The Security Council & the ICC: Delineating the scope of
Security Council referrals and deferrals.
[Pre-Published Draft]
Dr Chris Gallavin1
The aim of this article is to delineate some of the parameters of Security Council
(UNSC) referrals and deferrals to the International Criminal Court (ICC). I contend
that the Court itself is limited to a far greater degree in law than the UNSC’s first
referral would suggest. Furthermore, while it can be strongly argued that the ICC
could act to judicially review referrals and deferrals of the UNSC, I submit that the
pragmatic operation of the Court within the international environment would render
such a development extremely unwise. Alternatively, attempts by the UNSC to either
limit or expand the jurisdiction of the Court beyond that which is provided for by the
Rome Statute could, more appropriately, be dealt with in accordance with a
interpretative presumption that,
a) presumes an UNSC intention not to go beyond the scope of the Court’s
jurisdiction; and,
b) requires a liberal interpretation which reflects a willingness to give effect to
the intention of the SC within the confines of the Rome Statute.
I submit that such an approach ought to be preferred over the antagonistic language of
judicial review. Under such an approach ambiguous provisions within UNSC
resolutions could be more delicately handled by the Prosecutor of the ICC by availing
him of a greater opportunity to categorise them as either referrals or deferrals pursuant
to Articles 13(b) or 16 of the Rome Statute.
In examining both UNSC referrals and deferrals under the Rome Statute I will have
course to primarily concentrate upon the recent SC referral of the situation within
1
Dr Chris Gallavin LLB (Hon) (Cant), PhD (Hull). Chris is a lecturer of law at the University of
Canterbury, New Zealand. The author would like to thank Dr Robert Cryer for his helpful comments
on an earlier draft of this article. Any inaccuracies in this article are however the sole responsibility of
the author.
1
Darfur, Sudan. However, I will also discuss the position of the apparent blanket
deferral contained within UNSC resolution 1422. Applying the above presumption I
will attempt to show that an acceptable compromise could be reached that would both
maintain the jurisdictional integrity of the Court and give effect, at least in part, to the
intention of the SC. I submit that both of these outcomes would not be possible if the
ICC were to challenge the legality of ambiguous resolutions.
The Darfur Region of Sudan:
Gross humanitarian atrocities have ravaged the Darfur region of Sudan since February
of 2003. The conflict has resulted in the death of between 50,000 and 200,000
individuals and the displacement of 1.65 million.2 In an effort to quell the Sudan
Liberation Army (SLA) and the Justice and Equality Movement (JEM) the Sudanese
government has allegedly committed a horrendous list of war crimes and crimes
against humanity. Such crimes include, rape, sexual violence, looting, killing and
forced displacement.3 These crimes have been committed upon civilians who merely
share the same ethnicity as the SLA and the JEM. As a consequence of these and
other attacks by government forces and the Janjaweed,4 the SLA and JEM have
retaliated by kidnapping civilians, terrorising government institutions, stealing
livestock and enlisting children as military combatants.5
2
Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, para
226.
3
Human Rights Watch Briefing Paper, Empty Promises? Continuing Abuses in Darfur, Sudan, August
11, 2004 available at http://hrw.org/backgrounder/africa/sudan/2004/ as of 21 February 2005 at
2.00pm.
4
Bertrand Ramcharan has referred to the Janjaweed as a government sponsored militia group. Report
of the United Nations High Commissioner for Human Rights and Follow-up to the World Conference
on Human Rights: Situation of Human Rights in the Darfur Region of the Sudan 7 May 2004, UN Doc.
E/CN.4/2005/3, para. 6. However the government has rejected any association with or responsibility
for the Janjaweed. The Report of the Secretary-General completed pursuant to UNSC resolution
1556(2004), (S/2004/703, paragraph 61), notes in relation to the Government’s obligation to stop
attacks against civilians that it ‘has not met this obligation fully, despite the commitment it has made
and its obligations under resolution 1556.’ Furthermore it has been noted that,
[b]ased on a thorough analysis of the information gathered in the course of its investigations,
the Commission established that the Government of the Sudan and the Janjaweed are
responsible for serious violations of international human rights and humanitarian law
amounting to crimes under international law.
The Report of the International Commission of Inquiry on Darfur, p. 3.
5
“If We Return, We Will be Killed” Consolidation of Ethnic Cleansing in Darfur, Sudan’, Human
Rights Watch, available at http://hrw.org/campaigns/darfur/ on 21 February 2005 at 2:20pm.
2
Despite clear signs of a humanitarian disaster the United Nations (UN) failed in their
attempts to facilitate a peaceful settlement. Atrocities continued to occur despite the
signing of a ceasefire agreement on 8 April, 2004. The deepening humanitarian crisis
led to the Sudanese Government signing a Joint Communiqué with the UN on 3 July,
2004. This was followed by UNSC resolution 1556 which effectively reiterated the
conditions of the earlier communiqué.6 The UNSC resolution called for the Sudanese
government to immediately fulfil their previous commitments including;
a) enforce a moratorium on all activities that may hinder the access and provision
of humanitarian assistance to those affected within the area;
b) to establish effective security for the civilian population of the area; and
c) to resume talks with the JEM and the SLA.
