Posts Tagged UN Security Council

The War Against Rape

This is a post to praise UN Security Council Resolution 1960, passed on December 16 2010, which constitutes a step further to stop sexual assaults against women.

It finally allows public shaming of armed groups who have been proven to sexually abuse women. It also spells out instructions to end the practice and avoid future shaming. However most importantly sends a clear message that using rape as a weapon of war can lead to sanctions. The reason I bold rape as a weapon of war, is because I find it to be an under looked point, and one of the most serious war crimes. This type of sexual abuse is man’s lowest quality, and the worst form of obsession. No woman should be degraded in this manner.

So I would like to congratulate the UN Security Council for this strong step to stop these harness abuses, and quote Marianne Mollmann, women’s rights advocacy director at Human Rights Watch.

“Today is a big day for women worldwide.”

Of course as a side point which I often mention at the end of my posts, the question that arises is: why has this taken so long to be achieved?

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The UN and this brave new world.

“Despite all criticism, the UN remains the world’s premier supranational forum. As such, it may be the best hope for tackling global issues,” suggested the Carnegie Council in 2006. Four years later, these words are still true, but it’s becoming increasingly common to hear the UN described as “weak” and “irrelevant”. However, considering the antiquated balance of power in the organization, do countries have an incentive to engage more fully in the UN system?

In an interview with Turtle Bay, Turkish Foreign Minister Ahmet Davutoglu that the new assertiveness of emerging powers like Turkey and Brazil “should not be seen as a new game” aimed at altering the balance of power at the United Nations. I appreciate the sentiment, Mr Davutoglu (after all, who wants to piss off the P5?), but perhaps it is time to consider that the balance of power at the UN really should be altered.

When it comes to Security Council reform, there are two conversations that can take place: what should happen, or what can happen. Should the system reflect the world as it was immediately following World War II? No. Should five countries hold permanent seats? No. Should those same five `countries have the ability to use the veto power to enhance their political sway? No. Should a veto power even exist? I don’t think so. In the words of Kevin Rudd, Australia’s minister of foreign affairs, “The international community can no longer tolerate the actions of a few dissenting states to roadblock the common resolve of the many…If we fail to make the UN work, to make its institutions relevant to the great challenges we all now face, the uncomfortable fact is that the UN will become a hollow shell.”

Could it be that the reluctance of the P5 to surrender any of their power is actually good for the UN’s image? If the UN were truly an irrelevant and stagnant body, powerful states wouldn’t care so much about their standings as members. By holding on so tightly to veto power, the P5 is admitting that the UN is actually a organization capable of big things.

Let’s face it – the veto power and permanent members of the Security Council aren’t going anywhere, but this doesn’t have to be an all or nothing game. India, Brazil, Japan, and Germany are all seeking a permanent seat on the council, and US Under-Secretary for Political Affairs William Burns stated, “For countries like India and for other countries, we need very much to consider how their increasing role in global affairs is matched by the responsibilities that they can discharge in the most important parts of the international architecture.” We also need to consider the role of the aforementioned countries in the UN itself – Japan and Germany are, respectively, the second and third largest UN funders, and Brazil and India are two of the largest contributors to UN-mandated peacekeeping missions. Similarly, Africa, which has more UN members than every other continent, doesn’t include a state that’s a permanent member. Already, the US, France, and the UK have issued formal statements that support Council reform and expansion.

As said by Turkish President Abdullah Gul to the General Assembly last week, “”We should keep in mind that global problems cannot be solved unilaterally, bilaterally or in small circles of like-minded nations.”

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Putting Article 16 of the Rome Statute to Good Use?

The Siege of the International Criminal Court, in The Hague

I had a “discussion” this morning on Twitter with Jon Hutson, of the Enough! Project I wrote about a few days ago, concerning peace in Sudan and Darfur following an article he posted. Although the discussion was necessarily limited by the format of Twitter (no more than a 140 characters per message), I thought it raised interesting questions especially relating to how to use article 16 of the Rome Statute efficiently in peace negotiations.

The conversation started off when Mr. Hutson posted this op-ed article published in the New York Times. The article, ‘In Sudan, War is Around the Corner’, is written by Dave Eggers – the author of the novel What Is the What – and John Prendergast – the co-founder of the Enough Project.

The article is an interesting call for vigilance from the international community and the United States in particular at the outcome and consequences of the future referendum in 2011 concerning South Sudan’s eventual secession. As the authors of the article point out, should this referendum be cancelled or manipulated by Khartoum, fighting will break out once more in the South and in Darfur. They call for “developing a more robust package of carrots and sticks” which would “strengthen America’s diplomatic hand.

