Jurisdictional Overlap: Security Council Sanctions and the ICC

A background paper for a High Level Review of Sanctions currently underway at the UN raises some important and interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.   In relevant part, the paper states:

Increasingly, the reach of sanctions has gone beyond those responsible for initiating and supporting threats to, or breaches of, international peace and security, to include perpetrators of conduct that could be crimes within the jurisdiction of the ICC (especially violations of international humanitarian law, human rights, attacks against civilians, recruitment of child soldiers, sexual and gender based violence), thus increasing the overlap. Inevitably, in some cases the same individuals are or could be subject to both ICC proceedings and to UNSC targeted sanctions.

Even where their “jurisdiction” overlaps, sanctions and the ICC have different objectives (and evidentiary standards): sanctions applied to a particular individual seek to protect “the peace” or, more concretely, civilians, from future actions of the individual, by constraining the individual’s ability to act; an ICC proceeding seeks to determine the accountability of that individual for past actions.

This overlap is significant for a number of reasons.  First, it shows an important evolution in sanctions design, from comprehensive sanctions, to targeted measures against specific individuals which run the risk “criminalizing” certain behaviors without a judicial process.   I should be clear that from the work I have seen of sanctions committees, restraint rather than overstepping has been the norm.  Nonetheless, it does present issues of “individualization” (which have been analyzed by Larissa van den Herik in the context of human rights and the Kadi and Nada cases in Europe).  Second, it raises issues of how the ICC and Security Council and its subsidiary bodies cooperate.  The ICC – UN Relationship agreement is a framing instrument here, as is Part IX of the ICC statute on cooperation.  That said, the absence of a general policy at the UN to designate individuals on sanctions lists (where a relevant sanctions regime exists) is striking.  The most high profile (read: political) example of that involves Omar Al-Bashir – despite an outstanding ICC arrest warrant against him, ongoing sanctions regime against the situation in Sudan, and a Security Council referral of the situation to the ICC, Bashir has never been designated under the sanctions regime.  As I argued in this post last year, a travel ban would have been one way to restrict his efforts to attend the General Assembly meetings in New York in 2013.  Finally, write large, it presents the old “peace versus justice” debate because of the different goals of sanctions (conflict management) and criminal prosecutions (atrocity for past acts.)