Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 2

The contributions discussed in part one may be used to frame an analysis of the Court’s recent request to Belarus to cooperate in the arrest and surrender of al-Bashir. The ICC has issued two arrest warrants for al-Bashir, one in 2009 and one in 2010, for alleged war crimes, crimes against humanity, and genocide. Since the arrest warrants were issued, al-Bashir typically travels to non-states parties, who are under no obligation to arrest him. Indeed, Belarus has neither signed nor ratified the Rome Statute. However, he has also visited states partieswho do have an obligation to arrest, including (but not limited to) Chad, Kenya, Djibouti, Malawi, the Democratic Republic of Congo, Jordan, Uganda, and South Africa. Despite the Court’s request to these states parties for cooperationin the arrest of al-Bashir, national governments such as those of Chad, Jordan, and South Africa have refused to comply, using the justification that al-Bashir’s status as head of state provides him with immunity from arrest. This opinion is also promoted by the African Union, which has asked for an advisory opinion from the International Court of Justice on the issue of immunities of heads of state and government within the Rome Statute system.  

The relations between Belarus and Sudan are strengthening in several key areas. Al-Bashir and Belarus’ President, Alexander Lukashenko, signed agreements on ‘friendly relations and cooperation’in 2017 emphasizing dynamic trade and joint projects in the industrial and agricultural sectors. Al-Bashir’s speculated travel to Belarus is for the purpose of finalizing trade deals and enhancing bilateral relations. However, the link between the two countries is long(er)standing. Belarus is a Sudanese armament provider. In 2006, a military cooperation protocolwas signed by the two countries covering training, exchange of experiences, and military science. Belarus has a reputation as an arms exporter to rogue states. Since Belarus is under no legal obligation to cooperate with the ICC, the arrest and surrender of al-Bashir highly unlikely. The high probability that Belarus will ignore the Prosecutor’s request contributes to a culture of impunity and staunch criticism of the Court.  

Inasmuch as states pursue political and economic (self) interests, the UNSC expressed a need for accountability for the atrocious crimes committed in Darfur under the leadership of President Omar al-Bashir at the ICC. The majority of states agree that the gravity of the crimes covered by the Rome Statute are so abhorrent that they are an offence to humankind and should not go unpunished. It is necessary to question the elusiveness of state cooperation in the situation concerning al-Bashir and consider what can be done to facilitate a different, more just outcome. Relying on Belarus is insufficient without the political backing of the UNSC to oblige all member states to enforce their referral and facilitate cooperation by all states to this end.   

Political strategizing for the majority of states requires a balance of hard and soft power; this includes the promotion of international criminal justice and the use of international institutions, which creates a sense of solidarity among Member States. Expectations of behaviour establish trust. The rules-based order in the Rome Statute system contributes to a shared commitment to these goals. The referral of the situation in Sudan to the ICC by the UNSC signals that the perpetration of atrocious crimes is unacceptable, even for states who have neither signed nor ratified the Rome Statute. Appeals to sovereign power, interests, or status as a head of state are irrelevant. This could be a significant moment for the international criminal justice project, but the transfer of political power (UNSC) to legal action (ICC) has been weak and haphazard. The lack of organizational support and state cooperation to see justice done devalues international criminal law and subjects the ICC to a serious legitimacy crisis.  

The lack of credible commitment on the part of the UNSC to enforce this referral, or to provide the necessary political support has undermined (and continues to undermine) the ICC’s ability to see justice done. The UNSC has failed to take measures against states who choose not to execute the arrest warrant, which ought to be an obligation that emanates from the referral itself. The need for the UNSC to take a bigger role in the enforcement of its own resolutions remains an important focal point in the discussion on cooperation more broadly.  

The obsequious attention paid to al-Bashir and his disregard for the indictment by the ICC has led to increasing frustration on the part of those who oppose impunity and demand justice and accountability for the victims in Sudan. The role of civil society is particularly important in this regard. Depending on states such as Belarus to cooperate with the execution of an arrest warrant in the absence of political or legal obligations is fundamentally flawed. How persuasive is a sharp carrot when the states involved have the stick? 

