By Vera Gowlland-Debbas
Graduate Institute of International Studies
Weltpolitik2001
This is a summary drawn from the following two articles: Vera Gowlland-Debbas, "The Role of the Security Council in the New International Criminal Court from a Systemic Perspective", in L. Boisson de Chazournes and Vera Gowlland-Debbas (ed.), The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab, Martinus Nijhoff, 2001, pp.629-650 and Vera Gowlland-Debbas, " The Relationship between Political and Judicial Organs in the Light of the Role of the Security Council in the new International Criminal Court", in L. Boisson de Chazournes et al. (eds.) International Organisations and International Dispute Settlement: Trends and Prospects (forthcoming).
© Vera Gowlland-Debbas 2001
The relationship between the Security Council and the new International Criminal Court has proved to be one of the most controversial aspects of the 1998 Statute adopted in Rome on 17 July 1998. This relationship was initially outlined in Article 23 of the International Law Commission's 1994 Draft Statute for an International Criminal Court[1] and then substantially rethought in Rome. While partially settled through the adoption of Articles 5, 13(b) and 16 of the Statute, the debate over the role of the Security Council in respect of the crime of aggression - a debate which was postponed in Rome - is at present continuing in the Preparatory Commission of the ICC.
The linkage between political and judicial organs is based on the recognition that the functions of the ICC and the Council are complementary in respect of the four crimes over which the Court will now assume jurisdiction - genocide, crimes against humanity, war crimes and aggression (Article 5(1)) - crimes which in its recent practice the Security Council has determined, under Article 39 of the Charter, to be constituent elements of threats to or breaches of international peace and security, hence falling under its primary responsibility under the Charter.
The link established between threats to international peace and security and the core crimes giving rise to individual criminal responsibility under international law was also underlined by the Security Council in establishing the International Criminal Tribunals for Yugoslavia and Rwanda. Criminal justice has therefore been seen as one means of contributing to the restoration and maintenance of peace and the Statute of the International Criminal Court adopted in Rome in July 1998 sustains this linkage in its preamble, in "(r)ecognizing that such grave crimes threaten the peace, security and well-being of the world".
Though the ICC has its own treaty basis it will have a formal relationship with the United Nations. The Rome Statute further engages the Security Council in the process of institutionalising criminal responsibility. It avoids the original pitfalls and potentially wide-reaching implications for criminal law enforcement of the original ILC draft. However, it likewise embeds the Council's discretionary determinations under Article 39 within the Court's procedures, with potentially important implications for the legal position of individuals.
Under the Rome Statute, the Council has been given powers of referral and deferral in respect of Court proceedings and a potential role in the determination of the crime of aggression. It has also been enlisted as an enforcement mechanism in ensuring the cooperation of States with the Court.
With regard to powers of referral, the Rome Statute retains the provision of former Article 23(1) under which the Council had the possibility of triggering the Court's exercise of jurisdiction. Under Article 13(b) of the new Statute, the Council can, acting under Chapter VII, refer to the Prosecutor "a situation in which one or more of such crimes appears to have been committed". This introduces a collective triggering mechanism parallel to that exercised unilaterally by States parties (Article 13(a)) or by the Prosecutor (Article 13(c)) and is intended to avoid the establishment of ad hoc tribunals by the Council.
