Referrals, Deferrals and Many Double Standards
Recapitulating the History of the SC-ICC Relationship
The International Criminal Court’s (“ICC”) 20th birthday provides an opportunity to briefly recapitulate the troubled history of the relationship between the Security Council (“SC”) and the ICC. It all started at the Rome Conference in 1998. Delegations negotiating the Rome Statute were aware that the SC would play some role in the future Court’s jurisdictional mechanism. But it was unclear until the very last days of the Conference how this relationship would look like in detail. Two questions were contentious: should the SC be able to trigger the ICC’s exercise of jurisdiction by referral? And should it also be able to defer or stop investigations and prosecutions by the future Court?
Controversy in Rome
A few powerful States, with the US in the lead, sought comprehensive control over the future ICC and lobbied towards a weak and merely symbolic Court (Kaul, at 126). As such, they were sceptical of proprio motu investigations by the Prosecutor and felt that the Court’s exercise of jurisdiction should mainly depend on referrals by the SC. The SC should further have the power to stop ICC proceedings. In this vein, Article 23(3) of the ILC Draft Statute provided that the SC could block the commencement of prosecutions in situations which were being dealt with by the SC acting under Chapter VII of the UN Charter, “unless the Security Council otherwise decides”. This would have allowed a member of the SC to obstruct ICC prosecutions by simply placing a situation on the SC’s agenda (Schabas, at 164).
Meanwhile, many delegations supported a politically independent Court and consequently did not want to heavily rely on the SC in jurisdictional matters (Kirsch/Holmes, at 4). There was concern that a strong SC involvement would reduce the Court’s “credibility and moral authority […]; excessively limit its role and undermine its independence, impartiality and autonomy” (at para 121). Some States also felt that a referral power by the SC would be “inequitable” in that this specific tool “would only be used against States other than the permanent members of the Council since the latter could use their power of veto to prevent referrals which impinged on their interests” (Yee, at 147).
Ultimately, a compromise was reached by 120 States. SC referral and deferral powers were included in the Rome Statute, however, with some limitations. Article 13(b) Rome Statute grants the SC the authority to refer to the Prosecutor a situation in which an international crime appears to have been committed. And Article 16 Rome Statute empowers the SC to suspend ICC investigations or prosecutions for a renewable period of twelve months. For both referrals and deferrals, the SC needs to adopt a fully-fledged Resolution under Chapter VII of the UN Charter.
“Peacekeeping Exemptions” in SC Deferrals
Already at an early stage of the ICC’s existence, the SC made ample use of its deferral power. Right after the entry into force of the Rome Statute, the US insisted on adopting Res 1422 with which the SC requested the ICC “not to investigate or prosecute any peacekeeper from States not party to the Rome Statute” (Galand, at 204). As such, the SC de facto immunised leaders and soldiers of non-States parties from the jurisdictional reach of the ICC for the period of twelve months (Zeidy, at 1503). This peacekeeping exemption was prolonged with the adoption of Res 1487.
Unsurprisingly, these Resolutions were met with sharp criticism. Inter alia, it was argued that the Article 16 deferral power may not be used to permanently bar the ICC from prosecuting UN soldiers from non-State Parties, as this would unduly limit “the independent prosecutorial powers of the Court, which was one of the major achievements of the Rome Conference” and also “call into question the principle of equality before the law” (Stahn, at 104).
Due to the gruesome revelations of torture and prisoner abuse by US forces in Iraq, several SC members refused to renew a specific peacekeeping exemption Resolution in 2004 (van der Vyver, at 17). Nonetheless, the SC continued to implement and even extend jurisdictional exemption clauses in its later Resolutions. In Res 1497, the SC “decided” that “contributing States to the Multinational Force in Liberia have exclusive jurisdiction over the acts of their personnel, unless the contributing State is a party to the Rome Statute or has explicitly waived its exclusive jurisdiction” (Galand, at 204). As such, the SC did not only limit the jurisdiction of the ICC but also that of third States with respect to crimes committed by soldiers of non-State parties (at 4).
