Global Policy Forum

The ICC in the Security Council

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The Security Council has the power under the ICC's Rome Statute to refer cases to the Court that would otherwise not fall under its jurisdiction and to request the Court to defer investigating a case. As the ICC came into being in 2002, the United States took many steps to undercut it, complaining that the new court would subject US nationals to politically-motivated international justice. The Bush administration insisted that the Security Council adopt an omnibus resolution exempting all UN peacekeepers from the jurisdiction of the Court or, at least, that each new renewal of peacekeeping operations would include an exemption provision. Under threat of a US veto of all UN peacekeeping missions, the Security Council adopted Resolution 1422 in July 2002, granting Washington a twelve-month blanket immunity from the ICC. The US again used its veto power and successfully renewed its immunity arrangement a year later. However, with widespread outrage over US treatment of prisoners in Iraq and Guantanamo Bay, Washington was unable to garner support for further exemption agreements in 2004. Since then, the US has not openly lobbied for any yearly provisions, but made its position clear by routinely placing its opposition on the agenda and seeking ad-hoc immunity. The US relaxed its opposition to the Court to some extent in 2005 by withholding its veto and supporting the Security's Council's referral to the ICC of the situation in Darfur. This support has continued under the Obama administration, which has taken a more cooperative approach towards the ICC.

US unilateralism under the Bush administration provoked strong opposition from most other nations. Security Council members hold that the Council should not be used to override international treaties and they expressed shock when the US threatened to wreck UN peacekeeping missions in order to demonstrate its objections to the Court. The Obama administration still pushes for a prominent role for the Security Council with respect to ICC investigations. Such Security Council dominance over the ICC threatens the Court's legitimacy as an independent institution.

UN Documents | Reports | Articles | Archived Articles

UN Documents


Security Council Resolution 1487 (June 12, 2003)

This resolution, a renewal of Resolution 1422, gives US soldiers immunity from the ICC for another year, undermining efforts hold war criminals accountable.

Security Council Resolution 1422 (2002) on United Nations Peacekeeping

The US convinced the UN Security Council to unanimously adopt resolution 1422. The document grants a twelve-month immunity from the ICC to all UN peacekeeping personnel, contributed by states that are not parties to the Rome Statute.

European Parliament Resolution on the Draft American Servicemembers' Protection Act (July 4, 2002)

The European Parliament resolution calls on the US Congress to reject unilateralism. It suggests that the Draft American Servicemembers' Protection Act "goes well beyond the exercise of the US's sovereign right not to participate in the Court" and "contrasts with the founding treaties of NATO and the WEU".

America Service Members Protection Act 2002

This text is the original version as introduced into the US senate. The Act deepens the US refusal to cooperate with the ICC and it gives authority to the executive branch to "use all necessary means" to "free members of the armed forces of the United States detained by the ICC"

Draft Resolution S/2002/1420 (June 30, 2002)

The US has vetoed the draft resolution, meant to renew the mandate of the peacekeeping mission in Bosnia, for not granting immunity for US peacekeepers against ICC jurisdiction.

Open Letter to Members of the UN Security Council from the Coalition for the International Criminal Court's Convenor (June 25, 2002)

Letter by the Coalition for the International Criminal Court requesting the Security Council to reject the US proposals to grant peacekeepers immunity from prosecution by the ICC.



The Relationship between the Security Council and the International Criminal Court (2001)

Under the ICC's Rome Statute, the Security Council has the power to trigger action by the Court and to obstruct prosecutions. This paper analyzes the relationship between political and judicial bodies, concluding that the international community must evaluate and moderate their linkages to ensure respect of individual and national rights. (Weltpolitik/Graduate Institute of International Studies)




The Relationship Between the ICC and the Security Council: Challenges and Opportunities (November 8, 2012)
A recent panel discussion brought together the current International Criminal Court (ICC) Prosecutor Fatou Bensouda, Security Council member states who are party to the Rome Statute and a number of other states. The discussion focused on how to improve the Security Council’s practice when referring cases to the court. The panel identified important points, including the double standards in the Council and the difficulty to enforce ICC warrants. However the discussion did not address the fundamental problem of giving authority to a deeply politicized body (the Security Council) over what is meant to be a legal process. (International Peace Institute)

War Crimes Immunity for Ousted Leaders Under Fire (January 24, 2012)

President Ali Abdullah Saleh has agreed to step down from office in exchange for immunity from prosecution by Yemen. But impunity for leaders responsible for crimes against humanity weakens international law and ignores the rights of victims. It is possible for the International Criminal Court to prosecute Saleh even though Yemen has not signed on to the Rome Statute, and the UN Security Council has the power to have the ICC’s prosecutor take up such cases. This article by Terraviva published a week after the Security Council’s meeting on upholding International Law explains why it is important for the Security Council to do just that. (Terraviva)


Rough Road Ahead as Kenya Plans to Lobby UN's Big Five (February 5, 2011)

