American NGO Coalition for the International Criminal Court

The relationship between the ICC and the UN Security Council

Written for AMICC by Michaela Dougherty on August 12th, 2015
The International Criminal Court (ICC) was established at a United Nations (UN)

conference as an independent international organization. While the two organizations share

common goals of preventing and responding to mass atrocities, they operate independently of
one another. However, the Rome Statute includes two provisions regarding the UN Security

Council which coincide with the responsibilities of the Council as established in the UN Charter.
Chapter VII of the UN Charter grants primary responsibility to the UN Security Council to

maintain international peace and security. The ICCs Rome Statute instructs ICC judges on how

to respond to a Security Council request for a referral of a situation before the ICC, even if these
situations involve non-state parties to the Rome Statute. The Rome Statute also instructs the

Court on how to respond to a request for a deferral of a situation by the Security Council. If the
Council finds that ICC involvement would interfere with a situation on the Councils agenda, it

can defer the situation for up to a year, and the request can be renewed indefinitely. While the

ICC can reject a request for a referral, it cannot reject a request for a deferral. The Security

Council is acting under Chapter VII of the UN Charter when it refers and defers situation; thus,
this authority does not come from the Rome Statute.

The UN Security Council issued two situation referrals since the ICCs establishment in

2002. The referrals are issued through resolutions. UN Security Council resolutions are

binding upon UN member states. As of August 2015, there are 193 member states of the UN,

and there are 123 states parties to the Rome Statue of the ICC. Furthermore, any resolution
that is vetoed by one of the 5 permanent members of the Security Council (United States,

Russia, China, United Kingdom, and France) will not be passed. It is important to be aware that
these resolutions differ from resolutions passed by the UN General Assembly. General

Assembly resolutions are non-binding, and so they act as recommendations to member states.

The Security Council issued its first referral to the ICC in March 2005, following a report by

the UN International Commission of Inquiry on violations of international humanitarian and

human rights law in Darfur. i Resolution 1593 was passed 11-0 with four abstentions from the
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American NGO Coalition for the International Criminal Court

U.S., Algeria, China, and Brazil. In the resolution, the Council demands that the government of
Sudan and related parties to the conflict in Darfur cooperate with the ICC. The Council also

urges all states to cooperate, while recognizing that non-state parties to the Rome Statute do

not have an obligation to do so. The Council also encourages the ICC to support domestic efforts
to promote the rule of law in Darfur. Furthermore, the resolution says that states contributing
to international activities in the Sudan that are not parties to the Rome Statute shall have

exclusive jurisdiction over its nationals, unless that right is waived by the state. The resolution

also notes that expenses incurred in connection with the referral are to be covered by parties to
the Rome Statute or states that have contributed voluntarily; the UN would not cover any of the
expenses. These two provisions were included at the strong request of the United States. The
Prosecutor opened an investigation in June 2005. Several arrest warrants were issued in the

years following, including one for Omar al-Bashir, the President of the Republic of Sudan, who
recently evaded arrest when attending a meeting of the African Union in South Africa.

Security Council Resolution 1970 referred the situation in the Libyan Arab Jamahiriya to

the ICC in February 2011. The resolution passed unanimously, and the section regarding the
ICC contained much of the same wording as Resolution 1593. However, it contains a more

comprehensive condemnation of the situation. Apart from the ICC referral, the resolution also
contains instructions for an arms embargo on the Libyan Arab Jamahiriya, as well as a travel
ban and asset freeze on a number of individuals. Furthermore, the Council called upon UN

members to facilitate and support the return of humanitarian agencies and make available

humanitarian and related assistance in the Libyan Arab Jamahiriya. ii The Prosecutor opened

an investigation in March 2011. Three arrest warrants were granted in June 2011, one of which

remains active as of August 2015. Muammar Gaddafis case was terminated following his death.
He was the Libyan Head of State at the time. Abudllah al-Senussis case was dismissed after the

Appeals Chamber confirmed Pre-Trial Is decision that the case was inadmissible before the ICC.
The final warrant is for Saif al-Islam Gaddafi, the son of Muammar Gaddafi, for two counts of

crimes against humanity. Saif al-Islam Gaddafi remains in the custody of Libyan officials who

refuse to hand him over to the court, despite the binding Security Council Resolution. In July

2015, a Libyan court convicted a number of officials who had served under Muammar Gaddafi,
including Saif al-Islam Gaddafi and Abdullah al-Senussi. They were both sentenced to death.
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Many have questioned whether these legal proceedings and the detention of these individuals
are fair and humane. Furthermore, Libyas bid to prosecute Saif al-Islam Gaddafi had been

rejected by ICC judges.

Critics argue that the Security Council has not done enough to support the Court in these

two situations. The ICC does not have the same type of enforcement mechanisms as the

Council, and these critics contend that the Council should have a greater role in enforcing ICC
arrest warrants. Fatou Bensouda, the Chief Prosecutor of the ICC, criticized the Council in

December 2014 for failing to be spurred into action, noting that the Council has never

provided a strategic recommendation to her office in regard to the situation in Libya. She

called upon the Council again in June 2015 to establish greater efforts in ensuring that Sudan

complies with the Councils resolution. She also urged states parties to establish a better way to
arrest individuals wanted by the ICC. iii

In that December 2014 statement, Bensouda also stated that UN reports are an important

and unique source of public information that [the Office of the Prosecutor] relies on for its
activities in most situations. iv However, the ICC is an independent organization which

conducts independent investigations. The findings of a UN report do not determine the

outcome of an ICC investigation.
i

UN Security Council, Security Council Resolution 1593 (2005) on Violations of International Humanitarian Law and
Human Rights Law in Darfur, Sudan, 31 March 2005, S/RES/1593 (2005)
ii
UN Security Council, Security Council resolution 1970 (2011), 26 February 2011, S/RES/1970 (2011)
iii
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UN Security Council, 7478 Meeting Coverage, 29 June 2015, SC/11954
iv
Bensouda, Prosecutor of the International Criminal Court, Statement to the UN Security Council on the Situation
in Darfur, pursuant to UNSCR 1593 (2005), 12 December 2014, http://www.icc-cpi.int/iccdocs/otp/stmt20threport-darfur.pdf