The ICC is involved in various ways in many states that also find themselves on the agenda of the UN Security Council or other UN bodies, because they are hosting UN peacekeeping missions, are subject to proposals for the Security Council to refer them to the Court or to defer investigations or prosecutions, or more generally in other contexts.
The ICC can interface with UN peacekeeping missions in a range of ways. One of the earliest interactions involved the United States' attempt to seek language in resolutions authorizing peacekeeping missions that would exempt the nationals of sending non-party states from the jurisdiction of the ICC. These efforts proved controversial and produced mixed results. (See Text Box - ICC and UN Peacekeeping Mandates (2002-04)). In addition, the ICC also has jurisdiction over attacks on peacekeepers as a war crime. However, the most frequent interaction between UN peacekeeping missions and the ICC arises from the fact that many such missions are, or have been, operating in ICC situation countries—notably in the eastern DRC (MONUC and MONUSCO), but also in CAR (MINURCAT and MINUSCA), Darfur (UNAMID), Côte d’Ivoire (UNOCI), and Mali (MINUSMA). Such missions will almost inevitably have (or have access to) information and evidence that would be relevant to ICC investigations. They may also interact with persons the ICC is investigating or for whom it has issued arrest warrants, or may be in a position to assist with security or logistics for ICC investigators or witnesses. All of this raises inevitable questions about the proper role and authority of UN peacekeeping missions in collecting information and evidence of relevance to ICC investigations, or whether the Council should take other action supportive of the ICC.
In some cases, the United States helped frame UN peacekeeping mandates that affirmatively authorized the missions to cooperate with the ICC. For example, Security Council resolutions on the DRC and CAR reiterated the need for accountability, noted that many of the crimes occurring in the country fell within the jurisdiction of the ICC, noted or welcomed the cooperation of national authorities with the Court, and highlighted the United Nations' policy restricting contacts with ICC fugitives. In Mali, the Security Council authorized the UN peacekeeping force to support the efforts of local authorities to bring to justice those responsible for war crimes and crimes against humanity “taking into account the referral by the transitional authorities of Mali of the situation in their country since January 2012 to the International Criminal Court.”
READ more about early U.S. efforts to exempt its personnel in peacekeeping missions from the jurisdiction of the ICC
ICC and UN Peacekeeping Mandates (2002-04) #
In the months leading up to the Rome Statute’s entry into force, the United States sought Security Council resolutions that would permanently prevent the ICC from asserting jurisdiction over acts of the nationals of non-party states involved in peacekeeping operations established or authorized by the Security Council. In pursuit of this goal, the United States went so far as to veto a June 2002 resolution that would have extended the peacekeeping operation in Bosnia-Herzegovina but would not have provided such protection. Shortly thereafter, as part of a compromise, the Security Council adopted Resolution 1422, which invoked Article 16 of the Rome Statute and requested the Court to refrain from commencing or proceeding with an investigation or prosecution of any cases “involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation…” SC Res. 1422, para. 1 (July 12, 2002). Although the provision applied for only one year, paragraph 2 expressed the Council’s intent to renew the request annually “for further 12-month periods for as long as may be necessary,” and the United States was able to include a further deferral in a resolution adopted by the Council the following year. However, in 2004 against the background of revelations of U.S. detainee abuse from Abu Ghraib, support for renewing the provision crumbled and the U.S. delegation withdrew its proposal. SC Res. 1487 (June 12, 2003).
Soon thereafter, in connection with the establishment of a multinational force in Liberia in which United States personnel would play an important role, the Security Council adopted a resolution under which personnel from a contributing state that was not a Rome Statute party would be “subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to” the new force. Unlike the earlier resolutions, this provision applied permanently, though only to the force in Liberia. SC Res. 1497, para. 7 (Aug. 1, 2003). At the same time, as written, the Liberia resolution would prevent not just the ICC but other states (and other tribunals) from exercising any otherwise applicable jurisdiction. Given that Liberia itself was not a Rome Statute party at the time, the ICC would not in any case have had jurisdiction over conduct in the country by nationals of states that were not Rome Statute parties. This language proved controversial and it was excluded from subsequent peacekeeping resolutions but echoes appeared in Council referrals to the Court.
Referrals of Situations to the ICC Prosecutor #
Under Article 13(b) of the Rome Statute, the Court can exercise jurisdiction over a case if the Security Council, acting under Chapter VII of the United Nations Charter, refers the situation to the Prosecutor. Many observers initially believed that U.S. antagonism toward the Court would prevent the Council from exercising this authority. But a key turning point came with rising concern over the atrocities unfolding in Darfur, Sudan. The United States had become a vocal advocate for accountability in Darfur, particularly after the State Department deployed an interdisciplinary team into the field to investigate the nature of the atrocities. In light of the team’s findings, Secretary of State Colin Powell testified before the Senate Foreign Relations Committee in September 2004 that “genocide has occurred and may still be occurring in Darfur.” Not long thereafter, British, French, and other representatives of UN member states began advocating for a referral of the situation to the ICC Prosecutor. The United States initially worked to divert this possibility, proposing alternatives for a hybrid or ad hoc tribunal along the lines of the ICTY and ICTR. However, when those proposals floundered, the Bush Administration was faced with a decision whether to deploy the U.S. veto in the Security Council to block the referral. At the end of the day, “the President was more concerned about the atrocities in Sudan than he was about the ICC,” and the United States allowed the Council to effectuate the referral, saying that “the need for the international community to work together in order to end the climate of impunity in the Sudan” outweighed its objections to the ICC.
