s.II Spaces, Ch.6 Legitimacy in War and Punishment: The Security Council and the ICC

2020 ◽  
Author(s):  
Dannenbaum Tom
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
Structure And Function ◽  
Criminal Court ◽  
Core Function ◽  
Un Security Council ◽  
And Function

UN Security Council referrals are a legally sufficient basis for International Criminal Court (ICC) action under the Rome Statute and the United Nations (UN) Charter. However, the fact that each permanent member of the Security Council can veto any such referral and that three of those states have declined to ratify the Statute poses a legitimacy problem for the Court. Specifically, it undermines the Court’s moral standing to judge and thus its capacity to deliver on its core function. Because of both the structure and function of the Court, the privileged position of the Council’s permanent members is more undermining of ICC legitimacy than it is of Council-authorized military action in response to atrocity, and even than it was of the ad hoc tribunals created by the Council. One way to remedy this situation would be to vest the ICC with universal jurisdiction. Alternatively, the Court’s legitimacy would be enhanced if Security Council referrals were removed from the Statute. Those, however, are unlikely amendments. More modestly, the Prosecutor should decline all Security Council referrals under the ‘interests of justice’ test.

‘Contested Collisions’: Conditions for a Successful Collision Management – The Example of Article 16 of the Rome Statute

2015 ◽  
Vol 29 (2) ◽  
pp. 551-575
Author(s):  
KERSTIN BLOME ◽  
NORA MARKARD
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Norms ◽  
International Regimes ◽  
Un Security Council ◽  
Collision Rule

AbstractThis article examines the problem of colliding international regimes by reference to the International Criminal Court (ICC) and the UN Security Council. Given the different logics or rationalities of these institutions – the Security Council is first and foremost a (power) political organ, while the ICC is in charge of legal assessments – the collision potential is high. A collision rule was therefore introduced into the Rome Statute in the form of Article 16; however, all instances of its application so far have been highly controversial. While norm application is always controversial to some extent, we argue – in reference to Thomas Franck's work on the legitimacy of international norms – that regime responsiveness, secondary rules or a neutral application control of Article 16 could contribute to successful collision management.

Part 12 Financing: Financement, Art.115 Funds of the Court and of the Assembly of States Parties/Ressources financières de la cour et de l’assemblée des états parties

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
General Assembly ◽  
The United Nations

This chapter comments on Article 115 of the Rome Statute of the International Criminal Court. Article 115, in a sense, completes article 114, confirming that the funds of the Court are derived from the States Parties. Specifically, it states that the expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided the following sources: assessed contributions made by States Parties; and funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.13 Exercise of jurisdiction/Exercice de la compétence

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
United Nations Security Council ◽  
State Party ◽  
Applicable Law ◽  
The Law

This chapter comments on Article 13 of the Rome Statute of the International Criminal Court. Article 13 is the first of three provisions in the Rome Statute on the ‘triggering’ of the jurisdiction. Once it is established that the Court has jurisdiction, a ‘situation’ must be triggered by one of the three mechanisms set out in article 13. The law applicable to referral by a State Party, which is authorized by article 13(a), is thoroughly addressed in article 14 of the Rome Statute. Similarly, the law concerning proprio motu initiation of proceedings by the Prosecutor is dealt with in article 15. As a result, the present analysis focuses on article 13(b), which establishes the authority of the United Nations Security Council to refer a ‘situation’ to the Court.

scholarly journals The International Criminal Court Jurisdiction Towards The Deportation Issues In Myanmar

2021 ◽  
Vol 10 (3) ◽  
pp. 306
Author(s):  
Bugivia Maharani Setiadji Putri ◽  
Sefriani Sefriani
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Territorial Jurisdiction ◽  
Un Security Council ◽  
The Government ◽  
Party State

<p><em>This research aims to comprehensively analyze the International Criminal Court’s jurisdiction in adjudicating gross violations of human rights involving a non-party state of the 1998 Rome Statute and its application to the perpetrators of deportation against the Rohingya with Myanmar as the non-party state. The results showed that this jurisdiction can be implemented under three conditions, first, the crime is committed by nationals of a non-party state on the territory of a state party to the Statute. Second, the UN Security Council refers a situation to the International Criminal Court in its resolution. Third, through an ad hoc declaration that a non-party state of the Rome Statute accepts the International Criminal Court’s jurisdiction. Since the territorial jurisdiction of the International Criminal Court covers crimes that occur wholly or partly on the territory of a state party, it can be applied to the deportation against the Rohingya in Myanmar. This involved the fleeing of this ethnic group from attacks by the Government of Myanmar to Bangladesh, a state party to the 1998 Rome Statute</em></p>

scholarly journals The International Criminal Court and Non-Party States

2010 ◽  
Vol 28 (1) ◽  
pp. 1 ◽  
Author(s):  
William A. Schabas
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
United Nations Security Council ◽  
The World ◽  
The United Nations

