I. Helping ICC to Deliver Justice Would Help Maintain or Restore International Peace and Security

The role of the UNSC is to determine the existence of threat to the peace and then take steps to maintain or restore international peace and security.14 The ICC referrals are a good example of this role because the UNSC has first determined the existence of threat and then referred the situation to the ICC to try to deal with that threat.15 Hence, it is reasonable to infer that a failure by States to cooperate with the Court after the referral would also constitute a threat to the peace and security.16 As such, the UNSC should provide follow-up support for its ICC referrals and help arrest perpetrators of atrocities in order to help deal with the threat.

Furthermore, past UNSC actions demonstrate that the Council considers it to have the responsibility, as well as powers, to help deliver justice under its Chapter VII powers to individuals allegedly responsible of international crimes.17 Such actions seem to be also premised on an idea that lack of prosecution for international crimes constitutes a threat to the peace.18 For example, in order to ensure the extradition of the Lockerbie bombing suspects from Libya, the UNSC first passed resolutions to urge Libya to cooperate and then, after lack of cooperation, imposed sanctions against Libya.19 Ultimately, these sanctions ended up playing a part in the surrender of the suspects.20 Similar resolutions were also implemented in 1996 when the UNSC called upon Sudan to extradite suspects, who were “wanted in connection with the assassination attempt,” to Ethiopia for prosecution.21 Hence, the UNSC has taken steps in the past in order to ensure prosecution for international crimes and therefore try to restore and maintain international peace and security. So, once the UNSC determines that threat to peace and security exists and makes a referral, the Council should also follow through with the referral and ensure States’ cooperation in order to help successfully prosecute those responsible for grave human rights violations.

The follow-up support is also necessary because the States that are parties to the referred situation are unlikely to cooperate with the ICC.22 Generally, the ICC’s jurisdiction extends to the territory of State parties or nationals of State parties23 and the Court relies on its member States to execute arrest warrants.24 In cases that involve State parties and self-referrals the likelihood of cooperation is greater because of States’ general commitment to assist and help follow through with the investigation and referral.25 However, the Security Council referrals usually involve States who are not a party to the Rome Statute, since the Security Council referrals are meant to extend the jurisdiction of the ICC to situations that occur “outside the territory of a State party and with respect to acts committed by non-nationals of a State party.”26 Hence, such a State would be very reluctant to cooperate with the investigation and execute arrests because it has not agreed to fall under the Court’s jurisdiction in the first place.27 Therefore, because a State has not agreed to an OTP investigation and is thus unwilling to cooperate and effectuate arrests, the referred situation would most likely continue to constitute a threat to international peace and security.28

II. Challenges with Past UNSC Referrals: Darfur as an Example29

On March 31, 2005, the Security Council adopted resolution 1593 by a vote of 11 in favor, none against and four abstentions referring the situation in Darfur to the ICC.30 The resolution notes that government of Sudan and all other parties to the conflict in Darfur alone have an obligation to “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to [this] resolution.”31 However, it only “urged” cooperation from other States and international organizations.32 In addition, the resolution lacked any specificity in terms of level of cooperation needed or obligations bestowed upon Sudan.33 Notably, the distinctions in States’ obligation and lack of specificity have induced non-compliance.

Next, after the OTP investigation and request, the Pre-Trial Chamber issued arrest warrants for four Sudanese officials, including for Sudan’s President al-Bashir.34 Nevertheless, regardless of the cooperation obligation bestowed upon Sudan’s government, Sudan defied ICC by refusing to cooperate and hand over the indictees.35 In addition to non-cooperation, the Sudanese government has kept in position and even promoted persons who are charged with the atrocities in Darfur.36 Since Sudan is not a State party to the Rome Statute it does not fall under the ICC’s jurisdiction.37 Therefore, as discussed above, it would have been unlikely that Sudan would cooperate with the ICC and Sudan has demonstrated this unwillingness throughout the ICC proceedings.38

Moreover, President al-Bashir has continued to visit foreign countries, including some States who have a legal obligation to enforce the ICC warrants for arrest.39 For example, Omar al-Bashir traveled to Chad, Kenya and Djibouti in 2011.40 Most recently, in January 2013, he again visited Chad.41 The ICC responded to its members’ defiance by filing decisions about these visits referring the matter to the Security Council in order for the Security Council to “take any action [it] may deem appropriate.”42 An option for such a referral is available when the UNSC has referred a case to the ICC.43

