The president of the International Criminal Court, Judge Sang-Hyun Song, told a Columbia University audience recently that a major challenge facing the court is what he called a steady lack of political support from the United Nations Security Council and UN member states.
“We need a far more consistent and vigilant approach by the Security Council,” Song told students and university leaders at the speech, which was held Feb. 12 and sponsored by the Columbia University World Leaders Forum and the Institute for the Study of Human Rights.
Song, a Korean judge who also spoke generally about the court’s past and its future, cited two resolutions passed by the Security Council concerning Sudan and Libya that prohibited UN funds from supporting the court, known as the ICC. In addition, he noted an incident that occurred in June 2012 when a court lawyer and three staff members were arrested and detained in Libya while they were visiting Seif al-Islam el-Qaddafi, a son of the deposed dictator Muammar el-Qaddafi, who is imprisoned there. (The court employees were eventually released.)
A major source of tension between the court and the Security Council started with the American lack of support for the ICC during the George W. Bush administration and its efforts to shield US citizens from the court’s jurisdiction. In 2005 the US, a permanent member of the Security Council, pushed to prohibit UN funds from being used by the ICC, since the US is not a member of the court and was concerned that its own financial contributions to the UN budget would go to the ICC. The referral resolution on Darfur, passed in 2005, and one on Libya, passed in 2011, both included a provision banning the allocation of UN money for investigations into atrocity crimes in these places. (The US abstained from the vote on Libya.)
The prohibitions were driven primarily by the US to comply with domestic laws barring American funds being channeled to the ICC. Yet the validity of the provisions in the two resolutions remains problematic because the General Assembly regulates the overall budget for the UN, not the Security Council.
Nevertheless, the ICC investigations into Darfur and Libya went ahead, using money from the court’s own budget and not from the UN. The Obama administration has expressed a willingness to work with the ICC on a case-by-case basis, but the US Senate has not ratified the treaty, the Rome Statute, which produced the court.
The relationship between the ICC and the US “is generally improving, but basically the US has never been fully on board with the ICC because there were concerns about the court’s independence from the UN and the independence of the ICC prosecutor,” said Matthew Heaphy, deputy convener for the American Nongovernmental Organizations Coalition for the International Criminal Court (AMICC), which is part of the Institute for the Study of Human Rights.
The ICC is an independent international body created by the Rome Statute, a treaty adopted in 1998. Meant as a court of last resort to prosecute those who have committed genocide, crimes against humanity, war crimes and, in a few years’ time, the crime of aggression, the court can investigate and prosecute individuals only when countries are unable or unwilling to do so themselves. Although it can carry out judicial work from its base in The Hague or anywhere else in the world, enforcement falls to the court’s member countries, who are responsible for executing arrest warrants, protecting witnesses and giving access to evidence.
Even though the court is not part of the UN, the Rome Statute includes several provisions relevant to the Security Council’s relationship with the ICC. The council, using the powers conferred to it by Chapter 7 of the UN Charter, can refer the court to situations that would otherwise not fall under its jurisdiction, such as Darfur in Sudan. But the council can also require the court to abstain from investigating or prosecuting cases, using the same Charter powers, a decision it may renew annually.
Since the ICC began operating in 2002, 18 cases from 8 situations have been brought before it. Countries involved in the cases include Central African Republic, Democratic Republic of the Congo, Ivory Coast, Kenya, Libya, Sudan, Uganda and, most recently, Mali. The court is also conducting preliminary investigations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Korea and Nigeria.
This month, an independent report on Syria commissioned by the United Nations Human Rights Council urged the Security Council to refer Syria to the International Criminal Court to investigate potential war crimes. The council has not taken action on this referral, nor has it acted on a similar campaign led by Switzerland, which submitted a petition signed by dozens of other countries. Heaphy said that he thought the political dynamics of the council, especially the relationship between Russia and Syria, would prevent the referral from being made in the foreseeable future. (The panel behind the report said it would also submit a list of names in March of those believed to be most responsible for atrocities.)
During his speech, Song, 71, said he was motivated to fight for justice from a young age because of what he witnessed during the Korean War. His experience during that time is similar to that of his Korean peer, Ban Ki-moon, the 68-year-old UN secretary-general, whose childhood was indelibly linked to his adult quest to negotiate world peace.
“During daily trips to find food, I passed hundreds of dead bodies lying in the street,” Song said. “To this day, I can still remember the horrible stench of the decomposing corpses during those hot summer days.”
“I was old enough to realize the immense suffering and destruction that war inflicts.”
Song has served as a judge for the court since 2003, and he was first elected president in 2009. He was re-elected for a second three-year term in 2012. In addition to his duties as president, which include judicial and legal obligations and acting as main representative for the court, Song hears cases as a member of the Appeals Chamber.
As for the future of the court, it heads into its second decade amid much criticism over its pace of trying cases (it has convicted just one defendant so far, Thomas Lubanga, a Congolese warlord) and an overly focus on African crimes. Yet countries continue to join, such as Guatemala and Ivory Coast most recently.
Song expressed hope that the Security Council would find a more constructive approach for working with the court. He said that the US could play a particularly important role. The Obama administration works with the court in such ways as providing technical and political support on certain cases.
Song ended his speech by re-emphasizing the need for justice to be done and his belief that the court could help bring about this justice with the help of the UN and individual nations.
“The real power of the ICC is not in the court alone but in an entire system of international justice,” Song said.