The ICC in the International System by Navi Pillay UN High Commissioner for Human Rights

by Navi Pillay
UN High Commissioner for Human Rights

Liechtenstein, 17-18 October 2011

Introduction

      I thank the organisers for inviting me to make the introductory remarks in this segment of the retreat. Part of the reasons for this no doubt includes the obvious commonality of interest between the ICC and my Office. Both institutions are critical in the international agenda to protect human rights around the world and ensuring that perpetrators of gross human rights violations do not rest easy in impunity. Accountability for human rights violations thus becomes the tie that binds the ICC and OHCHR. I am happy therefore to have been invited to bring my perspective to bear on the subject of ‘the ICC in the International System.’

      The ICC has come to be widely viewed as the most important international institution in the international system since the creation of the United Nations.

      Some of the critical questions facing it are these:

• 10 years on, has it lived up to its place in the international system?
• What are the critical challenges facing it in that regard?
• What can be done to assist it live up to the expectations thrust upon it?

      If we look at the impact—or potential impact—of the ICC on the international system and its determinant forces, it may be considered that the ICC has three major functions:

• the ICC was established primarily to serve as an instrument of justice for international crimes—as a last resort where domestic (and perhaps also regional collective) systems are unwilling or unable to provide such justice;

• the ICC is a symbol of the rule of law in international relations—the triumph of law over violent despotism and the abuse of power; and

• the ICC can contribute to peace and security, including human security—given that the grave crimes under its jurisdiction are conducts that ‘threaten the peace, security and well-being of the world’ (see the preamble of the Rome Statute).

      Much has been written and said about whether the ICC has thus far lived up to these functions.  Has the ICC indictment shooed the Lord’s Resistance Army from coming to the peace table or has it made Joseph Kony a less dangerous outlaw, now deprived of his support base? What impact does the ICC exercise of jurisdiction have on potential trials in Libya? Does the fact that 100% of the Court’s current docket entirely comprises of cases from the African continent indicate a regional bias (perhaps as proof of Martti Koskeniemi’s thesis that international institutions always come with a built-in ‘institutional bias’ in favour of the more powerful international players against the less powerful ones) or is that truly emblematic of where grave crimes are being committed with impunity?

      We will not resolve these debates here and I do not want us to lose ourselves in them.

      Instead, in keeping with the focus of generating concrete action points from our discussions, I would like to focus my brief opening remarks on two related aspects that have generated much discussion, as the international community is reacting to repressive regimes trying to trample the blooms of the Arab spring:

When should the Security Council make use of its power to refer or defer cases?

Referral

      As we all know, the Security Council has referred the situation in Libya to the ICC.  So far, it has not done the same for Syria, despite the calls that I and others have made for such a referral.

      This is not the place to dwell on those examples, but they provide a useful starting point to discuss two things: (1) what the objective criteria should be for Security Council referrals to the ICC and (2) what process should guide the Security Council decision-making process.

The Objective Criteria

    In terms of the criteria, at least three may be considered. They are as follows:

• There naturally has to be credible evidence of probable cause to suspect that the core international crimes—genocide, crimes against humanity or war crimes—falling under the jurisdiction of the ICC have been committed. Security Council Resolution 1970, for instance, which referred Libya to the ICC, made the point that the widespread and systematic attacks against the civilian population then taking place in Libya may amount to crimes against humanity.

• As the ICC’s jurisdiction is complementary, a Security Council referral will be most justifiable when there is indication of likelihood of unwillingness or inability in the relevant sovereign jurisdiction(s) to provide justice. Indeed, the lack of justice alternatives in Sudan was one of the key findings of the Report of the International Commission of Inquiry on Darfur, on which the Security Council based its Resolution 1593 to refer the situation in Darfur to the ICC. It may also be possible to accept that the Security Council should take into account the existence and actions of credible hybrid or regional criminal courts or tribunals that could ensure accountability.

