As conflict proliferates and intensifies globally, international crimes are often committed in territories beyond the jurisdiction of the International Criminal Court (ICC).
This has led to an increase in calls for referrals from the United Nations Security Council (UNSC).
The ICC only has jurisdiction in situations that occur in the territory of countries that are party to the court’s statute or, in the case of non-state parties, through a UNSC referral. Syria, for example, is not party to the ICC’s Rome Statute: therefore the only possible route to ICC jurisdiction is through such a referral.
There have also been calls for the referral of the situation in Palestine and Ukraine. Like Syria, they are not party to the Rome Statute. However, they have – in the past – recognised the ICC’s jurisdiction, and different considerations may therefore apply. Palestine is reportedly also considering joining the ICC, while the situation in Ukraine is under preliminary investigation by the Prosecutor.
Since the ICC began its work, the UNSC has only referred two situations
Many states and non-governmental organisations (NGOs) have criticised the UNSC’s failure to refer the situation in Syria. Since the ICC began its work, the UNSC has only referred two situations: the situation in Darfur, Sudan in 2005 and in Libya in 2011, both of which were adopted without a single negative vote.
In Syria, according to the UN, the death toll is approaching 200 000. Many of the victims are women and children. A Swiss initiative calling for the referral of the situation in Syria to the ICC has received support from about 60 states, however in May 2014, Russia and China vetoed a resolution tabled by France to refer the situation in Syria.
In remarks on behalf of the UN secretary-general, the deputy secretary-general said that the ‘Security Council has an inescapable responsibility’ to refer the situation in Syria to the ICC, and that failure to do so would impact negatively on the credibility of the Security Council and the UN as a whole. The former high commissioner for human rights, Louise Arbour, in contrast, wondered before the vote whether the draft resolution would ‘belong to the cemetery of good intentions or the museum of political scoring,’ suggesting that the tabling of the resolution was ‘an exercise in using the ICC and accountability for posturing.’
Arbour’s statement indicates that while referrals to the ICC to address international crimes may appear necessary, they also raise complex questions. First, given the political dynamics on the Security Council, the tabling of resolutions to refer can be nothing more than ‘point scoring’ – at least with respect to Syria. Second, since calls for referrals are motivated by a desire to end the bloodshed, it should be remembered that experiences from Darfur and Libya suggest that referrals do not have that effect.
The first point does not address the question of appropriateness of referrals, but rather the wisdom of tabling a resolution when there is little chance of success. This concern can easily be rebutted, however, by a reference to the Libya and Darfur resolutions. Both of these were expected to suffer the same fate as the draft Syrian resolution, but were eventually adopted.
In response to the second question, it may well be asked whether there is anything to lose by referring the situations. Even if the referral does not end the conflict, it may be argued that it is better to have it than not, and that it can’t do any harm. This last point, however, deserves greater scrutiny than it has received in public discussions.
The Libya and Darfur referrals have included three elements that could be harmful to the ICC in the long run. First, while the referral resolutions have, with limited success, required the situation country to cooperate with the ICC, no obligation to cooperate has been placed on other states – leaving a significant cooperation gap.
The second element is that although the Rome Statute and the relationship agreement between the ICC and the UN foresees referrals being funded by the latter, the resolutions preclude UN financing of the investigations and prosecutions that may flow from such referrals. Finally, the resolutions preclude the jurisdiction, of both the ICC and of other national jurisdictions, for alleged crimes committed by non-nationals in the situation country in UNSC authorised operations.
These three elements are aimed at protecting the interests of the three permanent members of the Security Council that are not party to the Rome Statute (the United States, Russia and China). They have been severely criticised by supporters of the ICC, for fear that they harm the image of the court as an independent judicial entity, and used by opponents of the ICC to attack its credibility. The last element, for example, implies the ICC should use nationality to determine jurisdiction in a manner that is not consistent with the Rome Statute, and which is contrary to the principle of equality before the law.
Experiences from Darfur and Libya suggest that referrals do not necessarily end the conflict
Similarly, the cooperation requirement seeks to insulate some states, in particular the three permanent members that are not party to the Rome Statute, from the duty to cooperate. This not only affects the effectiveness of the ICC investigations and prosecutions, but also raises questions about the role of accountability in the decision of the Security Council to refer situations. The Syria draft resolution also contains these elements.
Given the deficiencies of referring resolutions and the reputational harm they may cause the ICC, it is worth pondering the wisdom of clamouring for referrals when the threat of the triple veto makes it impossible to achieve better referral resolutions. In the resolution referring the situation in Darfur, Brazil abstained in protest against the exemption from jurisdiction element, and was severely criticised for being insensitive to the mass atrocities being committed. In its explanation of the vote on the Syrian resolution, Argentina criticised all three elements.
Aware that abstaining based on ‘technicalities’ would fall into the narrative of merely being an excuse to protect perpetrators of heinous acts, both South Africa and Brazil contemplated – but ultimately decided against – abstaining in resolution 1970 on Libya. This leaves UNSC members powerless in seeking an impartial resolution, and leaves little hope for UNSC referrals without these problematic elements.
States and NGOs supportive of the ICC should therefore carefully reflect on whether referrals that go against the letter and spirit of the Rome Statute are the answer to the problem of mass atrocities. The benefit in the protection of civilians is, in fact, illusory – while the harm and damage to the image of the ICC is real.
Dire Tladi, Professor of International Law, University of Pretoria, Consultant, Transnational Threats and International Crime Division, ISS Pretoria