Security Council referrals to the International Criminal Court: Much Ado about Nothing?

by Megan Fairlie

The ongoing brutalization of civilians at the hands of the Syrian regime makes it abundantly clear that the world needs the International Criminal Court (ICC), both to ensure accountability for the perpetrators of the worst crimes known to humankind and to stem the loss of innocent lives. As it stands, however, leading powers and the UN Security Council are preventing the ICC from effectively deterring the commission of war crimes and crimes against humanity in Syria and elsewhere.

The treaty-based ICC has 121 member states, but Syria is not among them. As a result, the ICC cannot investigate the Syrian killings unless it receives authorization from the Security Council. This is unlikely to happen, as two of the Council’s permanent members—Russia and China—have thus far shown unfailing allegiance to the Syrian regime. Yet even in the absence of Sino-Russian opposition, the likelihood that the court would ultimately receive the support necessary to do its job properly remains unacceptably low. Last year, the United States successfully lobbied the Council to respond to similar violence in Libya with a referral to the ICC. According to U.S. Ambassador Susan Rice, this “represented an historic milestone in the fight against impunity.” Today this description seems overly generous.

Operating largely without the cooperation the Security Council ordered Libya to provide, the ICC has been severely limited.The arrest warrants charging crimes against humanity, including those issued for Saif al-Islam Gaddafi, son of the former dictator, remain unexecuted. Instead, Saif lingers in a mountainous area more than eighty miles outside Tripoli. There he waits in the custody of the rebels who captured him, while Libya wrangles with the ICC over the legally complicated issue of whether Saif should be prosecuted in The Hague or at home.

The largest problem stemming from the Libyan referral, however, relates to the recent detention of Saif’s ICC-appointed defense counsel. After a sanctioned meeting with Saif in Libya in June, ICC attorney Melinda Taylor was held for nearly one month, allegedly for having passed coded letters to her client. Leaving aside the dubious nature of this allegation, Taylor’s detention was legally wrong. As defense counsel performing her work in a country ordered to cooperate with the ICC, Taylor had immunity from personal arrest and detention. She also had the right to keep her documents out of Libyan hands.

Libya’s defiance of these fundamental protections deserved a swift and powerful response. Disappointingly, the United States failed to send any public message, and the Security Council did little better. Only after public prompting did the Security Council issue a brief statement urging Taylor’s release and emphasizing Libya’s responsibility to cooperate with the ICC. Unfazed, Libyan officials maintained that Taylor might be released if the ICC apologized for her conduct. As Taylor’s detention continued, the ICC ultimately relented, first noting that it “deeply regrets any events that may have given rise to concerns on the part of the Libyan authorities” and apologizing again on the day of Taylor’s release.

It is tempting to fault the ICC, both for its apology and for not unequivocally stating that Libya’s treatment of Taylor was unacceptable. This unsatisfactory resolution of Taylor’s detention indicates that Saif’s prospects for meaningful representation are presently nil. It also threatens the possibility of future field visits by ICC defense teams, though these may be crucial for ensuring fair trials. Yet given the insufficient international support, it becomes difficult to blame the ICC for taking the steps it deemed necessary to secure Taylor’s safe return. The reasons the ICC was left in the lurch on this matter are unclear and immaterial.

Whatever the explanation, the failure to send a powerful message to Libya regarding the importance of cooperation with the ICC, and the imperative of assuring its staff’s immunity, was short-sighted. The ICC is now poised to suffer from troubling legitimacy problems. Critical to the new court’s success is its ability to provide for fair trials. This requires adequate defense representation, an unlikely possibility when defense counsel fear retaliation for doing their jobs properly. This situation ought to concern Security Council members, who cannot very well invoke the jurisdiction of a court lacking in credibility. It is therefore time for the United States, whose influence brought the situation in Libya before the ICC and whose conduct has rightfully recognized the court’s ability to contribute to international peace and security, to send a clear message that interference with ICC staff will not be tolerated. At the same time, the Security Council must follow through whenever it invokes ICC jurisdiction, lest the threat of a referral to the ICC be perceived as no threat at all.

About the Author

Megan Fairlie is an Assistant Professor at Florida International University College of Law. She has lectured and published in the United States and abroad on international criminal justice issues over the last decade. Her analyses have appeared in such prestigious venues as the American Journal of International Law and the Berkeley Journal of International Law. Professor Fairlie is an honors graduate of Washington and Lee School of Law; she also holds an LL.M. in International Peace Support Operations and a Ph.D. in International Human Rights Law, both from the National University of Ireland, Galway.

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