ASIL Insights

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            Many states opposed the U.S. effort as an attempt to amend the ICC Statute in excess of the Security Council's authority.  As a result, the Security Council convened an open meeting on 10 July 2002 at which representatives of 39 states participated.  Nearly all opposed the U.S. position, but many recognized that compromise could preserve essential peacekeeping operations. [2]   The U.S. then proposed a resolution that would defer proceedings against peacekeepers for one year.  At the end of that period, if the resolution were not renewed, the prosecutor could proceed.  A variation of this draft was approved by the Security Council, acting under Chapter VII of the U.N. Charter, on 12 July 2002.  The Bosnia peacekeeping mission was extended on the same date.  In the operative provisions of Resolution 1422, the Security Council:

1. Requests, 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 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;

2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12-month periods for as long as may be necessary;

3. Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations; . . . .

            This controversy raised serious questions concerning the scope of the Security Council's powers.  Although the immediate crisis was resolved, the underlying dispute between the U.S. and ICC supporters over the proper role of the Court continues.

I.  Consistency with the ICC Statute

            The ICC Statute (treaty) was approved in Rome on 17 July 1998.  The court has jurisdiction over the most serious war crimes, crimes against humanity, and genocide. [3]   It can exercise jurisdiction where a situation is referred to it by the Security Council or the crime is committed on the territory of, or by a national of, a state party. [4]   The Rome Statute entered into force on 1 July 2002.  Former President Clinton had signed the treaty on 31 December 2000, the last day it was open for signature.  President Bush effectively renounced the signature on 6 May 2002, by declaring that the U.S. has no intention of ratifying it. [5]

A.  Blanket Deferral of Proceedings

            Paragraph 1 of Resolution 1422 asserts that is consistent with Article 16 of the Rome Statute, which states:

No 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 consistency of Resolution 1422 with Article 16 is hotly disputed.  Opponents contend that Article 16 was intended to be applied on a case-by-case basis to specific situations, where ICC proceedings could interfere with efforts to restore or maintain international peace and security.  They maintain that it was not intended to be applied prospectively to provide a blanket immunity from the Court.  They assert that the Resolution constitutes an unauthorized "amendment" of the Statute.

            Resolution 1422 reflects an interpretation of the Statute that may be at odds with the intent of the parties, but it does not rewrite the words of the Statute or affect its application in other circumstances.  The Vienna Convention on the Law of Treaties provides that a treaty should be interpreted in accordance with the ordinary meaning of its terms in light of its object and purpose. [6]   If the language is ambiguous, resort may be had to supplemental means of interpretation, including the record of the negotiations leading to the treaty. [7]

            Arguably, Article 16 is ambiguous.  There is nothing in its language to exclude the approach taken in Resolution 1422.  Nor has anything been cited from the preparatory work to so indicate.  It appears that the prospect of a resolution prospectively deferring ICC proceedings may not have been considered.  Nevertheless, the statements made by parties and signatories to the ICC Statute at the 10 July Security Council meeting were nearly uniform in rejecting the U.S. interpretation, and are evidence of the intent of the parties.

2.  Permanent Deferral

            The earlier U.S. attempt obtain a near-permanent exemption from the ICC was in the form of a draft resolution that contained the following provision:

2.  [The Security Council] decides by this resolution, acting consistent with Article 16 of the Rome Statute, that, on July 1 of each successive year, the request not to commence or proceed with investigations or prosecutions as set forth in paragraph 1 shall be renewed and extended during successive twelve-month periods thereafter unless the Security Council decides otherwise . . . . [8]

            This provision would have automatically renewed the deferral of proceedings until the Security Council made an affirmative decision not to renew.  Opponents asserted that this provision was clearly inconsistent with the intent of Article 16.  That Article was the subject of intense negotiations.  Some states, including the U.S., wanted the ICC to be under the control of the Security Council and able to initiate proceedings only with the Council's consent.  Since any permanent member of the Council could then veto proceedings directed against it, many states objected.  Article 16 arose as a compromise recognizing that suspension of ICC proceedings might be essential to allow the Council to maintain international peace and security.  An essential element of this compromise was the requirement that any extension of the deferral would require a new decision by the Security Council that any permanent member could veto.  Thus, Article 16 was intended to any permit permanent member to veto extensions of resolutions suspending ICC proceedings, while the U.S. proposal would have reversed this by allowing permanent members to veto any decision ending the suspension of proceedings.

