Cooperation with the ICC: What the Security Council and ASP must do

This report will focus on the ways in which the United Nations Security Council (UNSC) can promote states’ cooperation with the ICC. In thinking about the council’s role with regard to cooperation with the court, it is useful to divide possible UNSC actions into measures that can be taken at different stages in the relations between the two institutions. These are: • Measures that could be taken by the UNSC at the referral stage, i.e. when the council refers a situation to the ICC • Measures that could be adopted during the course of investigations and/ or prosecutions to promote or incentivise cooperation by states • Measures that could be taken during investigations and/or prosecutions
in order to address instances of non-cooperation by states. The discussion that follows considers those measures that would be both legally possible and desirable, in order to provide maximum support to the ICC in its important work of investigating and prosecuting those who bear the gravest responsibility for crimes under international law. However, when considering the relationship between the council and the court, it is also essential to consider the political context in which the council operates. In particular, it must be borne in mind that at any one time, some members of the council (perhaps even a majority), including three permanent members, are not parties to the Rome Statute.