This blogpost and my attendance to the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

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Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 1

The third day of the Assembly of States Parties (ASP) to the International Criminal Court (ICC) or ‘Court’ pivoted around the issue of cooperation. A side event was organized by the Institute for Security Studies (ISS) and the Embassy of Ireland titled, “Cooperation with the ICC: What the Security Council and ASP Must Do.” Panelists included Allan Ngari (ISS), Phakiso Mochochoko (Head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor), Matt Cannock (Amnesty International) and H.E. Ambassador Kevin Kelly (Ireland). 

The panelists argued that non-cooperation by states severely limits the effectiveness of the ICC, and the United Nations Security Council (UNSC) and the ASP can do something about it. Matt Cannock explained that a stronger approach to cooperation is needed. The UNSC has referred two situations to the ICC – Darfur (2005) and Libya (2011) – where crimes occurred on the territory of non-States parties to the Rome Statute. In both situations, the UNSC imposed an obligation of cooperation only on the state involved(i.e. Sudan or Libya).[1]For other states who are not party to the Rome Statute, the UNSC has explicitly outlined in its referrals that there are no binding obligations in relation to the Court to cooperate, but also added language “urg[ing]all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.”[2]Cannock framed this voluntary cooperation obligation under the current regime in terms of the metaphorical ‘carrot and stick.’ He posited that the current approach is ‘more carrot than stick’ and explained that a ‘sharpened carrot’ could yield better results. He explained that this can be achieved through UNSC and UN General Assembly follow-ups to acts of non-cooperation with the ICC. 

Allan Ngari and Matt Cannock both emphasized the need for the UNSC to impose cooperation obligations under all members states of the UN. This would be consistent with the procedure that was taken when the Council established the ad hoctribunals for the former Yugoslavia and Rwanda. The ISS provided a document at the side-event, which outlines this and other key recommendations.[3]Regarding the UNSC, some specific examples include: (1) the Council should impose cooperation obligations on all states; (2) not restrict or bar UN funding for investigations and prosecutions; (3) not seek to limit the jurisdiction of the ICC over persons relevant to the situation; and (4) it should adopt explicit language lifting any immunities that might hinder ICC prosecution, especially those involving state officials or non-states parties. With respect to the ASP, it is recommended that findings of non-cooperation be routinely responded to, and the ASP should ask the UNSC and the UN General Assembly to take appropriate measures. Both Ngari and Cannock described a relationship between the UNSC and ICC based on mutual reinforcement in order to achieve the overall goal of enhanced cooperation.     

Phakiso Mochochoko offered a different perspective and confronted the pervasive challenges that stem from the ICC-UNSC dichotomy. Focusing on cooperation with respect to arrests, he was less optimistic. The investigation and prosecution stages require little (if anything) from the UNSC. On the other hand, arrests require assistance, particularly when the referral was made by the Council. Mochochoko explained that the Prosecutor has begged and pleaded to the UNSC for help, but nothing happens. He argued that the fundamental difficulty lies with the often-cited issue that permanent members United States, China, and Russia are not members orsupporters of the ICC. This combative environment makes cooperation unlikely. While the UNSC referred the situations in Sudan and Libya to the Court, these referrals came with no substantive political support or backing. As a result, Mochochoko posited that the UNSC referrals are a ‘poison chalice,’ and the source of the attacks that the ICC is facing (i.e. effectiveness, legitimacy). Therefore, opposition from permanent members of the UNSC towards the ICC is good, since referrals will not be made. This way, the ICC can go about its work on its own, without having to rely on the UNSC.  

This blogpost and my attendance to the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.


[1]See: Operative paragraph 2, UN Security Council Resolution 1593 (2005); Operative paragraph 5, UN Security Council Resolution 1970 (2011).

[2]International Criminal Court, Assembly of States Parties, Report of the Bureau on non-cooperation, ICC-ASP/17/31 (28 November 2018) available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP17/ICC-ASP-17-31-ENG.pdf, p. 23. Regarding the obligation of states parties see: Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998), Article 89: States Parties are obliged to execute the Court’s pending orders for the arrest and surrender of a person. 

