International Criminal Law, the Court and the UN Security Council: the Supposed Equilibrium
By: Somabha Bandopadhay* |
The regime: An Introduction
International Criminal Law (ICL) has evolved from a fusion of two important legal disciplines- public international law and municipal criminal law. Necessity is the mother of invention; it was the necessity that compelled the states to evolve ICL. International law had to accommodate certain basic principles of criminal law like specificity, nullum crimen sine lege, nullum poena sine lege and others since certain acts are proscribed by ICL. It had to evolve through the authoritative sources viz. international treaties, customary international law, general (universal) principles of law, legal scholarships, etc. They were recognized as ICL provided they came from these sources since these sources shape them and refine them, thus the fusion is of the sources and processes of international law.
ICL is basically to proscribe certain conduct commonly considered as serious atrocities i.e. where there are serious violations of human rights. ICL recognized four international crimes- Genocide, Crimes Against Humanity, War Crime, Crime of Aggression or Crime Against Peace. In all these crimes there is systematic violence and not spur of the moment crime. Thus, it is the conduct of the individuals which is the core which leads to ICR.
The formation of the ICC was not surely a process spanning over some days, but included years of deliberations. In 1998, the proposal was first mooted by Trinidad and Tobago. When the world community realized that ad-hoc criminal courts aren’t going to be sufficient to encapsulate the various crimes undertaken in various jurisdictions, this proposal.
Tracing the beginning
With the end of the world wars, a new era began. The establishment of the UN was intended to stop the occurrences of any such brutal war again. The Charter read the “scourge of the two world wars” is something that required a formidable manner of prohibition. However, the world progressed and newer kinds of crimes started percolating into our societies and newer jurisdictions became prey to the worst kinds of human rights violations possible.
The Nuremberg Tribunal can be considered to be the initiation of the modern International Criminal Law (ICL) regime, which began in 1945 after the adoption of the London Agreement by the Allied powers- USA, UK, USSR and France. However, the fire of the same had died down until 1993 when the Yugoslavian territory got disintegrated creating humungous destruction and abhorrent human rights violation. UN Security Council (UNSC) stepped in for the first time to set up an ad-hoc criminal body- the International Criminal Tribunal for the former Yugoslavia (ICTY) to try crimes which concerned the humanity at large and were given the power to have jurisdiction over the crimes that were recognized in the Nuremberg Charter. The Nuremberg Charter had recognized two new crimes apart from the already existing war crimes; i.e. crimes against humanity and crimes against peace. The ICTY was given to recognize another new crime which even though was recognized during the Nuremberg Charter, however, never found a place in the Nuremberg Charter- the crime of genocide. The successful working of the ICTY led the UNSC to form another such ad-hoc criminal body- International Criminal Tribunal for Rwanda (ICTR) in 1994 for trying the crimes committed in Rwanda, especially Genocide. This is the starting point of the relationship of UNSC with prosecuting international crimes- a mechanism effectuated under the most powerful chapter of the UN Charter- Chapter VII. By invoking the provision pertaining to the actions that the UNSC is empowered to undertake, this novel method was evolved by UNSC. Ironically, the shift from 1994 to 2000s is not the formation of ICC because like any other resolution passed in the UN, except for resolutions to maintain peace and security (which is resolved by the UNSC), the resolution for the establishment of the ICC was from the UN General Assembly. However, it was at the Rome Conference of 1998 where member states of UN participated that adopted the ICC Statute (also called the ‘Rome Statute’) and established the International Criminal Court. Thus, we see that there was no involvement of the UNSC in the formation of ICC, yet there is a direct and indirect relationship that is forged between these two bodies.
This inter-relationship is primarily because of the common agenda and common vision. This common goal is pursuant to the principles laid down in the UN Charter, which necessarily is to maintain peace and security, friendly relations among the nations and most importantly protection of human rights. Analyzing the UN Charter, as a whole and the powers conferred upon the UNSC in conjunction with the Preamble of the ICC Statute, the idea that echoes from it is the idea of peace, security, stability and protection of human rights. The UNSC commits to this under Arts. 39 to 42  and the ICC has in its totality pledged this and only this. Thus, there is a tripartite relationship that is concerted sometimes directly and sometimes indirectly. The establishment of the ICC was in fact to have a permanent body that will necessarily adjudicate international crimes that concerns the humanity at large, was an extension of the UN Charter principles enshrined in the Preamble. Even though it is separate from the UN having been established by the Assembly of State Parties to the Rome Treaty, it works in and with the UN.
This unique relationship, which is unique because there are very limited such institutions which even though are not mandated per se by the UN works on a collaborative effort, is on varied segments. It is unique also because ICC is an independent international judicial system which however has a mandate in conjunction with the mandate of the United Nations which is primarily based on maintenance of international peace and security. It is unique because an independent body like UN (apart from the obvious fact of cooperation among States being an integral part of the UN system) has collaborated with another independent institution like ICC and the golden thread between these is the idea of world peace. There is thus, delicate balancing of independence, interdependence and cooperation while respecting autonomy and confidentiality of both these institutions wherein a political body like the UNSC extends control over a judicial body like ICC contrary to the rule of separation of powers.
UN Security Council: the mediator
The International Criminal Court, unlike the other bodies of UN, was not formed out of the UN system even though was negotiated within the UN and the latter’s contribution to the establishment of the former is immense. Thus, even though both are separate entities, the beautiful symbiotic relationship that these two entities share is novel.
