The University of California Irvine Law School’s International Justice Clinic recently issued an important report examining the relationship between the UN Security Council and the International Criminal Court. The report, authored by UCI Irvine Prof David Kaye, is the culmination of a project on the Council and the Court run by UC Irvine, in collaboration with the University of California Los Angeles (UCLA) Burkle Center for International Relations. The purpose of the project was to examine the relationship between the Security Council and the ICC and to seek concrete ways in which the Council can improve its support to the ICC. At the end of November last year, I attended a closed workshop, held as part of the project, which was attended by a small but diverse and impressive group of scholars and practitioners. Participants included academics, members of civil society, current or former officials from governments, including each of the P5, as well as representatives from the ICC bench, office of the prosecutor and the registry. Over two days, we discussed a number of stumbling blocks in the relationship between the Council and the Court, in particular the difficulties in securing referrals by the Council to the Court, problems regarding the framing of referrals, issues of funding and cooperation etc.
The report makes a couple of institutional or structural recommendations for improving the dialogue between the Council and the Court and for building support within the Council for the work of the Court. It also makes a number of specific policy recommendations regarding matters which should be addressed in Council resolutions relating to the ICC. The recommendations are as follows:
1. Extension of the obligations of cooperation with the Court to all states, not just the situation countries themselves, especially in referral situations but also possibly in those circumstances where the Council has expressed support for the work of the Court in non-referral situations;
2. Provision of timely substantive responses to Court findings of non-cooperation that are communicated to the Council, as the Court has done on several occasions;
3. Extension of key Rome Statute protections of privileges and immunities in referral and other situations, thereby allowing Court officials to conduct their work safely and without interference from local actors;
4. Regular and streamlined imposition of financial, travel, and diplomatic sanctions on those accused by the ICC, helping to dry up the accused’s resources and highlight the importance of state cooperation in transferring such individuals to ICC custody;
5. Promotion of UN and outside funding in referral situations, eliminating the language from referral resolutions purporting to disallow UN funding;
6. Elimination of jurisdictional restrictions related to non-parties in referral resolutions, enabling the Court to exercise independence in identifying those most responsible for the most serious crimes in situation countries; and
7. Initiation of a transparent conversation about the factors relevant to Council referral of situations to the Court, recognizing that the Council is highly unlikely to identify specific criteria to guide future referrals.
It seemed to me, from the discussions at the workshop, that recommendations 5 and 6 are achievable in the short term. The relevant provisions in Council referral resolutions are added in order to meet the concerns of the US. However, it may well be that other members of the Council, who take the lead in drafting these resolutions (namely France and the UK) are giving the US something the US may not itself insist on were it not included in the first draft of these resolutions. Recommendation 1 is more difficult to achieve but achievement of this goal (as well as that expressed in recommendation 1) is of great importance in securing trust by the broader UN membership in the ICC. A failure to include measures in referral resolutions that speaks to equality of application of the law will likely mean that as US support for the ICC increases, support by others will decrease. It seemed to me that one way to achieve these recommendations is for other countries to take the lead in drafting ICC referral resolutions. However, whether this would be possible in practice is another matter. Apparently, it is the UK and France that always take the lead in the Council on ICC matters. It is not quite clear why this has to be so.
Recommendation 4 is more problematic. At first glance, it appears to suggest that there should be imposition of sanctions on ICC accused as a matter of course. However, in the report, it is stated at p.21 that:
The Council should expand its sanctions committee work by working with the Court to identify those actors who should be subject to sanctions. Such measures should be adopted for both referral and non‐referral situations. Sanctions such as these have practical and symbolic importance, as they not only seek to deny a person access to resources to carry out unlawful acts. They also make a normative statement that such individuals, by acting unlawfully, should lose the privileges they may otherwise enjoy as leaders or officials, state or non‐state. They demonstrate to states that such behavior entails consequences and penalty. Ultimately, if enforced, such measures may have the effect of limiting an individual’s ability to evade ICC process.
A call for the Council sanctions committee to work with the Court in identifying those who will be subject to sanctions makes clear that imposition of sanctions should not be automatic. Indeed it hardly seems to make sense to say that those cooperating with the Court should be subject to sanctions. Sanctions for non-cooperation or attempting to evade ICC jurisdiction would seem to make more sense. Nonetheless, even the normative statement in the paragraph above is problematic. It runs counter to the presumption of innocence. No one should be presumed to be acting unlawfully just because they have been charged by the ICC. After all, the ICC has been unable to secure convictions of many of those charged thus far.