“Toxic Paragraphs” in SC Referrals
On a lighter note, the SC did not only try to prevent the ICC from doing something in the past 20 years. It also mandated the ICC to act in two specific situations: in 2005, the SC referred the Darfur situation to the ICC, as was suggested in a report by the International Commission of Inquiry on Darfur (at para 647). This historic first referral “was generally received with enthusiasm” (Lentner, at 173). But as the SC basically copy-pasted the above mentioned jurisdictional exemption clause for nationals of non-States parties into Res 1593 (para 6), criticism was inevitable. For example, Amnesty International held this clause to be “totally unacceptable”, as it “creates double standards of justice, contravenes the UN Charter, the Rome Statute and other international law”.
Criticism also concerned monetary issues. In Res 1593, the SC “recognized” that “none of the expenses incurred in connection with the referral […] shall be borne by the United Nations”. The proceedings should be financed by “the parties to the Rome Statute and those states that wish to contribute voluntarily” (para 7). In all seriousness, the SC required the Prosecutor “to take up the case but the ICC would have to find a way to pay the bill itself” (Fletcher/Ohlin, at 430). This was a brazen move: while the ad hoc tribunals were financed out of UN resources as a matter of course, the SC obviously saw the ICC as an institution offering its facilities “free of charge” (Schabas, at 154).
Still, all these criticisms and reproaches did not prevent the SC from incorporating the exact same two “toxic paragraphs” (Schabas, at 155) into Res 1970 with which it referred the Libya situation to the ICC in 2011 (paras 6 and 8). This meant that the subsequent NATO intervention in Libya (Res 1973) was exempt from the ICC’s scrutiny insofar as nationals of non-State parties were concerned. That powerful members of the SC gladly “subject other, weaker states to the jurisdiction of an international tribunal, but are not willing to subject themselves to such jurisdiction” (Lentner, at 5) is indeed a textbook example of a double standard.
Speaking of double standards, also a failed referral and one that never made it to the table need to be mentioned here, as they show that the concerns of some delegations at the Rome Conference were wholly justified: permanent members of the SC (“P5”) veto potential SC referrals without hesitation if their own national interests or the interests of their allies are at stake. In 2014, France proposed a draft resolution to authorise an ICC investigation into the Syria situation. A large number of States supported this endeavour, however, it was vetoed by Russia and China with the effect that high-level perpetrators of atrocity crimes in Syria will presumably never have their day in court (Trahan, at 280). And concerning the Ukraine crisis, any attempt to refer the situation to the ICC – potentially vesting it with the power to also look into the crime of aggression – is inconceivable due to the Russian veto. While the use or threat of the veto in the face of atrocity crimes is contrary to international law, it remains a harsh reality in the practice of the SC.
Is There a Future for the SC-ICC Relationship?
This short and selective history of the SC’s past deferrals and (non-)referrals sheds light on the troubled relationship between the SC and the ICC. It reveals the power relations underlying the practice of international criminal justice, laying bare the tragedy that the ICC to date has virtually no power to exercise jurisdiction over nationals of hegemonic States and their allies. The million-dollar questions are: What story will be told in 20 years from now? Will the SC continue to exempt nationals of non-States parties from the ICC’s scrutiny when making use of its deferral or referral power? Will the P5 members still veto potential referrals even when facing atrocity crimes? Or will there be change?
Regarding referrals, many proposals on how change might look like are on the table. For example, nearly a two-thirds majority of States, including P5 members France and the United Kingdom, support a voluntary veto restraint which means that the P5 members should voluntarily refrain from using their veto when confronted with genocide, crimes against humanity and severe war crimes. Other proposals are about circumventing the SC altogether when deadlocked. Scholars suggested (here and here) that States parties to the Rome Statute could amend the Statute to also allow the General Assembly, acting under the “Uniting for Peace” resolution, to make referrals to the ICC. Whatever path may be chosen in the next years, it is imperative that the SC and especially its powerful members start to respect the fundamental legal principle “equality before the law, equal law for all” (Kaul, at 2). We should hope that when the Court celebrates its 40th birthday, an entirely different story about the relationship between the SC and the ICC will be told.