It also has important implications for State consent. For in a case thus referred to the Prosecutor by the Security Council, the preconditions for the exercise of jurisdiction by the Court under Article 12, which stop short of conferring universal jurisdiction on the ICC, do not apply.[2] This allows the Council to initiate a process leading to the prosecution of individuals who have committed a crime on the territory of, or who are nationals of, States which are not parties to the Statute, and in the absence of those States' consent, although debatedly, the rules on admissibility which relate to the primacy of investigation or prosecution under domestic law may continue to apply.[3]
As for the Council's power to defer investigation or prosecution, had Article 23(3) of the ILC Draft Statute been adopted, it would have constituted the most extensive reach of the Council's creeping jurisdiction in the field of international criminal law by allowing it, in a situation being dealt with under Chapter VII as a threat to or breach of the peace, to bar the commencement of a prosecution by the Court until the Council decided to allow it to proceed. In practice, this implied the potential power of a permanent member of the Council to obstruct the Court without temporal limitation, as the open-ended nature of the sanctions adopted against Iraq well illustrate, and in respect of any of the crimes within the Court's jurisdiction, since any of these have been or could be linked to Council determinations under Article 39. However, this provision has substantially been altered as a result of a proposal by Singapore, combined with a Canadian amendment. Article 16 of the Rome Statute states: "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions." The situation has therefore been reversed, for now the Security Council must act affirmatively on the basis of a resolution requesting the Court to defer its investigation, which would mean having to obtain the consensus of all five permanent members of the Council in any effort to block the Court. Moreover, the temporal time limit - although subject to renewal - acts as an additional safeguard. Since the resolution is one adopted under Chapter VII, there must presumably be a prior determination under Article 39, the prerequisite for any action. This leads to speculation as to what would then have to constitute the threat to or breach of the peace - the situation itself or the Court's commencement of an investigation into the commission of a crime? Could justice be seen here as undermining security?
These safeguards have attenuated some of the concerns expressed in Rome, that the previous provisions considerably undermined the independence of the Court by allowing for extensive control by a political organ. Yet as was clearly stated by several delegations on a number of occasions, the Statute itself cannot affect the powers of the Council under the Charter. By virtue of the operation of Article 103 of the Charter, the Council, were it to adopt a mandatory resolution under Chapter could still bypass existing treaty mechanisms for the prosecution of individuals in the sense that Member States' obligations under the Charter would have to prevail over those under the ICC were these to conflict.
The ILC Draft Statute would also have required the prior determination by the Security Council, acting under Article 39 of the Charter, of an act of aggression by a State, before a complaint regarding an individual act of aggression could be brought before the Court (Article 23(2)). At the Rome conference, the controversy surrounding the crime of aggression and the role of the Security Council was temporarily resolved by means of shelving it. Aggression continues to figure as one of the core crimes within the jurisdiction of the Court under Article 5, but Article 5(2) provides that this is dependent on a legal definition being subsequently incorporated into the Statute, along the same lines as the other Statute crimes, and setting out the conditions for the exercise of the Court's jurisdiction in respect of it. Such a provision is to be introduced through an amendment process laid down in Articles 121 and 123, seven years after the entry into force of the treaty. Article 5(2) does not refer to the Security Council but does state that "[s]uch a provision shall be consistent with the relevant provisions of the Charter of the United Nations."
Work on this is being carried out within the Preparatory Commission. The current consolidated text of proposals includes both a definition and the conditions for the exercise of jurisdiction by the Court.
Within this framework, several options are being discussed.[4] The one that gives most cause for concern would combine the definition of aggression and the relationship between the Court and the Security Council in one provision and stipulates that Court proceedings in relation to the crime of aggression would be subject to a prior determination by the Security Council of an act of aggression by the State concerned. Through this exclusive prerogative, the Council would effectively control access to the Court in so far as aggression was concerned. It should be pointed out in passing that the Security Council has so far not made a formal finding of an act of aggression under Article 39 and its generally ambiguous language would make it very difficult for the Court to rely on such a finding. But there is also no watertight division between State and individual responsibility. Were the Council to have exclusive responsibility to determine through a political decision that a State had committed an act of aggression and were this finding to be authoritative for, and non-reviewable by, the Court, this could have the effect, for instance, of depriving a Head of State or other high official of the presumption of innocence or a legal defence such as a claim of self-defence. Security Council determinations under Article 39 of the Charter would therefore have a serious impact on the legal position of an individual brought before the Court.