In addition, the Prosecutor has repeatedly asked the UNSC to assert cooperation with the Court.44 Most recently, the ICC Prosecutor Fatou Bensouda expressed its dissatisfaction about lack of support when she presented the ICC’s sixteenth report on Darfur to the Council: “My Office and the Court as a whole have done their part in executing the mandate given by this Council in accordance with the Rome Statute. The question that remains to be answered is how many more civilians must be killed, injured and displaced for this Council to be spurred into doing its part?”45

The Security Council, however, has chosen not to take any action demonstrating its lack of interest in following through on its resolution and enforcing States’ cooperation with the ICC.46 Unfortunately, this UNSC approach has not been effective in maintaining or restoring peace and security in Darfur.47

III. Steps the UNSC Can Take to Effectuate Arrests for its Referrals

Currently, the Security Council does not appear committed to using its authority under Chapter VII powers to help ensure arrests.48 However, in order to follow-through with the referral, make the referral effective, and ensure cooperation, a legitimate threat of repercussions should be put in place.49 The examples of Milošević, Karadžić, and Taylor show that consistent and informed pressure on State cooperation helps effectuate arrests.50 These arrests also show that implementing a concrete strategy helps achieve compliance and cooperation.51 As such, it is important to bear in mind the main incentives available to induce States’ cooperation: political pressure, threat of sanctions, the imposition of sanctions, or other enforcement measures, and finally the possibility of use of force to effectuate arrests.52 The UNSC could use these incentives under its Chapter VII powers to ensure States’ cooperation with the ICC.

1. First, the referral itself could have a language stating that all States are obligated to cooperate with the ICC, including with executing arrests

There is a need for a greater level of State cooperation with the ICC in order to effectively combat impunity and fulfill the ICC’s mandate.53 In order to achieve this, the Security Council should issue a referral resolution requiring all the States and the international community, not just the States that are parties to the conflict, to assist the ICC.54 This is what the UNSC did when it established the International Criminal Tribunal for the former Yugoslavia in Resolution 827 and the International Criminal Tribunal for Rwanda in Resolution 955.55 However, in case of Darfur and Libya referrals, the resolutions only required the situation countries to cooperate with the court.56

Furthermore, past ICC referrals lack specificity or directives in its resolutions regarding cooperation and executing arrests.57 For example, the UNSC could specify the steps that a target State can take to ensure full cooperation with the court and explain the cooperation obligation of all the States with regard to executing arrests.58 Furthermore, the UNSC could specify the consequences for non-cooperation, like sanctions and severance of diplomatic relations.59 Otherwise, if there is no actual and explicit threat of penalty, uncooperative States have little incentive to cooperate with the ICC.60 Therefore, the Council should take a stronger stance and, under its Chapter VII powers, compel all UN Member States to cooperate with the ICC in referral situations, list the obligations of States, as well as note the penalties in case of non-cooperation.61

2. Second, UNSC could notify the non-cooperative State and remind the State of its obligation to assist the ICC in all matters, including arrests

In the case of non-cooperation, the UNSC could show its support for the Court by issuing declaratory or presidential statements “recalling the need to observe applicable norms of international law and stressing the importance of accountability for those most responsible for serious violations of these rules.”62 However, with the exception of one presidential statement, the UNSC has not issued any statements in support of the ICC.63

In addition, especially when ICC refers the issue of State non-cooperation to the UNSC under Article 87 of the Rome Statute, the Council could issue a resolution condemning the non-cooperation and demanding compliance with the Court.64 In its resolution, the Security Council should also explain any direct consequences for continued non-cooperation, like economic sanctions or other penalties permitted under UNSC Chapter VII powers.65 It is very likely that much more would be happening in terms of cooperation and executing arrests if the UNSC would use declarations, presidential statements, and binding resolutions to make the non-cooperation more of a public phenomenon and demonstrate its support for the Court.66

3. Third, UNSC could use economic sanctions and other non-military penalties under its Chapter VII powers to help ensure cooperation

If the non-cooperation continues, regardless of the UNSC notifications, the Security Council could take action under Article 41 of the UN Charter to influence States to cooperate with the ICC.67 The measures that the UNSC may take under Article 41 are non-exhaustive.68 For example, the Council could use its powers to impose sanctions and freeze assets in order to induce cooperation69 as well as avoid all non‐essential contacts with the ICC indictees or non-cooperating States.70

