Abstract

Enforcement of ICC Decisions: The Security Council Way

The International Criminal Court is a permanent international court established in 1998 to
investigate, prosecute and try individuals accused of committing the most serious crimes of
concern to the international community as a whole, namely the crime of genocide, crimes against
humanity, war crimes and the crime of aggression. Some of the most heinous crimes were
committed during the conflicts which marked the twentieth century. Unfortunately, many of
these violations of international law have remained unpunished.

The International Criminal Court was established with a purpose to curtail the ongoing atrocities
in the postmodern world, but till today it has not met the expectations. Statistics show that ICC
was not able to properly enforce the trials due to one or other factors.

The ICC has publicly indicted 39 people in which it has issued arrest warrants for 31 individuals
and summonses to eight others. Currently eight persons are in detention. Proceedings against 25
are ongoing: nine are at large as fugitives, four are under arrest but not in the Court's custody,
two are in the pre-trial phase, and ten are at trial. Proceedings against 12 have been completed:
two have been convicted, one has been acquitted, four have had the charges against them
dismissed, two have had the charges against them withdrawn, one has had his case declared
inadmissible, and three have died before trial.

The afore mentioned data is in itself enough to show the proportion between the crimes since
1998 and the indictments. The Authors believe that the main reason for such disproportion is the
present ineffective enforcement mechanism. As we all know that the enforcement of
International Law is most difficult, the same is the bane with ICC. Through this paper the
Authors shall try to analyse the difficulties faced by the ICC in enforcement of its orders and
shall conclude to the notion that supportive action by the UN Security Council remains the only
viable way to give effect and authority to ICCs actions.

Keywords- ICC , Decisions , UNSC , Jurisdiction , International Law .

 INTRODUCTION

“Crimes against international law are committed by men, not by abstract entities, and only
by punishing individuals who commit such crimes can the provisions of international law
be enforced,”

Judgment of the International Military Tribunal1

“The most serious crimes of concern to the international community as a whole must not go
unpunished”

Preamble to the Rome Statute of the International Criminal Court

The 1990s have witnessed the greatest advance of international humanitarian law since the end
of the Second World War. Although the idea to establish a permanent international criminal
court can be traced back to 19th century, only in the last half of the century have there been
serious attempts to materialize it.2 The creation of the International Criminal Tribunal for
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) represents
significant advancements in the interpretation and implementation of international law. The
success of these tribunals (as well as their failures) ultimately became the basis for the debate
over the need for a permanent international criminal institution.3As a result ‘The Rome Statute’
was adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court .The International Criminal Court
(“ICC” or “Court”) is the first permanent international court with jurisdiction to prosecute
individuals for “the most serious crimes of concern to the international community.”4

1
1 October 1946, Vol. 'l, 249.
2
C.K. Hall, 'The First Proposal for a Permanent International Criminal Court' (1998) 322 Int. Rev. of the Red Cross,
p. 57
3
Hidealci Shinoda, “Peace Building by rule of Law: An Examination of Intervention in the Form of International
Tribunals” International Journal of Peace Studies, Vol.7 (2002), pp.41-58.
4
Rome Statute of the International Criminal Court, Preamble, U.N. Doc. A/CONF.183/9 (1998)
The International Criminal Court is not a substitute for national courts. According to the Rome
Statute, it is the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes. The International Criminal Court can only intervene where a State is unable
or unwilling genuinely to carry out the investigation and prosecute the perpetrators. The primary
mission of the International Criminal Court is to help put an end to impunity for the perpetrators
of the most serious crimes of concern to the international community as a whole, and thus to
contribute to the prevention of such crimes.5

In the 20th century crimes against humanity and crimes of war have become more present in our
conscience and awareness. The reasons are that they have become more methodical, more
devastating, and also better documented. The 20th century has seen a development from
international awareness of international crime and human rights violations, to the establishment
of international criminal tribunals. Genocide is one of these crimes against humanity, and
arguably the gravest one. Genocide is hardly a novel crime; it is the name that was newly coined
in the mid-1900s. In fact, mass killings and possible genocide have occurred for centuries. With
the end of World War II and the end of the Nazi regime, the first international tribunals in history
were held, prosecuting top-level perpetrators.6

As we can see the crimes in the 20th century has become more gruesome and more inhumane the
need for a strict law enforcement mechanism to curb those crimes was the need for hour. In spite
of the establishment of the ICC we have seen that the conditions in cases of inhuman acts have
not decreased but nonetheless increased so far.

