The role of the Security Council, as delineated in Article 10, and its relationship to the Court, raises several difficult questions. Given its primary role under the United Nations Charter for maintaining international peace and security, the Council should have an important role in referring cases to the Court. However, Article 10(3), which would give the Security Council control over the Court's ability to exercise its jurisdiction in cases arising out of a situation being dealt with by the Security Council under its Chapter VII powers, constitutes a serious threat to the independence of the Court. Subjecting the Court to the control of the Security Council -- and to its highly political decision-making process -- would have a profoundly negative impact on the Court's ability to function independently, as well as on its legitimacy, authority and credibility.
REFERRALS BY THE SECURITY COUNCIL
· Recommendation 1: The Security Council should be empowered to refer matters to the ICC, pursuant to a "decision" by the Council, acting under Chapter VI or VII of the U.N. Charter.
Comment: Article 10(1) grants the Court jurisdiction over crimes arising in the context of matters referred to the Court by the Security Council. The Security Council has a duty to maintain international peace and security, including upholding international law, for which referral power to the ICC is essential.
The establishment of a permanent international criminal court should eliminate the need for the Security Council to establish ad hoc tribunals in the future. Only if the ICC is capable of fulfilling the function that such tribunals might fulfill--if the Security Council can confer powers on the ICC and oblige states, in accordance with the U.N. Charter,147 on the same basis as it would through the establishment of an ad hoc tribunal--will the need for future ad hoc tribunals be truly obviated.
When the Security Council refers a matter to the Court, member states should be bound to give effect to that decision, through cooperation with the Court, just as allmember states of the U.N. are bound to cooperate with the International Criminal Tribunals for the Former Yugoslavia and Rwanda and comply with its requests and judgments.148 Article 10(1) should therefore refer to a "decision" of the Security Council: member states of the U.N. are obliged under the Charter to "accept and carry out" "decisions" of the Council, under Article 25 of the U.N. Charter,149 and to give priority to those obligations over other inconsistent obligations, under Article 103.150
As such, when the Security Council is dealing with a matter, whether under Chapter VI or Chapter VII, and it is brought to its attention that a crime within the jurisdiction of the Court may have been committed, it should be able to refer that matter to the Court under either Chapter, provided that binding nature of that decision is clear.151
That said, the commission of such grave crimes as those within the jurisdiction of the Court, and the impunity that so often surrounds them, almost always constitutea "threat to peace, [or a] breach of peace," as envisioned in Chapter VII. As such, the decision to refer matters to the Court should, in general, be taken under that chapter of the Charter.152 If, however, the commission of a crime within the Court's jurisdiction comes to the attention of the Council in circumstances which are not deemed to constitute a threat to international peace and security, it should not be precluded from referring the matter to the Court. What is essential is that the binding nature of a Security Council decision is clear.
SECURITY COUNCIL CONTROL OVER CASES BEFORE THE COURT
· Recommendation: The Security Council should not be able to interfere with and prevent the exercise of the Court's jurisdiction.
Comment: The International Court of Justice (ICJ) expressed the relationship between itself and the Security Council in the following terms:
"The Council has powers of a political nature...whereas the Court exercises purely judicial functions. The organs can therefore perform their separate but complimentary functions with respect to the same events."153
It went on to state that:
"The fact that a matter is before the Security Council should not prevent it being dealt with by the Court and that both proceedings can be pursued pari passu."154
These statements apply with equal if not greater force to an international criminal court with functions quite separate from the political functions of the Council, but very much complimentary in the protection of international peace and security. The argument that ICC jurisdiction may interfere with the promotion of peace agreements is spurious.155 Rather, any suggestion that the Court's jurisdiction might be used as a negotiable element in any potential peace agreement brokered by the Council should be rejected, on the basis that it would inevitably seriously diminish the Court's stature, politicize its role and, hence, undermine its credibility.
Just as the International Court of Justice has jurisdiction to consider cases whether or not they arise from situations being dealt with by the Security Council under its Chapter VII powers,156 the ICC should not be precluded for exercising jurisdiction because the Security Council is dealing with a matter.
Option one: the operation of security council veto
Option 1 of Article 10(7) would prevent the Court from exercising jurisdiction in cases arising out of situations being dealt with by the Security Council, unless the Council expressly permitted the Court to do so. This would allow any one permanent member of the Council to veto the exercise of the Court's jurisdiction, and must be adamantly opposed. This option would reduce the ICC from an independent judicial body to a subordinate body of the Security Council and render justice hostage to the political whims of the permanent members of the Security Council.
