The End of an (Unsuccessful) Era?
UN Security Council Referrals to the ICC
Much hope was put into the possibility of gaining jurisdiction over situations in States which are not party to the Rome Statute through the UN Security Council (UNSC) referral mechanism. That mechanism’s central provision, Article 13(b) of the Rome Statute, provides that the Court may exercise its jurisdiction with respect to international crimes, where a situation (involving a state which is not party to the ICC) is referred to the Prosecutor by the UNSC acting under Chapter VII of the Charter of the United Nations. So, in theory, this gives the ICC the legal basis to fulfill its mandate to end impunity for the most serious crimes of concern to the international community as a whole, regardless of a State’s acceptance of the Court’s jurisdiction. Alas, practice paints a different picture. In this post, I will look at selected legal and political issues that arose out of the referrals and take stock of these developments.
Power over Principle and the ‘Illegal’ Veto
As pointed out by Lukas Emanuel Müller in his excellent post giving an overview of the history of the UNSC-ICC relationship, there are many shortcomings and challenges stemming from the UNSC referral practice. From the troubling ‘peacekeeping exemptions’ to the ‘toxic paragraphs’ in the only two UNSC referrals to date involving Darfur in 2005 and Libya in 2011, and the failure to refer the situation in Syria to the ICC, – not to mention Ukraine – the past 20 years can hardly be described as a success story with respect to the referral mechanism. Acknowledging the Realpolitik in international relations, it is not surprising that the agreement reached in Rome in 1998, forming the ICC Statute, was a compromise between power and principle: one that still ensures that the permanent members of the UNSC (‘P5’) have a strong influence over the practical reach of the ICC. As a result, double standards still haunt the ICC in its relationship with great powers and this fact is also evident in the legal structures of the referral mechanism, as pointed out elsewhere in more detail. Judging from the current developments on the international stage, it is not very likely that referrals will be forthcoming in the future: for example, Russia explicitly stated already in 2018 that it ‘is determined to do whatever is necessary to enable the members of the Council to avoid repeating the unsuccessful experiment of referring Security Council issues to the ICC’.
Whether a prohibition of a threat or use of the veto in relation to atrocity crimes really exists under international law de lege lata (meaning that referrals must not be blocked by vetoes) remains – despite Jennifer Trahan’s impressive work on this – at least doubtful, as commentators have pointed out. And that a strategy to outlaw the veto for these situations, as suggested by Trahan, would really change anything on the ground is difficult to imagine, when even the existing referrals did not achieve much. As the referrals in Darfur and Libya showed, the members of the UNSC seem uninterested in actually following up and supporting the ICC’s prosecutions – while not even providing UN funds for it. Despite several calls for more backing and decisive action, for example in a proposal to use targeted sanctions in support of the enforcement of its arrest warrants, the referral practice might best be described as a ‘smokescreen for Council inaction’ and a way for States to do something without incurring any domestic political costs.
The Legality of the ‘Toxic Paragraphs’
Legally, the inclusion of jurisdictional exceptions referred to as ‘toxic paragraphs’ to the effect of preventing the ICC to exercise jurisdiction over certain nationals of States which are not party to the Rome Statute is not resolved. While the Office of the Prosecutor (OTP) apparently assumes not to be bound by the restriction because of their perceived incompatibility with the jurisdictional regime of the Statute, I have argued elsewhere that despite any potential incompatibility, the ICC cannot exercise more jurisdictional powers than conferred to it by the UNSC referral in the first place (the referral being the sole jurisdictional basis in States not parties to the ICC). The Court itself has not directly addressed this issue (yet).
Highly controversial was the question of personal immunities of Heads of State of States that the UNSC referred to the ICC. Here, the ICC Appeals Chamber (AC) held in a much-criticized ruling on 6 May 2019 that Heads of State have no immunity under customary international law. Dapo Akande called this ‘deeply misguided’ and ‘a very dangerous and unwise move for the Court’. The AC could have followed Dapo Akande’s persuasive argument to arrive at the same conclusion, i.e. that no personal immunities are opposable in case of UNSC referrals, while not turning international law’s immunity regime on its head. Albeit I disagree with his interpretation in one detail, it is clear that only the referral itself can be the basis for removing otherwise existing personal immunities through the UNSC acting under Chapter VII.
The Principle of Legality
What has also been resolved by the ICC Appeals Chamber is the question of what the principle of legality requires the ICC to consider in situations referred to it. In the case of Ali Muhammad Ali Abd-Al-Rhaman (“Ali Kushayb”), the AC held that ‘for conduct that takes place on the territory of a State that is not a Party to the Statute, it is not enough that the crimes charged can be found in the text of the Statute.’ An interpretation consistent with the principle of legality requires – according to the AC – the Court to ‘look beyond the Statute to the criminal laws applicable to the suspect or accused at the time the conduct took place and satisfy itself that a reasonable person could have expected, at that moment in time, to find him or herself faced with the crimes charged’ (para 86). The Court also found that the basis for its jurisdiction in situations referred to it by the UNSC is the UNSC resolution referring to the situation, and thus rejected the view of the ICC being endowed with universal jurisdiction (as Judge Ibáñez defended in her opinion).
In the past 20 years, the referral mechanism was used only twice, and it is unlikely to be utilized any time soon again. Nevertheless, the existing practice has demonstrated that fears about the politicization of the ICC through the involvement of the UNSC were justified. The novel legal question raised by this mechanism was only partly answered by the AC to date, so some open questions remain. The most serious test for future referrals stems, however, from current events. With Russia’s invasion of Ukraine, all multilateral institutions are facing immense challenges. Judging from previous attitudes of powerful states outside the ICC (most importantly the P5 members’ China, Russia and the US) much progress is rather unlikely in the near future. But that should not mean that the international criminal justice project as such should be called into question. Rather, it demands renewed attention to domestic prosecutions based on the principle of universal jurisdiction that should be strengthened and supported. Germany offers a good example of what investments in war crimes investigation units and procedural novelties like the ‘structural investigation’ can do for successful international crimes prosecutions. This model should be strengthened and followed around the world.
In conclusion, expecting the UNSC to even-handedly ensure impunity around the world without interference by great power interests was never really realistic. Now with 20 years of experience, it is imperative to learn from the institutional and political shortcomings of the referral mechanism and consider that the means to end impunity should be not in the hands of the UNSC alone.