[3]Dapo Akande, “Cooperation with the ICC: What the Security Council and ASP must do,” Institute for Security Studies, (December 2018): www.issafrica.org: this is a preliminary document. The complete ISS report on how the Security Council can promote state cooperation with the ICC is forthcoming. 

Security Council Resolution 2170 against the world’s richest terrorist organization

On 15 August 2014, about a week prior to harsh criticism from the outgoing UN High Commissioner for Human Rights, Navi Pillay ( available here ) for its lack of responsiveness, the UN Security Council adopted Resolution 2170 in response to the terrorist activities of the Islamic State (IS/ISIS/ISIL) and the Al Nusrah Fron (ANF) as well as other entities associated with Al-Qaida.

This resolution imposes three main duties on all states:

1. Action against the export of terrorist fighters

2. Action against the financing of terrorism

3. Sanctions

The first action consists of four sub-duties. Firstly, the duty of all states to take national measures to prevent the flow of foreign terrorist fighters to IS, ANF and connected entities. According to existing estimates, most fighters are foreign- many from Europe, from neighbouring countries and from as far as Indonesia and Chechnya. Secondly, the resolution imposes a duty to bring such individuals to justice. Thirdly, a duty to discourage individuals who are at risk of recruitment and violent radicalization to travel to Syria and Iraq for the purposes of supporting or fighting for IS and ANF. And finally, a duty to prevent direct and indirect supply, sale or transfer to IS, ANF and other individuals and groups associated with Al-Qaida, of arms and related material, as well as assistance and training related to military activities.

The second action, imposes a duty upon all states to prevent and suppress the financing of terrorist acts, including the duty to prevent that economic resources are made available for the benefit of these groups. Since IS and ANF have control over a number of oilfields, this imposes a duty for states to refrain from engaging in energy trade with them.

The third action concerning sanctions, lists the names of six individuals on the sanctions list, and encourages that each state submits a list of individuals and entities supporting IS, ANF and similar gorups.

Combining both human and financial support, as well as direct and indirect support, the broadness of the resolution’s language makes it an effective legal tool for reducing the power of IS/ANF. But only if taken seriously, and if taken seriously by all states. Recognized as the riches terrorist organization in the world, the IS has been able to survive for as long as it has, through donations both from states and from individuals with and without connections to states. The resolution prohibits both. The exact answer to where the money comes from has been controversial and it is difficult to point to publicly accessible proofs. The Iraqi Premier Minister, Nouri al-Maliki said on 17 June 2014 that “we hold Saudi Arabia responsible” for the financial and moral support given to IS. Saudi Arabia’s close ally, the USA, rejected that accusation. However, some researchers have supported al-Maliki’s claim, and pointed not only to Saudi Arabia, but also to Qatar, Kuwait and the United Arab Emirates- states of which the six black listed individuals in the resolution are citizens. Another important source of funding has been oil trade, an action also prohibited under the resolution. According to a US intelligence expert, IS draws as much as $ 1 million per day in oil profit from oil well under its control, in a market where demand is high.

Despite the universal condemnation of the IS and ANF, the content of Resolution 2170 clearly indicates that a number of states and individuals have been directly or indirectly cooperating with them. Clearly, someone is buying their oil, providing them with arms and money, and actively sending or not preventing own nationals from joining them. The resolution can thus be read as placing responsibility on the world community for having allowed for the existence of and for having supported the IS/ANF. It is positive that the Security Council now has used international law to point to the responsibility and duty of all states , but it is regrettable that it has to come after a heavy human cost.

On the Job! Opportunity to serve as advocate for children in armed conflict

watchlistWatch List on Children in Armed Conflict welcomes applications for the position of Advocacy Officer.