The main aim of this research paper is to develop a better understanding of the International
Criminal Court in lights of recent developments in international law. Further this paper will try to
analyse the shortcomings of ICC that has been developed over a period of time. The final part of
this paper will deal with the relationship between the UN Security Council and ICC and how

5
Understanding the International Criminal Court, Available at :- https://www.icc
cpi.int/iccdocs/pids/publications/uicceng.pdf (last visited:- November 24, 2016)
6
Stefanie Kunze.Methods of the International Criminal Court and the Role of Social Media, (2014) Available at -
https://wpsa.research.pdx.edu/papers/docs/KUNZE%20%20Methods%20of%20the%20International%20Criminal%
20Court%20and%20the%20Role%20of%20Social%20Media.pdf (last visited:- December 10 , 2016)
until now the dormant role of UNSC has led to the incompetent functioning of ICC and as a
result non-compliance of the basic principles of International Criminal Law.

International Criminal Court at a Glance:

The International Criminal Court was created as a deterrent to impunity, as a means towards
eliminating the world’s most horrendous crimes and as an instrumentality to redress the victims
of genocide, war crimes and crimes against humanity.7 The Rome Statute of the ICC was a
subject of intensive negotiations and careful crafting with the main controversy being with
respect to Part 2, on Jurisdiction, Admissibility and Applicable Law‘.8

Jurisdiction of the ICC

According to Article 5 of the Rome Statute, the ICC will have jurisdiction with respect to the
crime of genocide, war crimes and crimes against humanity. The crime of aggression is
ingeniously included by determining that the ICC will have jurisdiction to try the crime of
aggression once there is an agreed definition of aggression.9There are several proposals on the
definition of aggression that some UN member States have submitted to the Conference for
consideration.10
A positive feature of Article 7 of the Statute is a recognition that crimes against humanity may be
committed not only in war, but in peacetime as well. This is however only a reflection of the law
developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY).11
Article 11 of the Statute limits ratione temporis jurisdiction to crimes committed after the entry
into force of the Statute.

7
Bassiouni, M.C, (1997), ‗From Versailles to Rwanda in seventy-five years: the need to establish a permanent ICC‘
Harvard Human Rights Journal, 10, 11.
8
Kirsch Philippe and Holmes T John, (1999), The Rome Conference on an International Criminal Court: The
Negotiating Process', The American Journal of International Law, Vol. 93, No. 1 pp. 3-4
9
Article 5 (2) of the Statute
10
Challenges Facing the International Criminal Court: Recommendations to the Assembly of States Parties availavle
at :- http://www.un.org/law/icc/documents/aggression/aggressiondocs.htm. (Last accessed 10th December 2016)
11
Prosecutor v Dusko Tadic a/k/a "Dule", IT-94-1-AR72, 1995, Opinion and Judgment (1997) 4 I.H.R.R., p. 645
para. 141.
Further limitation of the ICC's jurisdiction is contained in Article 12, titled preconditions to the
exercise of jurisdiction, which provides that the ICC can only exercise jurisdiction with respect
to crimes committed in States that are either parties to the Statute or accepted its jurisdiction.

Under Article 13 of the Statute the exercise of jurisdiction is triggered by referral of a situation to
the Prosecutor of the ICC either by a State Party or the UN Security Council acting under
Chapter VII of the Charter of the UN, or when the Prosecutor has initiated an investigation in
respect of the crimes for which the Court may exercise jurisdiction. However, the Court will
determine that a case is inadmissible if it is being investigated by a State which has jurisdiction
over it, unless the State is unwilling or unable genuinely to carry out the investigation. 12This may
happen for instance in the case of a total or substantial collapse or unavailability of a national
judicial system.13 The mandate of the Court is to try individuals (rather than States), and to hold
such persons accountable for the most serious crimes of concern to the international community
as a whole, namely the crime of genocide, war crimes, crimes against humanity, and the crime of
aggression, when the conditions for the exercise of the Court’s jurisdiction over the latter are
fulfilled.
The most important limitation on the ICC's jurisdiction is contained in Article 16, titled deferral
of investigation or prosecution. The Article 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."