Such Security Council powers have been successfully used in the past and would likely help induce cooperation by States. For example, as discussed above, the UNSC used sanctions in relation to Libya in order to induce extradition of the two Lockerbie bombing suspects.71 These sanctions included embargoing Libya’s civil aviation and military procurement efforts, reducing diplomatic presence for Libya, an oil technology ban, and limited asset freeze.72 Ultimately, Libya surrendered the suspects.73 More recently, the UNSC also imposed economic sanctions in order to penalize a State for not abiding by its obligations involving nuclear weapons testing.74 Hence, the UNSC has shown its willingness to use economic measures to induce State compliance and such measures also appear to be effective.75

Furthermore, recent history demonstrates that fear of economic consequences can significantly influence State behavior. When Malawi, which is a Member State of the ICC, hosted Omar al-Bashir in a regional summit the US opted to freeze a $350 million energy grant and European States threatened to withhold development aid if Malawi hosts al-Bashir again.76 As a result, Malawi decided not to host an African Union Summit because al-Bashir’s presence in the Summit would have been contrary to Malawi’s economic interest.77 Hence, by imposing sanctions and affecting States’ economic interests, the UNSC can induce States’ compliance with the referrals the Council has made to the ICC.

4. Fourth, if nothing else works, UNSC could consider the use of force under its Chapter VII powers in order to execute the warrants

Only if States fail to respond to any UN-imposed non-military actions should the UNSC consider using force to execute the warrants under its Chapter VII powers.78 Once the UNSC determines that use of force is needed to effectuate arrest, however, it could equip the peace-keeping forces that are already involved in the situation with the authority to execute the arrests.79

For example, such measures were used in the case of Charles Taylor when the Security Council passed a resolution giving UNMIL the authority to “apprehend and detain former President Charles Taylor in the event of a return to Liberia and to transfer him or facilitate his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone.”80 Interestingly, the Security Council has also used such measures recently when it authorized the new MONUSCO Brigade, located in DRC, to help the DRC government to arrest ICC indictees.81 Therefore, the UNSC has demonstrated its willingness to authorize peace-keeping forces to execute arrests, including in situations involving the ICC. Hence, the Council could effectively use the same strategy for its referrals.

Conclusion

At the moment, the Court’s “Achilles’ heel” seems to be securing arrests for its suspects.82 Securing arrests for situations referred by the UNSC appear to be even more challenging, partly because of lack of any follow-up support to ensure successful delivery of justice.83 However, a referral ought to be only the beginning of Council’s continued ICC assistance and support.84 As such, the Security Council should change its policy from simply referring situations to the ICC to a policy of using its Chapter VII powers to provide follow-up support and influence States to assist the ICC in executing arrest warrants.85 Such UNSC dedication to follow-through with its referrals and help arrest the indictees would demonstrate that the UNSC is serious about the threat that these atrocities pose to the international peace and security.86

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

1. 1.

   Richard Dicker & Elizabeth Evenson, ICC Suspects Can Hide—And that is the Problem, JURIST (Jan. 24, 2013), available online; Nick Donovan, Introduction, in The Enforcement of International Criminal Law (Nick Donovan, ed., Aegis 2009), 3, available online. Archived. ↩

2. 2.

   See Gwyneth C. McClendon, Building the Rule of International Criminal Law: The Role of Judges and Prosecutors in the Apprehension of War Criminals, 10 Hum. Rts. Rev. 349, 350 (2009). ↩

3. 3.

   Christopher D. Totten & Nicholas Tyler, Arguing for an Integrated Approach to Resolving the Crisis in Darfur: The Challenges of Complementarity, Enforcement, and Related Issues in the International Criminal Court, 98 J. Crim. L. & Criminology 1069, 1107 (2008). ↩

4. 4.

   Cedric Ryngaert, The International Prosecutor: Arrest and Detention, Working Paper No. 24 (Apr. 2009), available online. ↩

5. 5.

   Id. ↩

6. 6.

   Statement and Recommendations on the Open Debate of the Security Council on Peace and Justice, with a Special Focus on the Role of the International Criminal Court, Amnesty Int’l Public Statement, IOR 53/021/2012 (Oct. 16, 2012), available online. ↩

7. 7.

   See S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available online; S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011), available online. ↩

8. 8.

   See Annalisa Ciampi, Current and Future Scenarios for Arrest and Surrender to the ICC, 66 ZaöRV 719 (2006); see also Kevin Jon Heller, Pre-Trial Chamber Puts Ball in Security Council’s Court Re: Chad, Opinio Juris (Apr. 3, 2013), available online. ↩

9. 9.

