The Security Council Lecture Question — Comments

Richard Dicker’s Lecture on the International Criminal Court

Change Sort Order
Now: Oldest First

Comment on the Security Council Lecture Question: “How should the relationship between the International Criminal Court and the United Nations Security Council be changed, if at all, to advance international justice?”

I think the relationship between the ICC and the Security Council needs to change, but it will certainly be difficult until all five permanent members of the latter have ratified the Rome Statute. It is, of course, further complicated by the fact that the ICC's nature is judicial and the Council's is political, though the ICC cannot help but incorporate politics into its functioning. As far as promoting international justice, this is not the direct mission of the Security Council, which aims to maintain international peace and security, though these components are obviously related to the notion of justice.

Navigating the intricate dynamics between the ICC and the Security Council poses challenges. The need for all permanent Council members to ratify the Rome Statute adds complexity. While the ICC's judicial nature intersects with politics, the Council primarily focuses on peace and security. Striking a balance between these objectives requires thoughtful diplomatic considerations.

As fraught as the relationship is between the UNSC and the ICC, new and dynamic strategies should be pursued to mend and amend the relationship. As ideal as having all the members of the UNSC be party to the Rome Statute, it is not politically feasible in the short-term. Since a UNSC referral to the ICC requires unanimous consent, the ICC should pursue and lobby for new ways to change this dynamic. Perhaps in place of unanimity, the bar for referral should be lowered to a 2/3 majority. This would allow countries to voice their concern/objection while still allowing justice to be better served (as in the case of Syria, where alleged war crimes have been committed). Additionally, there should be more binding force behind ICC arrest warrants that charges the UN and its member states with arrest of suspects (or even Interpol). As politically charged as such an action would be, this is one of the few avenues for providing the added force and legitimacy of the court while further addressing the challenge in apprehending suspects that the ICC currently faces. I assume these bold changes would require a modification to the Rome Statute, which may open up a pandora's box of other issues, but it is only with such changes to its legal framework that the ICC will be able to better serve justice. If those party to the Rome Statute truly believe in a system of international justice, they should help bolster its ability to pursue its mission and minimize the opportunities to politicize its work.

The United Nations Security Council and the International Criminal Court's relationship cannot change because the ICC cannot risk the legitimacy issue the relationship would pose. If the UNSC and ICC became more inter-related, even if the result was better efficiency in regards to arrests, prosecutions, etc, critics and those accused by the ICC would argue that the five permanent members of the UNSC controlled the ICC's decisions through their referrals. Being more closely related to the UNSC could heighten tensions and accusations that are already growing against the legitimacy of the court like the claim that the court is "anti-africa."

The International Criminal Court can do very little to change their current relationship with the UNSC. The only way that I see the ICC can break away from the potential damage of involvement with the UNSC is if the referral process is ended. This way, every situation the court investigates was a decision made only by the court. This would also protect the ICC from situations where they investigate a situation because of a UNSC referral but the UNSC doesn't support the court after referring the situation i.e. the UNSC blocked all funding opportunities from the United National General Assembly.

The only way that the UNSC and the ICC's relationship could become more functional without threatening the legitimacy of the court is if the permanent members of the UNSC stops thinking about special interests and instead puts the priority on human rights. The veto power of the permanent members has made it so the only situations investigated have been in Africa where there has been human rights violations all over the globe.

I think the relationship of these two bodies has to change. The Security Council has to respect and support the Court’s work independently of its members. The Council has to understand that by doing so –respecting and supporting the International Court while avoiding selectivity-, it could advance its own cause, which is to promote international peace and security. A way to achieve this is by increasing cooperation, as it has occurred before, (for example when the two international bodies made common efforts to bring to justice Joseph Kony). Also, to strengthen the role of the International Court, the Council’s decision to execute arrest warrants should be independent to its members and their political individual concerns. In that sense one idea could be that a warrant veto could only be performed if all the Council’s permanent members agree or at least the 80% of them (4 of 5). This with the objective to assure that the decision is not a political one.