Furthermore, the resolution not only called for the Sudanese government to disarm the
Janjaweed militias but to also bring to justice those members of the Janjaweed ‘and
their associates’ who had facilitated humanitarian and human rights atrocities.7 It also
welcomed ‘the commitment by the Government of Sudan to investigate the atrocities
and prosecute those responsible.’8 To this end, the UNSC called for the UN SecretaryGeneral to report to the Council every 30 days on the progress of the Sudanese
government and noted that action under Article 41 of the UNC could be considered if
the Sudanese government stayed in material breach of its obligations.9 This resolution
was followed by the signing of an agreement between the Sudanese Government and
the UN on 6 August, which acted to pave ‘the way for Khartoum to take detailed steps
in the next 30 days to disarm the militias’.10 Despite increased global awareness of the
atrocities committed in Darfur and the efforts of the UN, the humanitarian crisis
continues in the region. Human Rights Watch has concluded that the Sudanese
6
See also Resolution 1547 of 11 June 2004, UN Doc. S/Res/1547.
UN.Doc S/Res/1556, 30 July 2004, para 6.
8
UN. Doc S/Res/1556.
9
Ibid.
10
UN News Service, ‘Sudanese Government agrees to deal to take steps to disarm Darfur militias’, 6
August 2004, available at www.un.org/apps/news/printnewsAr.asp?nid=11574 as of 21 February 2005
at 3.00pm. Human Rights Watch have speculated that this agreement, signed on behalf of the UN by
the UN Special Representative for Sudan, Jan Pronk, appeared to ‘backtrack’ on the 30 day deadline
set under resolution 1556, Human Rights Watch Briefing Paper. (supra).
7
3
Government has not shown a serious commitment to protecting the civilians of
Darfur. It states that if the government were serious,11
… it would welcome an increased international presence to help it stop the
violence and put in place the conditions necessary for the voluntary and safe
return of civilians to their home villages.
The mandate of the International Commission of Inquiry was established pursuant to
paragraph 12 of UNSC resolution 1564. The paragraph requested the SecretaryGeneral to,
... rapidly establish an international commission of inquiry in order
immediately to investigate reports of violations of international humanitarian
law and human rights law in Darfur by all parties, to determine also whether
or not acts of genocide have occurred, and to identify the perpetrators of such
violations with a view to ensuring that those responsible are held accountable.
Armed with such a mandate the Commission was effectively placed in the position of
an international investigator charged with examining all of the circumstances
associated with criminal prosecution.12 This task involved investigating actual events
themselves as well as the associated international criminal law. Furthermore, the
Commission went so far as identifying possible perpetrators.
The Commission’s discussion of Genocide is of particular interest. Importantly, the
Report observes that the attacks on the civilian population of Darfur, while
concentrating upon a number of ‘so-called’ “African” tribes including the Fur,
Zaghawa, Massalit, Jebel and Aranga peoples, cannot be described as genocide. 13 In
reaching such a conclusion the Commission notes that there is difficultly in
establishing the necessary genocidal intent.14 While not specifically referring to the
definition of Genocide under the Rome Statute, the Report does refer to the Genocide
Convention of 1948 and Customary International Law, the former of which was
heavily relied upon in the definition of Genocide under Article 6 of the Rome Statute.
11
Human Rights Watch Briefing Paper, p. 2.
See the Report of the International Commission of Inquiry on Darfur, paras 12 to 25 in particular.
13
This is despite the fact that the opposite has been observed by the United States Congress, see House
Concurrent Resolution 467.
14
Report of the International Commission of Inquiry on Darfur, paras 489-522.
12
4
While set at a fairly general level, the Report’s discussion of Genocide and ‘groups’
in particular are likely to be of interest to the ICC.
In noting that atrocities continue to be perpetrated on both sides, the Commission
‘strongly’ recommended that the UNSC refer the matter to the ICC as the ‘competent
Prosecutor’.15 In a similar vein the Commission notes that,16
[t]he measures taken so far by the Government to address the crisis have been
both grossly inadequate and ineffective, which has contributed to the climate
of almost total impunity for human rights violations in Darfur.
It was thus alleged that the Sudanese Government were heavily implicated in the
crimes committed in the Darfur region and have done little in the face of international
pressure to appease the plight of civilians within that area. The Commission therefore
stated that a referral to the ICC as ‘the only truly international institutional of criminal
justice, would ensure that justice be done’.17
However, the Commission did discuss alternatives to an ICC referral. The first of
these were domestic prosecutions within the Sudanese courts. However, due to the
inaction of the Government of Sudan it was determined that ‘the Sudanese courts
[were] … unable and unwilling to prosecute’ such alleged offenders.18 The remaining
options were of a quasi international nature. Of these, perhaps the most interesting
was the suggestion of the United States for the establishment of an ad hoc criminal
tribunal in the nature of the ICTY and ICTR. As Cryer has noted, ‘[t]his was because
the US would rather pay for such an institution than grant any legitimacy to the
ICC’.19 However, this suggestion was rejected on the basis of cost and delay.20
15
Report of the International Commission of Inquiry on Darfur, paras 569-572.
