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Comment on the Africa Question: “Is the International Criminal Court targeting Africa inappropriately?”

McElroy
3944
October 14, 2013
8:38 am

Limitations to the UN Security Council’s Referral of Situations Outside of Africa

Introduction

Currently every ICC case revolves around a situation in Africa. Kenya and Cote D’Ivoire were initiated by the Prosecutor proprio motu. Uganda, the Democratic Republic of the Congo, the Central African Republic, and Mali each referred themselves to the ICC for formal investigation. The UN Security Council referred the remaining two cases to the ICC: Sudan in March of 20051 and Libya in February in 20112. Critics therefore contend that the Office of the Prosecutor inappropriately targets situations in Africa.

Several considerations provide response to this criticism. Jurisdictional challenges impede the Court’s ability to prosecute cases in states that refuse to ratify the Rome Treaty. This limitation requires a closer review of the UN Security Council. Chapter VII of the UN Charter permits the UN Security Council, with the requisite votes, to issue formal resolutions that refer cases to the ICC. Tenuous political dynamics, particularly amongst the five permanent members of the Council, frustrate the referral and subsequent prosecution of cases outside Africa, where the geopolitical interests of the five permanent members might be more at odds. Furthermore, wavering support for the ICC as an institution and the mandatory complimentary nature of the Court might provide further explanation as to why situations that take place outside of Africa are not being formally investigated.

An assessment of the alleged use of Sarin gas in Syria provides insight into the limitations to UNSC referrals, while an evaluation of Sri Lanka’s civil conflict illustrates how the Court’s complimentary rule might hinder the Office of the Prosecutor in initiating investigations. Although superficially the Court appears to “target” Africa, political complexities within the UN Security Council and jurisdictional challenges demonstrate why the Office of the Prosecutor is less able to prosecute mass atrocities elsewhere.

Syria

Syria has not ratified the Rome Treaty and therefore lies outside the jurisdiction of the ICC unless the UNSC issues a formal referral to the Court. Use of chemical weapons would constitute a crime against humanity. To date, however, the UNSC has not instituted a referral.

Tenuous relationships among the five permanent members of the Security Council underpin the challenge in the referral process, especially in regions that reflect adversarial strategic interests. China and Russia continue to employ obstructionist maneuvers. Both countries stated that they will oppose a referral, and Russia rejected three proposed resolutions that would have enacted punitive consequences for Syria should the Assad regime fail to accept political negotiations.3 Russia possesses its last foreign military base outside the former Soviet Union in Syria, relies on Syrian purchase of Russian military exports, and considers Western intervention adversarial. These considerations suggest that a Russian veto to formal resolution on Syria is inevitable.

Furthermore, although the UK and France, as well as Argentina, Australia, Luxembourg, and Korea publicly support referral to the ICC, the US has not made similar statements of support of the Court4. Restrained American support for the Court suggests that the United States will at best remain absent on a referral to the ICC and will most likely pursue punitive measures against Syria through other means. In light of these considerations, a UNSC referral of Syria to the ICC is not likely to happen.

Sri Lanka

Similar to Syria, Sri Lanka is not a signatory to the Rome Treaty, and ICC-OTP’s capacity to investigate and prosecute Sri Lanka therefore hinges upon a Security Council referral. No Security Council resolution was issued with respect to the conflict In Sri Lanka, although an official UNSC Press Statement “demanded that the LTTE lay down its arms and allow civilians to leave” and “called on the Government of Sri Lanka to take the further necessary steps to facilitate the evacuation of trapped civilians”5. Although the United States expressed awareness and concern for the Sri Lankan conflict, a State Department report abstained from defining the situation as a crime of war or crime against humanity; rather, it charged the Sri Lankan Government with “serious human rights problems”6. When asked its view on Sri Lanka, the United States Department of State responded that it “supports a full, credible, and independent investigation of alleged violations…and continues to urge the Government of Sri Lanka to quickly demonstrate that it is able and willing to meet these obligations”7. This response suggests that where national efforts to address the mass atrocity are possible, international calls to the ICC take the back seat.

Conclusion

The intricate relationship amongst the UN Security Council, the ICC, and countries that refuse to ratify the Rome Treaty, as demonstrated through discussions of Syria and Sri Lanka, illustrates the problematic nature of instituting ICC-OTP investigations and prosecutions. Is it a coincidence that these political limitations in particular create a systemic tilt towards countries that have ratified the Rome Treaty yet are unable or unwilling to address the situation themselves? Failure of the UNSC to refer situations outside of Africa necessitates a discussion about why the Council successfully referred Sudan and Libya to the ICC. Although this remains a complex issue, it might be unfair to charge the ICC with an inappropriate attack on African countries, when there exist additional considerations to be explored.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
The UN Security Resolution was passed by a vote of 11-0, with the US, Algeria, China, and Brazil abstaining. See AMICC, UN Security Council Referrals to the ICC, available online. ↩
2.
This was the first unanimous referral without abstentions made by the Security Council, as stated by Susan. E. Rice, US Ambassador to the United Nations in the May 4, 2011 Statement, available online. ↩
3.
AMICC, Syria and the International Criminal Court, October 17, 2012, available online. ↩
4.
Kristyan Benedict, The Countries that Support Referring Syria to the International Criminal Court—and some Absent ‘Friends’, Amnesty International UK Blog, September 20, 2013, available online. ↩
5.
Security Council Press Statement on Sri Lanka, SC/9659, May 13, 2009, available online. ↩
6.
U.S. Department of State, 2010 Human Rights Report: Sri Lanka, Bureau of Democracy, Human Rights, and Labor, April 8, 2011, available online. ↩
7.
Office of the Spokesperson, U.S. Department of State, Sri Lanka: Accountability for Alleged Violations of International Human Rights Law, question taken at daily press briefing, June 27, 2011, available online. ↩

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