II.  Powers of the Security Council

            The legality of Resolution 1422 under the U.N. Charter does not depend upon whether it is consistent with the ICC Statute.  The Security Council has a broad mandate to maintain international peace and security.  It may make recommendations for the pacific settlement of disputes under Chapter VI of the Charter and may make binding decisions, as well as recommendations, under Chapter VII.  Pursuant to Articles 25 and 48, member states are obligated to carry out decisions taken under Chapter VII.  As discussed below, they may be required to do so even if the decision is inconsistent with a treaty obligation.

A.  Limitation Posed by Article 39

            The principal objection to Resolution 1422 is that the Security Council action was ultra vires.  Article 39 provides as a prerequisite for action under Chapter VII that the Council find a "threat to the peace, breach of the peace, or act of aggression."  Resolution 1422 addresses this prerequisite by stating in the preamble that "it is in the interests of international peace and security to facilitate Member States' ability to contribute to operations established or authorized by the United Nations Security Council."  Critics contend that increased reluctance by a few states to contribute to peacekeeping operations is hardly the type of threat to the peace contemplated by Article 39.  They also assert that the ICC should not deter states from participating in peacekeeping missions in Bosnia-Herzegovina, because the International Criminal Tribunal for the Former Yugoslavia would have primacy over the ICC. [9]   On the other hand, it is arguable that the Security Council is at least presumptively its own judge when it interprets its powers under the Charter. [10]

B.  Authority to Act Contrary to International Law or Treaty Provisions

            Critics of the Resolution also maintain that it exceeds the Security Council's authority by interfering with the sovereign right of states to enter into treaties and violates an asserted jus cogens principle of customary international law that perpetrators of serious violations of humanitarian law must either be prosecuted or extradited to a state that will prosecute.

            The Security Council's authority is not unlimited.  It must act in accordance with the purposes and principles of the U.N. [11]   These principles include respect for obligations arising from treaties and international law, and solving problems of a humanitarian character.  Paramount among them is maintenance of international peace and security. [12]   Since the ICC is intended to deter violations of international humanitarian law and thus would contribute to the maintenance of peace, presumably the Security Council would be expected to respect the integrity of its Statute.  However, the Council must often consider many conflicting factors in deciding how best to maintain or restore peace.  How it does so is largely within its discretion.

            There is nothing in the Charter to suggest that the Security Council cannot, where there is an actual threat to the peace, take an action inconsistent with a treaty or customary international law.  On the contrary, the Charter implies that such actions might be necessary.  Article 2(7) prohibits the U.N. from intervening in matters within the domestic jurisdiction of any state, but indicates that the prohibition does not apply in the case of enforcement measures taken under Chapter VII.  The argument that the Security Council must act consistently with jus cogens norms finds some support in the Vienna Convention which provides that treaties violating jus cogens norms are void. [13]   The Charter, however, is not like other treaties, and a strong argument can be made that this provision does not apply to it.   Moreover, whether the duty to extradite or prosecute is one of the few jus cogens norms is debatable.  In any event, customary international law does not require that violations of humanitarian law be tried by the ICC.  They could be prosecuted in other courts instead.