   The UN Security Council and the International Criminal Court, Chatham House Int’l Law Meeting Summary 18 (Mar. 16, 2012), available online; Lawrence Moss, The UN Security Council and the International Criminal Court: Towards a More Principled Relationship, FES Int’l Pol. Analysis (Mar. 2012), available online. ↩

10. 10.

    See The Rule of Law: The Security Council and Accountability, 1 S.C. Rep. (Jan. 18, 2013), hereinafter The Rule of Law, available online. ↩

11. 11.

    See Elizabeth Minogue, Increasing the Effectiveness of the Security Council’s Chapter VII Authority in the Current Situations Before the International Criminal Court, 61 Vand. L. Rev. 647, 675 (2008). ↩

12. 12.

    See The Relationship Between the ICC and the Security Council: Challenges and Opportunities, Int’l Peace Institute Meeting Notes (Mar. 2013), hereinafter Security Council Relationship, available online. ↩

13. 13.

    Moss, supra note 9. ↩

14. 14.

    See U.N. Charter art. 39. ↩

15. 15.

    S.C. Res. 1593, supra note 7; S.C. Res. 1970 supra note 7; see also The Rule of Law, supra note 10. ↩

16. 16.

    See Ciampi, supra note 8; Heller, supra note 8. ↩

17. 17.

    Ciampi, supra note 8. ↩

18. 18.

    See id. ↩

19. 19.

    Donovan, supra note 1. ↩

20. 20.

    Id. ↩

21. 21.

    S.C. Res. 1044, S/RES/1044 (Jan. 31, 1996), available online; S.C. Res. 1054, S/RES/1054 (Apr. 26 1996), available online. ↩

22. 22.

    See Ryngaert supra note 4. ↩

23. 23.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Article 12. ↩

24. 24.

    Totten & Tyler, supra note 3, at 1107. ↩

25. 25.

    See Steven Roper & Lilian Barria, State Co-operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects, 21 Leiden J. Int’l L. 457, 464 (2008). ↩

26. 26.

    Dapo Akande, The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC, 10 J. Int’l Crim. Just. 299 (2012). ↩

27. 27.

    Ryngaert supra note 4. ↩

28. 28.

    Id. ↩

29. 29.

    I will concentrate on Darfur and not Libya here because Libya’s challenge to the admissibility of the case is currently pending in the ICC, and both ICC indictees are held in Libya. Hence, without any doing from the UNSC, Libya’s referral has not been as much of a challenge to the ICC as the Darfur referral. ↩

30. 30.

    See S.C. Res. 1593, supra note 7. ↩

31. 31.

    Id. § 2. ↩

32. 32.

    Id. ↩

33. 33.

    See id. ↩

34. 34.

    The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Case No. ICC-02/05-01/07, Warrant of Arrest for Ahmad Harun (Apr. 27, 2007), available online. Archived.; The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Case No. ICC-02/05-01/07, Warrant of Arrest for Ali Kushayb (Apr. 27, 2007), available online. Archived. ; The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC—02/05-02/09-15-AnxA, Decision on the Prosecutor’s Application under Article 58 (Jul. 29, 2009); The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009), available online. Archived. ; The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Jul. 12, 2010), available online. Archived. ↩

35. 35.

    Security Council Relationship, supra note 12. ↩

36. 36.

    Id. ↩

37. 37.

    Penal Matters: Rome Statute of the International Criminal Court, U.N. Treaty Collection Database (last visited May 13, 2013), available online. ↩

38. 38.

    Sudan also demonstrated its unwillingness to cooperate by communicating to the Secretary General that “…Sudan does not intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligation arising from its signature on 8 September 2000.” Id. ↩

39. 39.

    Security Council Relationship, supra note 12. ↩

40. 40.

    The Rule of Law, supra note 10; Gwen P. Barnes, Note: The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir, 34 Fordham Int’l L.J. 1584 (2011). ↩

41. 41.

    Heller, supra note 8. ↩

42. 42.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision Informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about President Omar Al-Bashir’s Recent Visit to the Republic of Chad (Aug. 27, 2010), available online; The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al Bashir’s Presence in the Territory of the Republic of Kenya (Aug. 27, 2010), available online; The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision Informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti (May 12, 2011), available online; The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmed Al-Bashir (Mar. 26, 2013), available online. Archived. ↩

43. 43.

    Rome Statute, supra note 23, Art. 87(7) (“[w]here a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute…the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”). ↩

44. 44.

    Id. ↩

45. 45.

    Press Release, Statement to the United Nations Security Council on the situation in Darfur, the Sudan, pursuant to UNSCR 1593 (2005), ICC-OTP-20121213-PR862 (Dec. 13, 2012), available online. ↩

46. 46.

