Posted by Introduction:
In this essay I will: firstly, discuss the relationship between the International Criminal Court and the United Nations (hereinafter ICC and UN respectively) through the analysis of the Negotiated Relationship Agreement between the ICC and the United Nations; secondly, draw the picture of the relations between ICC and UN Security Council; thirdly, I will argue that Security Council, acting under Chapter VII of UN Charter, can extend the ambit of jurisdiction of ICC, without amendment of Rome Statute; finally I will make concluding arguments and statements.
Relationship between International Criminal Court and United Nations:
This relationship is based on the special agreement between the United Nations and ICC. This agreement is called Negotiated Relationship Agreement between the ICC and the United Nations and was adopted in 2004 (hereinafter Relationship Agreement). To show the general picture of the relationship between UN and ICC, I will analyze this agreement and show most important connection between aforementioned international bodies.
Relationship Agreement in its Preamble affirms that Rome Statute of ICC reaffirms the Purposes and Principles of the Charter of the UN. From this we can conclude that relationship between UN and ICC was pre-developed in Rome Statute itself tying these two institutions together. However, furthermore in its Preamble Relationship Agreement identifies that in accordance with the Rome Statute ICC is independent permanent institution established in relationship with the United Nations system. This clause in preamble draws the actual line in the relationships of UN and ICC – that ICC independent international judicial body, however established in relationship with United Nations.
In the third paragraph of the Preamble of the Relationship Agreement we can find another important clause stating that important role was assigned to ICC in dealing with most serious crimes in the international community that threaten peace, security and well-being of the world. This mentioning of the international peace and security in connection with the role of ICC suggests that drafters of the agreement inserted this clause to show the connection of ICC with UN Security Council, whose primary responsibility is maintenance of international peace and security as provided in article 24(1) of the UN Charter. This will be important in further discussion in this essay.
One of the most important obligations provided by Relationship Agreement is obligation of cooperation and coordination between UN and ICC, under which both parties agree to “cooperate closely whenever appropriate, with each other and consult each other on matters of mutual interest”. This obligation shows particular concern of the UN in ICC work and on the other hand enables ICC to ask UN for assistance at any time.
Reciprocal representation and exchange of information are also included as provisions in Relationship Agreement. They serve to deepen the matters of cooperation between UN and ICC.
There is however no obligation of ICC to submit reports to the UN. That comes from the independence of the ICC from United Nations System. Only if ICC “deems it appropriate”, it can submit reports to UN by cooperating with Secretary-General.
Article 13 of the Relationship Agreement is very important as it deals with financial matters. Funding of ICC dependable on the General Assembly decisions is left as a subject to separate agreements. But as it can be seen from the essence of aforementioned article, even partial financial dependence ties up ICC to UN even closer.
On part of cooperation between UN and ICC it can be seen from the agreement that UN undertakes obligation: a) to provide ICC with necessary information and documents (this is actually a right of the ICC under article 87(6) of Rome Statute) upon its request; b) to waive obligation of confidentiality of any UN official whose testimony needed in front of ICC (if necessary); c) to waive any UN officials privileges and immunities, if such person is alleged to be criminally responsible under crime within the jurisdiction of ICC, to let the ICC exercise its jurisdiction over that person. These obligations show that UN acknowledges itself to be responsible for the jurisdiction of ICC to be exercised freely, and to ensure that its authority would not be a barrier in front of international criminal justice.
All that are mentioned above show that ICC is an independent international judicial body, working however in close relationship with UN and established system of interdependence between these two international bodies.
Relations between UN Security Council and International Criminal Court:
This relationship was initially outlined in article 23 of the 1994 Draft Statute of ICC and then substantially rethought in Rome and partially settled through the adoption of articles 5, 13(b) and 16 of the Rome Statute. The linkage between political and judicial organs is based on the recognition that the functions of the ICC and the UN Security Council (hereinafter SC) are complementary in the respect of the four crimes over which ICC assumes jurisdiction – crimes which in its recent practice, the SC has determined, under article 39 of the UN Charter, to be constituent with elements of threats to or breaches of international peace and security, hence falling under its primary responsibility under the UN Charter. This is also confirmed by the provisions of Relationship Agreement Preamble discussed above in this essay.
Provisions of Rome Statute empowered SC with some rights concerning both jurisdiction of the ICC and its procedure. First, as given under article 13(b) of Rome Statute, SC can, acting under VII, refer to the Prosecutor “a situation in which one or more of such crimes [four crimes under ICC jurisdiction] appears to have been committed”. This can be seen as an alternative way that triggers ICC jurisdiction. Second, as given under article 16 of Rome Statute, SC can adopt resolution under Chapter VII of UN Charter to defer investigation or prosecution held under the Rome Statute for the period of 12 months after such resolution was adopted. This shows that SC can also stop ICC procedure at it is own will for 12 months with possibility of extension of upholding period. Third, as given under article 87(5) and (7) ICC may refer instances of non-cooperation of States with ICC to the SC. This shows that SC has been enlisted as an enforcement mechanism to ensure cooperation of States with ICC, though there is no mentioning of how this enforcement is to take place, presumably the SC could consider refusal of cooperation under Charter VII of the UN Charter with all the consequences thereof.
