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The Business Day
Alan Wallis

WHY has Syria not been referred to the International Criminal Court (ICC) by the United Nations Security Council, yet Libya was? Answers may be forthcoming after the council’s discussion last week on its relationship with the ICC.

With South Africa’s second term at the council coming to an end, it is hoped the country has tried to salvage its anaemic performance by mustering the courage to call for the fair and objective referral of cases to the ICC, stressing that the council/ICC dynamic has implications for international criminal justice and the sustainability of the council.

Although the ICC operates independently from the council and its jurisdiction is limited to countries that have signed the Rome Statute, the council is able to exert its influence in two respects.

Its referral power permits the council to refer a situation to the ICC irrespective of whether it occurred in a country that is party to the Rome Statute. The council’s deferral power, on the other hand, allows it to suspend proceedings before the ICC. Both require that the interests of international peace and security be at stake. To date, the council has exercised its referral power on two occasions: in respect of Sudan in 2005 and Libya last year.

It is yet to defer proceedings, despite requests from the African Union in respect of Sudan’s indicted President Omar al-Bashir.

This ability to influence proceedings does not sit well with proponents or opponents of the ICC.

Perhaps the biggest gripe with this arrangement is that, although resolutions referring or deferring matters are voted on by all council members, the permanent members retain their veto vote, in effect leaving these decisions in the hands of the big five.

Even more irksome is that referrals of non-ICC countries are made by countries that have refused to subject themselves to the jurisdiction of the ICC — the US, China and Russia.

The manner in which the council has exercised these powers has also done little to justify the exceptionalism inherent in this arrangement.

Many believe referrals are subject to the political whims of the council’s veto-wielding members.

This creates a perception of double standards, inconsistency and selectivity. Why is what happened in Libya different from what is happening in Syria, or other situations that perhaps warrant the ICC’s intervention? And when did severity and loss of life cease to be the primary consideration for intervention and become subordinate to political expediency?

However, even in the most politically charged environment, it is in the council’s best interests that its decisions be seen as rational and motivated by the need to ensure accountability.

Short of complete institutional overhaul and reform, if the council is to retain global public confidence, referrals must be consistent and rational; rethinking the ICC’s referral power would be a good place to start.

Taking into account recommendations that the veto vote not be used in situations of atrocity crimes and the development of criteria to assist the referral process will go a long way to enhancing consistency, predictability and confidence in the process. Failing this, the council’s continued preoccupation with personal agendas may force the international community to look to other forums and emerging powers for solutions, which should be avoided.

The significance of the ability of the council to refer situations to the ICC must also not be overlooked.

It recognises that judicial intervention is a necessary component of maintaining international peace and security and has the potential to ensure justice for international crimes that are beyond the reach of the ICC. There is certainly value in the referral mechanism, but only if it is seen to be used properly.

Until the council addresses these issues, the ICC will struggle to enhance its own credibility, frustrating its efforts to ensure accountability for international crimes and securing support for the international criminal justice project.

In any country or institution, accountable, transparent and rational decision-making are preconditions for good governance and legitimacy.

South Africa should be demanding the same from the council because, in the context of international crimes, consistency, fairness and impartiality are non-negotiable in the fight against impunity.

  • Wallis is the International Criminal Justice Project lawyer at the Southern Africa Litigation Centre.


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