            With respect to treaties, the Charter provides in Article 103 that in the event of a conflict between a state's obligations under an international agreement and the U.N. Charter, the obligations under the Charter shall prevail. Many Chapter VII resolutions have required modification or suspension of trade or mutual defense agreements.  Thus, the obligation to comply with Security Council decisions made under Chapter VII would seem to prevail, for states parties to the ICC Statute, over their rights and obligations under the ICC Statute.  This does not mean that the Security Council has amended the Statute, as some have argued, but that in every treaty it is implicit that its terms are subject to overriding U.N. obligations.

C.  Consistency of Article 16 with the U.N. Charter

            The discussion above concerning whether Resolution 1422 is consistent with Article 16 of the Statute begs the question whether Article 16 is consistent with the U.N. Charter.  A situation might arise, for example, where the Security Council finds it expedient to grant amnesty to a leader who is committing war crimes, genocide, or crimes against humanity, as an inducement for that leader to surrender power and cease committing the crimes.  That leader might be willing to step down only if he were assured that the amnesty would be permanent, and Article 16's limitation of a one-year, albeit renewable, suspension of proceedings might not be a sufficient inducement.  Under such circumstances, the Security Council might well be acting within its authority to decide that a permanent ban on ICC proceedings was necessary, notwithstanding the limitation contained in Article 16.  Whether or not that would be a wise decision, it would appear to be within the Security Council's discretion to take such an action if it decided that it was the best way to restore peace and security. 

D.  Whether Resolution 1422 Binds the ICC

            Critics of Resolution 1422 have advanced two arguments that it does not bind the ICC.  They note that not all Security Council resolutions are binding, but only "decisions" made under Chapter VII.  As a result, when the Council intends to bind states, it invariably uses the word "decides."  They contend that since paragraph 1 of Resolution 1422 uses "requests" and not "decides," it is not binding.  The countervailing argument is that the Council used "requests" only because that is the term used in Article 16 of the Statute, and that the intent was to bind the court (shown by the Council's express reliance on Chapter VII of the Charter and its use in the operative part of the resolution of the words "shall . . . not commence or proceed").

            The other argument is that the U.N. Charter places the obligation to comply with Security Council decisions only on states and not international organizations or other entities. [14]  In this regard, Article 48(2) specifies that decisions of the Security Council shall be carried out both by members directly and through their actions as members of international organizations, but the ICC prosecutor is independent, and his or her decisions on whom to prosecute are not controlled by the states parties.  Thus, while parties could be required to vote in the Assembly of States Parties in a manner consistent with Resolution 1422, the Resolution might not bind the prosecutor in his or her decisions.  This argument raises the question whether international organizations can be endowed with powers beyond those of the states which created them.  To the extent the parties to the ICC Statute are bound by Security Council determinations, it might be argued that the court itself, as a creation of states, should also be bound. In any event, paragraph 3 of the Resolution is directed at states and would prohibit them from turning suspects over to the court or from cooperating with it in any way that would be inconsistent with the Resolution.

III. Conclusion

            The dispute over the scope of the Security Council's authority to defer proceedings under Article 16 of the ICC Statute raised strong emotions.  The U.S. expressed satisfaction.  It stated that it would allow time to negotiate agreements under Article 98, which provides that the ICC may not require a state to surrender an individual if an agreement between the requested state and the sending state requires the sending state's consent.  However, it angered many states and others who support the Court, some suggesting either that the ICC is not bound by the Resolution or that it should seek through the General Assembly an advisory opinion from the International Court of Justice.

            Disputes concerning the ICC are likely to arise again, and a better solution must be found.  One might be based upon Article 124 of the Statute, that allows parties to opt out of ICC jurisdiction over war crimes for seven years.  The U.S. sought, unsuccessfully, an interpretation from the ICC Preparatory Commission that this provision could be used by non-parties.  Some argue that it was an oversight not to treat non-parties the same as parties under Article 124, while others maintain that it was intentional and intended as an incentive to states to become parties.  A resolution by the ICC Assembly of States Parties extending the benefits of this provision to non-parties might address the concerns of the U.S. while being consistent with the integrity of the ICC statute.

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