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Opportunities and Challenges to the UN Security Council Referral under the Rome Statute of the International Criminal Court

Document Cited in Related
Vincent
AuthorMatthew A. Olong,Victor O. Ayeni
Date01 May 2017
Published date01 May 2017
Pages239-260
DOI10.3366/ajicl.2017.0193
INTRODUCTION

The international criminal court was established in 2002 as an institution to ensure that crimes against humanity and mass atrocities do not occur with impunity. The origin of its establishment spans over a century. While efforts to create a global criminal court can be traced back to the early nineteenth centaury, the story began in earnest in 1892, with Gustav Moynier who proposed a permanent court in response to the crimes of the Franco-Prussian War. Thus the idea of an independent, permanent international criminal court was first mooted soon after the First World War.1 In 1919, a treaty was negotiated called the Treaty of Versailles. The primary object of the treaty was to establish an international tribunal to try the Kaiser and German war criminals of the First World War.2 In 1920, another daring effort was made under the Unified Treaty of Sevres at prosecuting Turks who were responsible for the genocide of Armenians.3 This attempt again was thwarted when the Treaty of Lausanne granted amnesty to the indicted Turks.4 Following the assassination of King Alexander of Yugoslavia by some Croatian nationalists in 1937, a number of countries concluded treaties for the outlawing of terrorism and also for the creation of an ‘international criminal court’ for the trial of the alleged terrorists.5 Due to the imminence of the Second World War, states abandoned the endeavour.6 After the Second World War, the Allied Powers adopted the 1945 Charter of the International Military Tribunal. In 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide in which it called for criminals to be tried by such international penal tribunals as may have jurisdiction and invited the International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trials of persons charged with genocide.

By 1989, motivated in part by an effort to combat drug trafficking, Trinidad and Tobago resurrected a pre-existing proposal for the establishment of an international criminal court and the United Nations General Assembly asked that the International Law Commission resume its work on drafting a statute. Thus, in 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY)7 followed by the International Criminal Tribunal for Rwanda (ICTR) in 1994.8 In addition, ‘hybrid criminal courts’9 have been created in East Timor,10 Kosovo,11 Sierra- Leone,12 Cambodia13 and Lebanon.14 However, all these tribunals were viewed as inadequate precedents for a permanent international court.15 Besides being limited in jurisdiction and lifespan, the tribunals and the hybrid criminal courts suffered huge funding and staffing challenges. Worst still, the fact that such tribunals were established as and when the Security Council deemed necessary smacked of selective justice.

Thus, beginning from 1989, there emerged a resurgence of interest in the establishment of a permanent international criminal court. This renewed attention was initiated by the government of Trinidad and Tobago which believed that such an institution could help lessen the problem of trafficking in narcotics in the Caribbean.16 Without delay, the UN General Assembly re-mandated the ILC to finalise the draft statute for the proposed International Criminal Court (ICC).17 An initial draft of the ICC Statute was completed in 1993 while the final draft was not completed until 1994.18 That same year, the UNGA established an Ad Hoc Committee for discussion and revision of the draft statute.19 Another body called the United Nations Preparatory Committee on the Establishment of an International Criminal Court was also formed. This body was meant to provide an ‘open forum’ for states to agree on ‘a widely accepted consolidated text’ of the ICC Statute.20 This Consolidated Text was to be the basis for an international diplomatic conference of plenipotentiaries that would finalise and adopt the Statute.21 In 1996, the 6th Committee of the UN General Assembly agreed to hold a Diplomatic Treaty Conference in Rome in 1998 for the purpose of finalising and adopting the Rome Statute. A Diplomatic Conference of over 160 States, 17 intergovernmental organisations, 14 specialised agencies of the United Nations, and 124 non-governmental bodies was held between 15 June 1998 and 17 July 1998 at the end of which 120 States voted in favour of the Statute, 7 against and 21 abstentions.22 Thus the Rome Statute of the International Criminal Court (hereafter the Rome Statute) was adopted.23 After ratification by the sixtieth state, the Rome Statute came into force on 1 July 2002. By the end of February 2012, 120 countries, representing all the continents of the world, have become State Parties to the Statute.24

 JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT

The Rome Statute vests the ICC with jurisdiction over the most serious crimes of international concern, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.25 These crimes are considered the four gravest crimes known to humanity.26 Although the Rome Statute vests the ICC with jurisdiction over the crime of aggression, the definition of what constitutes a crime of aggression, its essential ingredients and the conditions under which the Court shall exercise jurisdiction in respect thereof were not set out in the Rome Statute. Article 5(2) of the Statute nevertheless defers the Court's jurisdiction in respect of the crime of aggression until such a time as a provision is adopted by the Assembly of States Parties (ASP) in accordance with Articles 121 and 123 of the Rome Statute on the definition and the conditions under which the Court shall exercise its jurisdiction in respect of crime of aggression.27 Articles 121 and 123 set out the procedure for amendment and review of the Statute through a review conference of the State Parties to the Statute. On 12 June 2010, the first ever Review Conference of State Parties to the Rome Statute was held at Kampala, Uganda. The Kampala Review Conference agreed on a consensual definition of the crime of aggression under the Rome Statute.28 The Review Conference (which was attended by over 4,600 representatives of State Parties, international organisations, NGOs and even non-state parties including India, Russia and the United States)29 also prescribed the mechanisms by which the ICC would assume jurisdiction over persons who commit the crime of aggression.30

As a general principle, the ICC's temporal jurisdiction (jurisdiction ratione temporis) is limited to crimes committed after 1 July 2002, the day the Rome Statute officially entered into force.31 In the case of states which acceded to the Rome Statute after the Statute had come into force, the Court's temporal jurisdiction is limited to crimes committed after the Rome Statute came into force in respect of that state.32 However, a state which has not ratified the Statute or in respect of whom the Statute has not come into force and in whose territory a crime has been committed may lodge with the Registrar of the ICC a declaration accepting the Court's jurisdiction with respect to any particular crime.33 Such an ‘accepting state’ shall have equal obligation to cooperate with the Court as if it were a State Party to the Statute.34 Thus in order for the ICC to exercise its jurisdiction, one or more of the four crimes under the Rome Statute must have been committed. Additionally, the Statute must have come into force in the state where the crime was committed or such state must have made a declaration accepting the jurisdiction of the Court. The perpetrator of the alleged crime also must be a national of a State Party to the Rome Statute or a national of a state which has accepted the Court's jurisdiction. It must be noted that where the perpetrator cannot be tied to a State party or an accepting state, the fact that the offence was committed on the soil of a State Party or that of an accepting state is sufficient. Where a situation has been referred to the ICC by the UN Security Council, however, it is immaterial that the state of which the perpetrator is a national has not ratified the Rome Statute or made any declaration accepting the jurisdiction of the Court, neither is it important that the crime was not committed on the soil of a state party or that of an accepting state.

The Trigger Mechanisms of the ICC

Although the foregoing jurisdictional requirements have been met in a particular situation, the Court may yet be dormant since it cannot swing into action suo motu. Its jurisdiction needs to be activated. In order words, the ICC mechanisms need to be ‘ignited’ or ‘triggered’ by any of the three bodies that hold the ignition key. For the purpose of activating the court's jurisdiction under the Rome Statute, Article 13 of the Statute specifies three trigger mechanisms, namely state party referral, referrals by the United Nations (UN) Security Council acting under Chapter VII of the UN Charter and proprio motu investigation by the ICC Prosecutor.35

Article 13 provides that:36

The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if:

A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with Article 14;

A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

The Prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.

 State referral

Whenever one or more of the four core crimes under the Statute is committed in the territory of a state party or by a national of a state party, any...

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