Jurisdiction ratione personae is limited to natural persons;14therefore States and other collective
bodies are not liable under the Statute.

Admissibility

In addition to jurisdiction, the Rome Statute requires that a case be admissible before the Court
to proceed. Admissibility is linked to the principle of complementarity found in the Preamble
12
Article 17 (1) (a).
13
Article 17 para. 3.
14
Article 25 (1).
and Articles 1 and 17 of the Statute. The ICC is envisioned as a Court of last, not first resort, and
may exercise jurisdiction only if: (1) national jurisdictions are “unwilling or unable” to; (2) the
crime is of sufficient gravity; and (3) the person has not already been tried for the conduct on
which the complaint is based. Although the inclusion of the complementarity principle
undoubtedly increased State support for the Court, it makes the Court’s operation more difficult
and litigation regarding admissibility has complicated several of the Court’s early cases.

For example, in the Kenyan situation, the ICC Prosecutor initiated the case under Article 15 of
the Statute, claiming that Kenya was “unwilling” (and presumably unable) to prosecute
individuals who had perpetrated crimes during the post-election violence that wracked Kenya in
the wake of the 2007 elections there. An investigation was authorized by Pre-Trial Chamber II in
March 2010, however, nearly one year later, Kenya then challenged the admissibility of the case
before the ICC. Litigation ensued for several additional months and ultimately both the Pre-Trial
Chamber and the ICC Appeals Chamber concluded thatthe cases were admissible because the
Kenyan government had failed to provide sufficient evidence to substantiate that it was
investigating the six suspects charged before the ICC for the crimes alleged against them. The
Appeals Chamber clarified the meaning of “inadmissibility” by holding that for a case to be
inadmissible under article 17(1)(a) of the Rome Statute, the national investigation must cover the
same individual and substantially the same conduct as alleged in the proceedings before the
Court.15

Conversely, in the Al-Senussi case, involving the situation in Libya, the Pre-Trial Chamber
concluded that Libya was investigating Al-Senussi for the conduct with which he was charged at
the ICC, and that Libya was neither unwilling nor unable to carry out the investigation. Thus, it
concluded that the case was inadmissible before the ICC although it recognized that the absence
of defense counsel and the security concerns in Libya were serious issues.16 Indeed, Al-Senussi
expressed a clear preference to have his case heard before the ICC, undoubtedly believing the
15
Prosecutor v. Muthaura, et al., Case No. ICC-01/09-02/11 OA, Judgment on the Appeal of the Republic of Kenya
against the decision of Pre-Trial Chamber II of 31 May 2011 entitled “Decision on the Application by the
Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,” ¶ 39
(Last accessed 10th December 2016)
16
Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11, Decision on the
admissibility of the case against Abdullah Al-Senussi (Pre-Trial Ch. I, October 11, 2013).
trial would be fairer before an international court. Thus, even with respect to a particular
situation, some accused will be tried before the ICC, whereas others will be tried in national
courts.17

Composition of the ICC

Article 34 provides that the ICC shall be composed of the following organs: the Presidency; An
Appeals Division, a Trial Division and a Pre-Trial Division; the Office of the Prosecutor and the
Registry.

18
The ICC will have 18 judges. Article 36(3)(a) establishes the standard of competence of the
judges. It states that the judges "shall be chosen from among persons of high moral character,
impartiality and integrity who possess the qualifications required in their respective States for
appointment to the highest judicial offices." Additionally, any candidate for election to the ICC
"shall have established competence in criminal law and procedure, and the necessary relevant
experience...or have established competence in relevant areas of international law such as
international humanitarian law and the law of human rights, and extensive experience in a
professional legal capacity which is of relevance to the judicial work of the Court.”19No two
judges may be nationals of the same State.20In the election of judges the States Parties will take
into account the need, within the membership of the ICC, for "the representation of the principal
legal systems of the world; equitable geographical representation; and a fair representation of
female and male judges.”21

Under Article 36(6)(a) "the judges shall be elected by secret ballot at a meeting of the Assembly
of States Parties convened for that purpose."

