By: Akshat Agarwal
INTRODUCTION
With the development of international law since the 20th century, the need to end impunity for heinous atrocities has gained attention. Impunity means freedom from punishment for one’s harmful acts. The ideal to end impunity achieved its fruition through the enactment of the Rome Statute in 2002, which established the International Criminal Court (hereinafter ‘ICC’).
However, the ICC does not have universal jurisdiction. Out of the 193 official countries, only 123 are parties to the Rome Statute. This means that roughly one-third of the world is beyond the ICC’s judicial reach.
The Rome Statute, however, has another means of extending ICC jurisdiction to non-state parties: through United Nations Security Council (hereinafter ‘UNSC’) referrals (art 13(b)). If a non-party state individual commits an atrocity in non-party state territory, the UNSC can request the ICC Prosecutor to initiate an investigation.
In this piece, however, I argue that UNSC referrals perpetuate the problem of impunity and adversely impact the legitimacy of the ICC as an institution fighting international crime. I establish this firstly by discussing the political and legal framework of UNSC referrals, which can be misused to grant selective impunity. Secondly, I argue how the selective nature of UNSC referrals erodes confidence in the ICC as an institution. Thirdly, I argue how the failure to end impunity through UNSC referrals can be remedied by giving universal jurisdiction to the ICC.
SELECTIVE IMPUNITY THROUGH UNSC REFERRALS
Article 13(b) of the Rome Statute allows the UNSC to create a class of offenders who are beyond the reach of the ICC. UNSC referrals can be misused to extend impunity to the permanent members and their allies.
This selective impunity arises from the political and legal framework of the UNSC itself. Firstly, each UNSC permanent member has veto power. Using this veto power, the permanent members can protect their non-party allies from the jurisdiction of the ICC.
Secondly, three out of five permanent members of the UNSC (USA, Russia, and China) are not party to the Rome Statute. In exercising their decision-making power under Article 13(b), the non-party permanent members can unilaterally protect themselves from ICC jurisdiction by exercising a veto. Evidently, there is an inequality between the permanent members and non-permanent members of the UNSC which is embedded in the legal framework of the ICC.
Despite this apparent inequality in the ICC framework, the legality of the UNSC referral system has been unambiguously upheld. However, the UNSC referral system and the selective impunity it guarantees have wider implications for the legitimacy and efficacy of the ICC.
THE LEGITIMACY OF THE ICC IN LIGHT OF SELECTIVE IMPUNITY
Like any other judicial institution, the ICC needs to be perceived as legitimate to function properly. This is important because the ICC requires cooperation from party states (arts 86 and 103) to facilitate arrests and enforce sentences of imprisonment. I argue that the practice of selective impunity embeds inequality in the international criminal justice system which affects the legitimacy of the ICC. First, I show how UNSC referrals are inconsistent with the ideal of legitimacy. Second, I highlight the practical consequences of such a legitimacy deficit.
UNSC Referrals, Inequality, and Legitimacy
Richard Fallon has explained three different dimensions of legitimacy: legal, sociological, and moral. Clearly, the UNSC referral system has legal legitimacy because the power of the UNSC flows from the UN Charter (art 39) and the Rome Statute. I argue that the referral system fails to account for the sociological and moral dimensions of legitimacy.
Fallon describes sociological legitimacy in terms of whether the relevant public regards the judicial institution as justified and deserving of support. In the context of ICC, the requirement of sociological legitimacy will be fulfilled if the international community regards the UNSC referrals as justified and worthy of compliance. However, the UNSC referral system may not enjoy sociological legitimacy. For instance, the ICC issued two arrest warrants against Omar al-Bashir in 2009 and 2010 respectively after a UNSC referral. However, it was only in 2021 that the Sudanese government promised to hand over al-Bashir to the ICC.
Further, there is a rising trend of state withdrawals from the Rome Statute. Out of the signatories, 30 states have not ratified the Rome Statute. This suggests that the support extended by the international community to the goals of the ICC seems thin.
On the other hand, the ICC also has a moral legitimacy deficit. Fallon describes moral legitimacy as the worthiness of a legal system to be recognised. Even if a legal system is legally correct and broadly supported, it should be backed by strong moral justifications. It is expected of a judicial institution that even the most privileged members of society will not be granted impunity when they violate the law. The fact that the UNSC referral system can selectively grant impunity disturbs the moral value of equality. This leads to an equality deficit in the international criminal law system, thereby impinging on the moral legitimacy of the ICC.
