For the past two years, Silva Kantareva has been working in the Security Council Affairs Division of the Department of Political Affairs at the United Nations Headquarters in New York. She holds a Masters degree in International Relations and Economics from Yale University.

While the main function of the Security Council is the maintenance of international peace and security, in accordance with Article 24 of the UN Charter, the Council has played an important role with regard to the advancement of international justice. Other than the establishment by the Security Council of ad hoc Tribunals to prosecute crimes against humanity in specific conflict situations such as Rwanda and the former Yugolavia, the establishment of the Special Tribunal on Lebanon, along with the passage of resolution 1595 mandating the withdrawal of the remaining Syrian troops from Lebanon, was a landmark achievement.  The establishment of those mechanisms is of crucial importance because the sustainability of peace oftentimes hinges on the ability of societies to find justice and reconciliation, despite the notion of an existing trade off between peace and justice in post-conflict environments.  Further attestation to that principle is the pledge of the UN Secretary-General not to have the Organization broker or mediate peace agreements at the expense of justice.  When it comes to transitional justice, however, it is crucial to avoid a one-size-fits approach and to remember that every case is unique in that it necessitates the proper mix of justice and reconciliation measures.

Another tool at the Council’s disposal is the option to refer cases to the International Criminal Court, which is a separate and independent entity. Equally important, however, is the Council’s ability to defer an ICC investigation or prosecution for a renewable period of 12 months, in accordance with Article 16 of the Rome Statute.  This has become an issue of particular interest in the context of the ICC indictment of Sudanese President al-Bashir for war crimes and crimes against humanity in Darfur.  In a way, the ICC referral risked jeopardizing the presence and standing of peacekeepers on the ground, as demonstrated by the expulsion of all NGO’s from theater, following the ICC indictment.  It is noteworthy, however, that the Council has never in its history so far made a deferral under Article 16 and, given Council dynamics and the standing of its permanent members, it seems unlikely that such action would take place.  The ability of the Council to successfully utilize the hidden leverage of such deferral would depend on its ability to convey a willingness and unity of purpose on this issue.  Despite the risks involved, however, the ICC indictment is significant as it can serve as a deterrent elsewhere, be it the DRC or the LRA in Uganda, and can pave the way for norm-setting in the context of international law.

As regards the effectiveness of the above measures towards the advancement of international justice, it is important to note that the role of the Council in implementing them remains limited.  Even in the cases where the Council has set up a mechanism, Tribunals still heavily rely on national jurisdictions and authorities, be it for the referral of lower-level cases, the gathering of necessary information and records or simply for unhindered investigation of a case.  In those cases, the support and cooperation of Member States, regional organizations and prominent leaders becomes crucial.  In that context, the successful completion of the trial against Radovan Karadjic and the capture of the outstanding fugitives in former Yugoslavia, such as Ratko Mladic, is necessary in order to have the Tribunal retain its relevance.