17
ibid
18
Article 36.
19
Article 36 (3) (b).
20
Article 36 (7).
21
Article 36 (8).
Challenges and Shortcomings faced by the ICC From the past experience: -

In the past 14 years of the ICC history, not all has been a smooth one. This is because of a nuber
of challenges faced by the Court. The ICC has publicly indicted 39 people in which it has issued
arrest warrants for 31 individuals and summonses to eight others. Currently eight persons are in
detention. Proceedings against 25 are ongoing: nine are at large as fugitives, four are under arrest
but not in the Court's custody, two are in the pre-trial phase, and ten are at trial. Proceedings
against 12 have been completed: two have been convicted, one has been acquitted, four have had
the charges against them dismissed, two have had the charges against them withdrawn, one has
had his case declared inadmissible, and three have died before trial.22 This data in itself shows
that somewhere or not there has been some problems. Author mainly focuses on following
heads:-

A. United Nations Security Council Referrals: A Boon or Bane?

The Security Council itself played no role in the creation of the ICC, as in the creation of the two
ad hoc tribunals, although its members were active participants in the negotiations at the final
Diplomatic Conference in Rome in 1998.23 The connection to the UN Security Council however
could not be avoided, as it was a subject of a long and tiresome debate during the negotiations24
and, by now well-known Articles 13 (b)25 and 16, became both the force behind as well as the
stumbling stones for the international criminal justice. The reason was the inherent nature of
these two articles.
When these two Articles exists simultaneously, dispute becomes inevitable because of the
Political nature of the entity possessing the power in these articles. Author here tries to imply
that since the Security Council is a political entity and power of referrals remain in the hands of

22
Supra note 5
23
Washburn, John, “The Negotiation of the Rome Statute for the International Criminal Court and International
Lawmaking in the 21st Century,” Pace International Law Review, 1999, Vol.11, Issue 2, page 364-365,
24
Moss, Lawrence, “The UN Security Council and the International Criminal Court: Towards More Principled
Relationship,” Friedrich Ebert Stiftung, March 2012, page 3, http://library.fes.de/pdf-files/iez/08948.pdf (Last
accessed 10th December 2016).
25
Köchler. Hans, “Global Justice or Global Revenge? The ICC and the Politicization of International Criminal
Justice,” International Progress Organization Online Papers, 7 April 2009, www.i-p-o.org/koechler-ICC-
politicization (Last accessed 10th December 2016)
all the members of Security Council, which indeed are pure political entities, this power become
political which is not good for an institution like the repute that of ICC.

Referrals by the Security Council: a risk of double standards?

One of the strongest criticisms of the relationship between the ICC and the Security Council
analysed in this meeting concerns the ability of the members of the Security Council, of which
three of the five permanent members are not parties to the Rome Statute, to refer situations
involving states not parties to the Court. This, it is argued, undermines the legitimacy of the ICC
regime, if it is considered that its legitimacy is derived from its basis upon state consent.26
Furthermore, in principle, it is questioned how those states not parties, especially from among
the permanent members of the Council (P5 member states), can justify their exceptionalism,
namely of subjecting to the Court another state not party while they do not accept the Court’s
jurisdiction over themselves. Thus, many question whether, through Security Council referrals,
the ICC becomes a policy tool to advance the political interests of those states represented on the
Security Council.27
Selectivity by Security Council : A matter of controversy
The selectivity with which the Council has made referrals has become a significant challenge
facing the legitimacy of the ICC. The merits of the ICC acting in a given situation are less
questioned than the instances in which the ICC is not exercising its jurisdiction. Indeed, popular
perception has frequently misplaced the charge of selectivity for situations outside the Court’s
jurisdiction upon the ICC, not the Security Council. This has led some to assert that the ability of
the Court to exercise its jurisdiction on the basis of referrals by the Council could question the
legitimacy of the ICC since it might be perceived as politicising the Court’s mandate. Thus, the
discussion centered upon the need to develop a clearer understanding of how the Security
Council determines in which circumstances to make a referral to the ICC; what are the factors

