Ця стаття також доступна українською мовою тут. This post is also available in Ukrainian here.
Updated on 22 May 2023 at 11:03am ET.
To address the needs of victims of armed conflict, personnel who work for humanitarian organizations and offices often feel the need to meet directly with perpetrators of war crimes. But there are limits on when and under what conditions any face-to-face engagement is sound and proper, especially when it involves meeting an individual who is a fugitive under a warrant for arrest by an international criminal tribunal. Indeed, when it comes specifically to United Nations officials and the prospect of meeting a person subject to a warrant for arrest by the International Criminal Court (ICC), codified guidelines issued by the UN Secretary-General state, “As a general rule, there should be no meetings between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court.”
That’s what makes all the more remarkable a recent meeting of the UN Secretary-General’s Special Representative for Children and Armed Conflict – Virginia Gamba – with the Russian Federation Commissioner on Children’s Rights – Maria Lvova-Belova – who, along with President Vladimir Putin, is the only known Russian official subject to an arrest warrant by the ICC.
The arrest warrant for Lvova-Belova was issued by a Pre-Trial Chamber of the ICC on March 17, 2023 upon application by the Prosecutor. The warrant alleges that she is responsible for the war crimes of unlawful deportation and transfer of children from Ukraine to the Russian Federation.
On Friday, the UN Secretary-General’s spokesperson would not confirm the meeting taking place – despite repeated questions by journalists during a press conference. On Sunday, however, Gamba acknowledged the meeting in a statement lauding achievements from her trip to Moscow. Lvova-Belova had earlier made her own statement lauding the outcome of her meeting with Gamba.
The Legal and Policy Framework
Over nearly two decades ago, the United Nations entered into a formal agreement of cooperation with the ICC, including its Office of the Prosecutor. The UN General Assembly approved the Relationship Agreement between the United Nations and the International Criminal Court in September 2004 (A/RES/58/318), and the agreement entered into force the following month.
In line with the general obligations of the Relationship Agreement, in 2013 the UN Secretary-General issued guidelines – known as the “essential contacts policy” – that govern any potential meeting with a member of the UN Secretariat and a person subject to a warrant for arrest by the ICC (see “Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court“). The Secretary-General transmitted the guidance to the President of the General Assembly and to the President of the Security Council (A/67/828 and S/2013/210). The Guidance states that it applies “to all parts of the Secretariat” and includes the following terms:
(1) “As a general rule, there should be no meetings between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court.”
(2) “Contacts between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court should be limited to those which are strictly required for carrying out essential United Nations mandated activities.”
(3) “When contacts are absolutely necessary, an attempt should be made, where possible, to interact with individuals of the same group or party who are not the subject of an International Criminal Court arrest warrant.”
The Guidance also explains that the contacts policy is pursuant to the obligations of the United Nations undertaken as part of the ICC Relationship Agreement. Specifically, the Guidance states: “It can be anticipated that persons who are the subject of arrest warrants issued by the International Criminal Court may deliberately seek to meet with United Nations officials in order to demonstrate their contempt for the Court and try to undermine its authority. … [T]he Relationship Agreement between the United Nations and the International Criminal Court requires the United Nations to refrain from any actions that would frustrate the activities of the Court and its various organs, including the Prosecutor, or undermine the authority of their decisions.”
Finally, the 2016 UN Manual on cooperation with the ICC explains: “A procedure has been established whereby OLA [the UN Office of Legal Affairs] informs the Prosecutor of the Court and the President of the Assembly of States Parties to the Rome Statute in advance of such meetings. The letter informs the Court of the meeting and explains why it is considered necessary.”
Assessment
On Friday, a reporter asked the UN Secretary-General spokesperson generally about “guidance given” to UN officials in terms of meeting with persons subject to an arrest warrant by the ICC. Here is that exchange:
Question: And what is the guidance given, I guess, to UN officials in terms of meeting with people who are wanted by the ICC?
Associate Spokesperson: Any guidance provided by the UN has been properly followed in the case of this visit. Yes. She did that according to all UN rules.
Just Security asked the Office of the Spokesperson for the UN Secretary-General whether the United Nations, including OLA, sent a letter to the ICC Prosecutor and President of the Assembly of States Parties to the Rome Statute in advance of Gamba’s meeting with Lvova-Belova (and if so what the letter stated in explaining the necessity of the meeting). No response was received at the time of publication.