I'm wondering if the proposed change would take away power from the UN Security Council. I feel like the current voting system that the Security Council currently implements (with 1 key country vetoing) is what keeps the Security Council in check. Does changing this vote system dilute the power of the UNSC as its own independent body, and instead subjects it to a secondary status as just an enforcer for ICC orders?

I do agree, however, that there needs to be more cooperation between the UNSC and the ICC. I am wondering what would happen though when you mix a pretty political body (UNSC) with one that is supposed to maintain objectivity in criminal justice proceedings (ICC)?

Similar to previous posts, I believe the Security Council cannot ethically refer cases to the International Criminal Court unless all members agree to the court's jurisdiction. But due to the United States' and others' aversion to being held accountable to a judicial body on an international scale, this cannot feasibly occur. Because judicial power, to me, depends on equal application of the law, the ICC should continue to select cases on its own in member countries as a separate entity from the UNSC. While some may cite the need for action in order to maintain the court’s legitimacy and standing in its early stages, the risk of politization outweighs this need.

My view seems to differ a bit from the previous comments. I think the UN Security Council should be heavily involved in referring cases to the ICC. My main reason for this view is that the logistical and financial support would be invaluable. The more information available and the greater cooperation going on, the better the result will be in terms of the efficacy of the court. The main problem with this is the current structure of the UN Security Council. That is why I would strongly advocate radical restructuring of the UN Security Council makeup, especially in regard to the permanent members. A more democratic and representative UN Security Council would solve many of the qualms other commenters have expressed regarding the politicization that would result from UNSC involvement. The UNSC should make the ICC a priority. It should contribute funding and rigorously pursue referrals that are recommended by UN member nations. Even those UN member nations that have not signed the ICC founding treaty still commit themselves to the project of international justice and they can still be protected themselves from facing court while still providing substantial backing to other efforts to take down awful leaders.

If the ICC wished to be truly apolitical, I do not think that it should take referrals from the UNSC at all. To be fair, the court should only have jurisdiction over the countries that are signatories to the Rome Statute. To try to extend its reach further, whether unilaterally or with the UNSC’s assistance, looks to me to be a purely political move. The public seems to forget that this is an international, not universal, court. I believe it to be unjust to prosecute someone over which the court should have no authority, so I think the relationship with the UNSC should be changed in the manner of eliminating referrals. Though this may mean that justice will go unserved in some places of the world, it keeps the ICC from being a hypocritical organization. Referrals do not seem to be effective at the moment anyway, considering the UNSC still had its way in Libya even after referring it to the ICC, killing Gaddafi, an indicted leader. The UNSC is capable of ending atrocities by itself and does not seem to care as deeply about the justice that comes afterwards. All of this would suggest that referrals by the UNSC are more symbolic than anything, and we should do away with them to keep the ICC from becoming too political.

The relationship between the International Criminal Court and the United Nations Security Council is often thought of as problematic simply because it links a legal entity to a political one, and therefore often raises the debate on the line between justice and politics. While some argue that the ICC should be strictly independent from the UNSC, others recognize that UNSC referrals can allow the ICC to act in places where it did not have jurisdiction before, therefore allowing for the possibility of justice to be served.
I think a central flaw in the relationship is the inability of members of the UNSC to unanimously agree on specific referrals. Referral decisions are very much politically charged, and permanent members are seldom on the same side of any equation. The fact that some of these members are not even party to the Rome Statute is another obstacle. Provide incentives for UNSC members to become ICC State Parties, may help overcome this particular obstacle. Additionally, referrals should not require unanimous consent but rather a significant majority. This would, for example, allow the case of Syria to be referred to the ICC. Finally, referrals should not come with ‘conditions’ or allow for exemptions, so as to preserve the independence of the court.