26
Mark Kersten, “The Security Council’s Appalling Record of Referring Situations to the ICC”,available at :-
https://justiceinconflict.org/2014/05/23/the-security-councils-appalling-record-of-referring-situations-to-the-icc/
(last visited 24th December 2016 )
27
Hemi Mistry, “The UN Security Council and the International Criminal Court”, International Law Meeting
Summary, with Parliamentarians for Global Action available at:-http://www.pgaction.org/activity/2012/chatham-
icc-sc.html. (last visited 24th December, 2016)
that distinguish the situations in Libya or Darfur from those in Sri Lanka or Syria, Zimbabwe or
elsewhere, situations not considered by the Council in relation to the ICC?28

B. Lack of follow up support by United Nations Security Council

Again one of the greatest dangers to the effectiveness of the Court is the failure of the Council to
provide follow up support to the ICC once it has referred to it a situation. The failure of the
Council to take any further measures or pursue in any way the Court’s progress, aside from
receiving the periodic reports by the Prosecutor concerning each situation, does not convincingly
demonstrate an exemplary commitment to the Court and its pursuit of international
accountability. For Example, at the most basic level of cooperation, it was questioned why the
Security Council did not issue any kind of statement in relation to the arrest of Saif Al Islam
Gaddafi, against whom the ICC has issued an arrest warrant in relation to the situation in Libya,
referred by the Security Council. 29 Similarly It can also be noted that the Court has notified the
Security Council of instances of non-cooperation by states in their failure to give effect to ICC
arrest warrants arising out of the referral of the situation in Darfur, yet the Council has failed to
take any action pursuant to those notifications. 30

A statement of support, or an acknowledgement of the information, and an emphasis on the need

for cooperation between all parties would have done something to indicate that the Council was
interested in the enforcement of its own decisions. These small signals would not be impossible
to negotiate. Similarly, small measures such as public acknowledgment that discussions have
taken place regarding non-cooperation by states would make a considerable difference to raising
awareness of how the situation stands, and in preserving the legitimacy and credibility of both
organisations.

C. Funding of ICC in referrals situations

A major problem of the ICC was regarding the cost incurred during any referrals. A growing
workload without concurrent budget increases is putting a strain on the ICC’s finances. While

28
Abreha Z Mesele, “International Criminal Court and African Union: Selective Justice?” available at :-
http://www.abyssinialaw.com/blog-posts/item/1513-international-criminal-court- ((last visited 24th December, 2016
)
29
Colum Lynch, “Gaddafi is subject of ICC arrest warrant”, The Washington Post, (June 27, 2011)
30
ICC, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Pre-Trial Chamber I, 26
May 2010, ICC- 02/05-01/07-57
the overall economic situation in countries around the world limits the availability of funds in
general, the ICC faces an additional financial challenge. Security Council resolutions referring
situations to the ICC stipulate that all costs resulting from the respective investigations be borne
by the parties to the Rome Statute and voluntary contributions.31 The Rome Statute states that
one of the sources for covering the expenses of the court shall be “funds provided by the United
Nations, subject to the approval of the General Assembly, in particular in relation to the expenses
incurred due to referrals by the Security Council.”32 Author is of the view that this again causes
a major problem in the smooth functioning of the ICC because in such a fragile World Economy
it can be little expected from the Member parties of Rome Statute to contribute much towards
ICC Finances. And when the finances are not enough the proper functioning becomes a
hypothesis.

Enforcing ICC Decisions: How UNSC can play a key role ?

The International law of Jurisdiction is the Customary Law. It has developed through the
consent, acquiescence in the and the practice of states. Its legitimacy rests precisely on the fact
that, in the course of the law’s development, states have accepted a particular jurisdictional
principle as law and have acted accordingly. Under which State decides whether to accept the
development of particular principle or rule of Law based on the Implications of those rules for
the states Interest, however they define those Interests. This is why the Authors believes that the
concerns that state may have with the ICC jurisdiction is not mere a policy concern, but are in
fact of Fundamental Legal significance.
The Security Council has similarly made little effort to pressure UN member states to enforce the
ICC's indictments. The lack of support for the ICC's work is more a result of political expediency
than concern with Resolution 1593's politicization. Nevertheless, because of widespread
perceptions about the referral's political-nature, the normative soundness of the ICC's work has
been weak. This, in turn, has allowed Western actors to suit their own interests and turn a blind
eye to the ICC's outstanding arrest warrants.33