The US has indicated it will not support a planned request by Kenya to the Security Council, to defer the ICC case against six high ranking Kenyan officials. Without the support of the US, it is unlikely Kenya will succeed, as France and Britain have also indicated they are not in favor of a deferral. Apart from problems of politicking, some observers also argue a deferral is wrong in law. Kenya's campaign is endorsed by the African Union; while unlikely to succeed, it is indicative of rising anti-ICC sentiment in Africa. (Daily Nation)


Are Superpowers Undermining the ICC? (June 9, 2010)

The States Parties to the Rome Statute of the International Criminal Court are currently considering the inclusion of the crime of aggression into the Court's jurisdiction at the ICC Review Conference in Kampala, Uganda. The latest news from the conference indicates that the permanent members of the UN Security Council are hindering attempts to empower the Court to prosecute the crime they have all committed. (Independent)

ICC Refers Sudan War Crimes Cases to UN (May 26, 2010)

The International Criminal Court has taken an unprecedented step by formally asking the Security Council to take action against Sudan for failing to implement arrest warrants against former Minister Ahmed Haroun and militia leader Ali Muhammad Al Abd-Al-Rahman. This decision comes one day before President Omar al-Bashir starts a new term in office. President al-Bashir is also wanted by the ICC for alleged war crimes in Darfur. (BBC News)


UN and ICC: Not the Easiest of Relationships (September 21, 2008)

This Radio Netherlands Worldwide article argues that countries use the ICC for political purposes to suit their own interest. The author refers to Security Council (SC) Resolution 1828 on Darfur, which states that only the parties directly involved in the Sudanese conflict are obligated to cooperate with the ICC. The SC also excluded non-ICC member states' troops from the ICC's jurisdiction, including US forces.

Security Council Members Push to Condemn Sudan (June 6, 2008)

Zalmay Khalilzad, US ambassador to the UN, endorsed the International Criminal Court (ICC) to prosecute war criminals in Darfur. This marks the first instance of US support for the court and is in sharp contrast to the usual attempts by the US to undermine the courts proceedings. "It is the only game in town for bringing accountability for the atrocities in Darfur," explained the legal adviser to the US State Department. However, the question remains whether the US will now ratify the ICC treaty or if it will continue to utilize the court only when it serves US interest. (New York Times)


China and Qatar Block Security Council Statement on Darfur Crimes (December 9, 2007)

International Criminal Court prosecutor, Luis Moreno Ocampo complained to the Security Council that the Sudanese government refuses to surrender two indicted Sudanese officials. The Council hasn't achieved an agreement on releasing a statement to pressure Sudan, due to resistance, for example from Qatar. Even though Sudan has not ratified the Rome Statute, the Security Council has enabled a clause, which allows the World Court to refer to non-signatories if it considers the matter a "threat to international peace and security." (Sudan Tribune)

ICC Prosecutor to Open Two New Darfur Cases (December 4, 2007)

The International Criminal Court issued two arrest warrants for Ahamad Haroun and Ali Kushayb for their role in the execution, rapes and forcible evictions of humanitarian workers and peacekeepers in Darfur. Sudan denies that the ICC has jurisdiction to hear the cases. Humanitarian agencies argue that the Security Council needs to insist that Sudan fulfill its obligation to arrest the suspects. Chief ICC Prosecutor Luis Moreno-Ocampo will address the Security Council on his investigations in Darfur on December 5, 2007. (Reuters)


US Resurfaces Opposition to International Court (December 22, 2005)

In November 2005, the US showed flexibility in its attitude to the International Criminal Court (ICC) when dealing with the crisis in Darfur. One month later, the US has done an "about-face." US officials are now opposing any mention of the ICC in a Security Council resolution that seeks to protect civilians caught in armed conflicts. Meanwhile, UN officials and EU diplomats continue to support the ICC in this area. (OneWorld)

US' Attempts to Delete ICC from UN Security Council Resolution Undermine Advances Made (December 16, 2005)

The Coalition for the International Criminal Court (CICC) calls upon the Security Council to counter US efforts to remove mention of the ICC from a new resolution aimed at protecting civilians in armed conflict. The Coalition criticizes the US for its hypocrisy - in November 2005, the US had been sending a different message of support of the ICC taking action in the crisis in Darfur.

Sudan: Double Standards in International Criminal Justice (April 2, 2005)

The UN Security Council has granted immunity from prosecution by the International Criminal Court (ICC) to Sudan peacekeepers from States not party to the ICC's Rome Statute. The measure was taken to prevent a US veto on the Sudan referral to the International Criminal Court, and has sparked much criticism among observers. The International Progress Organization argues that the Security Council cannot arbitrarily defer prosecution, and accuses it of damaging UN credibility by playing "power politics."