Ibid., p. 6. See also the comments of Louise Arbour, UN High Commissioner for Human Rights,
who, when speaking to the UNSC in February of 2005, stated that the actions of the Sudanese
Government, in relation to the conflict in Darfur, have been ‘grossly inadequate and ineffective’. UN
News Service, ‘Sudan Cannot be Trusted to Tackle Darfur War Crimes, UN Human Rights Chief Tells
Security Council’, 16 February 2005.
17
Report of the International Commission of Inquiry on Darfur, para 572.
18
Ibid, para 568. As to the similarity between the words used here by the Commission and Article 17
of the Rome Statute, Cryer suggests that it is unlikely to be accidental. R. Cryer, ‘Sudan and
International Criminal Justice’, (forthcoming, copy on file with author).
19
R. Cryer, ‘Sudan and International Criminal Justice’, (forthcoming, copy on file with author).
20
Report of the International Commission of Inquiry on Darfur, para 572.
16
5
The Security Council’s Darfur Referral:
On the 31st of March 2005 the UNSC made its first formal referral to the ICC under
Chapter VII of the United Nations Charter (UNC). The referral was made despite the
fact that three of the Council’s permanent members are not State Parties to the Rome
Statute.21 In deciding ‘to refer the situation in Darfur since 1 July 2002 to the
Prosecutor of the International Criminal Court’22 the UNSC established a significant
precedent in the investigation and punishment of alleged international criminals. It
would have been wildly optimistic if, at the conclusion of the Rome Conference in
July 1998, one were to have said that the Court would be established before 2003 and
have its first UNSC referral before 2005. To say that such a referral was merely
unexpected is to fail to appreciate the passion in which the US has objected to the
ICC. John Bolton, now US representative to the United Nations, has stated that,23
…the Court and the Prosecutor are illegitimate [and are] a stealth approach to
eroding our constitutionalism.
He went on to state that,
The United States should raise our objections to the ICC on every appropriate
occasion, as part of our larger campaign to assert American interests against
stifling, illegitimate and unacceptable international agreements. The plain fact
is that additional "fixes" over time to the ICC will not alter its multiple
inherent defects, and we should not try to do so. The United States has many
alternative foreign policy instruments to utilize that are fully consistent with
our national interests, leaving the ICC to the obscurity it so richly deserves.
Signatories of the Rome Statute have created an ICC to their liking, and they
should live with it. We should not.
Bassiouni has however highlighted that,24
… the concerns of the United States are overstated and that the interests of the
United States in having an ICC far outweigh the marginal and far-fetched
concerns that have been articulated by political opponents of the ICC.
21
The three permanent members are the United States, China and Russia
See Resolution 1593, UN Doc. S/Res/1593 of 31 March 2005.
23
J. R. Bolton, ‘The Risks and the Weaknesses of the International Criminal Court from America's
Perspective’, (2000) 41 Va. J. Int'l L. 186, 189 and 203 respectively.
24
M. Bassiouni, ‘War Crimes Tribunals: The Records and the Prospects Conference ConvocationResponse to Ambassador Scheffer's Speech’, (1998) 13 Am. U. Int'l L. Rev. 1383, 1403.
22
6
The US abstention in relation to UNSC resolution 1593 ought not, however, to be
seen as a softening of the US approach to the ICC. The US representative to the SC
stated by way of addendum to their abstention that,25
Although we abstained on the … Resolution … we have not dropped, and
indeed continue to maintain our long-standing and firm objections and
concerns regarding the ICC. We believe that the Rome Statute is flawed and
does not have sufficient protections from the possibility of politicised
prosecutions. We reiterate our fundamental objection to the … Statute’s
assertions that the ICC has jurisdiction over the nationals, including
government officials, of States that have not become parties to the Rome
Statute.
US objection to the Rome Statute is therefore still impassioned. Furthermore, the US
has gone further, within resolution 1593, to try and ensure the ICC’s conformity with
US policy.26 First, the resolution makes express reference to Article 98(2) or bilateral
agreements which have been independently signed by the US and a number of States
in order to effectively limit the jurisdiction of the ICC over US citizens. Commenting
on the inclusion of this provision within the Preamble the Brazilian representative
went so far as to say that Brazil ‘has difficulty in supporting a reference that not only
does not favour the fight against impunity but also stresses a provision whose
application is a controversial issue’.27
Second, although the referral is from the SC as an organ of the United Nations,
paragraph 7 emphasises that the United Nations shall not contribute to the costs of any
ICC investigation.28
Finally, and most importantly for the purposes of this article, paragraph 6 of the
resolution purports to proscribe an element of the Court’s jurisdiction. The provision
states,
25
UN Doc. S/PV.5148, p. 3.
Cryer and White have described the inclusion of these concessions to the US as ‘quid pro quo for its
abstention’. R. Cryer and N. White, ‘The International Criminal Court and the Security Council: An
Uncomfortable Relationship’, in J. Doria, H-P. Gasser and N. Jdanov (eds.), The Legal Regime of the
International Criminal Court: Essays in Memory of Igor Blishchenko (The Hague: Brill, forthcoming
2006) (copy on file with author).
