Critically examine the circumstances under which the United Nations Security Council can trigger the exercise of jurisdiction by the International Criminal Court.
Human rights and fundamental freedoms are an important element of international law and foreign policy. This has led to many interventionist measures being employed by various international bodies. The ability of the United Nations Security Council to trigger the exercise of jurisdiction by the International Criminal Court is an important measure, which seeks to ensure that the international community is being protected from crimes against humanity, war crimes and genocide. The extent to which the Security Council enforces its powers will be examined by looking at the various circumstances which trigger the Security Council to refer situations to the ICC.
The maintenance of international peace and security is the responsibility of the United Nations Security Council. This is provided for under the United Nations Charter to maintain international peace and security. In doing so, the Security Council has the power to refer situations to the International Criminal Court although it is questionable what extent the ICC enforces such powers as much critique has surrounded the Security Council’s ability to protect individuals. This essay will therefore critically examine the circumstances under which the United Nations Security Council can trigger the exercise of jurisdiction by the ICC. This will be done by first reviewing the role of the ICC and then looking at its jurisdiction. It will then be considered under what circumstances the Security Council can refer situations to the ICC, followed by an explanation of some of the referrals that have been made. Once this has been done, a critical evaluation of the relationship between the Security Council and the ICC will then be made.
International Criminal Court (ICC)
The International Criminal Court (ICC) is a permanent international judicial body that has the power to prosecute individuals for crimes that national courts are unwilling or unable to prosecute such as; crimes against humanity, war crimes and genocide. The ICC was established in 2002 by the Rome Statute and is currently located in The Hague and the Netherlands, although individuals can be tried anywhere in the world. The ICC has been considered one of the most significant developments that help to prevent harm or death to individuals all over the world. In order for the ICC to be effective, however, States need to be a party to it. Nevertheless, only 122 States are currently party to the ICC, which signifies how the ICC will not be workable in all countries. Regardless of this, there is generally a universal consensus in respect of these types of crimes, which gives all States the ability to try individuals found to have committed such crimes irrespective as to where there were allegedly committed. This subsequently provides the international community with some comfort that such crimes will not be tolerated and enables States to take steps to prevent these crimes in other countries. The International Criminal Court Act 2001 was enacted by the UK to incorporate the ICC into UK and Northern Ireland law and thereby provides some assistance to these countries when trying criminals for crimes against humanity, war crimes and genocide.
The European Union works closely with Member States to enforce the law and prosecute individuals for these crimes by compelling Member States to inform law enforcement authorities as soon as they suspect that an individual has committed, or is likely to commit, one of these crimes. Once Member States have informed the relevant authorities, such individuals will then be capable of being tried in that Member States or by the ICC if necessary. Crimes against humanity are those acts that are committed as part of a widespread or systematic attack, such as murder, deportation, torture and rape, that is directed against any civilian population. War crimes are those which are considered to be a grave breach of the Geneva Convention 1949 such as; torture, willful killing and inhuman treatment. Genocide are those acts that are committed with the sole intent to “destroy in whole or in part, a national, ethnic, racial or religious group, as such, including killing members of the group, imposing measures intended to prevent births within the group and forcibly”. Consequently, the international community is required to prevent such acts from occurring under the Rome Statute. Therefore, any individual who commits one of the said offences, whilst on the territory of the consenting State, will be capable of being tried by the ICC.
Jurisdiction of the ICC
Once a State ratifies the Rome Convention and becomes a party to it, jurisdiction of the ICC is accepted automatically in respect of all crimes that fall within the ambit of crimes against humanity, war crimes and genocide. Accordingly, there are four different ways in which jurisdiction can be granted which are; 1) if the accused is a national to a consenting State party under the Rome Convention; 2) if the crime took place on one of the State parties territories; 3) if the UN Security Council (Security Council) refers a situation to the court; and 4) if a State party accepts the jurisdiction. This ensures that the protection of the international community is being preserved at all times. Nevertheless, many questions have been raised as to the relationship between the ICC and nonparty States, and whether or not it is acceptable to enforce jurisdiction upon non-participating parties. However, as pointed out by Akande that; “not only is this delegation of jurisdiction to the ICC lawful, but it is also a desirable way of preventing the impunity from prosecution which characterized the twentieth century.” Thus, it has been said that the ICC is better placed at preventing the worst type of crimes from being committed although Akande notes that; “it is probably the case that continued refusals to prosecute these persons encourage them and others to commit crimes.” It is unclear how accurate this assertion is, yet it is evident that great difficulty would ensure when trying to prosecute such individual’s if the ICC had not been established.
