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© 2017 AMICC All Rights Reserved. A Program of Columbia University Institute for the Study of Human Rights.

BACKGROUND ON THE ICC-UN RELATIONSHIP

While the International Criminal Court (ICC) is an independent international organization, it was established at a United Nations (UN) conference and the two organizations share common goals of preventing and responding to mass atrocities. The Rome Statute also includes two provisions which tell the judges how to deal with two possible types of action by the UN Security Council: the referral of situations to the ICC Prosecutor - as occurred with Darfur and Libya - and deferral, a resolution ordering the Court not to act on an investigation or prosecution for a renewable period of 12 months.

The strength of the ICC-UN relationship has been challenged at times, especially by the United States during the Bush administration. At its behest, the deferral provision of the Rome Statute was invoked several times by the Security Council in peacekeeping resolutions in order to shield Americans from the ICC. Also during this administration, US officials sought to weaken the standing of the ICC at the UN by insisting that references to the Court be removed from UN reports and resolutions.

The formal basis for ICC and UN relations is a Negotiated Relationship Agreement between the ICC and the UN, concluded on October 4, 2004. This agreement establishes a framework for mutually beneficial cooperation between the two entities, including collaboration in the field. In addition, the ICC is invited to report annually to the UN General Assembly.

DARFUR, SUDAN REFERRAL

 

The UN Security Council voted to adopt Resolution 1593 which referred the Darfur situation to the ICC.  The UN Security Council referred the Darfur Situation to the ICC in March of 2005. The resolution passed by a vote of 11-0, with four abstentions (by the United States, Algeria, China and Brazil). The referral purported to exempt non-Sudanese citizens from States not party to the ICC's Rome Statute, including Americans, from ICC jurisdiction. The referral was based on findings by the UN International Commission of Inquiry on Darfur.

 

The OTP opened an investigation into the situation in Darfur in June of 2005.

 

Click here for current information on the situation in Darfur.

LIBYA REFERRAL

 

On February 26, 2011 the UN Security Council unanimously adopted Resolution 1970 (2011), which granted the Court jurisdiction over the situation in Libya. This was the first time that the Security Council has unanimously referred a situation to the Court under Article 13(b) of the Court's Rome Statute. On March 3, 2011 the Prosecutor officially opened an investigation into alleged crimes against humanity committed in Libya.

Click here for current information on the situation in Libya.

 

During the first term of the Bush administration, the US sought opportunities to undermine the ICC, including at the United Nations. Some of these efforts included seeking to remove references to the ICC from UN reports and resolutions. In addition, the US sought to exempt from ICC jurisdiction Americans participating in UN peacekeeping missions.

The information about peacekeeping resolutions and the ICC is presented for historical reference. There are no longer any efforts to acheive preemptive immunity from the ICC for UN peacekeepers.

UN SECURITY COUNCIL PEACEKEEPING RESOLUTION 1422

 

On June 30, 2002, by a vote of 13 in favor and one against, the US stood alone in vetoing the Security Council resolution extending the mandate of the UN Mission in Bosnia and Herzegovina (UNMIBH), a critical part of the international community's multi-billion dollar commitment to ensure long-term peace in the region. Bush administration officials said that the US would not approve an extension of the Bosnian, or any other, mission unless international peacekeepers on the ground were given a permanent blanket immunity from arrest and prosecution by the ICC.

 

Subsequently, UNMIBH was given several brief extensions due to the temporary inability of the Security Council to find a compromise solution. Finally, on July 12, 2002, members of the Security Council achieved compromise language and adopted an omnibus peacekeeping resolution, Resolution 1422, by consensus, which allowed the UNMIBH mission to continue uninterrupted. The resolution:

 

"Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise"

 

The text of Resolution 1422 attempts to track the requirements of Article 16 of the ICC's Rome Statute, which states that "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions." However, Resolution 1422 did not appear to comply with the requirements of Article 16 because it attempted to prospectively prevent the ICC from taking up any case against an entire class of persons. In addition, it did not seem to identify a specific threat to international peace and security, another requirement of the provision.

 

US administration concerns about the difficulty of renewing Resolution 1422 in 2003 propelled US efforts to conclude bilateral immunity agreements to prevent the extradition of US nationals to the Court.

 

During the first term of the Bush administration, the US sought opportunities to undermine the ICC, including at the United Nations. Some of these efforts included seeking to remove references to the ICC from UN reports and resolutions. In addition, the US sought to exempt from ICC jurisdiction Americans participating in UN peacekeeping missions.

 

The information about peacekeeping resolutions and the ICC is presented for historical reference. There are no longer any efforts to acheive preemptive immunity from the ICC for UN peacekeepers.

2004 Failure to Renew Resolution 1487

 

On June 23, 2004, the United States announced its decision not to bring Resolution 1487 up for a vote. Hostility toward the text increased this year in light of the revelations of prisoner abuse in Iraq. Numerous countries, including China, said that they would abstain. US Deputy Ambassador to the UN James B. Cunningham stated, "In the absence of a new resolution, the United States will need to take into account the risk of ICC review when determining contributions to UN authorized or established operations. We will also continue to negotiate bilateral agreements consistent with Article 98 of the Rome Statute to further protect U.S. persons from the exercise of jurisdiction by the ICC."

2003 Renewal of Resolution 1422

 

On June 12, 2003, the Security Council renewed Resolution 1422 for one more year by adopting Resolution 1487, the text of which is identical to Resolution 1422. Before the vote, the Secretary-General and representatives of close to 60 countries spoke out against the resolution and against renewal. Many states argued that the resolution is unnecessary, inappropriate and illegal under the Rome Statute, the UN Charter and international law generally. Most explicitly rejected any attempt to automatically renew this resolution in the future

Liberia Peacekeeping Operations

 

In August 2003, the US threatened to veto a proposed peacekeeping operation in Liberia unless it secured an exemption from the ICC for personnel from non-State Parties. Resolution 1497, which authorized the mission, included compromise language allowing ICC States Parties to retain full jurisdiction over all their "current or former officials or personnel" involved with the mission.

In September 2004, the US supported Resolution 1561 extending the UN Mission in Liberia because the US was satisfied by its bilateral arrangements with the Government of Liberia.

Burundi

On December 1, 2004, the US agreed to support Resolution 1577 extending the United Nations Operation in Burundi (UNOB) only after the language of the resolution was watered down so as to not encourage and authorize UN investigators to cooperate with the ICC.

Democratic Republic of Congo Peacekeeping Operations

 

 

On October 1, 2004 the US supported Resolution 1565, which extended the deployment and increased the numbers of personnel in the MONUC peacekeeping mission in the Democratic Republic of Congo, in part because it involved few risks for the US.

UN Security Council Resolution 2098

 

 

On March 28, 2013 the UN Security Council passed Resolution 2098 which authorized the deployment of an offensive intervention brigade into the Democratic Republic of the Congo as a part of MONUSCO. Resolution 2098 “authorizes the brigade to ‘support and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the ICC.’”

Cyprus

 

On October 22, 2004 the US voted in favor of Resolution 1568 which extended the UN peacekeeping operation in Cyprus.