posted on Wed 6 Apr 2011 12:06 PM
Insights on the ICC

On Friday, 8 April Council members will hold informal consultations on the 29 March letter from Kenya requesting it to hold an open meeting on Kenya’s request for the Council to use its powers under Article 16 of the Rome Statute to suspend ICC proceedings against six Kenyans. (The issue was discussed previously on 18 March in an interactive dialogue with the Kenyan permanent representative in New York. AU representatives also attended.)

During the interactive dialogue Council members were generally of the view that the situation in Kenya was not the kind of threat to international peace and security that would justify the use of Article 16. Some suggested that a preferable venue for Kenya’s arguments was the ICC itself, where it might be able to raise the issue under Article 19. (See Security Council Report’s 6 April 2011 Update Report for more information on this issue.)

The Council has paid a significant amount of attention in the last few weeks to issues related to the ICC and its jurisdiction and the merits of the Council invoking its powers under the Rome Statute or including language relating to the ICC. ( This has arisen in several contexts not only where the Rome Statute confers a specific responsibility on the Council.)

On 26 February, the Council using its power under Article 13(b) of the Rome Statute, unanimously decided in resolution 1970 to refer the situation in Libya since 15 February to the ICC. This is only the second time the Council has referred a situation to the ICC. (The first was in 2005 when in resolution 1593 the Council referred the situation in Darfur.) Resolution 1970 also invites the prosecutor to address the Council within two months – and every six months thereafter – on actions taken pursuant to the resolution. Resolution 1970 also limited the reference so that it would not apply to nationals of states not party to the Rome Statute for acts or omissions arising out of or related to operations in Libya established or authorized by the Council. (A number of Council members, which are not parties to the Rome Statute – China, India, Lebanon, Russia and the United States – voted in favour of the referral.)

On 30 March, the Council unanimously adopted resolution 1975, imposing targeted sanctions against former President of Côte d’Ivoire, Laurent Gbagbo, and his close associates. In negotiations, questions arose regarding the effect of the implications of a declaration made by Côte d’Ivoire to the ICC on 18 April 2003 and accepting the jurisdiction of the Court, pursuant to Article 12(3) of the Rome Statute came up. China and India were initially opposed to any language alluding to the jurisdiction of the ICC, as they felt this was unhelpful while the Council was pursuing a political solution between the opposing sides. On the other hand, Nigeria, France and the majority of the western countries on the Council wanted a reference to the ICC as a deterrent signal in light of emerging reports of attacks against civilians in Côte d’Ivoire. The outcome was that the Council restricted its action but pointed out that the violence against civilians in Côte d’Ivoire could amount to crimes against humanity and that perpetrators must be held accountable and that the ICC may decide on its jurisdiction over such events under Article 12 (3) of the Rome Statute.