31
See, for example, operative paragraph 8 in UN Security Council Resolution 1970.
32
UN General Assembly, Rome Statute of the International Criminal Court, July 17, 1998, Article 115(b).
33
Lawrance Moss “The UN Security Council and the International Criminal Court:” Chatham House Int’l Law
Meeting Summary 18 (Mar. 16, 2012),
Currently, the Security Council does not appear committed to using its authority under Chapter
VII powers to help ensure arrests.34However, in order to follow-through with the referral, make
the referral effective, and ensure cooperation, a legitimate threat of repercussions should be put
in place. The examples of Milošević, Karadžić, and Taylor show that consistent and informed
pressure on State cooperation helps effectuate arrests.35 These arrests also show that
implementing a concrete strategy helps achieve compliance and cooperation.51 As such, it is
important to bear in mind the main incentives available to induce States’ cooperation: political
pressure, threat of sanctions, the imposition of sanctions, or other enforcement measures, and
finally the possibility of use of force to effectuate arrests. The UNSC could use these incentives
under its Chapter VII powers to ensure States’ cooperation with the ICC.

1. Referral itself could have a language stating that all States are obligated to cooperate
with the ICC, including with executing arrests: - There is a need for a greater level of
State cooperation with the ICC in order to effectively combat impunity and fulfil
the ICC’s mandate. In order to achieve this, the Security Council should issue a referral
resolution requiring all the States and the international community, not just the States that
are parties to the conflict, to assist the ICC.36 This is what the UNSC did when it
established the International Criminal Tribunal for the former Yugoslavia in Resolution
827 and the International Criminal Tribunal for Rwanda in Resolution 955.37 However, in
case of Darfur and Libya referrals, the resolutions only required the situation countries to
cooperate with the court.38 Furthermore, past ICC referrals lack specificity or directives
in its resolutions regarding cooperation and executing arrests. For example,
the UNSC could specify the steps that a target State can take to ensure full cooperation
with the court and explain the cooperation obligation of all the States with regard to

34
Elizabeth Minogue, Increasing the Effectiveness of the Security Council’s Chapter VII Authority in the Current
Situations Before the International Criminal Court, 61 Vand. L. Rev.  647, 675 (2008).
35
Tracey Gurd, Arresting the “Big Fish”: Lessons on State Cooperation for the International Criminal Court, in The
Enforcement of International Criminal Law (Nick Donovan, ed., Aegis  2009)
36
Lucas Buzzard, Comment: Holding an Arsonist’s Feet to the Fire- The Legality and Enforceability of the ICC’s
Arrest Warrant for Sudanese President Omar Al-Bashir, 24 Am. U. Int’l L. Rev.  897 (2009).
37
Statement and Recommendations on the Open Debate of the Security Council on Peace and Justice, with a Special
Focus on the Role of the International Criminal Court, Amnesty Int’l  Public Statement, IOR 53/021/2012 (Oct. 16,
2012)
38
Ibid
 executing arrests.39Furthermore, the UNSC could specify the consequences for non-
cooperation, like sanctions and severance of diplomatic relations. Otherwise, if there is
no actual and explicit threat of penalty, uncooperative States have little incentive to
cooperate with the ICC. Therefore, the Council should take a stronger stance and, under
its Chapter VII powers, compel all UN Member States to cooperate with the ICC in
referral situations, list the obligations of States, as well as note the penalties in case of
non-cooperation.
2. UNSC could notify the non-cooperative State and remind the State of its obligation to
assist the ICC in all matters, including arrests:- In the case of non-cooperation, the
UNSC could show its support for the Court by issuing declaratory or presidential
statements “recalling the need to observe applicable norms of international law and
stressing the importance of accountability for those most responsible for serious
violations of these rules.”40 However, with the exception of one presidential statement,
the UNSC has not issued any statements in support of the ICC.41 In addition, especially
when ICC refers the issue of State non-cooperation to the UNSC under Article 87 of the
Rome Statute, the Council could issue a resolution condemning the non-cooperation and
demanding compliance with the Court. In its resolution, the Security Council should also
explain any direct consequences for continued non-cooperation, like economic sanctions
or other penalties permitted under UNSC Chapter VII powers. It is very likely that much
more would be happening in terms of cooperation and executing arrests if the UNSC
would use declarations, presidential statements, and binding resolutions to make the non-
cooperation more of a public phenomenon and demonstrate its support for the Court.
3. UNSC could use economic sanctions and other non-military penalties under its Chapter
VII powers to help ensure cooperation: -If the non-cooperation continues, regardless of
the UNSC notifications, the Security Council could take action under Article 41 of the

