Periodically I will be posting selections from my ‘homework’ stash. These posts will be the notes/transcripts/excerpts/condensed versions of works I’ve prepared for my lectures or labs/tutorials.
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This post is a combination of the notes used for a presentation and the adjoining paper that was submitted on the same topic for an International Law class recently. The assigned question was “How might the establishment of the International Criminal Court affect the rulings of the United Nations Security Council with regards to ‘threats to peace’, Chapter VII of the United Nations Charter?”
The immediate answer to this question would be that the International Criminal Court (ICC) should have no affect on the rulings of the United Nations Security Council (UNSC), given that the ICC is, according to the preamble of the Rome Statute (sometimes referred to as the ICC Statute), legally and functionally independent of the United Nations. As the UNSC is a core organ of the UN (United Nations Charter, Chapter 5), the ICC is, by extension, also independent of the UNSC. In fact, during the formation of the ICC, the UNSC along with several permanent members lobbied extensively to guarantee that non only would the UNSC remain disconnected from the ICC, but also to restrict the jurisdiction of the ICC, once it had come to force, in order to try and preserve the power and territory of the UNSC and further the gap between the two entities. However, we do know that the UNSC has the ability to refer cases to the ICC, as was done in in the situations of Sudan (2005) and Libya (2011). Therefore, it could be argued that some sort of relationship between the ICC and the UNSC may exist, though perhaps at an imbalance for the ICC.
A further reading of the Rome Statute would substantiate at least the first part of this claim. Whilst guaranteeing the legal and functional independence of the ICC from the UN, it also provides three points on which a relationship between the ICC and the UNSC may be called into effect:
- The UNSC must be operating under Chapter VII of the United Nations Charter (Article 13(b))
- The UNSC may prohibit or stop an ICC investigation, if the UNSC were to feel that the investigation were proceeding in an inappropriate manner (Article 16)
- The ICC may call upon the UNSC to act as an enforcement mechanism for the execution of ICC proclamations (Article 87(7)).
Not only is it possible for a relationship to exist between the ICC and the UNSC, but the language of the Rome Statute appears to try, as best as it could under the lobbying of the UNSC members, to provide some sort of balanced relationship. However, as the actions of the UNSC, in order to bring the ICC into consideration, hinge directly upon the invocation of Chapter VII of the UNC, it is this point that shall be considered next.
Chapter VII of the UNC, entitled “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”, dictates the UNSC’s powers concerning the maintenance of international security and peace. If a relationship between the ICC and the UNSC may only exist, legally, under the invocation of this chapter, which is only under the jurisdiction of the UNSC (the ICC derives its powers solely from the rules set out by the Rome Statute) then the question to be considered is whether an invocation of Chapter 7 and, subsequently, a triggering of the ICCs jurisdiction will actually achieve the desired results for the UNSC? Afterall, handing over a situation to the ICC would be voluntarily relinquishing some control over the case and its end results. Given that the UNSC lobbied so strenuously to insure such a shift in control did not happen without their consent, one might assume that the UNSC would be quite selective and careful about which cases they hand off to the ICC.
If one were to assume the desired end-goal of the UNSC were to be the continuation (or reinstatement) of international peace and security (which is the purpose assigned to it by the UNSC in 1949), then it would appear that, when considering the only two cases to be referred to the ICC by the UNSC (Libya and Sudan), such an invocation of Chapter 7 and a referral of the case at hand to the ICC does not achieve the UNSC’s main goal. In fact, referring these cases to the ICC appears to rather have exacerbated the situations; Al-Bashir expelled all but one NGO from it’s territory after the release of his arrest warrant by the ICC, and the referral of Libya saw a substantial increase in the number of Libyan refugees in neighboring countries. The negative impact did not stop at the site of conflict, though. States (i.e. China) and individuals within the international community loudly criticised the UNSCs choice to bring the the ICC in the matters, given the increase in atrocities on the ground.
Though the events in Sudan and Libya post the UNSC referrals may not be direct results of the action taken by the UNSC. It can be argued that, given the timeline, they were at least indirectly related, and most certainly were perceived as related by other actors in the international community. Interestingly, the UNSC has not yet made a decision on how to approach the situation in Syria. It could be argued that, as the situation on the ground in Syria is very similar to that in Libya (and somewhat to that in Sudan) this inaction may be a manifestation of the UNSCs unwillingness to incurr further criticism from the international community and erosion to it’s perceived power and legitimacy. Therefore, however indirectly, the ICC appears to have something akin to a political and PR affect on the UNSC.
United Nations Charter
Rome Statute (English version; if you would like to read it in one of the other EU languages, please visit the ICC website.)