Furthermore, these three rights of SC were reaffirmed in the Relationship Agreement and the procedural matters of cooperation between SC and ICC on behalf of these rights were settled in the article 17 of aforementioned agreement. Provisions of article 17 mainly establish systems of cooperative referrals and reports of the issues that may arise under aforementioned articles of Rome Statute between UN, ICC, SC, Secretary-General, President of ICC and Prosecutor of ICC.
As it can be seen from mentioned above SC and ICC inter-dependence is very high and powers of the SC concerning ICC both jurisdiction and procedure should not be underestimated. I would like to conclude this with statement of Morten Bergsmo that ICC will depend on the support of the SC in order to function effectively, because ICC territorial jurisdiction is limited to the states that accepted its jurisdiction and SC referrals to the ICC pursuant to Chapter VII of the UN Charter may concern any situation that threatens international peace and security in UN Member States, can widen the scope of the territorial jurisdiction of ICC significantly.
Limitation and extension of the International Criminal Court jurisdiction by Security Council:
In this section of my essay I will argue that: 1) Security Council can extend jurisdiction of ICC through the provisions of article 13(b) of Rome Statute 2) Security Council can extend jurisdiction of ICC through article 87 of Rome Statute; 3) that there already is a precedent of limiting the ICC jurisdiction by SC using article 16 of Rome Statute and thus precedent of extension of jurisdiction of ICC is also possible in the future.
1. In Resolution 1593 of 31 March 2005, the SC referred situation in Darfur to ICC and decided under Chapter VII of UN Charter to “refer the situation in Darfur since 1 July 2002 to the Prosecutor of ICC”. SC adopted this resolution and referred this case to ICC acting under provisions of article 13(b) of Rome Statute. Sudan never ratified Rome Statute and thus under article 34 of the Vienna Convention of the Law of the Treaties is not obliged to act according to it. However SC imposed such obligations in its Resolution 1593 by referring the crimes that occurred in Darfur to ICC jurisdiction (and in addition to cooperate fully with ICC and its Prosecutor). With this SC extended the ICC jurisdiction other the Sudan, though Sudan is non-party to the Rome Statute.
2. According to the article 86 of the Rome Statute, state-parties to this treaty are obliged to “cooperate fully” with ICC. Once again here, as mentioned before, States non-parties to Rome Statute are not obliged to cooperate with the ICC. On the other hand States non-parties can be brought under an international obligation to cooperate with ICC by “any other appropriate basis”. This kind of “basis” could be provided by a resolution of SC under article 41 of the UN Charter, imposing obligations upon all Member States to apply measures to give effect to SC decisions. This clearly shows that there is another way for the SC to extend ICC jurisdiction without amending the Rome Statute.
3. On 12 July 2002 SC adopted Resolution 1422 which grants immunity from ICC to the personnel of states non-parties to Rome Statute involved in the UN established or authorized missions for a renewable twelve-month period. With this SC seriously limited jurisdiction of ICC, excluding part of the UN personnel from ICC jurisdiction. It was however argued that SC Resolution 1422 is unlawful. Carsten Stahn for instance argues that SC Resolution 1422 conflicts with articles 16, 12(2) and 27 of Rome Statute. This Resolution was also criticized by Human Rights Watch for “two reasons: (i) it grossly distorts the meaning of article 16 and 27 of the Rome Statute in ways that weaken the independence of court; and (ii) by amending a multilateral treaty in this way the Security Council have overstepped its authority under the United Nations Charter”. In any case Resolution 1422 is still there and limits jurisdiction of ICC. And from my point of view this precedent of limitation itself can be seen as a good enough starting point for further precedents of limitation or extension of ICC jurisdiction by SC, even if we forget about 1 and 2 points that I have made before.
In discussed above, I have argued that SC can (and already have) extend ambit of jurisdiction of ICC, without amendment of Rome Statute, acting only with regards to Chapter VII of UN Charter.
Conclusion:
In this essay I discussed relationship between UN and ICC. This relationship can be basically indicated as close cooperation relationship between two independent international bodies.
I have also showed very close legal ties between ICC and UN Security Council and their established inter-dependence through the provisions of the Rome Statute and Relationship Agreement.
Finally, I have argued that SC can extend ambit of jurisdiction of ICC, without amendment of Rome Statute, acting only with regards to Chapter VII of UN Charter. However I must admit that only political will of SC is not enough to change ICC jurisdiction. Because, request of SC through its resolution to change ICC jurisdiction, can be found by ICC exceeding the limits of certain articles of Rome Statute and with this overrule the SC decision. Also if any arguments about legality of SC decision to change ICC jurisdiction will arise (like in case of Resolution 1422), UN Member States can always refuse to comply with provisions of SC Resolution, and base their argument on Article 25 of the Charter, where they are obliged to carry out decisions of the SC in accordance with the Charter. This means that though SC is able to change ICC jurisdiction, but not necessarily at any time and based purely on its political will.
Kamal Makili-Aliyev, LL.M,
Lund University, Sweden
