Updated on 10 June 2016
Chapter 7: DECISIONS AND DOCUMENTS
Section 7: Letters by the Council President
Dissociation from President’s letter on naming MICT President and Prosecutor
When the President of the Security Council sends a letter on behalf of the Council, he or she is acting, pursuant to Rule 19 of the Provisional Rules of Procedure, “under the authority of the Security Council” to represent the Council “in its capacity as an organ of the United Nations”. Accordingly, as noted on page 426 of the book, the consensus of all 15 Council members is required for the President to send a letter on the Council’s behalf.
On 23 February 2016, the Secretary-General wrote to the Council President (Venezuela) conveying his intention to reappoint Theodor Meron as President of the Mechanism for International Criminal Tribunals (MICT), and his nomination of Serge Brammertz for appointment as MICT Prosecutor (S/2016/193). In response, on 27 February, the Council President sent a letter informing the Secretary-General that the Council members had taken note of his intention to reappoint Meron and to nominate Brammertz (S/2016/194). What was noteworthy about the President’s reply was that it included a final sentence which stated that “The members of the Council also note the position expressed by the Russian Federation in a letter to the Secretary-General dated 27 February 2016 (S/2016/197).”
In effect, the Russian letter represented a dissociation from the Council’s President’s letter. Similar to dissociations from Statements by the President (see related article on this website), the Russian letter expressed disagreement with the contents of the President’s letter without breaking the consensus necessary for the letter to be sent. In fact, the Russian letter explicitly addressed this point when it affirmed that “While the Russian Federation will not stop the President of the Security Council from sending a response to [the Secretary-General’s] letter, it does not support the proposed appointments and is seriously concerned by them.”
A precedent for the Russian dissociation was a letter by the Council President (Tanzania) dated 17 January 2006. That letter conveyed to the Secretary-General the names of the two elected Council members which the Council had selected to sit on the Organizational Committee of the Peacebuilding Commission. The letter contained a final sentence stating that the Council members “also took note of the position expressed by Argentina and supported by Peru that a member of the Latin American and Caribbean States Group be considered for selection upon the expiration of the terms of Denmark and the United Republic of Tanzania” (S/2006/25).
In addition to the Russian Federation, the three African members of the Security Council – Angola, Egypt and Senegal – also disagreed with the contents of the Council President’s 27 February 2016 letter, but they did not write individual letters setting out their positions. Instead, on 26 February, the representative of Swaziland, in his capacity as Chair of the UN Africa Group, sent a letter to the Council President. In that letter, he stated that “the Group of African States invites the members of the Security Council to consider giving due respect to the principle of equitable geographical distribution by reappointing Hassan Bubacar Jallow of Gambia as Prosecutor of the Mechanism” (S/2016/198). However, despite this position, Angola, Egypt and Senegal – like the Russian Federation – did not block the consensus necessary for the Council President to send his letter of 27 February.
Article 14, paragraph 4, of the Statute of the MICT provides that its Prosecutor “shall be appointed by the Security Council on nomination by the Secretary-General”. On 29 February 2016, the Council adopted resolution 2269 (2016) by which it decided to appoint Brammertz as MICT Prosecutor. Angola, Egypt, the Russian Federation and Senegal all abstained on the vote.
In explaining his vote, the representative of the Russian Federation pointed out that “While we did not block the proposal of the Secretary-General with regard to the appointments” of the MICT President and Prosecutor, “our delegation does not support that proposal and would like to express its very serious concerns about the chosen candidates.” He asserted that “given the positions occupied by the proposed candidates in recent years in the International Criminal Tribunal for the Former Yugoslavia (ICTY), these appointments could lead to the reproduction and continuation in the Mechanism of the significant flaws that were characteristic of the ICTY” (S/PV.7636).
Just prior to the vote on the resolution, the representative of Egypt stated that consensus had been reached among the Council’s three African members to abstain because “it is unsatisfactory and unacceptable to set aside” former MICT Prosecutor Jallow, who is “the only Tribunal official from a country that is not a member of the Group of Western European and other States”. Similarly, the representative of Senegal charged that the failure to reappoint Jallow represented “the de facto exclusion of Africa from the leadership of the Mechanism”, contravening the principle of equitable geographical distribution enshrined in Article 10 of the MICT Statute.
The representative of Senegal noted that prior to the adoption of resolution 2269 (2016), his delegation had asked for a briefing by the Secretariat “as to the reasons for the failure to reappoint Mr. Jallow as Prosecutor”. This briefing was given under “Other matters” during the Council’s closed consultations on 25 February. The following day, the UN Africa Group sent its letter to the Council President, which suggests that the Secretariat briefing was not seen as persuasive by Angola, Egypt and Senegal.
The fact that Angola, Egypt, the Russian Federation, and Senegal chose to make public their disagreement with the MICT appointments, but did not block the Council’s action in this regard is significant. Seen together with Venezuela’s dissociation from S/PRST/2015/15, the position of those countries suggests that at least on certain matters, despite sometimes sharp divisions within the Council, Council members still strive to preserve consensus whenever possible.