At the ICC, there is no deterrence without resources

The adoption of the Rome Statute was an exceptional moment when states, the United Nations (UN) and civil society organizations came together. During the process, various negotiators pursued the idea of turning it into an instrument of “deterrence”. If we go back to that time in 1998, the events in former Yugoslavia and Rwanda still weighed on the international agenda, and there was a strong sense that everything must be done to prevent mass atrocities and prosecute the perpetrators.

However, since it started operations in 2002, the ICC has lacked the necessary strength to fully carry out its mandate. The Court lacks the political, diplomatic and financial support necessary to fulfill what it was created to do. One highly problematic aspect in particular is the relationship between the ICC and the UN Security Council (UNSC).

The UNSC, so far, has referred only two situations to the Court: one in Darfur (Sudan) and the other one in Libya. In the ten years since the Darfur case opened, six arrest warrants have been issued. However, only one defendant has actually faced the Court; four of those indicted are still free, one died prior to arrest, and the government of Sudan continues to reject the jurisdiction of the ICC. Even more concerning is the fact that various UN member states, and even state parties to the Rome Statute, have refused to comply with the arrest warrants—especially against the president of Sudan, Omar Al Bashir, who faces charges of genocide, crimes against humanity and war crimes.

After the first arrest warrant was issued on March 9, 2009, Al Bashir has traveled to 17 countries, all members of the UN, and none has arrested him. In practice, who would dare to arrest a sitting president? But in turn, what does this say about the power and influence of the Security Council that referred the Darfur case to the ICC? The fact that Al Bashir continues to travel so freely strongly undermines any deterrent effect the Court could hope to have on other heads of state. Clearly, the consequences of an ICC warrant do not appear very dire.

The relationship with the Council goes beyond the issue of lack of cooperation. Another persistent, unresolved problem is the budget for ICC investigations. According to the Rome Statute, the states that have joined the Court fund its operations. But, when it comes to situations referred by the Security Council, it´s the UN that should bear the financial burden. In practice, however, this has not been the case.

The UN has not contributed nearly enough resources, which has forced the prosecutor’s office to make some difficult decisions. Last December, for example, the Chief ICC Prosecutor Fatou Bensouda announced regarding Darfur that she was provisionally "shifting resources to other urgent cases", a decision that was also due to the fact that there had been no co-operation from the Security Council on the Darfur cases.

This problem of funding became more evident in May 2014, when the UNSC discussed the possibility of referring the situation in Syria to the ICC. France presented a draft resolution that included more than 60 co-sponsoring countries. This was seen as an opportunity for the ICC to intervene in one of the most serious human rights crises of the day, but the resolution was vetoed by Russia and China. In reality, had it passed, it might have simply weakened the international justice system. Without appropriate resources, political support, or even the possibility to carry out suitable investigations or arrests, what could the outcome possibly have been? What deterrent effect could the Court hope to have?

In the debate, several states highlighted the inconsistencies the proposed referral posed to the international justice system. First, some noted that the Council has not been consistent when it comes to referring situations, especially on the question of the Occupied Palestinian Territories (despite the Goldstone Report in 2009, which found that Israel had committed war crimes). This inconsistency clearly undermines the Court’s legitimacy. Second, state representatives raised questions about the UNSC determining beforehand who to investigate, since that jurisdiction lies with the ICC. Why were some violators exempt and not others? Third, since referrals are made through a resolution adopted by the UNSC, all member states of the UN should abide by it, and not only ICC state parties. A final problem noted was that the UNSC cannot decide on the financing of any referrals, as the responsibility lies with the Fifth Committee of the General Assembly.

As an illustration of these many concerns, the Argentine delegation voted for the adoption of the Syrian draft but decided not to cosponsor it. Argentina objected to several points in the draft, with three primary issues: 1) the referral exempted from scrutiny any nationals of states not party to the ICC (even if they might be committing war crimes in Syria; 2) it allowed for certain parties to be exempt from their obligations to cooperate with the Court; and 3) the draft had a provision stating that the expenses would not be covered by the UN but by state parties to the Rome Statute, which was clearly in contravention of the Statute.

These concerns were not new. Indeed, all of these points have been raised before, and in concert they weaken any deterrent effect the Court should have. The impact of the Rome Statute partly depends on how a situation is brought to the attention of the ICC, but it also depends on how effectively the Court intervenes. With so many grievous situations not referred to the Court, and so many of those indicted not facing trial, the deterrent effect to date has certainly not been strong. And whether a case is referred by the Security Council, or by a state in its own capacity, there will only be a deterrent effect if the ICC has the financial, political and legal support from the international community to fulfill its mandate.

Professor Mariana Rodriguez-Pareja is an attorney at the Universidad del Museo Social and teaches Geopolitics and International Relations at the School of History of the Universidad del Salvador, Argentina.

Salvador Herencia-Carrasco is Director of the Human Rights Clinic, HRREC- University of Ottawa and member of the Latin American Study Group on International Criminal Law.

This post originally appeared on openDemocracy.