Since the International Criminal Court (ICC) started work in 2002, the United Nations Security Council has taken an inconsistent and politicized approach to the Court’s work.
The Council has used its power to refer crimes committed anywhere in the world to the ICC Prosecutor twice in relation to Darfur and Libya, but it has failed to refer other situations, such as Syria. Both referrals it has made contained weaknesses, including only requiring states that have ratified the ICC’s Statute to cooperate with the Court. The Council has failed to follow-up and support the ICC’s investigations and cases, despite the Court experiencing major obstacles.
When Australia – one of the ICC’s strongest supporters – was elected to the Security Council for 2013 and 2014, Amnesty International and other supporters of international justice hoped that it would work to challenge many aspects of the Security Council’s approach.
Australia skilfully led the Like Minded Group of states in 1998 that is credited with the adoption of a strong ICC Statute. It ratified the Statute in 2002.
However, with only seven states that have ratified the ICC Statute on the 15 member Security Council in 2013, the supporters of the Court are currently in a minority and have their work cut out.
Australia and others are known to be pushing strongly for a referral of the situation in Syria to the ICC Prosecutor which has so far been blocked, including by China and Russia. Last month, the referral made it into a draft resolution responding to the use of chemical weapons but it was dropped from the final version as part of the compromise to adopt the resolution.
Meanwhile, in the absence of any support from the Security Council, states are refusing to cooperate with the arrest and surrender of those accused by the ICC of committing crimes in Darfur and Libya and the Court is unable to proceed with most of its cases. In particular, despite two ICC arrest warrants accusing Sudanese President Omar al-Bashir of genocide, crimes against humanity and war crimes in Darfur he continues to evade arrest and has been allowed to travel to a number of countries (including China, Chad, Egypt and Kenya). Despite an ICC ruling rejecting Libya’s application to prosecute Saif al-Islam Gaddafi nationally and requesting his surrender to the Court, the authorities are pushing ahead with national proceedings which could result in the death penalty before a weak justice system that cannot guarantee fair trials.
Although the Security Council has so far rejected calls by the African Union to interfere politically in the ICC’s cases against President al-Bashir and the recently elected President and Vice-President of Kenya, pressure will increase in the next months as Kenya and other opponents of the ICC are seeking to mobilise against the Court. The Council has the power to defer ICC investigations and prosecutions for 12 months. However, if it were to do so, it would delay justice for victims and there is a real danger that the Council will be repeatedly blackmailed into extending the deferrals each year, resulting in impunity.
Australia will, therefore, need to dedicate all its political weight and use all its diplomatic skills if it is to support the work of the ICC in the Security Council and to stave off political attacks. Hopefully, the new Foreign Minister Julie Bishop, who has consistently been a strong advocate for the ICC and was instrumental in getting Australia to ratify its Statute in 2002, despite pressure from the United States, will continue to ensure Australia’s strong support the Court. In particular, the Australian government should:
- continue to push for the referral of the Syria situation to the ICC Prosecutor;
- promote a new initiative it signed on to with 23 other states in September calling for the Security Council to adopt a transparent policy in relation to ICC referrals which could ensure greater consistency;
- insist that any referrals to the ICC Prosecutor mandates all states (not just those who have ratified the ICC Statute) to cooperate fully with the Court;
- demonstrate strong support for the ICC’s work on Darfur and Libya, including insisting on cooperation with the ICC and condemning states’ failure to cooperate; and
- refuse to support any initiatives to defer the ICC’s investigations and prosecutions.
Even though states that have ratified the ICC Statute are currently in a minority, they can provide a solid block of support for the work of the Court in 2013. Most importantly, they can prevent any negative decisions (such as deferrals) from achieving the nine votes required to adopt them. They may also be able to work with other states on the Council, including the United States which has changed its stance on the ICC considerably in the last decade, to push through some decisions that support the ICC’s work and advance the fight against impunity.
2014 promises to provide more opportunities to strengthen the Security Council’s record as it is expected that the election of five new temporary members later this month will increase the number of ICC states parties on the Security Council to ten. Of course, they will still need to contend with the veto power of the permanent members.
The challenges are significant but Australia can use the remainder of its term on the Security Council to make a vital contribution to international justice.
Jonathan O’Donohue is a Legal Adviser at Amnesty International.