[Update: Following publication, Spokesman for the Secretary-General, Mr. Stéphane Dujarric responded. “All procedures were followed for this visit, outlined in the cooperation agreement between the UN and the ICC,” he said. “She is indeed in Moscow and her activities there are part of the implementation of the mandate regarding children and armed conflict mandate that she is entrusted with, per relevant Security Council and also through the General Assembly,” Mr. Dujarric said.]
On Friday, U.S. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack said, in a tweet, that such a meeting would be “deeply concerning.” Human rights groups including Human Right Watch (see also statements by Amnesty International officials) sharply criticized the meeting, as did international criminal law and humanitarian law scholars (Kim Thuy Seelinger; Mark Kersten; Kevin Jon Heller).
When asked about the reported meeting, Larry D. Johnson, who served as Assistant UN Secretary-General for Legal Affairs, told Just Security, “If the report is true, it’s outrageous as a violation and disregard by the secretariat of the guidelines meant to implement and operationalize a bilateral agreement between the ICC and the UN approved by the governments running both organizations.”
Claus Kress, Professor of International Law and Criminal Law at Cologne University in Germany, told Just Security:
“On the basis of the limited information available, it is not possible to reach a firm conclusion as to whether the UN envoy’s course of action in Moscow was in conformity with the Guidance, but one certainly understands Human Rights Watch’s concern very well: The rather vague and evasive reaction by the U.N. spokesperson does not give one the reassurance that the strict criteria set out in the Guidance for a direct contact under exceptional circumstances had been rigorously considered. In fact, the spokesperson does not even appear to have specifically referred to the Guidance despite its obvious specific relevance in the case at hand.”
Todd Buchwald, who served as U.S. Ambassador and Special Coordinator for Global Criminal Justice, in an email, told Just Security:
“The Secretary General’s ‘no contacts’ guidance prohibits contacts by UN officials with persons subject to ICC arrest warrants unless ‘strictly required for carrying out essential United Nations mandated activities.’ And it goes even further than that, providing that – even when contacts are absolutely essential – an attempt should be made to interact with other persons who are not subject to such arrest warrants. So the standard is high. Were these meetings ‘strictly required’? Were the activities ‘essential’? Was there compliance with the UN’s Best Practices Manual for UN-ICC cooperation, under which the UN’s Office of Legal Affairs would be informed ‘at the earliest possible time’ that the meeting was scheduled to take place and the UN lawyers would inform the ICC Prosecutor in advance of why the meeting was considered necessary. In addressing questions about the meetings on Friday, the Secretary-General’s spokesperson asserted that ‘any guidance provided by the UN has been properly followed,’ but her explanation did not back that up. Indeed, the spokesperson’s statements — that the UN envoy ‘is there in Moscow, really in line with her mandate’ and that she is doing this ‘as per her mandate’ – suggest the absence of any special circumstances that might justify an exception and she gave no indication of any advance coordination. A clear explanation by the Secretary-General would be much appreciated.
Beyond the implications under the ‘no contacts’ guidance, the UN envoy may well have turned herself into a witness in the ICC proceedings against Russian Commissioner Maria Lvova-Belova. What did the Commissioner say in these meetings? How did she defend the policy she is carrying out? There are any number of representations that the Commissioner may have made in the course of these meetings that would be relevant to the Prosecutor’s case or even to the Commissioner’s defense. Under the 2004 Relationship Agreement concluded with the ICC, the UN has committed itself to cooperating with the Court and the Prosecutor, including providing the Court ‘with such information or documents as the Court may request.’ The situation clamors for a straightforward affirmation that the UN remains committed to providing such cooperation.”
In April 2023, when Russia held the presidency of the UN Security Council, Lvova-Belova addressed the Council remotely by video. Junior diplomats represented the Council’s other fourteen members during the informal meeting held in a conference room, and when Lvova-Belova began her remarks, the representatives of Albania, Malta, the United Kingdom, and the United States walked out.
In an “extremely rare” move, the U.K. and U.S. missions blocked the meeting from being broadcast on the U.N.’s website.
“If she wants to give an account of her actions, she can do so in The Hague,” a U.K. spokesperson said at the time.