Security Council’s ability to trigger the ICC’s exercise of jurisdiction
Whilst the International Court of Justice (ICJ) is independent from the United Nations (UN), the UN has played a vital role in the development of the ICC. Co-operation with the UN is thereby one of the main priorities of the ICC. (Coalition for the International Criminal Court, 2013: 1). Consequently, the Security Council thereby a responsibility to ensure international peace and security is being maintained by all States. Essentially if the Security Council is of the view that international peace and security is being threatened, they may decide on the appropriate measures to take, which includes referring a situation to the ICC. If the Security Council refers a situation to the ICC, the ICC will be empowered under Articles 13 (b) and 15 of the Rome Statute to investigate all of the crimes contained with the Rome Statute without further conditions being imposed upon them. Essentially, the exercise of jurisdiction by the ICC is the only way in which the ICC is capable of investigating such crimes without the consent of the States involved. As such, the Security Council has significant powers to exercise the jurisdiction of the ICC and as put by Shouman; “a Security Council deferral can be invaluable to attaining peace during a period of armed conflict.” In effect, the Security Council plays a vital role in the international community and is integral to the maintenance of peace and security and has been considered the most powerful trigger mechanism of the ICC.
Security Council Referral’s
In March 2005, the Security Council referred the situation in Darfur to the ICC under Resolution 1593. This provided the ICC with the ability to prosecute crimes that had been committed in Darfur, with the main focus being on the barbaric civil war in Sudan, which led to the deaths of over 300,000 individuals. This was considered to be one of the biggest disasters that had ever occurred and as such the referral to the ICC was considered integral to preserving international justice. The referral was made under Article 13(b) of the Statute of Rome which states that the ICC may exercise its jurisdiction in situations whereby “one or more of such crimes appears to have been committed.” This was an important breakthrough for the ICC in that it enabled its ability to prosecute the most serious of crimes to be tested. The Security Council essentially used its powers to extend the jurisdiction of the ICC to a significant degree, which was important in allowing the ICC to demonstrate its capabilities. However, because the United States limited the scope of the ICC and thus introduced its own national interests into the Statute of Rome’s framework it has been questioned whether the powers of the Security Council are as effective as one may have anticipated. This is because the United States has the ability to control the referrals that are made to the ICC by setting precedents for the referral process. Arguably, this weakens the powers of the Security Council and is likely to influence the way future referrals are made.
This is evidenced by the so-called ‘Bush doctrine’ which enables serious crimes to be committed in circumstances where there is no evidence of a pending attack. Thus, after the Bush doctrine was publicised, an attack was made by the US, the UK, Australia and various other states against Iraq. No consent had been obtained from the Security Council under Chapter VII to lead such an attack, which appeared to suggest that the attacks were illegal and thus amounted to a war of aggression. Hence, the attacks could not be justified as a matter of self defence, and had the possibility of being an “abuse of power and force” This provides a clear example of how national law is capable of conflicting with international law and thus undermining the powers of the Security Council. Furthermore, even when the Security Council does impose sanctions on States, these often come under criticism. This was exemplified by Kondoch when it was made clear that the Security Council’s sanctions during the last decade have “come under harsh criticism and the experience of the economic sanctions imposed on Iraq in 1990 show the ethical and legal ambiguity of sanctions.” Therefore, even when the Security Council’s powers are enforced, they are often deemed ineffective. In addition, even though the Security Council has the ability to make referrals to the ICC, it is questionable whether it uses its powers effectively since it has been argued that protection is not always being afforded to the international community.
An example of this can be seen in relation to the lack of protection that was afforded to the Palestinians under the Israel system, also known as the Gaza war. Essentially, the UN and the international community were said to have failed in “exerting effective pressure on the parties to achieve accountability and justice for the victims”. The Security Council was thus reluctant to establish an independent committee of experts to monitor investigations into Palestinian victims and appropriate protection was therefore lacking. In order to ensure that the main objectives of the ICC and the powers of the Security Council are being effectuated; proper investigations into suspected violations of the appropriate protection that is to be afforded to the international community must be made. Civil conflicts can have devastating effects on communities and unless there is some form of protection in place, justice will not be done. Given that the ICC “stands at the pinnacle of international obligations to see that justice is served” it is necessary for the ICC to take the lead in preserving the interests of communities and ensuring that applicable measures are in place for dealing with any post conflict re-construction. The relationship between the Security Council and the ICC is important since the Security Council has the ability enforce its Resolutions onto the ICC and can obstruct it’s complementarily principle.