Even with all that may be said on the necessity of keeping the ICC as far as possible from any political decisions, which could clearly be affected by the participation of the UN Security Council, being a political organ primarily, may not quite be the case. Taking into consideration that the Security Council acts in light of chapter 7 of the UN Charter, this may bring a universal dimension to the ICC's jurisdiction amongst countries that have refused to ratify the Rome Statute. As for the expected political decisions of the Security Council, the Rome Statute has sufficiently confronted it. Based on Article (53) of this Statute and rule (104) of chapter (5/1) of the ICC's Rules of Procedure and Evidence, the prosecutor shall evaluate the referrals to him to initiate investigation after determining that there is a reasonable bases to proceed under the Statute. Focus should therefore be shed on the role of the prosecutor more than that of the Security Council, as the previous possesses the decision to assure that the case is not politicized, and he/she acts under the supervision of the pre-trial chamber.

I definitely think that the relationship between the ICC and the UNSC needs to change in order to advance international justice, but it won't be easy. For starters, I think both organizations are seriously flawed and need a lot of work. When countries like the US, for starters, can do whatever they please (in all reality) without regard to what the UNSC or ICC may ultimately want or say, then you know you have an organization that has more bark than bite. Of course the US wants to be seen in a positive light and does not try to deviate from the international norms, but at the end of the day we will do what we want to do. Until the US and other major powers buy in to what the UNSC and the ICC are trying to do, they will be little more than figure head organizations taking down those who are weak, but leaving the powerful exempt. Having the ICC more judicial in nature and the UNSC more political also needs to change. I think both can work together and in a sense join sides. If they want to be effective, they will need to act together. The US judicial courts would not function without the government enforcing the law. Why would an international court function that way then? Of course the UNSC can't really enforce any laws either, but they seek to maintain international peace and when that is broken, the obvious answer is to send to violator to the ICC. I think the more integration of the organizations we get leads to more effectiveness and international respect.

Richard Dicker notes in his lecture an important problem in the relationship between the International Criminal Court and the United National Security Council: The ICC can only indict non-members to the Rome Statute with approval from the UNSC, but countries like the United States and China are both non-members of the Rome Statute AND have veto power on the UNSC. Thus, in the current relationship between the two legal entities, officials from countries like the United States and China are protected from ICC indictment.

This problematic relationship could be changed for the better through institutional reforms in the UNSC to make the power of the five permanent council members less than absolute. For example, the five powers could maintain a more "weighty" vote than other security council members without having veto power that completely exempts them from any multilateral decision that is unilaterally undesirable.

With this reform in place, the five permanent members of the UNSC would still have to fear ICC indictment, and the ICC would have power with the universal reach that it lacks today.

I'm seeing many comments here that address the issue that not all members of the UN have signed the Rome Statute, and indeed, one noticeable nation that falls under this category is the United States, a permanent member of the security council. This is obviously a valid concern. There are two possible courses of action: either to disassociate the ICC with the security council, or to merge the two, such that ratifying the Rome Statute is a prerequisite to be a member of the security council. To my mind, the second option is unrealistic. However, the first would lead to a weakening in the ICC's scope. The question then remains: what is the least of three evils? The current situation, disassociating the two, or make ratifying the Rome Statute a prerequisite to being on the security council?

I think Richard Dicker made some great points about the participation of the UN Security Council and how it relates to the legitimacy of the ICC. The Security Council plays an important role because the council can refer cases to the ICC that the court would not have access to otherwise. The problem with having state actors on the council that have not ratified the treaty is that it reeks of hypocrisy. It sends a very clear signal that some of the main influencers in the process have not publicly declared their buy-in for the system nor pledged their full support. As long as state actors like the U.S. and Russia refer other states to the ICC without being held responsible for their own actions, the overall legitimacy of the court will always be undermined. The relationship must change in order for the court to truly advance international justice. One possibility would be for the ICC to be completely unwed from the UN Security Council. Another type of authority organization would have to be used that included states which are fully invested in the mission of the court. Yes - this would be difficult, but it seems completely necessary to me.

There should be a marriage between the two. Instead of each acting independently.The International Criminal Court and United Nations Security Council should both act as a legislative body to advance International Justice. That way a wider audience can be reached and justice can be served.