Founded a dozen years ago, the New York-based nongovernmental organization that works on behalf of children in and affected by armed conflict through monitoring and reporting, through support of local groups, and through offering policy advice to U.N. entities working on the subject. It keeps track of developments in a dozen countries, from A (Afghanistan) to U (Uganda), and is the producer of the award-nominated smartphone app (icon below). The NGO’s publications include monthly updates on the issue as it plays out at the Security Council and elsewhere in the United Nations.

The new Advocacy Officer will be expected to promote these goals via a range of activities and duties. The successful applicant will have at least a master’s degree and 5 years’ work experience in relevant areas.children-in-armed-conflict-180

Applicant requirements and application details regarding this full-time position here.

(Cross-posted from Diane Marie Amann)

Time to rethink the women, peace and security agenda?

On June 24th 2013 the Security Council, under the Presidency of the United Kingdom, issued its sixth Agota Sjostromresolution on women, peace and security, Resolution 2106. Although under the rubric of women, peace and security, the new resolution focuses on measures to prevent and deter sexual violence in armed conflict. In continuing the focus on sexual violence the resolution takes us full circle from the first resolution on women, peace and security, Resolution 1325, which incorporated the Council’s response to sexual violence within armed conflict as an element of a broader approach. The new resolution, in contrast, places sexual violence as the primary concern and then incorporates additional issues relating to women, peace and security only as elements of responding to combating sexual violence– including HIV, sexual and reproductive health, women’s participation, disarmament, demobilisation and reintegration processes.

While deploring the violence and suffering men and women experience as victims of conflict, including sexual violence, I wish to challenge the disproportionate attention to sexual violence as the epitome of women’s experiences of armed conflict. The failure of this approach to see or hear women as actors across the spectrum of conflict experiences reinforces women as represented through victimhood, vulnerability and childhood. Although Resolution 2106 acknowledges men and women as victims of sexual violence in armed conflict (in paragraph 6 of the preamble) the operative paragraphs fall back into the use of ‘women and children’ terminology risking not only the erasure of the experiences of male survivors but also re-asserting an equivalence between women and children in conflict situations that is ultimately harmful to women. Continue reading

Ashgate Companion Symposium: Forsythe on ‘”Political trials”? The UN Security Council and the development of international criminal law’

Fac_ForsytheWe are delighted to welcome this guest post from Prof. David Forsythe, Charles J. Mach Distinguished Professor at the University of Nebraska-Lincoln

Close observers of world affairs will recall that international criminal law (ICL) began a renaissance in 1993 when the United Nations Security Council created the International Criminal Tribunal for Former Yugoslavia.  Since that time the UNSC has been involved many times in ICL issues concerning prosecution of individuals for genocide, crimes against humanity, or war crimes.  From one point of view the Council can be congratulated for taking steps to respond to atrocities that during the Cold War were often ignored.  From another point of view the Council has been highly political and therefore highly inconsistent in that response, often showcasing not the rule of law in international relations but rather the priority of short term and parochial “national interests” of member states– above all the Permanent members with the veto (P-5).  A central question is whether in the future the Council can display more principled commitment to legal justice and less variation based on P-5 strategic political calculation.

Space does not permit an extensive review of how the Council advanced ICL and a variety of types of criminal courts since 1993 with regard not only to the former Yugoslavia but also Rwanda, Sierra Leone (with implications for Liberia), East Timor, and Lebanon.  Likewise, after the creation of the permanent International Criminal Court (ICC) by treaty during 1998-2000, the UNSC was involved in criminal justice issues in places like Sudan (Darfur) and Libya.  All of this action for increased use of courts isunitednations apart from other Council steps in response to atrocities such as deployment of security forces in the field, appointment of diplomatic personnel, imposition of sanctions, and so on.  Moreover, sometimes the Council was not centrally involved in ICL developments, as when a state such as Ivory Coast or Kenya itself (not to mention Uganda, Central African Republic, or Democratic Congo) activated the ICC directly.  There were also other ICL developments outside the UNSC pertaining to the exercise by states of the principle of universal jurisdiction for egregious crimes like torture.  Nevertheless, the Council has been persistently involved in ICL since 1993. Continue reading