The relationship is based on the understanding of the Rome Statute and its provisions pertaining to the UNSC. The fundamental provision that sets the tone for the relationship between these two entities both of whom are working towards maintaining international peace and security is Art. 2 of the Rome Statute whereby the relationship with the United Nations is established by the virtue of an Agreement. Such an agreement was entered into by the UN and the ICC on 04 October 2004 and Art. 17 of the same specifically deals with this unique relation (which has been discussed later). This essentially means the relationship as understood from the various provisions of the Statute, like Art. 13 (b) on referral, Art. 16 on deferral and Art. 89 on Cooperation. This conceptualization shall be also from the point of the various resolutions passed by the Council in the past including resolutions 1422 (2002), 1487 (2003), 1497 (2003), 1593 (2005) and others. But, there has been only one formal discussion on the relationship the UNSC has with ICC when upon the initiative of Guatemala an open debate had taken place on 17th October 2012- a decade after ICC came into existence, yet the significance these two entities have amongst each other cannot be denied.
To understand the relationship in a more comprehensive manner some attention shall be put to the 2012 debate initiated by Guatemala and the 2018 Arria-formula meeting of the members of the UN that was convened to discuss this inter-relationship. At the same time, there have been two other meetings to address and understand this relationship outside the UN framework. The first meeting took place on 16 March 2012, at Chatham House in the U.K., and was sponsored by Parliamentarians for Global Action and Chatham House. The second took place on 8 November 2012, at the International Peace Institute in New York City and was sponsored by the Liechtenstein Mission to the U.N. and the International Peace Institute.
Testing the reality: Conclusion
There has been considerable indifference portrayed by the UNSC with regard to non-cooperation by UN members States with ICC and its mandate while working upon the referrals made by UNSC, where full cooperation with all UN member States is sought, even if they are not a party to the Rome Statute. This is a disturbing state of affairs. The council has refrained from taking any action against the non-complying States pertaining to the 13 decisions of the Court regarding such non-compliance. In fact, there has always remained doubts as to the obligations State parties have towards respecting the provisions of the ICC Statute, especially on the obligations of persons who are otherwise immune under international law like heads of States or diplomats under various treaty obligations and customary practices to appear before the Court or face charges in the Court. For clarification on this, the members of UN, especially the Organization for African Unity on behalf of the African States have proposed an agenda to have a resolution passed in the UNGA on having an advisory opinion from the ICJ on this matter. The title of the agenda has been framed as such which however is still pending to see the light of the day- “Request for an Advisory Opinion from the International Court of Justice on the consequences of the legal obligations of States under different sources of international law with respect to immunities of Heads of State and Government and other Senior Officials”.
At the same time, the failure to refer cases to the ICC also points at the relative failure of the ICC as a system because it has not yet been able to gather the confidence of the world community in its independence, efficiency and efficacy which might become detrimental to the working of the ICC in the future.
* The author is a Ph.D. Scholar and Research Assistant at The West Bengal National University of Juridical Sciences. Kolkata
 Overview, Rome Statute of the International Criminal Court, https://legal.un.org/icc/general/overview.htm.  Resolution Adopted by the Security Council at its 3217th meeting. on 25 May 1993 , S/RES/827 (1993), https://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf.  VII, UN Charter- Action With Respect to Threats to the peace, Breaches of the Peace, and Acts of Aggression.  Art. 1, ICC Statute, 2002.  …. To unite our strength to maintain international peace and security…  Jennifer Trahan, The Relationship Between The International Criminal Court And The U.N. Security Council: Parameters And Best Practices, Criminal Law Forum, 417,418 (2013).  Jacob Pichon, International Criminal Court and United Nations Security Council: The Role of the Security Council in the Prosecution of International Crimes by the International Criminal Court, 218 Max-Planck-Gesellschaft zur Forderung de Wissenschaft e. V, 349, 350 (2011).  Library, What is the International Criminal Court (ICC) and what is its relationship with the UN? (Jan. 07, 2019), http://ask.un.org/faq/97157.  Coalition for the International Criminal Court, Relationship agreement between the ICC and the United Nations, (Nov. 12, 2004), http://iccnow.org/documents/CICCFS-UNRelationshipAgmt_12Nov04.pdf.  Relationship of the Court with the United Nations- The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.  S/PV.6849, The promotion and strengthening of the rule of law in the maintenance of international peace and security, 67th Session (2012).  Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at first arria-formula meeting on UNSC-ICC relations, https://www.icc-cpi.int/Pages/item.aspx?name=180706-otp-statement-arria-formula.  Jennifer Tehran, The Relationship Between The International Criminal Court And The U.N. Security Council: Parameters And Best Practices, Https://Link.Springer.Com/Content/Pdf/10.1007/S10609-013-9213-9.Pdf.  Security Council Report, In Hindsight: The Security Council and the International Criminal Court, (Jul. 31, 2018), https://www.securitycouncilreport.org/monthly-forecast/2018-08/in_hindsight_the_security_council_and_the_international_criminal_court.php.  Art. 27- Irrelevance of Official Capacity.  Vienna Convention of Diplomatic and Consular Immunities 1963.  UNGA Res. A/73/144, Request for an Advisory Opinion from the International Court of Justice on the consequences of the legal obligations of States under different sources of international law with respect to immunities of Heads of State and Government and other Senior Officials, 73rd Session (2018).