This is why it is important that the reference to "the relevant provisions of the Charter" in Article 5(2) of the Rome Statute be clearly interpreted in the light of United Nations practice. As the International Court of Justice has classically stated, primary does not mean exclusive responsibility in matters of international peace and security. The General Assembly has itself assumed the competence to define aggression (admittedly without authoritative force), and the International Court of Justice, another principal organ of the United Nations, has not considered itself debarred from a case in which aggression was alleged which means that it can also reach its own separate qualification of such acts, even after a determination has been reached by the Council under Article 39 (see case of Nicaragua). Options involving a qualification by the General Assembly or the ICJ where the Council fails to make such a determination or remains inactive are effectively being examined within the Preparatory Commission, in addition to one which would allow the Court to proceed after a stipulated time limit.
Finally, the Security Council has been enlisted as an enforcement mechanism to ensure cooperation by States with the ICC, alongside the Assembly of States Parties. Under Article 87(5) and (7), the Court may refer such instances of non-cooperation to the Council. While the Statute does not expressly mention how this enforcement is to take place, presumably the Security Council could consider such refusals to cooperate under Chapter VII of the Charter with all the consequences thereof.
The question of the links between the Security Council and the International Criminal Court goes beyond the Statute itself to raise general international law and policy issues. One issue concerns the relationship between political and judicial bodies when the former acts in a quasi-judicial capacity. Undoubtedly, the fields of operation ratione materiae of the Council and the Court overlap. It is therefore important to ensure that the role the Council is called on to play in the ICC does not serve to obstruct the judicial integrity of the Court. This is an important factor to take into account in modelling a workable relationship between Security Council and Criminal Court. Had Article 23 of the draft Statute been adopted in its integral form, this would have instructed the International Criminal Court, in no way a principal or subsidiary organ of the United Nations, to defer to the Council not only on the question of a qualification of aggression but in all matters relating to international peace and security, in other words the Court's bread and butter cases. The current provisions embedded in the Statute go a long way in meeting these objections, but this is also dependent on the formula which will be adopted in respect of the exercise of the Court's jurisdiction over the crime of aggression.
In view of the Security Council's primary responsibility in international peace and security, it would appear to be impractical to deny the Council any role at all in the forging of a system of individual criminal responsibility and its linkage with the ICC could contribute to the latter's authority. But this linkage must be tempered to ensure safeguards both for the rights of States and for those of Individuals, particularly in view of the far-reaching legal effects of the Council's recent actions which encroach on the rights of both. This is why the relationship between the Security Council and the International Criminal Court must be evaluated in the context of on-going efforts at the international level to set limits to collective action by the Security Council, to provide for some form of accountability, to ensure a more equitable representation within that body, and where necessary, to allow the United Nations General Assembly to reassert its residual role in the field of international peace and security.
Endnotes
[1]See Draft Statute for an International Criminal Court in Report of the International Law Commission on the work of its forty-sixth session (UN Doc. A/49/10 (1994)), (1994) 33 International Legal Materials 253.[2]. Under the new Statute the Court has inherent jurisdiction over all of the crimes, not just genocide as was previously the case. The original State consent regime or opting-in procedure has been dropped. However, the preconditions for the exercise of jurisdiction in Article 12 stipulate that for the Court to exercise jurisdiction in a particular case, either the State on the territory of which the crime was committed or the State of which the person accused of the crime is a national, must be a party to the Statute. States which are not parties to the Statute may, by means of a declaration, accept jurisdiction in respect of a particular case.
[3]. On the one hand, Article 18, which requires notification by the Prosecutor to States parties as well as to those normally exercising jurisdiction over the crime concerned, does not apply to referral by the Security Council. On the other hand, the Prosecutor has a certain discretion in deciding not to proceed, inter alia under Article 53(2(b) on grounds of admissibility, even in the case of Security Council referrals. Finally, the Court has la compétence de la compétence.
[4] See Preparatory Commission for the International Criminal Court, Proceedings of the seventh session (26 February-9 March 2001), Annex V, Consolidated text of proposals on the crime of aggression (prepared on the basis of the discussion papers proposed by the Coordinator) (UN Doc. PCNICC/2001/L.1/Rev.1).
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