Deferring what we referred? - UN Security Council and International Criminal Court - The case of Darfur

Contents

Deferring what we referred?

UN Security Council and International Criminal Court

The case of Darfur

Amparo Martínez Guerra*

Keywords: International Criminal Court, Office of the Prosecutor, Security Council, United Nations, Darfur Crisis, Rome Statute, deferral and referral mechanisms.

Six years after the Rome Statute for the establishment of a permanent International Criminal Court (ICC) came into force; the debate concerning its role in the international community remains open. The ICC consists of many international institutions operating globally, and its activity is deeply connected to political powers that sometimes determine investigations and prosecutions. For the Former Yugoslavia and Rwanda the relationship between the UN Security Council and the ICC is even more complex than for those established within international tribunals. This is because, as a permanent court, the ICC operates in countries where transitional justice processes have begun and even in territories where conflicts are still ongoing.

The power to refer situations granted to the UN Security Council by the Rome Statute is controversial, not only because of the political role of the Security Council, but also because it allows for the possibility that one or several UN Security Council permanent members and non-state parties to the Statute, (United States, China and Russia), decide which situations must be referred to the Prosecutor, even in cases where the territorial states had not signed the Statute. The provision overrides any requirement of state consent as a precondition for the Court’s exercise of jurisdiction based on the inherent authority of the Security Council as stated by the UN Charter[i].

Pursuant to article 13 of the Rome Statute, the Prosecutor may initiate investigations motu proprio and through the referral of situations (not individuals) by state parties and the Security Council acting under Chapter VII of the Charter of the United Nations. Although there are several situations referred by the State parties (Northern Uganda, Democratic Republic of Congo and Central African Republic), Darfur has been the only situation referred by the Security Council[ii] as a result of pressure by NGOs and the international community. Less than three months later, on 6 June 2005, the Prosecutor decided to open an investigation, though Sudan hadn’t signed the Rome Statute and the Sudanese Government supported the validity of its own investigations.

Darfur is a complex conflict from a humanitarian, political and legal point of view. The UN Security Council Resolution 1564 of 18 September 2004 requesting that the Secretary General establish an International Commission of Inquiry on Darfur[iii] was the first step in a process that frustrated almost all initiatives to provide relief to civilians coming from NGOS. The report, submitted to the Secretary-General on 25 January 2005, deduced that no genocide was taking place in Sudan pursuant the definition provided by the Rome Statute.[iv] These findings did not keep the International Criminal Court from issuing several arrest warrants. The latest, dated 14 July 2008, against Sudanese President Omar Hassan al Bashir may be confirmed by the Trial Chamber I in the following months.

The restrictions imposed by the Rome Statute do not end there. Although it is a permanent Court, it does not have a permanent structure. The cooperation of the state parties is necessary for the Court to carry out investigations, prosecutions and even to arrest offenders, given that the ICC has neither associate police nor coercive power over individuals. From a political point of view, the states’ lack of cooperation is not as interesting as the power granted to the UN Security Council.

As required by article 16, the UN Security Council shall adopt a resolution under the Chapter VII of the Charter stating that “no investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions”.[v] There are two main justifications provided for adopting this provision. One is the need to leave room for alternative mechanisms used in transitional justice in post-conflict societies as substitute for international criminal trials. The other is the UN Security Council’s interest in creating a mechanism to defer situations case by case[vi] and the attempts to seek impunity for some actors. Since 2002, article 16 has been widely mentioned by UN Security Council resolutions, especially when concerning the criminal liability of non state-parties’ peacekeepers in order to justify the successful functioning of peacekeeping mission.[vii]

The power granted by article 16 could be used in the following months to defer the situation referred by UN Security Council three years earlier. The resolution, supported by China and Russia as permanent members, but also by Libya, South Africa, Vietnam, Indonesia and Burkina Faso would suspend the process carried out by the Prosecutor. The decision, with no precedents in the history of the international court, would lead us to a paradoxical situation where the UN Security Council would consider that, pursuant article 39 Chapter VII of the UN Charter, the outcome of the investigations and proceedings carried out by the ICC and at its own request could be a threat or even a breach of the peace.

As mentioned above, one of the most significant problems in the relationship between the UN Security Council and the ICC is the difficulty in supporting the existence of a prosecutor with an independent position from the Security Council. Although scholars have highlighted the need to have flexible instruments to guarantee lasting peace and national reconciliation the enforcement of International Justice, the limits imposed on the ICC Prosecutor by the interest of the five permanent members of the Security Council may become a political constraint further undermining the credibility and independence of the Court. Far from being instruments to achieve peace, articles 13 and 16 of the Rome Statute could be an obstacle in ending impunity for the perpetrators of the most serious crimes concerning the international community as a whole, and thus contributing to deterrence political leaders in some contexts.