Mohammad Shouman

U.N. Security Council. Credit: Patrick Gruban

In a piece for IJCentral in December, I explored the relationship between the U.N. Security Council and the International Criminal Court: The Role of the U.N. Security Council in the ICC.

IJCentral builds global public awareness of the ICC and contributes to a constituency that will support an effective international justice system.

The Role of the U.N. Security Council in the ICC

I. Background
The Rome Statute is a treaty between consenting states. Any individual [1] who commits a crime on the territory of a state party, or is a national of a state party, can fall under the jurisdiction of the ICC. [2] When a crime is committed outside state-party territory by a national of a nonparty state, then the preconditions for exercising jurisdiction can still be met if the nonparty state accepts the Court’s jurisdiction. [3] If the nonparty state does not accept, then jurisdiction can only be triggered through a referral from the U.N. Security Council. For example, under Chapter VII of the U.N. Charter, the Security Council made referrals of the situations in Darfur, Sudan (S/RES/1593(2005)) and in Libya (S/RES/1970 (2011)), even though neither state is a party to the Rome Statute.

When exercising jurisdiction through either territoriality or active nationality, an ICC referral does not need to be made by the Security Council, [4] but the Council still has the authority to defer a Prosecutor’s investigation or prosecution by (renewable) twelve month terms. [5] (Throughout the rest of this post, “investigation or prosecution” will be collectively referred to as “prosecution.”) No permanent member of the Security Council—collectively known as the “P5”—can unilaterally defer a prosecution. If the prosecution was triggered by a Security Council resolution, then any P5 member can veto such a referral, effectively blocking the prosecution.

II. Discussion

A. Who Should Have Deferral Powers?
The Security Council is likely better suited to make deferral decisions than a judicial or legal entity (i.e., a judge or prosecutor). By providing deferral powers to the Council, the ICC is prevented from making political decisions. Instead, the Court can continue to maintain its neutrality and simply enforce the substantive and procedural laws laid out in the Rome Statute.

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Kofi Annan

During his recent visit to the Brookings Institution, I asked former U.N. Secretary General Kofi Annan about the mass executions of al-Gaddafi loyalists as described in a Human Rights Watch report, Death of a Dictator: Bloody Vengeance in Sirte.

Watch video highlights (or the entire webcast) of Annan’s talk and learn from this elder statesman: A Life in War and Peace: A Statesman’s Forum with Former U.N. Secretary General Kofi Annan.

Kofi Annan at the Brookings Institution

I am copying the portion of the transcript showing our exchange below (with corrections to my surname):

MR. SHOUMAN: Mr. Secretary-General, my name is Mohammad Shouman. I’m a GW Law student and a student at SAIS. And I wanted to ask you about Libya again.

Recently, Human Rights Watch produced a report showing in detail, in a report called “Death of a Dictator,” how there were dozens of Qaddafi loyalists who were mass executed. And I was wondering how the international community can encourage the current Libyan government to prosecute what Human Rights Watch described, likely correctly, as war crimes.

MR. ANNAN: I think the situation on the ground in Libya is very difficult. They are trying to establish institutions. Qaddafi did not run the most democratic institution-based regimes, and so these people are starting almost from scratch in many ways. So when we — and we already have this debate going on about Qaddafi’s son, whether he should be tried in Libya or the ICC, and where is he likely to get a fair trial. At the same time, you can’t take everybody to the ICC. You have to have local capacity to deal with these kinds of impunities, and it’s going to take time.

I don’t have a clear answer for you question. I mean, the international community can encourage them and help them set the courts and the systems to be able to deal with this, but it does take time and I don’t see it happening tomorrow. But ICC is seized on the situation, particularly in the case of some of the prominent ones. I’m not sure what his view will be on this.

And we face a situation in Kenya where you have institutions, but four Kenyans are before the ICC. But there were thousands or hundreds involved in the massacre and the displacement of the 650,000 or the 1,300 who were killed. And we’ve been pressing for five years that they set up a local tribunal to deal with all this who are not at the Hague . . . .

I bought his recent book, Interventions: A Life in War and Peace. I look forward to reading it.

M. Cherif Bassiouni

In a piece for PITAPOLICY on May 5, I wrote about M. Cherif Bassiouni‘s views on legal accountability in the Middle East: M. Cherif Bassiouni: Accountability, Legally Speaking.

PITAPOLICY represents the Politics, Interests, Technology, and Analysis of the Middle East & North African region, or the “pita-consuming” region. The owner of PITAPOLICY, Mehrunisa Qayyum, is an international-development consultant and a political-economy analyst of the Middle Eastern and North African regions.

Accountability, Legal Speaking…

Washington, DC~ On Tuesday, April 17th, the Elliott School of International Affairs at the George Washington University hosted the Institute for Middle East Studies 2012 Annual Conference. The theme of the conference was the legal dimension of the Arab Spring.

I had the opportunity to attend the keynote session presented by Egyptian-American United Nations war-crimes expert, M. Cherif Bassiouni. Among his lengthy list of titles and accomplishments, he is an Emeritus Distinguished Research Professor of Law at DePaul University College of Law, President Emeritus of the International Human Rights Law Institute, and President of the International Institute of Higher Studies in Criminal Sciences in Italy. Bassiouni is currently best known for chairing the Bahrain Independent Commission of Inquiry. On a personal note, I will proudly add that he is an alumnus (SJD) of the George Washington University Law School.

Bassiouni’s talk revolved around his reflections on the Arab Spring and its impact on the legal order in several Middle Eastern and North African (MENA) countries. From the outset, Bassiouni expressed his concern that despite the “Arab Spring” label, it is difficult to say at this time whether there has been any radical significance to the removal of heads of state in the MENA region. He elaborated that although Arab states and citizens sincerely seek accountability, he questions how that could be achieved in light of a paradox Arab states suffer: Although each country professes adherence to the rule of law, Arab states tend to suffer from a “symptomatic” and “dysfunctional” relationship between what is intellectually aspired to, and what is actually achieved. Bassiouni attributes this “enormous gap” to the Arab world’s historically ingrained culture that enables the “word” to predominate any deed.

As a case in point, Bassiouni points out that during his work with the Bahrain Independent Commission of Inquiry, the King of Bahrain expressed surprise that orders he made in Bassiouni’s presence were not followed, insisting that because he made the order, it was a done task. Bassiouni later noted that although Bahrain has a long way to go, it took significant steps to take action relative to other countries in terms of accountability and rule of law.

Bassiouni acknowledged Tunisia’s prosecution of the former head of state, Zine el-Abidine. However, he has been convicted in absentia and is currently in Saudi Arabia, which has no plans to extradite him to Tunisia.

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