France Asking UN to Refer Darfur to ICC (March 24, 2005)

The UN Security Council will vote on a French-proposed resolution to refer Sudan's war crimes to the International Criminal Court (ICC). The resolution needs nine votes to pass, and France remains confident it can secure at least eleven. The US must now decide between allowing the ICC referral to go ahead after relentlessly campaigning against it, or casting a "politically damaging" veto. (World Bank)

France Pushes for UN Vote on Sudan; US May Veto (March 24, 2005)

France tries to reconcile polarized positions of Security Council members on whether to refer perpetrators of atrocities in Darfur to the International Criminal Court (ICC) by offering the Council an alternative draft resolution. To avoid a US veto, the proposal presses for the referral to the ICC yet exempts "non-parties to the Rome Statute." The French initiative follows a US draft which split one resolution on Sudan into three separate ones in hopes of sending a UN peacekeeping force to the country and imposing sanctions on Khartoum, but voting separately on bringing war criminals before the ICC. (AlterNet)

Trying Times in Darfur and the Establishment of International Criminal Law (March 4, 2005)

Power and Interest News Report asserts that Security Council debate over the International Criminal Court's (ICC) role in Sudan has more to do with establishing an international legal precedent than ending Darfur's conflict. In particular, the outcome could set a standard for US compliance (or non-compliance) with international law. This article speculates that Russia and China may even support ICC jurisdiction for Darfur solely to weaken the US' superpower status.

Why Should We Shield the Killers? (February 2, 2005)

Nicholas Kristof condemns Washington's obstinate opposition to the International Criminal Court (ICC). Despite a UN commission's recommendation that the Security Council refer Darfur's war criminals to the ICC, the US would rather establish an ad hoc tribunal for Sudan which "could take another year and 120,000 more deaths" before prosecutions begin. Kristof hopes that if the other Security Council members stand firm on the issue, the US might abstain from the vote rather than exercise its veto. (New York Times)


US Blocks UN Text on Massacre in Tiff Over Court (November 29, 2004)

The US tried to block a Security Council statement that suggested an International Criminal Court investigation on the August 13, 2004 massacre in Burundi, reports Reuters. The US has also recently campaigned to remove the ICC from next year's General Assembly agenda and make only member states that support the court bear its financial obligations. Though the Security Council did reach a compromise on the statement, members are increasingly irritated with "Washington's disdain" for the ICC.

US Drops UN Measure to Shield Its Soldiers Abroad (June 23, 2004)

Due to a lack of support from Security Council members, the US withdrew its draft resolution seeking to exempt US soldiers from international prosecution. US Deputy Ambassador James Cunningham did not comment about whether the US would threaten to veto UN peacekeeping missions trying to pass a similar resolution, as it has done in the past. (Reuters)

US Backs Down On War-Crimes Exemption (June 22, 2004)

After failing to gain support for its resolution to exempt its peacekeepers from international prosecution, the US circulated a revised version to elicit the reaction of Security Council members before calling for a vote. The revised version asks to extend the exemption for one final year. (Associated Press)

Annan Against US War Crimes Exemption (June 17, 2004)

Urging the UN Security Council to stop shielding US peacekeepers from international prosecution for war crimes, Secretary General Kofi Annan said another exemption resolution "would discredit the council and the United Nations that stands for rule of law and the primacy of rule of law." (Associated Press)

Blackmail Efforts of the Bush Administration at the UN End in Failure this Time (June 3, 2004)

Facing growing resistance and a possible veto in the Security Council, the US withdrew its resolution to exempt US military personnel from the jurisdiction of the International Criminal Court. The author argues that the withdrawal indicates a reduction in the ability of the US to impose its will on the Security Council and calls on the international community to seize the moment "to ponder an end to pandering." (Foreign Policy in Focus)

Opposition Growing to US Exemption on Global Court (May 27, 2004)

China may abstain on a Security Council resolution exempting US military personnel from the jurisdiction of the International Criminal Court, arguing that the resolution was sending "a very bad signal at this time." Several diplomats suggest that China's unusual stand is due to their bargaining with the US over Taiwan's removal from the World Trade Organization. (Reuters)

A Question of Credibility (May 23, 2004)

Former Legal Counsel of the United Nations Hans Corell criticizes the US for seeking another Security Council resolution to exempt US officials from the jurisdiction of the International Criminal Court. Corell challenges the reasoning for the resolution and urges the US to "stop this nonsense." (Coalition for the International Criminal Court)

US Wants One-Year Extension of Immunity for Its Troops (May 20, 2004)

The US circulated a draft Security Council resolution to give US peacekeeping troops another one-year exemption from prosecution by the International Criminal Court. Strong support for the resolution is not certain given the international outrage over the treatment of Iraqi prisoners and UN Secretary General Kofi Annan's 2003 warning to the Council not to undermine its own authority by making the exemption "an annual routine." (Agence France-Presse)

US Pushes World Court Immunity amid Iraq Scandal (May 14, 2004)

Legal practitioners criticize the continuous US opposition to the International Criminal Court following the Iraqi torture scandal, which fueled international outrage and severely damaged US credibility. While US officials promise the guilty will be punished under US law, human rights experts worry that prosecution will only focus on low-ranking soldiers, not their superiors. (Reuters)

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