27
UN Doc. S/PV.5158, p. 11.
28
For further discussion see Cryer, ‘Sudan and International Criminal Justice, (supra).
26
7
…that nationals, current or former officials or personnel from a contributing
State outside Sudan which is not a party to the Rome Statute of the
International Criminal Court shall be subject to the exclusive jurisdiction of
that contributing State for all alleged acts or omissions arising out of or
related to operations in Sudan established or authorized by the Council or the
African Union, unless such exclusive jurisdiction has been expressly waived
by that contributing State.
The pragmatic application of this provision is, in reality, inconsequential. The
provision does not actually limit the jurisdiction of the Court beyond that which is
already provided by the Statute. However, if seen as an attempt by the SC to make a
referral to the ICC in which it seeks to authoritatively proscribe the jurisdiction of the
Court, then difficulties arise as to the value of the paragraph. Before discussing the
classification of this paragraph and its application by the ICC it is prudent to first
outline the trigger mechanisms of the Rome Statute.
Referrals & Deferrals under the Rome Statute.
The ‘trigger’ mechanisms of the Rome Statute were among the most heavily debated
provisions at the Rome Conference of 1998. Initial drafts of the Statute provided
jurisdiction to the Court on two grounds. First, on referral by State Parties and second,
by referral from the UNSC.29 At the Rome Conference the trigger mechanisms of the
Statute were extended to include proprio motu powers vesting in the prosecutor.30
This power was hugely controversial and forms the mainstay of US objections to the
Statute.
In the 1994 Draft Statute specific provision was made for the UNSC to have an overt
controlling interest in the prosecutorial function of the ICC. Draft Article 23
prescribed three fundamental tenets as to the interrelationship between the ICC and
the Security Council. Paragraph (1) established the SC, acting under Chapter VII, as
the only body in addition to states, able to trigger the investigatory mechanisms of the
29
1994 Draft Statute, Part 3 Jurisdiction of the Court. For the full text of the 1994 Draft Statute see the
Report of the International Law Commission on the work of its forty-sixth Session, 2 May-22 July
1994, General Assembly Official Records, Forty-ninth Session, Supplement No.10 (A/49/10).
30
Refer Articles 13 and 15 of the Statute.
8
Court.31 In relation to the exercise of the Court’s jurisdiction over the crime of
aggression, paragraph 2 provided that the SC was first required to make a
determination that an act of aggression had taken place. The final paragraph provided
for the inverse of the finally agreed form of the ICC and SC relationship. Paragraph
(3) stated that the ICC was prohibited from commencing a prosecution when the
particular situation was before the SC pursuant to a threat or breach of the peace, or
an act of aggression under Chapter VII.
When commenting on the inclusion of paragraph (3) the Commission stated that it
was ‘an acknowledgement of the priority given by Article 12 of the Charter, as well as
for the need for co-ordination between the court and the Council in such cases’.32
Some members of the Commission stressed however, that the paragraph did not give
the Council power of veto over the Court’s ability to commence prosecutions.33
However, it is clear, from a closer analysis that any such assertion is dubious. As with
Article 16, Draft Article 23 qualified the Court’s ability to exercise its jurisdiction.
Without the Council’s express consent, as provided for under the 1994 Draft Article,
or without the implied consent as provided for under Article 16 of the Rome Statute,
the jurisdiction of the Court was actually, and is still potentially, limited in cases
where the Council is involved under Chapter VII. 34 Therefore I submit that what was
suggested pursuant to the Draft Article and what was agreed under the current Article
are both in the nature of a veto.35
31
Speaking in relation to this proposal Daniel Derby stated that,
…when the theoretical clutter is stripped away and realistic probability is considered, the
court may never have occasion to deal with any cases except upon affirmative action by the
Security Council.
D. Derby, ‘An International Criminal Court for the Future’, (1995) 5 Transnat'l Law & Contemp.
Probs. 307, 311.
32
A. Watts, The International Law Commission 1949-1998 Vol II: The Treaties (Oxford: OUP, 1999),
p. 1491. Article 12 (1) of the United Nations Charter provides;
While the Security Council is exercising in respect of any dispute or situation the functions
assigned to it in the present Charter, the General Assembly shall not make any
recommendations with regard to that dispute or situation unless the Security Council so
requests.
33
Watts, p. 1491. No further explanation of this is given by the source.
See Derby, who speaking in relation to the 1994 Draft Statute, criticises the draft as creating a court
that was to be a ‘puppet of the Security Council’. Derby, p. 307.
35
Rohan has identified that the,
debate in the Committee of the Whole, … made it clear that given the political
sensitivities involved, it was not possible for the Statute to be over-prescriptive on
the question of the relationship between the Council and the Court.