39
Supra note 33
40
Phakiso Mochochoko, Address on behalf of the Prosecutor, United Nations Security Council Open Debate, in
Peace and Justice, With a Special Focus on The Role of The International Criminal Court (Oct. 17, 2012), available
at :- http://www.iccnow.org/documents/Phakiso_Mochochoko_at_UNSC_17102012__2_.pdf (Last accessed 28th
December 2016)
41
, Richard Dicker, Speech, 10th Anniversary of the Rome Statute of the International Criminal Court (Jul. 3, 2008),
available at ;-
http://www.iccnow.org/documents/Dicker_speech_10th_anniversary_of_the_Rome_Statute_07.03.08.pdf (Last
accessed 28th December 2016)
 UN Charter to influence States to cooperate with the ICC. The measures that the UNSC
may take under Article 41 are non-exhaustive.68 For example, the Council could use its
powers to impose sanctions and freeze assets in order to induce cooperation as well as
avoid all non‐essential contacts with the ICC indictees or non-cooperating States.42 Such
Security Council powers have been successfully used in the past and would likely help
induce cooperation by States. For example, as discussed above, the UNSC used sanctions
in relation to Libya in order to induce extradition of the two Lockerbie bombing suspects.
These sanctions included embargoing Libya’s civil aviation and military procurement
efforts, reducing diplomatic presence for Libya, an oil technology ban, and limited asset
freeze. Ultimately, Libya surrendered the suspects. More recently, the UNSC also
imposed economic sanctions in order to penalize a State for not abiding by its obligations
involving nuclear weapons testing. Hence, the UNSC has shown its willingness to use
economic measures to induce State compliance and such measures also appear to be
effective.

Furthermore, recent history demonstrates that fear of economic consequences can

significantly influence State behavior. When Malawi, which is a Member State of the
ICC, hosted Omar al-Bashir in a regional summit the US opted to freeze a $350 million
energy grant and European States threatened to withhold development aid if Malawi
hosts al-Bashir again.43 As a result, Malawi decided not to host an African Union Summit
because al-Bashir’s presence in the Summit would have been contrary to Malawi’s
economic interest.44 Hence, by imposing sanctions and affecting States’ economic
interests, the UNSC can induce States’ compliance with the referrals the Council has
made to the ICC.

42
See David Kaye et al., The Council and the Court: Improving Security Council Support of the International
Criminal Court, UCI Int’l Just. Clin.  21 (May 2013), available at :- http://councilandcourt.org/files/2013/05/The-
Council-and-the-Court-FINAL.pdf (Last accessed 28th December 2016)
43
Mark Kersten, Politics, a Poison for Justice?, Justice in Conflict, available at :-
https://justiceinconflict.org/2012/06/05/politics-a-poison-for-justice/ (Last accessed 28th December 2016)
44
Malawi Gives Up AU Summit Over Pressure to Host Sudan’s President, Sudan Tribune available at-
http://www.sudantribune.com/Malawi-gives-up-AU-summit-over,42868 (Last accessed 28th December 2016)
 Conclusion

In conclusion, Authors concludes that creation of the ICC was a truly historic achievement, more
than fifty years in the making, but its creation was only the beginning. The Court now stands as a
permanent institution capable of punishing perpetrators of the worst offenses known to
humankind. Indeed, as early as 2004, the U.N. Secretary General stated that the Court "was
already having an important impact by putting would-be violators on notice that impunity is not
assured and serving as a catalyst for enacting national laws against the gravest international
crimes."' Indeed, we at the Court who have a system of monitoring media reports on issues of
international criminal justice and a fairly broad set of related issues do know how much notice is
taken of the Court in many situations some situations which are already under the jurisdiction of
the Court and many other situations elsewhere. To be fully effective, we must continue our
efforts to ensure that the Court has the support necessary to dispense justice as fairly and
efficiently as possible. If there is only one thing that you should retain from this piece, it is that
the Court will do whatever it can to be as credible as possible, but that it will only succeed with
concrete, tangible support.