Tomorrow (6 July), Council members will hold an “Arria-formula” meeting to discuss the relationship between the Security Council and the International Criminal Court (ICC) and to mark the 20th anniversary of the Rome Statute establishing the ICC. The meeting, titled “UNSC-ICC Relations: Achievements, Challenges and Synergies”, will be co-hosted by Council members that are also parties to the Rome Statute: Bolivia, Côte d'Ivoire, France, the Netherlands, Peru, Poland, Sweden and the UK.
The briefers are expected to be Assistant Secretary-General for Legal Affairs Stephen Mathias; Judge O-Gon Kwon, President of the Assembly of States Parties; ICC Prosecutor Fatou Bensouda; Toussaint Muntazini Mukimapa, Special Prosecutor of the Special Criminal Court (SCC) of the Central African Republic (CAR); and Ambassador Issa Konfourou, Permanent Representative of Mali to the UN.
The Rome Statute gives the Security Council a unique jurisdictional role. Article 13(b) of the Statute grants the Council the power, acting under Chapter VII of the UN Charter, to refer to the ICC situations in which particular crimes may have been committed. Article 16 of the Statute, on the other hand, allows the Council to defer an investigation or prosecution for one year through a Chapter VII resolution, for reasons relating to the maintenance of international peace and security.
So far, the Council has referred only two situations to the Court under Article 13(b): the situation in Darfur, in resolution 1593 (2005), and in Libya, in resolution 1970 (2011). These resolutions placed the financial burden of the investigations exclusively on the ICC; excluded from ICC jurisdiction foreign nationals operating under Council authorisation; but only urged states other than Sudan and Libya, respectively, to cooperate with the ICC, while noting that they are under no obligation to do so. In the most recent development in this regard, on 22 May 2014, China and Russia vetoed a resolution referring the situation in Syria to the ICC.
The role of the Council vis-à-vis the ICC—and the complexities of the implementation of its referrals—is a widely-debated topic among Council members. Among the areas of controversy have been the failure to refer some situations in which mass crimes were allegedly committed, and the relative indifference towards states’ non-cooperation with the ICC on existing referrals, with reports from the Court regarding non-compliance of UN member states being ignored at times.
Despite the fact that China, Russia and the US are not parties to the Rome Statute, Council decisions over the years have increasingly included statements in support of the ICC in both thematic and country specific resolutions. This trend has shifted in the last few years, as non-state parties among both permanent and elected Council members have pushed to limit ICC-related language in Council decisions or to eliminate it completely. In addition, the AU has taken the position that the ICC is overly focused on African situations and should not be prosecuting incumbent heads of state, which has resulted in several African Council members adopting a more negative position towards the Court. This anti-ICC stance led Burundi, the Gambia and South Africa to announce their withdrawal from the Rome Statute, although only Burundi actually followed through on this announcement.
To date, the Council has held only one formal meeting on its relationship with the ICC. This open debate was held at the initiative of Guatemala, on 17 October 2012 (S/PV.6849 and Resumption 1). Due to the current climate in the Council regarding the ICC, the organisers decided to hold an Arria-formula meeting rather than seeking agreement to a formal Council meeting.
The concept note says that the objective of the meeting is to follow up on the 2012 open debate, take stock of the evolving relationship, consider how the ICC’s work can assist the Council in maintaining international peace and security, and explore possible areas of strengthening cooperation with the Court, particularly with the Office of the Prosecutor. The note also provides suggestions for how the Council can more effectively exercise its powers of referral, including through defining a protocol to follow when deciding on referrals and developing a Council follow-up mechanism regarding existing referrals.
Bensouda is likely to raise the issue of non-cooperation with the Court and non-compliance with Council referrals, and the lack of resources from the UN to implement referrals, as she has done repeatedly in her semi-annual briefings to the Council on Sudan and Libya, most recently on 9 May (S/PV.8250). At the same time, both she and Mathias are expected to highlight positive examples of UN-ICC cooperation under the Relationship Agreement between the UN and the ICC, which creates a general framework for cooperation between all units and entities of the UN with the Court.
One example of such cooperation is the memorandum of understanding between the ICC and the UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) of 19 May 2016, facilitating cooperation and assistance to all parties and participants in judicial proceedings before the Court. Furthermore, according to resolution 2387 of 15 November 2017, MINUSCA has the authority to cooperate with the ICC in respect of its mandate to apprehend and hand over to the CAR authorities perpetrators of serious human rights abuses and violations of international humanitarian law.
Mukimapa is expected to address the relationship between the ICC and the SCC, which commenced operations in June. The SCC is a hybrid court within the CAR domestic legal system, with a mix of domestic and international personnel, and is authorised to investigate, prosecute and try serious violations of human rights and of international humanitarian law. Mukimapa may also provide information on cooperation between the two courts, such as the training of eight SCC magistrates by the ICC in March.
Ambassador Konfourou will most likely address the Malian Government’s ICC referral of the situation in Mali and its cooperation with the Court, including the 31 March extradition of Al-Hassan Mahmoud to the custody of the ICC, where he faces charges of crimes against humanity and war crimes allegedly committed in Timbuktu.