34
9
The Draft Article was subsequently further refined, resulting in the presentation of a
further draft statute for the Rome Conference of 1998. This later draft allowed for a
number of combinations of options in which the Court’s jurisdiction could have been
triggered. Firstly, under Article 6(1)(c) the 1998 Draft provided for proprio motu
authority vesting in the Prosecutor. The necessity for a predetermination of aggression
by the SC was retained under Draft Article 10(4).36 Likewise, the prohibition on the
Court exercising its jurisdiction in matters where the SC was involved pursuant to
Chapter VII was also retained under Draft Article 10(7). However, the substance of
the finally agreed Article 16 appeared in option 2 of Draft Article 10(7).
Article 16 of the Rome Statute details the principal characteristics of the agreed
relationship. The Article provides that,
[n]o 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 Article is a stand-alone provision of the Rome Statute. It is not referred to by any
other provision of the Statute, and no procedural provisions relating to it appear in the
Rules of Procedure and Evidence.37
The circumstances within which Article 16 could apply present a number of
difficulties. There are four circumstances in which the article could be applied by the
SC. First, it may be applied so as to avail the SC with an opportunity to declare the
actions of the ICC itself, in commencing an investigation or prosecution, amount to a
‘threat to the peace’ under Article 39. Alternatively, a declaration may be forthcoming
were the Council to believe that an investigation or prosecution that has already
commenced will incite or lead to a ‘breach of the peace, or act of aggression’. Third,
A. Rohan, ‘United Nations Diplomatic Conference to Adopt the Statute Establishing the International
Criminal Court’, (1998) CLB , 1221, 1240.
36
See options 1 and 2 under the 1998 Draft Article 10(4).
37
Condorelli & Villalpando, in A. Cassese, P. Gaeta, J. Jones (eds) The Rome Statute of the
International Criminal Court: A Commentary Vol. 1 (2002). p. 649.
10
the Article may be applied in a pre-emptive manner after concluding that a particular
situation, referred to the Court, is itself a threat under Article 39 which would not or
could not be resolved or alleviated by the instigation of a criminal investigation. I
submit that the fourth circumstance in which the UNSC may apply Article 16 is in the
circumstance proscribed by Resolution 1593, that being a limited deferral relating to
particular aspects of a situation. Therefore I contend that the most appropriate
interpretation of paragraph 6 of resolution 1593, which seeks to limit the jurisdiction
of the Court, is one in which it is seen as an Article 16 deferral and not as an attempt
to limit the jurisdiction of the Court beyond that which is provided for in the Statute.
Any such limitation that it purports to contain is therefore only binding upon the
operation of the Court for a period of 12 months. For it to have a continuing affect on
the Court a further resolution will be required.
In providing for a referral by the UNSC Article 13(b) refers to the crimes set out
under Article 5 of the Statute. Article 5 lists the crimes over which the Court has
jurisdiction. These are; the crime of genocide, crimes against humanity, war crimes
and the crime of aggression.38 Definitions of these crimes appear under Articles 6, 7
and 8. The crime of aggression however is inoperative as no definition was agreed at
the 1998 Rome Conference. Paragraph two of Article 5 states that the Court will
exercise jurisdiction over the crime of aggression once a definition ‘setting out the
conditions under which the Court shall exercise [its] jurisdiction’ has been agreed and
adopted pursuant to Articles 121 and 123.39 By referring to the specific crimes defined
in the Statute, the ICC Prosecutor is, himself, limited by the terms of Article 13(b).
Although in relation to the inclusion of aggression within the Statute initial discussion
centred upon the appropriateness of the Court acting outside of any UNSC
determination that aggression had in fact occurred, the application of the concluded
provisions of Articles 6, 7 & 8 are not contingent upon external determinations.
Therefore it is the ambit of the jurisdiction as defined under the Rome Statute that
dictates the limits of the authority of the Prosecutor and not the terms of a UNSC
referral.
38
39
Article 5(a), (b), (c), and (d).
These being the Statute’s review and amendment provisions.
11
The Court’s authority is clear even when faced with a UNSC referral that purports to
limit its jurisdiction. In providing for UNSC referrals the Rome Statute does not
expressly or implicitly raise the status of such referrals above that of the other trigger
mechanisms. However, the nationality and territorial aspects of jurisdiction provided
for within Article 12 only apply to State referrals or proprio motu investigations.
While this is included to undoubtedly reflect the UNSC’s supremacy in the
maintenance of international peace and security, it does not avail the Council of
greater substantive authority within the Court. As a creature of Treaty and not an
organ of the UN the ICC is independent. As emphasised in the UNSC referral of the
situation in Darfur the ICC is not funded by the UN.40 Furthermore, unlike the ad hoc
tribunals for the former Yugoslavia and Rwanda, the ICC is not a product of the
UNSC. Therefore I submit that any UNSC referral that purports to provide the ICC
with a basis of jurisdiction outside of that provided for in the Rome Statute should be
seen as merely recommendatory.41 The implementation of such recommendations
could come within the application of the Prosecutor’s inherently vague administrative
discretion which arises in the day to day operation of an investigation. In the case of a
proposed limitation upon the jurisdiction of the Court, the Prosecutor could,
alternatively, view it as an Article 16 deferral, as is my submission in relation to
paragraph 6 of resolution 1593. My ultimate contention is that the decision of whether
to act upon a referral, recommendation or deferral lies with the Prosecutor in
considering his jurisdiction under the Statute. This contention is supported by the
remaining operational provisions of the Statute. The two most important provisions
relating to the ambit of an Article 13 referral and any subsequent exercise of
jurisdiction are Articles 17 and 53.42
Officially, the Prosecutor’s greatest level of discretion appears within Article 53.
