The Security Council Won’t Even Go Dutch with the ICC on Syria

by Kevin Jon Heller

There are many reasons to be skeptical of the Security Council referring the situation in Syria to the ICC, not the least of which is that an ICC investigation is unlikely to accomplish anything given the ongoing conflict. (One that Assad is almost certainly going to win.) But just in case that’s not enough, take a gander at this provision in the draft referral:

[The Security Council] recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily and encourages States to make such contributions.

In other words, the UN just wants to refer the situation; it doesn’t want to pay for the ICC’s investigation. So much for Art. 115 of the Rome Statute, which provides that “[t]he expenses of the Court and the Assembly of States Parties… shall be provided by the following sources… 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”…

I have previously urged the Prosecutor to refuse to open an investigation into the situation in Syria unless the Security Council is willing to fund it. The draft referral makes clear that the Security Council has no intention of doing so. In the unlikely event that the referral ever passes, I hope the Prosecutor will consider my suggestion.

http://opiniojuris.org/2014/05/12/security-council-wont-even-go-dutch-icc-syria/

3 Responses

  1. Hear hear. The OTP already asked for 26.5% increase in its 2014 budget – which is a bold thing to do, knowing how CBF/ASP view similar increase proposals. The money must have been bad enough. UN SC needs to start paying the piper.

  2. Then again, article 115 Rome Statute does not bind the United Nations, since it is not a party to that treaty and hence constitutes a third organization (cf. article 34 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations).
    Otherwise, article 13 of the Relationship Agreement between the ICC and the UN uses language showing non-committal rather than intent to give effect to article 115 of the Rome Statute.
    Earlier SC resolutions contained similar language as that quoted here (e.g. SC Resolution 1970, para. 8) and it seems unlikely that the General Assembly will overrule the Council, notwithstanding its budgetary power under article 17 of the Charter and the Council’s less than imperative language.

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