While the above discussion over the legitimacy deficit of the ICC may seem theoretical, there are practical consequences to the selective impunity of the ICC.
Practical Consequences Of ICC’s Legitimacy Deficit
The selective impunity framework of the ICC has contributed to an anti-ICC narrative. The ICC has come under criticism for punishing mostly African defendants. Of the total 51 cases brought before the ICC to date, the vast majority of the defendants have belonged to North and sub-Saharan African nations.
On the other hand, the US has resisted the possibility of the ICC exercising its jurisdiction over US nationals without consent. Most obviously, the UNSC passed a resolution to exclude ICC jurisdiction from acting against non-party state nationals who were involved in the Darfur conflict.
The power of the UNSC to grant selective impunity and a perceived bias against African nations have contributed to the legitimacy deficit of the ICC. The impact of this legitimacy deficit is evidenced by the rising state withdrawals. The African Union has collectively expressed concerns at the ICC. This can encourage other African nations to withdraw from the Rome Statute.
CORRECTING THE LEGITIMACY DEFICIT THROUGH UNIVERSAL JURISDICTION
The problem of selective impunity stems from the veto power of the UNSC’s permanent members. There have been calls for regulating the veto power. France has been batting for a public commitment to not veto an ICC referral. However, until there is consensus, any such commitment would be toothless.
Another alternative to the UNSC referral system could be to end this practice in its entirety. However, this can stifle the UNSC from discharging its responsibility under the UN Charter in acting against threats to international peace. This will also not be consistent with the ICC’s goal of ending impunity. Without the UNSC referral, the ICC will have no mechanism for investigating crimes committed by a non-party state national on a non-party state territory.
Instead, I argue for granting universal jurisdiction to the ICC. This means that anyone who commits human atrocities can be subjected to ICC jurisdiction regardless of whether they belong to a party-state or non-party state.
The option of granting universal jurisdiction to the ICC was considered in the draft proposals in 1998. The proposal for universal jurisdiction was based on the premise that human atrocities are crimes committed against humankind as a whole. Thus, the entire international community has an interest in ensuring that the perpetrator is punished. Such heinous crimes should not escape justice solely because non-party states can act as ‘safe havens’ if ICC jurisdiction is limited. However, there was stiff opposition to this proposal from the US and therefore, it was rejected.
In contemporary times, granting universal jurisdiction to the ICC may be resisted on two grounds. First, the principle that treaties cannot create any rights or obligations (Art 39) over a state that has not consented to such treaty. Second, realistically, states may still choose to not cooperate with the ICC. This is because states may perceive this as an overreach of an international institution.
However, these problems exist even in the current ICC framework. ICC can extend its jurisdiction to non-party state nationals through either UNSC referrals (Art 13) or when the crime is committed in the territory of a party state (Art 12). Thus, even non-party states may face obligations under the ICC even though they have not signed the Rome Statute. Further, even in the existing system, states are reluctant to cooperate with the ICC. This is evidenced by the case of al-Bashir, who has still not been handed over to the ICC even though the arrest warrant was issued in 2010.
Granting universal jurisdiction to the ICC can, at the very least, allow the ICC to be perceived as a more egalitarian institution. Through universal jurisdiction, the non-party permanent members of the UNSC cannot shield themselves from the ICC’s reach. This is not to say that the ICC will become free from criticisms of bias or discrimination. However, through universal jurisdiction, the problem of selective impunity will no longer be ingrained in the legal framework of the ICC. To an extent, this can correct the ICC’s legitimacy deficit.
CONCLUSION
In this piece, I have argued how the UNSC referral system grants selective impunity to the permanent members of the UNSC. Through Fallon, I have established how the legal framework of the Rome Statute contributes to the ICC’s legitimacy deficit. As a solution, I suggest that the ICC be given universal jurisdiction. Universal jurisdiction will not by itself end the problem of impunity. However, it can ensure that the permanent members do not enjoy selective impunity. This can inspire confidence in the ICC as an international institution of justice.
( Akshat Agarwal is a law undergraduate at National Law School of India University, Bengaluru. The author may be contacted via mail at akshat.agarwal@nls.ac.in )
Cite as: Akshat Agarwal, UNSC Referrals at ICC: An Unnecessary Evil and the Problem of Impunity, 19 May 2024,<https://rmlnlulawreview.com/2024/05/19/unsc-referrals-at-icc-an-unnecessary-evil-and-the-problem-of-impunity/>date of access.
The RMLNLU Law Review Blog 