Statement delivered by Gerard van Bohemen, Permanent Representative to the United Nations, 13 December 2016.

I want to thank Prosecutor Fatou Bensouda for her report and briefing. I commend her for the candor of her remarks and for the challenge that she has made to the Security Council.

New Zealand has long supported the need for an effective international accountability framework. Our experience on the Council over the past two years has reinforced our view that, without an effective accountability mechanism, too many of the conflicts that wind up on the Council’s agenda will never be adequately resolved. Rather, they will flare up as people will react to the unaddressed injustices that they will have suffered.

The International Criminal Court (ICC) has an important role in that framework. It provides the international community with an important tool for ensuring that serious international crimes do not go unpunished. The Council’s ability to refer situations to the International Criminal Court plays a vital role. At the same time, the Council needs to be very careful that it is not using referrals as a political tool or as the only possible resource in an otherwise intractable situation. Such actions risk politicizing the Court, and can prolong both the conflicts concerned and the process of seeking accountability. Moreover, when referrals are made, they need to be accompanied by a clear commitment to providing the Court with the support, cooperation and resources it needs to discharge its mandate.

The need for sustained follow-up is particularly evident in the case of the Council’s referral of the situation in Darfur. The Prosecutor’s twenty-fourth report on this issue makes for depressing reading. The Prosecutor’s briefing today has underlined the bleakness of the situation. Little has improved in the past six months. All five ICC indictees remain at large. Civilians in Darfur continue to suffer from the shocking consequences of conflict. If confirmed, the recent reports of the use of chemical weapons would represent yet another crime against the people of Darfur. We know that the environment for the ICC in taking forward the Council’s Darfur referral remains extremely challenging.

Resolution 1593 (2005) requires the Government of the Sudan to cooperate fully with the Court and the Prosecutor and to provide them with the necessary assistance. It also urges Member States to cooperate with such efforts. Those obligations are being ignored. There has also not been any meaningful accountability at the national or regional levels. The Government of the Sudan’s continued non-cooperation with the Court amounts to non-compliance with Council resolutions and with its obligations under the Charter of the United Nations. And yet the Council has not responded to any of the 13 findings of non-compliance referred to it in any meaningful way.

Not every member of this Council is a party to the International Criminal Court. But we all share a common interest — and indeed a responsibility for — in ensuring compliance with the Council’s decisions. When that is absent, the credibility and effectiveness of this institution are undermined, and the message is sent that Council decisions can be ignored with impunity. That should be of concern to all those who value the role, legitimacy and authority of this organ. As the Prosecutor reminded us this morning, last year New Zealand made two proposals for action to address this situation.

First, we called for the Council to take a more structured approach in considering findings of non-cooperation. There is currently no consistent practice. In our view, the Council should, at a minimum, discuss any finding of non-cooperation with a view to determining which of the tools that it has at its disposal, if any, offers the most appropriate response. As Ms. Bensouda recalled, those options include the adoption of a formal draft resolution or statement, the dispatch of a letter or a meeting with the country concerned. To continue ignoring ongoing acts of non-compliance is neither productive nor credible. We urge Council members to take a more active and consistent approach in response to future reports of non-compliance, and we look forward to working with other Council members in the coming days on how to address to this most recent report.

Secondly, we also need to find a way through the current impasse in the Council’s relations with the Government of the Sudan. While we recognize the challenges involved in doing so, there is a clear need for the Council to build a new relationship with Khartoum. We hope Council members will give serious thought as to how that might be achieved in the coming year.

There is no escaping the fact that referrals made by the Council have contributed to current tensions between the International Criminal Court and some of its African members. New Zealand recognizes the unique role of the ICC and the fundamental importance of preserving its judicial and prosecutorial independence. Equally, we know that we all stand to gain from more frank and robust engagement aimed at resolving key challenges facing the Court. That means honestly acknowledging concerns that have been raised by African State parties. It means fostering greater mutual understanding on those and other issues. It means identifying ways in which we can collectively address and strengthen the Court and end impunity. The Council needs to play its part in supporting such a dialogue. However, it goes without saying that dialogue does not mean forgetting our search for justice and ensuring accountability.

We hope that we will see emerge from these current tensions a strengthened and more productive relationship between the Council and African States on matters relating to the International Criminal Court that are of mutual interest and importance.