    The Rule of Law, supra note 10. ↩

47. 47.

    Id. ↩

48. 48.

    See Minogue, supra note 11, at 649. ↩

49. 49.

    See id. ↩

50. 50.

    Tracey Gurd, Arresting the “Big Fish”: Lessons on State Cooperation for the International Criminal Court, in The Enforcement of International Criminal Law (Nick Donovan, ed., Aegis 2009), 27, available online. Archived. ↩

51. 51.

    See id. ↩

52. 52.

    See generally Ciampi, supra note 8. ↩

53. 53.

    Thomas Mayr-Harting, EU Statement, United Nations Security Council: Role of the ICC (Oct. 17, 2012), available online. ↩

54. 54.

    See generally Lucas Buzzard, Comment: Holding an Arsonist’s Feet to the Fire?—The Legality and Enforceability of the ICC’s Arrest Warrant for Sudanese President Omar Al-Bashir, 24 Am. U. Int’l L. Rev. 897 (2009). ↩

55. 55.

    Statement and Recommendations on the Open Debate of the Security Council on Peace and Justice, with a Special Focus on the Role of the International Criminal Court, Amnesty Int’l Public Statement, IOR 53/021/2012 (Oct. 16, 2012), available online. ↩

56. 56.

    Id. ↩

57. 57.

    David Scheffer, Video Lecture, Comment on the Arrest Question: What Steps Can and Should the ICC Take to Secure the Arrest and Surrender of Indictees?, ICC Forum (Feb. 5, 2013), available online. ↩

58. 58.

    The UN Security Council and the International Criminal Court, supra note 9. ↩

59. 59.

    See generally Scheffer, supra note 57; David Kaye, Responsibility to Object, Foreign Pol. (Jan. 10, 2013), available online. ↩

60. 60.

    Minogue, supra note 11, at 674. ↩

61. 61.

    See The Rule of Law, supra note 10. ↩

62. 62.

    Phakiso Mochochoko, Address on behalf of the Prosecutor, United Nations Security Council Open Debate, in Peace and Justice, With a Special Focus on The Role of The International Criminal Court (Oct. 17, 2012), available online. ↩

63. 63.

    See, e.g., Richard Dicker, Speech, 10th Anniversary of the Rome Statute of the International Criminal Court (Jul. 3, 2008), available online. ↩

64. 64.

    See The Rule of Law, supra note 10. ↩

65. 65.

    Totten & Tyler, supra note 3, at 1110 (listing restrictions on trade, monetary fines, and limitations on air travel as potential sanctions). ↩

66. 66.

    See Scheffer, supra note 57. ↩

67. 67.

    Minogue, supra note 11, at 675. ↩

68. 68.

    U.N. Charter art. 41. ↩

69. 69.

    Security Council Relationship, supra note 12. ↩

70. 70.

    See David Kaye et al., The Council and the Court: Improving Security Council Support of the International Criminal Court, UCI Int’l Just. Clin. 21 (May 2013), available online. ↩

71. 71.

    Donovan, supra note 1. ↩

72. 72.

    Id. ↩

73. 73.

    Id. ↩

74. 74.

    Totten & Tyler, supra note 3, at 1111. ↩

75. 75.

    Id. ↩

76. 76.

    Mark Kersten, Politics, a Poison for Justice?, Justice in Conflict (Jun. 5, 2012), available online. ↩

77. 77.

    Malawi Gives Up AU Summit Over Pressure to Host Sudan’s President, Sudan Tribune (Jun. 8, 2012), available online. ↩

78. 78.

    Totten & Tyler, supra note 3, at 1111; Minogue, supra note 11, at 669. ↩

79. 79.

    See generally Ciampi, supra note 8; Gurd, supra note 50; Totten & Tyler, supra note 3, at 1111. ↩

80. 80.

    S.C. Res. 1638, U.N. Doc. S/RES/1638, (Nov. 11, 2005), available online. ↩

81. 81.

    See S.C. Res. 2098, U.N. Doc. S/RES/2098 (Mar. 28, 2013), available online; Kaye et al., supra note 70. ↩

82. 82.

    See Dicker & Evenson, supra note 1; Donovan, supra note 1. ↩

83. 83.

    Ryngaert, supra note 4. ↩

84. 84.

    See The Rule of Law, supra note 10. ↩

85. 85.

    See Minogue, supra note 11, at 675. ↩

86. 86.

    See Mochochoko, supra note 62. ↩