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UN Security Council: Address Inconsistency in ICC Referrals

Use Debate on International Court to Forge a More Principled Relationship

(New York) – A United Nations Security Council discussion on the role of the International Criminal Court (ICC) is an important opportunity to address inconsistencies in the Security Council’s referrals to the court. The Security Council discussion, its first ever debate on the ICC open to all UN members, is scheduled for October 17, 2012.

Specifically, Human Rights Watch said, the debate should examine the Security Council’s failure to refer situations in Sri Lanka, Gaza, and – most starkly – Syria to the court, as well as shortcomings in its Libya and Darfur referrals.

“The Security Council’s high-stakes relationship with the ICC merits a full discussion by council members and non-members,” said Richard Dicker, International Justice director at Human Rights Watch. “This open debate among all UN member states is an unprecedented opportunity for governments supporting the ICC to demand a more coherent approach to international justice.”

Under the Rome Statute, the ICC's founding treaty, the Security Council may refer a situation in any country to the ICC prosecutor under Chapter VII of the UN Charter if it determines that a situation amounts to a threat to international peace and security. The Security Council first acted on this authority by referring the situation in the Darfur region of Sudan to the court in March 2005 following months of intense debate. The Security Council’s only other referral took place in February 2011 with respect to the situation in Libya.

The Security Council’s referral authority significantly extends accountability for grave international crimes for which there would otherwise be impunity. At the same time, some governments contend that Security Council referrals taint the ensuing investigations, causing them to be seen as politicized. As the ICC has gained global status, the relationship between the Security Council and the court has grown more critical, Human Rights Watch said.

Council selectivity and double standards in making – and failing to make – referrals undercuts the appearance of the court's impartiality and independence, Human Rights Watch said, especially in relation to the role of the United States, Russia, and China, which are permanent Security Council members but are not subject to the court’s authority. The Security Council has on key occasions failed to act in situations where there was strong evidence of widespread and serious international crimes and little prospect of local accountability.

“When it comes to ICC referrals, the United States, Russia, and China seem more concerned about prosecuting their enemies and protecting their friends,” Dicker said. “This checkered approach has left victims of abuses in Syria, Gaza, and Sri Lanka without recourse to justice.”

The two Security Council referrals to the ICC, Resolutions 1593 and 1970, have included provisions that are damaging to the court, Human Rights Watch said. Both referrals imposed the entire financial burden of the new investigations and prosecutions on the court and its member countries. They also allowed exemptions for the nationals of non-member third countries should they be implicated in serious crimes committed in the referred country.

The Libya referral to the ICC was emblematic of the Security Council’s inconsistent approach, Human Rights Watch said. While the Council’s February 2011 referral was prompt and unanimous, once political circumstances changed in Libya, the Security Council no longer actively supported the ICC investigation and failed to press Libya’s new government to cooperate with the court. Similarly, the Security Council has done little to ensure that governments help to enforce Darfur-related ICC arrest warrants. Such practices undermine the effectiveness of the ICC.

“The Security Council’s ‘on again, off again’ approach to ICC referrals undermines its credibility in promoting justice,” Dicker said. “ICC member countries should use this debate to generate real Security Council support for the court, rather than allow it to twist in the wind.”

In a September 26, 2012 letter to 121 foreign ministers of ICC member states, Human Rights Watch urged governments to speak out during the debate on the shortcomings in the Security Council-ICC relationship.

The October 17 discussion could help highlight Security Council inconsistency in referrals, and discourage future referrals that deny funding and create carve-outs for citizens of non-member countries. It could also highlight the lack of Security Council support for the court following a referral, Human Rights Watch said.


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