 years after the referral, the conflict is still unresolved and the people of Darfur are continuing to suffer as a result – what good is a resolution if in fact it resolves very little?

The UNSC have the power to decide whether refusal to co-operate by a national government is a threat to international peace and security, thus having the authority to enforce arrest warrants and requests for co-operation, which they decided not to do. With the political support of the UN Security Council, the situation in Darfur could have been resolved, yet instead it is still ongoing. A collaborative international criminal law system is therefore imperative and would undoubtedly play a significant part in the upholding of international peace and security [21]. The situation in Darfur has been significantly affected by the complex relationship between the ICC and the UNSC. There is therefore ‘no doubt’ that if the ICC had the support of the UNSC, they would ‘become a significant player in situations of international atrocities’ [22] and perhaps the prolonged suffering in Darfur would have ended a long time ago.

 

[1] Sun Kim, ‘Maintaining the independence of the International Criminal Court: The legal and procedural implications of an article 16 deferral request’ [2011] 18(29) Agenda Internacional 175-212

[2] Nigel White and Robert Cryer, ‘The Legal Regime of the International Criminal Court’ [2009] 19 International Humanitarian Law Series 455-484

[3] William A. Schabas, An Introduction to the International Criminal Court (4th edn, Cambridge University Press 2011) 23

[4] Art 12. Rome Statute of the International Criminal Court(17 July 1998) UN Doc A/CONF.183/9 (17 July 1998, entered into force 1 July 2002)

[5] Art 13(b). Rome Statute of the International Criminal Court (17 July 1998) UN Doc A/CONF.183/9 (17 July 1998, entered into force 1 July 2002)

[6] Chapter VII, Charter of the United Nations (26 June 1945) 3 Bevans 1153; 59 Stat 1031; TS No 993 (entered into force 24 October 1945)

[7] Chapter VII, Charter of the United Nations (26 June 1945) Article 39

[8] UN Doc. S/RES/1593 (2005)

[9] UNSC Meeting 5158 (31 March 2005) UN Doc SC/8351

[10] Lawrence Moss, The UN Security Council and the International Criminal Court – Towards a More Principled Relationship(Friedrich Ebert Stiftung 2012)

[11] Phillipp Kastner, ‘The ICC in Darfur-Savior or Spoiler?’ [2007] 14(1) ILSA Journal of International & Comparative Law <http://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1613&context=ilsajournal&gt; accessed 12 July 2018

[12] Fatou Bensouda, UNSC Meeting 7710 (9 June 2016) UN Doc SC/12393

[13] UN Doc. (n 8) para 7

[14] Art 115(b). Rome Statute of the International Criminal Court (17 July 1998) UN Doc A/CONF.183/9 (17 July 1998, entered into force 1 July 2002)

[15] UN Doc. S/RES/1593 (2005) para 4 referring to Art 98(2) Rome Statute of the International Criminal Court (17 July 1998) UN Doc A/CONF.183/9 (17 July 1998, entered into force 1 July 2002)

[16] European Parliament P5_TA-PROV (2002) 0521 on the International Criminal Court, 24 October 2002, <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52002IP0521&from=EN&gt; accessed 12 July 2018

[17] Article 27(2). Rome Statute of the International Criminal Court (17 July 1998) UN Doc A/CONF.183/9 (17 July 1998, entered into force 1 July 2002)

[18] William A. Schabas, An Introduction to the International Criminal Court, (3rd edn, Cambridge University Press 2007) 157

[19] Kastner (n 11)

[20] Mark Kersten, ‘The UN Security Council and the ICC: Between a Rock and a Hard Place’ (Justice in Conflict, 6 May 2011) < https://justiceinconflict.org/2011/05/06/the-un-security-council-and-the-icc-between-a-rock-and-a-hard-place/&gt; accessed 19 July 2018

[21] Dominic McGoldrick, ‘Legal and Political Significance of a Permanent ICC’ in Peter Rowe and Eric Donnelley (eds), The Permanent International Criminal Court: Legal and Policy Issues(Hart Publishing 2004) 471

[22] ibid

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s