So far, no problem. But then something caught my eye (emphasized). And I quote:

“For this diplomatic effort to be effective, real incentives should be on the table as well: If — and only if — true peace comes to Sudan, we could offer conditional, one-year suspensions of the International Criminal Court warrants and normalization of relations between Khartoum and Washington. And experienced American negotiating teams should be deployed immediately to support African Union and United Nations efforts already under way to end the war in Darfur and prevent one between the north and south, just as we did with the 2005 deal.”

This, I thought, is particularly interesting. Offering one-year suspensions of the International Criminal Court warrants as a carrot for peace. Well, why not?

Let’s go back to law for a moment. The 1998 Rome Statute that created the International Criminal Court includes a provision that states:

Article 16: 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.

The provision is self-explanatory: the UN Security Council has the power to defer any investigation or prosecution by the ICC for one year, with the possibility of renewing the deferral. However, it only takes one veto, or a 8 out of 15 majority (it is little-known rule, but for a Security Council resolution to pass, a 9 out of 15 majority is required), for the deferral to be blocked, limiting the Security Council’s power over the Court.

To give a little background information on the importance of this article, it is interesting to note that it had been the subject of much debate during the negotiations, and is probably the most important reason why the Americans have refused to this day to ratify the Statute. I will not get too much into the details, but basically the Americans wanted a much larger control of the UN Security Council over the ICC’s actions, and in particular the Prosecutor’s. They wanted the Prosecutor to require authorization from the Security Council to being an investigation, which would, of course, be subject to American veto. For more info, see William A. Schabas, “United States Hostility to the International Criminal Court: It’s All About the Security Council” (2004) 15 EJIL 701-720.

In any case, under the Rome Statute, the Security Council can only suspend one year (renewable) the procedure against – in this case – Sudanese President Omar al-Bashir.

The question is: what can the Security Council do with this in order to secure peace?

I’m going to put on the side my own belief that justice is not an impediment to peace but a requirement. In the words of Mark Kersten, I fit more in the “moral imperative camp,” coupled with the idea that for people to find peace they “psychologically” need a form of justice and recognition. However, I am not an ideologue, and if an article 16 deferral can save lives, I certainly will not complain.

But can it? Dave Eggers and John Prendergast write that it should be considered as an incentive, a “carrot,” for al-Bashir to negotiate peace. My skepticism is aimed at the one-year limit. Is the UN Security Council going to renew the deferral every single year until al-Bashir dies (genocide and crimes against humanity are imprescriptible)? If not, then is al-Bashir really going to be interested by a single year suspension? Sooner or later, the ICC will catch up.

On the Enough! Project blog, John Prendergast writes about how he sees article 16 being used:

Article 16 was specifically included in the ICC charter to give countries leverage where there might appear to be none, and only in support of peace. The Article 16 deferral only lasts a year, and is conditioned on fulfilling the terms of the original deferral. So if the condition for deferment is a peace deal in Darfur, full implementation of the CPA, no support for violence or conflict in the South, respect for the referendum process and its results, and respect for human/civil rights in Sudan – certainly monumental hurdles when we consider the past 21 years of NCP rule – that bar has to be met and re-met every year. This means that the leverage inherent in an Article 16 deferral isn’t a one-off instrument, but rather an ongoing point of influence, which, if we utilize it, actually lends further credence to the ICC.

In many ways, that is an interesting view on article 16, and it could work. I have two reservations to make, however: first of all, as I have already said, even if the Security Council renews it every year under the condition that the Sudanese regime respects the peace process established since 2005, I don’t see it renewing it until al-Bashir’s death (in the hypothesis that al-Bashir all of the sudden gets the message and accepts the peace process, with all the carrots involved), and the Sudanese President is bound to know that. Secondly, and this relates more to principle and a form of idealism, I am uncomfortable in seeing the ICC, and Justice in general, used as a simple political tool of pressure. It is rather frequent in common law systems, but much less so in civil law systems.

That being said, if it works, I won’t let my idealism stand in the way of peace and of saving lives.

Sudan is an interesting case for international lawyers, as it seems to be the first of several things: first time the UN Security Council refers a situation to the ICC, and the first time the ICC indicts a sitting head of State. Could it also become the first time the Security Council uses article 16 of the Statute to defer a procedure?

It’s going to be interesting to watch.

What are your thoughts on this? Feel free to comment.

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