Within this Article the ‘interests of justice’ is referred to as a legitimate consideration
when deciding whether to instigate an investigation or prosecution. Notwithstanding
this formal element of discretion and the high level of interpretative freedom that
vests with the Court, the Prosecutor has a significant level of informal discretion that
40
UN Doc. S/Res/1593 (2005), paragraph 7.
And not ultra vires. See below for discussion of the ICC’s ability to judicially review referrals and
deferrals of the SC.
42
Articles 17 and 53 refer to the doctrine of complementarity and the Prosecutor’s formal discretion
when considering whether to instigate an investigation or prosecution.
41
12
will arise through the administrative operation of an investigation. Maintaining an
element of co-operation with a home state, ensuring continued international support,
fostering a co-operative relationship with the UNSC and protecting the Court from
accusations of bias will all necessitate the application of sensitive discretion.
Consequently, there may be informal opportunities for the Prosecutor to implement
any problematic direction given to the Court by the UNSC.
Before discussing the ambit of judicial review, it is prudent to briefly introduce the
operative provision of UNSC resolution 1422 as a further example of a problematic
SC direction. The resolution was passed in response to the renewal of peacekeeping
operations in Bosnia-Herzegovina (UNMIBH). The US effectively held the UN to
ransom over the renewal of such operations. Only by providing peacekeepers with an
immunity against ICC prosecution would the US agree to continue their support.
However in passing the resolution the UNSC made no reference to the UNMIBH.
Resolution 1422 therefore appeared to provide a blanket deferral unrelated to a
specific situation. In addition, the resolution was not based upon a prior Article 39
determination.43 The operative provision of the now defunct resolution 1422,
[r]equests, consistent with the provisions of Article 16 of the Rome Statute,
that the ICC, if a case arises involving current or former officials or personnel
from a contributing State not a party to the Rome Statute over acts or
omissions relating to a United Nations established or authorized operation,
shall for a twelve-month period starting from 1 July 2002 not commence or
proceed with investigation or prosecution of any such case, unless the Security
Council decides otherwise.
As we shall see it is in the application of resolutions such as this that the argument for
judicial review of the UNSC is at its most persuasive.
The Court, Liberal Interpretation & Judicial Review.
The remaining issue to be addressed in this article is the question of whether the
Rome Statute allows for judicial review of UNSC referrals and/or deferrals. I argue
For general discussion see R. Cryer and N. White, ‘The Security Council and the International
Criminal Court: Who’s Feeling Threatened’, (2002) 8 International Peacekeeping: The Yearbook of
International Peace Operations, 143 and C. Stahn, ‘The Ambiguities of Resolution 1422’ (2003) 14
EJIL 85.
43
13
that the Court ought to adopt a presumption of legality when reading UNSC
resolutions. This presumption would ensure the application of a strong presumption in
favour of the notion that the SC did not intend to substantively alter the jurisdiction of
the Court beyond that which is provided for in the Statute.
The two main areas in which the SC could be said to have acted ultra vires in relation
to ICC referrals or deferrals are were there does not appear to have been an Article 39
determination and directions outside of the Court’s jurisdiction.
Article 39 empowers the Council with its fundamental mandate. Appearing under
Chapter VII ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and
Acts of Aggression’, Article 39 allows for the Council to determine the ‘existence of
any threat to the peace’. In the absence of formal guidelines as to the application of
this duty, it would appear that this portion of the Article allows for the positive
identification of threats on a pre-emptory basis. The Article continues by providing
that the Council is to determine any ‘breach of the peace’. This would appear to
contrast with the first section of the Article by empowering the Council with a
reactive determinative authority. The Article also expressly allows for the Council to
determine acts of aggression. Following such a determination the Council is to make
recommendations or merely take measures to ‘maintain or restore international peace
and security’.
Luigi Condorelli and Santiago Villalpando have suggested that in exercising their
right of deferral under Article 16, the SC should only invoke the article after an
express determination has been made under Article 39 of the Charter.44 However,
these writers acknowledge that the SC, in finding a ‘threat to the peace’ under Article
39 may rely upon the factual circumstances of the situation, or that the actions of the
ICC itself may necessitate a determination under Article 39. Cassese however, has
stated that the correct interpretation of Article 16 requires the SC to find that the
actions of the ICC itself constitute a ‘threat to the peace’ for the purposes of Article
3945. I contend that the wider, more inclusive acknowledgment of Condorelli and
44
Condorelli & Villalpando, p. 647.
A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, 10
EJIL (1999) 158, 163.
45
14
Villalpando is more pragmatically accurate. There is nothing stopping the SC acting
in a pre-emptive way to defer the instigation of a particular investigation or
prosecution. However, Condorelli and Villalpando continue by placing a caveat upon
the possibility of pre-emptive determination by the SC. These writers speculate that a
determination under Article 39 of the Charter ought not to be made in the,46
abstract … but shall be determined by the effect of the continuation of specific
proceedings before the Court on the entire situation being dealt with by the
Security Council.