Although more than half of the States in the world are parties tothe Rome Statute of the International Criminal Court, morethan eighty have yet to ratify. The article considers the relationshipof the Court with these non-party States. It examines theexercise of jurisdiction over their nationals, arguing that internationallaw immunities continue in force despite the terms ofthe Statute. Declarations of jurisdiction by non-party States arealso studied, including the declaration formulated by the PalestinianAuthority with respect to Gaza in January 2009. NonpartyStates may be asked to cooperate with the Court and, whereso ordered by the United Nations Security Council, they may berequired to do this.Quoique plus de la moitié des États du monde soient Partiesau Statut de Rome de la Cour pénale internationale, plus dequatre-vingt d’entre eux ne l’ont pas encore ratifié. Cet articleconsidère le rapport de la Cour avec ces États qui n’y sont pasParties. Il examine l’exercice de sa compétence à l’égard de leursressortissants, soutenant que les immunités du droit internationaldemeurent en vigueur malgré la teneur du Statut. L’article étudieaussi les déclarations de compétence d’États qui ne sont pas Partiesau Statut, y compris la déclaration formulée par l’Autorité palestinienneen rapport à Gaza en janvier 2009. On peut demanderaux États qui ne sont pas Parties au Statut de coopérer avec laCour, et, lorsque cela est ordonné par le Conseil de Sécurité desNations Unies, il peut être exigé qu’ils le fassent.

The Crime of Aggression at the International Criminal Court

2016 ◽  
Author(s):  
Sean D. Sean D. Murphy
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Institutional Effects ◽  
Jus Ad Bellum ◽  
Un Security Council ◽  
Long Term Consequences

This chapter focuses on the International Criminal Court’s jurisdiction over the crime of aggression. The discussion provides background to the crime of aggression and the resulting criminal accountability of the guilty party, paying particular attention to UN General Assembly’s adoption in 1974 of a resolution addressing aggression by states rather than the crimes of individuals and is designed as guidance for the Security Council when considering whether an act is one of ‘aggression’. The chapter examines the amendments to the ICC Rome Statute defining ‘act of aggression’ and ‘crime of aggression’ adopted at the ICC Review Conference in Kampala, Uganda, in 2010. It also discusses the uncertainties and ambiguities in the process for activating ICC jurisdiction over the crime of aggression. It considers the possible institutional effects of such jurisdiction on the UN Security Council and the ICC itself, as well as its long-term consequences for the jus ad bellum.

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

2017 ◽  
Vol 25 (2) ◽  
pp. 239-260 ◽  
Author(s):  
Victor O. Ayeni ◽  
Matthew A. Olong
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
Institutional Innovation ◽  
Binding Effect ◽  
Un Security Council ◽  
Trigger Mechanisms ◽  
Grave Danger

The establishment of the International Criminal Court (ICC) is an extraordinary phenomenon, and perhaps the most important institutional innovation since the founding of the United Nations (UN). The Court has opened up new hopes, raised new challenges and heralded new dispensation in the administration of international criminal justice. To date, the Court has been seized of only seven situations all of which originate from Africa. Five of the seven situations were voluntarily referred to the ICC by African states themselves. The remaining two (Sudan and Libya) are UN Security Council referrals. There is no doubt that Security Council referral is at the heart of the ICC trigger mechanisms. It ensures respect for the ICC and prevents unnecessary proliferation of ad hoc tribunals. The greatest advantage of the Security Council referral is its imperativeness and binding effect on the ICC's states parties and non-states parties alike. This article examines the prospects and challenges of the Security Council referral mechanism within the ICC framework. The article argues that while the Security Council referral mechanism offers so much hope and opportunity in the global fight against impunity, its abuse portends grave danger to the very existence of the ICC.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.15ter Exercise of jurisdiction over the crime of aggression (Security Council referral)/Exercice de la compétence à l’égard du crime d’agression (Renvoi par le Conseil de sécurité)

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Applicable Law ◽  
The United Nations

This chapter comments on Article 15ter of the Rome Statute of the International Criminal Court. Article 15ter is part of a package of amendments adopted at the Kampala Review Conference in 2010. Under article 13(b), the Security Council may trigger the jurisdiction of the Court with respect ‘over the crime of aggression’. Article 13(b) entitles the Security Council to trigger the Court's jurisdiction, pursuant to Chapter VII of the Charter of the United Nations. Article 15ter(1) makes clear that the Security Council may only trigger jurisdiction over the crime of aggression in accordance with the provisions of article 15ter. Essentially, this is about the temporal limits of the exercise of jurisdiction over the crime of aggression.

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