U.S. acquiescence to the Security Council referral came in the form of an abstention, rather than an affirmative vote for the resolution. This referral set precedents for subsequent Security Council referrals that were highly favorable to U.S. policy positions on the ICC. In order to obtain U.S. agreement to abstain, the resolution included language—which numerous countries considered controversial—under which officials and personnel from states not parties to the Rome Statute (including the United States) were subject to the exclusive jurisdiction of their state for acts related to the peacekeeping mission in Sudan (modeled on the Liberia resolution). Expressing another U.S. policy priority, the resolution also included language that “recognizes” that none of the Court’s expenses in the investigation or prosecutions would be borne by the United Nations (and thus by the United States, through its contributions to the United Nations), as contemplated by the Rome Statute, but would instead be funded by the ASP or voluntary contributions.
The United States subsequently provided ongoing political support to the ICC investigation in Darfur through its stance in the Security Council. In 2007 and 2008, for example, the U.S. insisted that the government of Sudan “cooperate fully with the ICC,” and made it clear that it “would not support deferral of the ICC’s work in Darfur.” Notwithstanding U.S. support, there have been broader criticisms that the Security Council as a whole has not done enough to support the ICC’s work in Darfur (or Libya for that matter).
In 2011, the United States took a more proactive role when it co-sponsored a Security Council referral of the situation in Libya to the ICC. In voting for the resolution, Ambassador Susan Rice stated, “[w]e are pleased to have supported this entire resolution and all of its measures including the referral to the ICC (International Criminal Court). We are happy to have the opportunity to co-sponsor this, and we think it is a very powerful message to the leadership of Libya that this heinous killing must stop and that individuals will be held personally accountable.” Likewise, in 2014, the United States voted in favor of a resolution to refer the situation in Syria to the ICC, a draft that was formally supported by sixty-five states by the time it went to a vote (almost a third of UN membership) and which contained many of the same provisions that had been included in the earlier resolutions at the behest of the United States, including jurisdictional carveouts for personnel from states that were not Rome Statute parties. The resolution garnered the support of thirteen Council members but, predictably, was vetoed by Russia and China.
With respect to the two situations that the Council did refer to the Court, the ICC Prosecutor reports every six months to the Council on progress she has made and, consistent with general practice in the Council, the U.S. and other Council members are invited to make formal statements in response. In recent years, when the U.S. relationship with the Court has been antagonistic, the United States appears to have gone to great lengths to avoid praising the Court’s work. For example, in response to 2020 briefings by the ICC Prosecutor on Libya and Sudan, the U.S. representative found himself in the unenviable position of lamenting the impunity enjoyed by individuals for whom the ICC had issued arrest warrants but unable to call for the surrender of these suspects to the Court. In another example, the U.S. representative acknowledged that an individual who was finally surrendered to the Court after thirteen years “is in custody [and] must be held accountable for his alleged abuses,” but conspicuously did not welcome this surrender or even mention the ICC.
Meanwhile, the United States' anti-ICC posture also attracted sharp criticism and imposed political costs in other ways within the Council. For example, in recent briefings, a number of states—both adversaries and allies—addressed the imposition of sanctions, “deplor[ing] the application of sanctions against the Court, and in particular against its Prosecutor and the members of her Office, as well as the continued threats by United States authorities…[which] is an attack on our core values and interests;” “oppos[ing] unilateral sanctions…[which constitute] bullying practices and power politics, as they undermine the international order based on international law;” or “denounc[ing] the grave injustice against the world’s first and only permanent international criminal court and its officials through unilateral coercive measures in the form of sanctions…[which] are unjustifiable and wrong…[and] flagrantly violate our international rules-based system…”
Excerpts of Criticism by China of U.S. Sanctions on ICC
China used the U.S. sanctions as an opportunity to level criticism at the United States, even though it has not historically offered strong support for the Court: China noted “that the Prosecutor and other officials of the ICC are being subjected to unilateral sanctions that many countries are condemning. China always opposes unilateral sanctions, as they are inconsistent with international law. We also oppose bullying practices and power politics, as they undermine the international order based on international law.” UN Doc. S/2020/1108, at 8 (Nov. 13, 2020).
Later, China reiterated that “[m]any countries, including many members of the Security Council today, have condemned [the sanctions]. China has always opposed unilateral sanctions that are inconsistent with international law.” UN Doc. S/2020/1192, at 8 (Dec. 21, 2020).