• So far, the foregoing two conditions should be largely uncontroversial.  The real debate starts when contemplating what, if any, additional conditions may need to be fulfilled for the Security Council to step in. With the Security Council ultimately deriving its ICC referral powers from Chapter VII of the United Nations Charter, the Security Council also has to perceive the existence of a threat to international peace and security.  But the question arises whether the commission of core international crimes with impunity, in and of itself, is sufficient to anchor a presumption of a threat to international peace and security—thus warranting a referral. Should there be a requirement that an ICC referral must have a positive effect on international peace and security—with security of course also entailing the protection of human security? And what is truly meant by threat to ‘international’ peace and security? Given that human rights violations are a matter of international concern regardless of the geographic circumstances of their occurrence—and given that security includes human security—would gross violation of human rights whose physical effects are capable of agreement as being confined within the borders of a given State still to be considered as not constituting a threat to international peace and security?

    An intimately related question is whether considerations of responsibility to protect (R2P) are to be taken into account in the Security Council decision to refer a case to the ICC. Structurally, there is of course considerable congruence between situations in which the ICC jurisdiction is provoked and where the international community’s responsibility to protect is engaged.

    Barring the crime of aggression within the jurisdiction of the ICC, the regime of R2P and the regime of ICC jurisdiction require the commission of genocide, crimes against humanity or war crime and a manifest failure on the part of national actors to respond adequately to such crimes.  It is even arguable that, at a certain level of abstraction, the commission of the crime of aggression may be something of interest to the R2P doctrine, given the tendency of wars to result in gross violations of human rights.

    A thorough consideration of the criteria for ICC referral—as was done in preparation of the adoption of the R2P doctrine by the 2005 World Summit—would add clarity to the current practice.

    A formal recognition of clear criteria by the Security Council might also compel its members to engage in the type of justificatory discourse, when explaining their votes. What is more, it will make their decisions more predictable and less vulnerable to perceptions of political chicanery.

    Before moving on, I should perhaps also raise the issue of the prospects of execution of the arrest warrants as a factor to be considered in Security Council referrals. At the moment, a number of the arrest warrants issued by the ICC remain outstanding. That may raise, in the minds of some, a concern that the ICC may become a court of outstanding warrants of arrests.

    In my view, this concern must not be allowed to militate against the Security Council making the referral when the other criteria have been met. There are tangible benefits to indicting a suspect of gross human rights violations, even though (s)he is not arrested immediately. At the very least, the prospect of future arrest could never be blown away by the wind of current politics. In this connection, I need only recall the views that our colleague, Stephen Rapp, expressed at a press conference in New York on 14 July 2008, when he was the Chief Prosecutor of the Special Court for Sierra Leone. He had been asked for his views on the prospects of Omar Bashir’s trial. Steve’s response was to the effect that the lesson of the indictment, arrest, transfer and trial of Charles Taylor, as well as that of Slobodan Milosevic—was that when an international count ordered an arrest, even of a Head of State or Government, ‘it’s not an issue of if, but when’, that leader would face justice. I can only hope that Ambassador Rapp (as he now is) will continue to whisper these words of great wisdom into the ears of those who make important decisions at the Security Council.

    The problem of un-executed warrants of arrest is, of course, not unique to the ICC as part of the international system. It is necessarily a practical symptom of the limitations of the international legal system in general and of the international criminal justice system in particular. That is to say, the international legal system lacks a strong enforcement mechanism and must depend on the good will of states. It is a very old problem whose significance has only been cast in sharp relief by the international criminal justice system. Even the ICTR and the ICTY (backed by the Chapter VII powers of the Security Council) have suffered it to varying extents. But the difficulty is made starker at the ICC which was not created under Chapter VII of the UN Charter. As we have seen in the Bashir case, and may well see in the Gadhafi case as well, the Security Council remains unable to do much to enforce arrest warrants even in the cases that the Council itself had originally referred to the Court.

The Decision-Making Process

    A second set of questions concerns the process that should be followed en route to the Security Council decision to refer or not. What to consider in terms of process could include these.

• Where time permits, and an inquiry is needed to illumine the circumstances of the violation, an independent and impartial assessment carried out prior to consideration of the Security Council is advisable. This enhances predictability and objectivity of referral decisions. Indeed, the first referral ever made—i.e. the Darfur situation—was based on the findings of an International Commission of Inquiry, which was established further to Security Council resolution 1564 of 18 September 2004. My Office provided the Commission’s Secretariat at the time. [It is perhaps notable also that the ICTY and ICTR were established following reports of commissions of inquiry, in circumstances that are analogous to ‘referrals’ to those courts, so to speak, in terms of the Security Council seizing the situations in the former Yugoslavia and Rwanda respectively to ICTY and ICTR.]

