The United Nations Security Council Referrals of Situations to the International Criminal Court : A Critical Assessment of the Referral Mechanism

Under article 13 (b) of the Rome Statute of the International Criminal Court, the United Nations Security Council (SC) may refer to the International Criminal Court (ICC) a situation in which one or more crimes within the Court’s jurisdiction appear to have been committed. Since the entry into force of the Rome Statute, the SC has referred two situations to the Court: the situation in Darfur in 2005, and the situation in Libya in 2011. The SC referral mechanism allows the ICC to consider situations in non-party States, such as Sudan and Libya. Even though the adoption of the SC referrals was praised at first, the referral mechanism has proven problematic in many regards. Both SC Resolution 1593 (2005) on Darfur and SC Resolution 1970 (2011) on Libya have been subject to criticism because of their weaknesses. The greatest points of criticism relate to the financing of the Court’s activities and State cooperation. Following the referrals, the ICC initiated investigations on the situations in Darfur and Libya, and subsequently issued arrest warrants for persons considered to be responsible for the crimes committed. Despite the arrest warrants issued, none of the suspects have been arrested and surrendered to the ICC. The purpose of this study is to assess the SC referral mechanism in light of the two existing referrals and to identify and examine problems concerning said mechanism. In order to understand the problems related to the SC referral mechanism, the complex relationship between the ICC and the SC is examined in Chapter 2. The ICC is an independent institution established by a treaty between States. However, as the two organizations have overlapping mandates, coordination between the activities of the ICC and the SC is necessary. Therefore, the Rome Statute creates a link between the organizations by allowing the SC to trigger the juris- diction of the Court. In this context, the legal framework governing the relationship between the two institutions and the nature of SC referrals are examined. In addition, Chapter 2 assesses the funding of the Court’s activities following a SC referral. Chapter 3 considers the jurisdiction of the Court and the mechanisms available to initiate proceedings in the ICC. As the jurisdic- tion of the ICC with respect to a certain situation is not pre-determined, it can be triggered by State Parties, the SC or the Prosecu- tor. Emphasis is placed on the SC referral mechanism and its differences with the other trigger mechanisms. In addition, issues of admissibility are considered. Particular attention is paid to the principle of complementarity, because as the underlying principle of the Rome Statute, it affects the different stages of the ICC proceedings. In light of the existing referrals, Chapter 4 analyses State cooperation with the Court, and how it has proven one of the main prob- lems for the Court. The ICC does not have its own enforcement mechanisms, which is why it is dependent on the assistance of States in the arrest of suspects and the gathering of evidence. Yet, States have been reluctant to cooperate with the Court follow- ing the SC referrals. In order to explain the lack of cooperation, the study examines and compares the cooperation regimes pursu- ant to the Rome Statute and the relevant SC resolutions. In particular, it attempts to identify the content of the cooperation obliga- tions of Sudan and Libya, State Parties, and non-party States to the Rome Statute. As the ICC’s jurisdiction is complementary to national jurisdictions, the effect of the principle of complementarity on cooperation is also assessed. Under certain grounds, States may refuse or postpone their cooperation obligations with the Court. As examples of exemptions from the cooperation obligation, the effect of national proceedings and head of state immunity are considered. Chapter 4 concludes with an assessment of the enforcement mechanisms available in case the ICC makes a finding of non-compliance