The writers continue by noting that Article 18 refers to ‘investigations’ and
‘prosecutions’ and not merely ‘proceedings’.47 I submit that they are undoubtedly
correct in their observation; however this is, perhaps, not a view shared by the US
administration.48
Notwithstanding these speculations, I submit that the arguments of Condorelli and
Villalpando continue on a completely erroneous path. Upon noting that the deferral is
binding upon the Court, Condorelli and Villalpando attempt to argue that the ICC
ought to exercise a judicial review function over the SC. They state that,49
[i]n exercising its power of judicial review of the resolution requesting the
deferral, the Court will establish the legality or otherwise of the Security
Council’s action. In so doing, the Court will also be entitled to ascertain that
the Security Council has not exceeded its competence according to the
Charter.
They continue by stating that,50
Although, … the Court appears to have no discretionary power in deciding
whether to abide by the request of deferral, the decision by the Security
Council is subject to such formal and substantial conditions as to require
review by the jurisdictional organs, in the interests of justice and in order to
safeguard the independence of the judiciary.
46
Condorelli & Villalpando, p. 647.
Ibid.
48
Refer to the apparent blanket deferral provided for within UNSC resolution 1422 above.
49
Ibid, p. 648.
50
Ibid, p. 649.
47
15
In order to ensure that the interests of justice are safeguarded, these writers suggest 51
that the Court test whether the SC has acted ultra vires not only in relation to the
procedure in the making of the request, but also in relation to the requisite
determination under Article 39 of the Charter.52 Furthermore, Condorelli and
Villalpando, while acknowledging that the Court has no express authority to review,
nonetheless believe that judicial review of the SC should be viewed as jurisdictional
latto sensu.53 However if Condorelli and Villalpando’s line of reasoning were to be
adopted then the Prosecutor, accused or suspect, the State which normally would
exercise jurisdiction over the case, or a State to which acceptance of jurisdiction may
be required,54 would all have the opportunity to ‘seize the competent jurisdictional
body to obtain a verification of the legality of the Security Council’s resolution’.55
While I ultimately contend that to adopt this line of analysis is unsound, the reasoning
of these commentators is not entirely unattractive, particularly when viewed in
relation to resolution 1422.
Cryer and White correctly observe that the operative provision of resolution 1422
cited above, lacks an express Article 39 pre-determination of a ‘threat to the peace’
and could be interpreted as applying to all situations and operations. 56 However, this
does not mean that an interpretation that conforms to the provisions of the Rome
Statute is not possible. Therefore, while no express reference is made in the resolution
to any particular UN operation the ICC Prosecutor is able to interpret the resolution as
applying solely to UNMIBH operations. The same interpretative principle can be
applied to the Resolution’s apparent lack of reference to an Article 39 determination.
While this resolution does not apply to a ‘threat to the peace’ I submit that it is
possible to interpret resolution 1422 as being coloured by the situation in BosniaHerzegovina and the SC’s prior determinations as to the status of the associated
conflict. Applying such a clear interpretative presumption can avail the Court, as a
judicial body operating under the Rule of Law, with the ability to operate
harmoniously with the inherently political body that is the UNSC.
It is to be noted that throughout this section Condorelli and Villalpando use ‘will’ and ‘should’
interchangeably.
52
Ibid, p. 650.
53
Condorelli & Villalpando, p. 651.
54
All pursuant to Article 19 of the ICC Statute.
55
Condorelli & Villalpando, p. 651.
56
Cryer and White, ‘The International Criminal Court …’ (supra).
51
16
Notwithstanding the attractiveness of their argument as to the availability of judicial
review, I nonetheless ultimately disagree with the contention of Condorelli and
Villalpando on the basis of three grounds.
First, to allow the ICC to operate a review jurisdiction over the actions of the SC
would change the nature of the ICC and SC relationship. Such a move would in
effect, turn the ICC into a constitutional court. Additionally, any determination by the
ICC that the UNSC is subject to legally reviewable constraints would act to
significantly disrupt the relationship between the UNSC and the International Court of
Justice (ICJ). The ICJ itself has only tentatively suggested that the SC is subject to
legal constraints, but has failed to expressly acknowledge a right to constitutionally
review SC decisions.
Second, it is clear that the development of the ICC as a constitutional body was
wholly unintended by the framers of the Statute. Both Condorelli and Villalpando
acknowledge and then ignore the suggestion of Spain, prior to the adoption of the text
of the Statute, for a SC request not to be automatically binding upon the Court. 57 This
clearly indicates that in adopting Article 16 such a suggestion was specifically
rejected. The notion of an ICC review procedure is therefore completely inconsistent
with Article 16 and the associated debate that surrounded the negotiation of the ICC
and SC relationship.
