The UNHRC and International Justice

Reviewing the United Nations Human Rights Council (UNHRC) in relation to the International Criminal Court (ICC).

(NEW YORK) - The United Nations Human Rights Council (UNHRC) was established in 2006 via Resolution 60/251 ¹.

The responsibility of the body is not only to promote human rights but to have the ability to make recommendations thereon.

To date, it has initiated only two Commissions of Inquiry on allegations of human rights abuses and war crimes with regards to North Korea and Syria although resolutions have been passed for experts to investigate the situations in other countries such as Eritrea through the democratic process of voting on resolutions introduced.

Many members and organizations have criticized the UNHRC for not being able to do more to protect human rights and ensure justice. Therefore, the rule of law and interests of justice in relation to the promotion of human rights at UNHRC should be reviewed. Recently, it has been reported the UNHRC will be making a recommendation for prosecuting North Korea at the International Criminal Court (ICC) for “crimes against humanity” and “extermination”².

The Independent International Commission of Inquiry on Syria is still conducting its work. The ICC was established in 2002 after extensive deliberations with its founding document, the Rome Statute³.

The pre-conditions to the exercise of jurisdiction are outlined in Article 12 of the Statute and require for the accused party to be a member State or be referred by the U.N. Security Council. Therefore, any work the UNHRC conducts would need to have the vetting of the Security Council unless a State referral is conducted through Article 14.

In accordance with Articles 121 and 122 of the Rome Statue as well as Rule 76 of the Rules of Procedure of the Assembly of State Parties, amendments to the governing legislature of the ICC may be proposed by any State party to ICC and ratified by the Assembly of State Parties or 2/3 vote of the States Parties⁴.

Working Groups for the specific topic are established to study the topic in detail for the Bureau of 21 members to take a final decision if the Statue is to be amended. The role of the UNHRC in relation to the promotion of human rights by ensuring justice at the ICC established in 2002 by direct referral to satisfy jurisdictional requirements is a topic which has not been brought up since its inception.

However, this should be considered as it would be in the interests of advancing international jurisprudence as well as an efficient way to deliver justice where the Security Council has been scrutinized for its veto power as those committing serious violations of international law will be held accountable through democracy.

The ICC would not be exceeding its mandate as it would be working with a U.N. body as allowed under Article 2 of the Rome Statute to take up a case and nor impose jurisdiction in a unfairly as UNHRC members would vote upon such a resolution. Only if the Rome Statute is amended in such a manner to allow for the UNHRC to directly refer alleged war criminals to the ICC could either of its Commissions of Inquiry on North Korea or Syria have any effect to deliver justice or it is expected they will be vetoed by China or Russia (or both) at the Security Council.

This will hold true for any future controversial area of the world where human rights violations occur and the democracy of the UNHRC imposes its will to conduct an investigation as findings of violations may always be vetoed by other members of the Security Council.

Earlier, I had written an article on bypassing the Security Council for the ICC to exercise jurisdiction on a non-State party by combining the doctrine of a Joint Criminal Enterprise in association with an Article 14 referral with regards to the situation of Sri Lanka⁵.

Although there is a role for each body of the U.N. to play in the international legal system, the Security Council which many agree requires reforms, has hindered the international judicial process as of late and allows for violations to continue resulting in the loss of human life.

If this continues, UNHRC Commissions of Inquiry or Expert Investigations would only be a short term measure used as a pre-text for other actions. However, it cannot be argued that the current work of the UNHRC is not required regardless of the final outcome of these investigations as it ensures basic victim rights such as the right to know what occurred, protecting victims through international mechanisms, etc.

The relatively new UNHRC has a larger role to play. It can do more than to just investigate allegations and pass on recommendations on to the Security Council or other U.N. organs as it is a democratically elected body of the United Nations where its resolutions and subsequent international investigations are also established through the democratic process of voting.

As such, it would not be an “abuse of process” by the independent ICC to take up a referral by the UNHRC for jurisdictional purposes as the UNHRC would not be exceeding its original mandate it was given by the international community but working in coordination with the ICC; completely within the original mandate of Resolution 60/251 as interpreted under Sections 2 and 3 to protect and promote human rights.

A proposal by a State party to amend the Rome Statute and allow jurisdictional requirements of the ICC to be met through recommendation by the UNHRC after it completes an investigation would be in the interests of advancing international jurisprudence and furthermore; allow for the United Nations system to be more effective in delivering justice for serious violations of international law.

² http://www.deseretnews.com/article/765647746/Crimes-against-humanity-in-NKorea-UN-panel-finds.html?pg=all

³ http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf