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Ending the ending of impunity: the UNSC lets down the Criminal Court

By Kevin Boreham - posted Friday, 30 November 2012

The UN Security Council has done nothing to enforce arrest warrants issued by the International Criminal Court as a result of referrals by the Council to the Court. The Council's failure to support the Court undermines the Court's objective of ending impunity for the most serious crimes. Australia should use its term as a Non Permanent Member of the Council to advocate vigorous support by the Council for the ICC.

The Council has referred to the Court the situations in Darfur and Libya. The Court issued warrants in 2009 for four people charged with genocide, crimes against humanity and war crimes in Darfur, including the President of Sudan, Omar Al Bashir and Sudan's Defense Minister, Abdel Raheem Muhammad Hussein.

The Court issued three arrest warrants in 2011, arising from the Council's referral of the situation in Libya, against Mohammed Qadhafi, the now dead Libyan leader, his son Saif Al-Islam Qadhafi and the Libyan head of Military Intelligence, Mohammed Al Senussi.


States party to the Rome Statute, which established the Court, are obliged to execute the Court's arrest warrants. Where a person sought by the Court is found in a State which is not a party to the Rome Statute, the Court can only request such a State's cooperation.

None of the people charged as a result of Security Council referrals have been arrested and brought before the Court in The Hague. African Heads of State decided in 2009 not to cooperate with the Court on the Al Bashir case. Al Bashir has travelled to States which are parties to the Rome Statute, including Chad and Kenya, but no State has taken action to arrest him. Saif Al Islam Gaddafi is held in Libya by a local militia. Mohammed Al Senussi was surrendered to Libya by Mauritania, where he had fled after the Libyan Revolution. Libya has made an application to the Court, which was heard in October, for the Court to declare the Libyan cases inadmissible on the grounds that Libya is able and willing to try them itself.

Although the Council's referrals to the Court have been made under Chapter VII of the UN Charter which compels UN member states to obey the Council's decisions, the Council has not enforced the Court's arrest warrants. The Court has drawn the Council's attention several times to the expected travel of Al-Bashir to other African States but the Council has taken no action. The President of the Court, Sang-Hyun Song, told the Council, in a debate on 17 October 2012 on the Council's relationship with the Court, that the Court hoped that the Council would actively support the Court's ability to act on referrals by underlining the need for full cooperation by United Nations Member States.

A paper prepared for the Council debate by Guatemala, which held the Council Presidency in October, said that 'when the Council refers a situation to theCourt, it ought to be committed to a successful prosecution, because when the rule of law is openly defied and the Council does nothing to prevent such defiance, the rule of law is undermined'.

Some states advocated in the 17 October debate that the Council should cooperate with the Court more effectively. Australia urged that once the Council had referred a situation to the Court, it must continue to offer the Court its support, particularly when a State fails to cooperate. The Australian representative also called for the Council's future referrals to be precisely drafted so as to identify clearly the cooperation obligations on States. France and the United States also advocated more effective Council cooperation with the Court at a meeting of the Council on 7 November which was briefed by the new ICC Prosecutor, Fatou Bensouda of Gambia. But nothing seems to have been done.

The Court's need for an effective relationship with the Council will become even more pressing during Australia's term on the Council. Some states continue to urge that the Council refer the situation in Syria to the Court. Prosecutor Bensouda foreshadowed at her briefing with the Council that the Court may commence a second Libyan case. She referred to allegations of rape and sexual violence, and to allegations against both other members of the Qadhafi régime and the 2011 revolutionary forces, including crimes committed against disarmed soldiers and detainees.


The ICC has strong bipartisan support in Australia. Julie Bishop, now deputy Leader of the Opposition, successfully managed a positive recommendation on ratification of the Rome Statute as Chair of the Parliamentary Joint Select Committee on Treaties in 2002. One of our main objectives for our term on the Council should be to persuade the Council to implement concrete proposals for its support of the Court so that ending impunity for the most serious crimes becomes a definite aim rather than a grand slogan.

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About the Author

Kevin Boreham teaches law at the ANU College of Law.

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