• These happened before the establishment of the Human Rights Council and its facility to hold immediate special sessions on situations of concern, which provides another option for a trigger mechanism for Security Council referrals to the ICC. As regards the Libya referral, it is notable that the Security Council Resolution 1970 made specific reference to the resolution of the Human Rights Council’s special session held the day before, which in turn made reference to crimes against humanity. At the time, the Security Council chose not to wait for the findings of the Commission of Inquiry established by the Human Rights Council.

• Another option to consider might be to allow the Prosecutor a voice on the advisability of a Security Council referral. In view of his expertise, the Prosecutor is best placed to make the initial assessment of whether there is information tending to show that crimes within the ICC jurisdiction were committed such as beckons the Security Council to call for a closer look at the situation.

Involving the Prosecutor in the referral process in this way would, of course, raise the question as to what extent the Prosecutor should be heard in relation to situations that have not yet been brought within the procedural purview of the Court. It may be argued, in opposition, that allowing him a voice as to whether a particular situation should be referred by the Security Council is fraught with the risk of controversy to the effect that (s)he may have lost impartiality, given that the Prosecutor will in the pre-trial stage have to assess whether the Security Council’s initial assessment is borne out by evidence that could hold up in a court of law. It could also be argued further that giving the Prosecutor a more prominent role may reinforce the accusations of politicisation that the Office of the Prosecutor has been subjected to in recent times.
But in favour of giving the Prosecutor a voice in whether or not the Security Council should refer a particular case, it could be argued that there is nothing wrong with a situation in which all that the Prosecutor is seen to be doing is urging the Security Council to give him authorisation to ‘take a closer and more expert look’—in light of available information raise serious concern—to see whether there is evidence which would inform a reasonable belief that crimes within the jurisdiction of the Court have been committed. Without such authorisation to ‘take a closer and more expert look’, as it were, the situation may continue to hang suspended in the limbo of international geopolitical manoeuvring that can be played in the existing multilateral bodies, including the Human Rights Council.

• My Office may also have a role to play, in particular given the greater access to the Security Council that we can have from time to time. When I made my own call to refer the situation in Syria to the ICC, for instance, I could rely on the comprehensive findings of a very diligent Fact-Finding Mission, led by my Deputy and working on the basis of a mandate of the Human Rights Council.

Deferral

    Another issue that has proved particularly controversial in the role of the Security Council in the work of the Court—as part of the international system—is the issue of deferral of cases, pursuant to article 16 of the ICC Statute. The only instances of article 16 deferral are seen in Security Council resolution 1422 adopted in July 2002, renewed by resolution 1487 of June 2003. They were adopted at the instance of the United States and worded in the operative part as follows:
Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a 12-month period starting 1 July 2003 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;

    These resolutions provoked upon consideration and adoption a torrent of criticism about politicisation of the article 16 deferrals.

    Subsequently, the African Union requested an article 16 deferral of the indictment against President Bashir of Sudan. The failure of the Security Council to act on that request resulted in an impasse that has remarkably eroded the goodwill of the African Union towards the ICC. The situation was not made better when the African Union, once more, added their support to Kenya’s request for an article 16 deferral of the Kenya Cases.

    And confronted with political resistance in the negotiation of resolution 1970, the Security Council invoked the spectre of an article 16 deferral—an option to be considered, if need be, down the road.

    In view of the direct implications of article 16 deferrals to the work of the Court, and the indirect implications of the Security Council article 16 decisions or non-decisions (by way of negative controversy that may impact negatively on the Court), it is important for there also to be clarity and transparency regarding the criteria and process involved in article 16 deferrals.

    That is to say, it is important to set out a clear set of guidelines that will inform the decision when to or not defer. Obviously, those standards will need to mirror, to the applicable extent, those involved in the decision to refer.

Conclusion

    These are some of the matters upon which bright minds should turn their attention when they think about the ICC in the international system.

    Clearly much can be said about the issues I have raised, but I do not want to abuse my role as introductory speaker to take any more time from what I think is promising to be a very interesting discussion.