The Royal Institute of International Affairs, Chatham House, London

As part of PGA’s Campaign for the Effectiveness and Universality of the Rome Statute, this gathering, organized in partnership with the Royal Institute of International Affairs, Chatham House created an opportunity for dialogue, awareness-building, cooperation and partnership among stakeholders from different environments and locations, such as Members of Parliament, high-level diplomatic envoys, international legal practitioners, and civil society.

The aim of this dialogue was to improve the relationship between the ICC and the Security Council of the United Nations (UNSC), and to assess how to overcome the challenges arising from this relationship in order to enhance the fight against impunity through an effective, independent, and impartial ICC. Taking advantage of the Chatham House rule of no attribution, participating stakeholders had the unique possibility to discuss in a frank and direct manner the potential and the limits of the UNSC’s action in relation to the ICC and how to support the fight against impunity.

This high-level meeting identified concrete strategies for Parliamentarians and other policy-makers on how to increase and maximize the potential of cooperation between the UNSC and the ICC on crucial areas such as:

a.    The referral of situations: Parliamentarians worldwide have recognized for long that the universality of the Rome Statute has not been fully achieved. The UNSC has the special responsibility to allow the exercise of the Court’s jurisdiction in situations falling outside the automatic competence of the ICC. (See PGA’s Kampala Plan of Action 2010). The UNSC has so far referred only two situations to the ICC, namely Darfur (in 2005) and Libya (in 2011).

b.    Cooperation and assistance: Under the Rome Statute, the UNSC has been granted the prerogative to use its binding enforcement powers in order to activate the jurisdiction of the ICC. This capacity to adopt measures directly obligating States and individuals is unique in the international system. In light of this consideration, participants discussed the measures that ought to accompany a referral in order to ensure its effectiveness and the measures that should be expected from the UNSC when the ICC refers matters of non-cooperation by a State to the Council under article 87 of the Rome Statute. Participants also considered alternative ways of cooperation with the Court such as peace-keeping missions, recognizing the role of the ICC in UNSC resolutions and encouraging referrals to the ICC by States. Given the prevailing political nature of the Council, several speakers underscored the importance and relevance of political and economic measures of States and groups of States to induce compliance and cooperation with Court’s orders and decision, drawing a parallel between the successful external support obtained by the International Criminal Tribunal for the former Yugoslavia (i.e. the EU enlargement process vis-à-vis the cooperation of Croatia and Serbia with the ICTY) and the need for external support that the ICC should attain from States and inter-governmental entities.

c.    Deferrals of investigations and prosecutions: As stated in Article 16 of the Rome Statute, the UNSC may make use of its determinations under Chapter VII to request the ICC’s Prosecutor to suspend his or her investigations and prosecutions. Recent requests by the African Union in relation to the situations in Darfur and Kenya have revealed a grey zone concerning the conditions that should merit the invocation of such an extreme provision, the application of which may be seen as interfering with judicial independence. In this regard, participants discussed the legal and procedural parameters of Article 16 and the rationale of the drafters in inserting such a provision in the Rome Statute.

After this meeting, PGA and its members decided to strategize and device country-specific and global actions to mainstream the outcomes of this Conference and to promote effective cooperation of the UNSC and UN Member States with the ICC. Such proposed-actions will be developed, analyzed and compiled in a policy paper to be distributed among relevant stakeholders.

See also http://www.chathamhouse.org/events/view/181655

This meeting is part of the Campaign for the Rome Statute of the ICC 2012, which receives funding from the European Commission, the European Union, and the Governments of The Netherlands and Switzerland, as well as from Humanity United.
For more information, please contact Dr. David Donat Cattin, Senior Director, PGA International Law and Human Rights Program: donat@pgaction.org