Third in focusing on deferrals under Article 16, Condorelli and Villalpando appear to
make analogies with the ability of the SC to make referrals to the Court under Article
13(b). Two criticisms can be made of this analogy. First, what is involved under
Article 13(b) is not in anyway a right of review. The assessment of a problematic SC
referral by the ICC merely falls to the Prosecutor’s jurisdiction under the Statute. This
does not, technically, involve a “review” of the referral itself but rather whether,
subsequent to the referral, the jurisdictional requirements of the Court as a separate
and autonomous creature of treaty have been fulfilled.
57
UN Doc. A/CONF.183/C.1/L.20 (25 June 1998) (‘Proposal for Article 10 Submitted by Spain’).
17
In relation to the contention of Condorelli and Villalpando that the ICC is also able to
review a referral made under Article 13(b), I likewise submit that this contention is
not without its own difficulties. In developing their argument these writers rely
heavily upon the ICTY case of the Prosecutor v Dusko Tadić.58 This case is referred
to as authority for the proposition that the ICTY Appeals Chamber, as a separate
organ to the SC, is able to review resolutions of the SC ‘in order to ascertain and be
able to exercise its primary jurisdiction over the matter before it’.59 They then apply
this proposition to the ICC in arguing that it has the authority to review SC referrals.
Two points may be made here. First, I agree that in dealing with such a referral the
ICC shall satisfy itself that the referral has been made in accordance with Chapter VII
of the Charter as provided for under Article 13(b), but only in a procedurally nominal
way. In the case of an ambiguous resolution the ICC ought to apply a liberal
interpretation to the resolution in light of the jurisdiction of the Court in order to
appropriately classify the provision as either a referral or a deferral. Under such an
approach even the blanket nature of paragraph 1 of resolution 1422 could have been
specifically related to the particular situation of the Bosnia-Herzegovina conflict in
order for it to fit within the provision of the Rome Statute.
Second, I believe that Condorelli and Villalpando, in using the Tadić and ICC
analogy, over emphasis the importance of the analogy. In no way is the determination
of a situation as a ‘threat to the peace’ under Article 39 relevant to the substantive
jurisdiction of the ICC. Therefore, allowing the ICC to review such a determination
under Article 39 will not help the ICC ‘ascertain … its primary jurisdiction’ or help in
the Court ‘exercise its primary jurisdiction’ as was the situation in the Tadić case.
Furthermore, although more restricted in its processing of a referral by the SC 60 the
principle elements of the Court’s jurisdiction under Articles 17 and 19 still apply.
Therefore, in circumstances where a SC referral does not purport to extend the
jurisdiction of the Court beyond that which is provided for within Article 12, it is not
Prosecutor v Dusko Tadić (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction), 2 Oct., 1995, Case No. IT-94-1-AR 72, reprinted in (1996) 35 ILM 32.
59
Condorelli & Villalpando, p. 641. Also Tadić, paras. 14-22.
60
Although they note that the exercise of the Court’s jurisdictional requirements is still necessary in the
case of a SC referral, Condorelli and Villalpando describe such a referral as being subject to a ‘special
procedure with regard to admissibility’. Primarily this is due to the fact that a SC referral is not subject
to the provisions of Article 18 which only apply to Article 13(a) and (c).
58
18
the referral that is of primary importance but rather the pre-investigation of the
Prosecutor.61 It is this pre-investigation that acts as the basis of the decision whether
to instigate an investigation or prosecution. Examination of the motivation or the
legality of a referral either by the SC or a State is utterly irrelevant. Potentially, many
SC referrals made under Article 13(b) will therefore be distinguishable from the
nature of the resolution that was at issue in the Tadić case. In the Tadić case the scope
of the SC resolution cut to the heart of the issue before the Tribunal, under the ICC
example, it will often be incidental. Notwithstanding this observation, it must be
remembered that paragraph 6 of resolution 1593 did, in fact, provide the ICC with
jurisdiction beyond that which is provided for in the case of a State referral or a
proprio motu instigated investigation. In these cases a holistic interpretation of the
historical action of the SC will often avail the Prosecutor with the ability to avoid the
inherently antagonistic terminology of judicial review. Only in the situation where the
principles of statutory interpretation fail to avail the Prosecutor with an interpretation
that ensures conformity with the jurisdiction of the Court will the issue of judicial
review directly arise. However, considering the political processes surrounding the
negotiation of SC resolutions as political pronouncements having legal effect the
necessity for the ICC Prosecutor to delve into the dark recesses of judicial review will
be hugely limited.
Conclusion:
As long as the United States stays ideologically opposed to the operation of the ICC’s
jurisdiction, the relationship between the Court and the Security Council has the
potential to be an uneasy one. However, there are mechanisms that can be
implemented in order to alleviate some of the more ambiguous elements to the
relationship. Without compromising the ICC’s commitment to the Rule of Law and
the Security Council’s position as a political entity the formal and informal discretion
vesting in the Prosecutor can be used to facilitate the development of a mutual respect
between the bodies. Furthermore, in order to avoid problematic suggestions focusing
on the Court’s authority to judicially review UNSC referrals, the Court ought to adopt
a more liberal interpretative presumption that allows for ambiguous SC resolutions to
61
See Article 15.
19
be implemented within the confines of the Court’s treaty based jurisdiction. The
relationship between the Court and Council may at times be untrusting but it need not
be antagonistic.
20