Resolution 1422, which was adopted in 2002, enabled peacekeeping personnel to be exempted from the Rome Convention for a period of 12 months. Accordingly, this resolution prevented the ICC from making any further investigations into US troops in order to protect them whilst they were engaging in peacekeeping missions. Although it was claimed by the Security Council that the Resolution was in accordance with Article 16 of the Rome Statute as it was in the interests of ‘peace and security’ much criticism ensured from the adoption of this Resolution. It was argued by Canada that this Resolution was in fact, broader than the scope of the ICC and by the UK that this seriously restricted the ICC’s powers. It was also said that Resolution 1422 exceeded “the powers granted to the Security Council by the ICC under Article 16, as well as for violating the UN Charter”. It was also argued by that the Resolution violated the Rome Statute and because of this it has been questioned whether the Security Council has acted ultra vires in respect of Article 16. This may be the case given the requirements of Article 16 since it is provided for under this Article that there must be a threat of peace and security, which appeared to be lacking when the Resolution was adopted. Arguably, the scope of this Resolution largely conflicts with Article 16 and does not appear to preserve the interests of the international community.
More recently, the Security Council referred the Libya situation in its 1970 Resolution to the ICC after they expressed concerns over the violence and use of force against civilians. As put by Alston and Goodman; the Security Council had deplored the “gross and systematic violation of human rights, including the repression of peaceful demonstrators” and thus expressed deep concern over the deaths of many civilians. This highlights the type of circumstances the Security Council ought to refer to the ICC, although it is evident that the Security Council has previously ignored conflicts in Liberia. Essentially, had the Security Council been a lot more pro-active in preserving the interests of the international community, it is likely that much of the damage that was caused as a result of this conflict could have been prevented early on. In effect, the protection of civilians against war crimes, genocide and crimes against humanity is not always being preserved within the international community and much more needs to be done to refer situations to the ICC. One of the main problems that occur is the lack of co-operation between Nation States. Thus, whilst the United Nations seeks to achieved international co-operation Article 1 of the Charter, this cannot always be achieved. Despite this, human rights and fundamental freedoms have, in recent years, become an essential part of international law and foreign policy. This has resulted in many States adopting various mechanisms that will help to maintain peace, and democracy.
As Maiese points out; “there is growing consensus that the protection of human rights is important for the resolution of conflict and to the rebuilding process afterward.” Therefore, the preservation of human rights is at the forefront of all conflict resolutions, although it is questionable whether the Security Council has been as effective in preventing such conflictions as one would have thought. There is a growing need for further international intervention by the Security Council so that citizens are being adequately protected. The international community have, nonetheless, “identified a number of mechanisms both to bring an end to human rights abuses and to establish an environment in which they will be respected in the future”. However, it is unclear whether such adoptions have proven effective given the widely accepted notion that human rights continue to be subject to abuse. However, “given this interdependence, international cooperation and shared responsibility have been entrenched as the twin principles upon which the fundamental and collective values of human rights are to be realised”. Still, the protection of human rights is at the forefront of international principles, yet a balance needs to be struck between protecting individual freedom with the protection of national security. This is extremely difficult to achieve and whilst the Security Council has made some attempts to intervene where necessary, this does not appear to suffice.
Overall, whilst the UN Security Council has played a vital role in the development of the ICC, it is questionable how effective it is in preserving international peace and security. This is because, although the Security Council has referred various situations to the ICC, there are instances where the Security Council has failed to protect the interests of civilians. In accordance with this, it is evident that further intervention is required if international peace and security is to be preserved. Essentially, the preservation of international human rights protections are at the forefront of all post conflict resolutions, which is why it is integral that the Security Council makes applicable referrals to the ICC in order to preserve international peace and security. Because of the lack of co-operation that currently exists between States, nonetheless, it is likely that difficulties will continue to arise in this area. Hence, not all States will ratify the Rome Statute, which will make it difficult to achieve conformity when adopting various Security Council Resolutions.
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