Advancing the rule of law internationally, which is one of the fundamental underlying goals of the establishment of the ICC, requires a judicial system that istruly independent. Independence is essential to ensure that justice is done, and that the ICC is a credible judicial institution, clearly beyond the political influence of even the most powerful states. This is clearly not compatible with five individual states enjoying veto power over which cases fall within the Court's docket.
Option two: a decision of the security council to suspend ICC jurisdiction
Option 2 of Article 10(7) provides that the Security Council acting under Chapter VII may take a decision that no ICC prosecution may be commenced (or proceeded with). While this option would not permit the operation of the veto by any one state to exclude a case from the Court, it still involves an inevitable loss of judicial independence by allowing a political body absolute power to interfere with the administration of justice. As noted above, the Council does not enjoy such a power vis à vis cases before the International Court of Justice.
Moreover, in the current draft of Option 2, there is no limit on the length of time the ICC could be prevented from exercising its jurisdiction. It presently contains a bracketed option at paragraph 1, which prevents the Court exercising jurisdiction for a period of twelve months; however, at paragraph 2 this period may be extended "at intervals of 12 months." The scope which this allows for unlimited extensions and indefinite suspension of jurisdiction over these very serious crimes gives serious cause for concern.
The option states that "[N]o prosecution may be commenced [or proceeded with]... [emphasis added]" where the Security Council has decided to that effect. With this wording retained, even once an ICC prosecution was underway, the Security Council could step in and call a halt to proceedings when it serves the political interests of the states involved in the Security Council decision to do so.
Bracketed paragraph 3 of the option would be an appropriate addition to Option 2, enabling the ICC to exercise jurisdiction where, after a reasonable period, the Security Council is not in fact taking any action in respect of the situation in question.
While the susceptibility to political abuse is greatly reduced where a decision of the Council as a whole is required, as in Option 2, rather than control lying with the decision of particular individual states, as in Option 1, both options conspire against the independence of the Court.
147 The Charter of the United Nations, June 26, 1945, 59 Stat. 1031, U.N. Treaty Series No.993.
148 Article 29 of the statute of the ICTY, for example, obliges all member states to cooperate with that tribunal.
149 Article 25 of the U.N. Charter reads: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."
150 Article 103 of the U.N. Charter reads: " In the event of a conflict of the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
151 The binding nature of decisions is not determined by whether they are taken under Chapter VI or Chapter VII, but by whether they were intended to bind all member states. See, for example, Rosalyn Higgins, "The Advisory Opinion on Namibia: which Resolutions are Binding under Article 25 of the Chapter?," International and Comparative Law Quarterly, vol.21, p.280. The author states that the Charter offers no support for the view that Article 25 applies only to measures under Chapter VII, but rather applies to "all decisions of the Security Council adopted in accordance with the Charter." The ICJ's advisory opinion on the "Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Notwithstanding Security Council Resolution 276," 1971 ICJ Rep.4-345 (1970), indicates that a range of factors may point to the intention to bind member states of the U.N., and that the Chapter under which it is passed is not definitive of the binding nature of a resolution.
152 Moreover, the intention to bind would be more readily assumed if the decision were made under Chapter VI. This is particularly so in the light of the "Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from Aerial Incident at Lockerbie (Libya v.USA) 1998," International Court of Justice, February 29, 1998. The International Court of Justice, while not stating that only decisions under Chapter VII are binding, clearly considered the fact that it was an exercise of Chapter VII power a relevant factor in determining whether or not a particular resolution was intended to bind.
153 Ibid, pp.443-4.
154 "Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),"International Court of Justice, (1984), p.433.
155 The peace process in the former Yugoslavia, which took place while efforts were made to bring to justice those responsible for atrocities in the region, demonstrates this.
156 In the "Legal Consequences for States of the Continued Presence of South Africa in Namibia" case, the ICJ gave an advisory opinion on the legality of a General Assembly resolution determining that South Africa's presence in Namibia was illegal, while the matter was on the agenda of the Security Council and had been subject to several resolutions by that body. Likewise in "Certain Expenses of the United Nations," (1962, ICJ 151) the ICJ gave an advisory opinion, at the behest of the General Assembly, on whether member state were obliged, by virtue of a Security Council resolution, to pay the expenses of U.N. operations in the Congo and the Middle East.
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