Proposals to Defer ICC Investigations or Cases #
The U.S. record in responding to proposals for deferrals under Article 16 of the Rome Statute reflects the significant extent to which its interests in supporting accountability have been consistent with the ICC’s work in specific cases. Under Article 16, the Security Council may request the deferral of any investigation or prosecution by the ICC in a resolution adopted under Chapter VII of the UN Charter. The most prominent calls for such deferrals came in response to concerns by some states regarding ICC efforts to prosecute then-Sudanese President Omar al-Bashir and Kenyan President Uhuru Kenyatta and Vice President William Ruto. The United States opposed such deferrals under both the Bush and Obama Administrations. Indeed, the United States abstained on a resolution extending the peacekeeping mission in Darfur in 2008 that included language that suggested that the Council would “consider” the African Union’s Peace and Security Council’s proposal to request a deferral for the Darfur investigation. In its explanation of vote, the U.S. representative explained that the reference to Article 16 sent the wrong message to al-Bashir and others who might be brought to justice.
Other UN Resolutions Referring to the ICC #
U.S. constraints and concerns regarding the ICC have been a recurring point of discussion and disagreement with allies involved in negotiating the texts of resolutions and reports that refer to the Court. For example, each year the UN General Assembly passes a resolution on the ICC following the ICC’s submission of its annual Report of the International Criminal Court to the United Nations. Until 2000, the United States had joined consensus on this resolution, but from 2001 to 2009 it dissociated from consensus—the only state to do so except in 2008 when it was in the company of Sudan. In doing so, the United States typically highlighted its longstanding concerns about the Rome Statute, emphasized its commitment to justice (referring to its disagreements as being about means, not ends), and expressed its regret that, although it recognized the right of states to become party to the Statute, other states had been unwilling to acknowledge in the resolution the right of states to decide not to ratify the treaty. This approach changed in 2010, when the United States again joined consensus on the resolution until 2018. In 2017, the first year of the Trump Administration, the United States joined consensus while urging the ICC to respect “genuine domestic efforts to promote justice for atrocity crimes.” In his explanation of vote, the U.S. representative also articulated a long list of regional and internationalized justice efforts the United States was supporting, such as the Special Criminal Court in CAR and the Kosovo Specialist Chambers, and cited U.S. contributions to building a foundation for accountability through documentation efforts, such as UNITAD and the IIIM. In 2018 and thereafter, the United States once again dissociated from consensus (along with Israel), while reiterating its objection to the Court’s assertion of jurisdiction over nationals of states that are not Rome Statute parties and about the then-proposed investigation of U.S. personnel in Afghanistan —often in the company of states such as Myanmar, Russia, Sudan, and Syria.
ICC issues arise in the General Assembly in other ways as well. This includes resolutions in support of the Rohingya Muslims in Myanmar; decrying trafficking in women and girls, extrajudicial killings, and torture; denouncing human rights violations in Syria and North Korea; supporting victims of armed conflict and the safety and security of humanitarian and UN personnel; and promoting the rights of the child and of internally displaced persons. Likewise, in the UN Human Rights Council, the ICC came up in a number of contexts, including resolutions devoted to North Korea, Syria, Libya, Mali, Myanmar, the prevention of genocide, and extrajudicial killings. During certain periods, the United States has opposed, abstained, or dissociated from consensus on such resolutions that it would otherwise support because of references to the ICC in the text. Many of our interlocutors told us that the net result had been to diminish U.S. credibility on issues of international justice generally and waste the expenditure of political capital on trifling text with little actual impact.
Similarly, beyond the direct referral or deferral of investigations and the mandates of peacekeeping missions, a range of other Security Council resolutions and statements intersect with the mandate of the ICC. Under the Bush Administration, the United States generally resisted the inclusion of references to the ICC. Over time, however, the approach became more pragmatic, including for example in the support provided by the United States for Resolution 1688 in 2006, under which the Council facilitated—with affirmative U.S. support—efforts to have the trial of Charles Taylor held at the premises of the ICC in The Hague. In later resolutions, the United States supported resolutions in which the Council made affirmative references to the ICC in resolutions addressing the rule of law and the fight against impunity; women, peace, and security; the protection of civilians, journalists, and children in and affected by conflict; conflict prevention and peacekeeping; and individual ICC situation countries. The Trump Administration returned to the practice of objecting to mention of the ICC in some cases, including for example when it unsuccessfully attempted to delete ICC references from the resolution extending the MINUSCA mandate.
Statement by the President of the Security Council, at 3, UN Doc. S/PRST/2012/1 (Jan. 19, 2012). The President noted:
The Security Council recalls the Statement by its President on 29 June 2010 (S/PRST/2010/11) which included the contribution of the International Criminal Court, ad hoc and mixed tribunals, as well as chambers in national tribunals to the fight against impunity for the most serious crimes of concern to the international community. In this regard, the Council reiterates its previous call on the importance of State cooperation with these Courts and Tribunals in accordance with the states’ respective obligations.