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Aspects of the relationship between the International Criminal Court and the United Nations*

Published online by Cambridge University Press:  07 July 2009

D. Sarooshi
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Extract

The conclusion and adoption of the Statute of a permanent International Criminal Court (hereafter ‘the Statute’) in Rome in July 1998 represented a turning point in the enforcement of legal norms regulating armed conflict. The establishment and functioning of the UN International Criminal Tribunals for the former Yugoslavia and Rwanda represented an important first step in this area, and the work of these tribunals will prove of considerable importance to the interpretation and application by the ICC of the body of substantive law that it will apply. However, the separate treaty basis of establishment of the ICC means that it is clearly not part of the UN Organization which consists of the six principal organs specified in Article 7(1) of the Charter and their subsidiary organs. As such there is a very clear distinction in institutional terms between the ICC and the ICTY/ICTR that were both established by the UN Security Council as UN subsidiary organs pursuant to Chapter VII of the Charter. This differing basis of establishment raises the key issue of the nature of the relationship between the ICC and the UN.

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Articles
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Netherlands Yearbook of International Law , Volume 32 , December 2001 , pp. 27 - 53
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Copyright © T.M.C. Asser Press 2001

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References

1. The words ‘the Court’ and ‘ICC’ are used interchangeably hereafter to refer to the permanent International Criminal Court.

2. The Statute was adopted by the UN Sponsored Diplomatic Conference in Rome on 17 July 1998 by 120 States voting in favor, seven States voting against and 21 States abstaining in the vote. UN Doc. A/Conf. 183/9 (17 July 1998); 38 ILM (1998) p. 1002; Trb. 1999 No. 13 and 2000 No. 120; www.un.org/law/icc. The Statute entered into force on 1 July 2002, in accordance with Article 126.

3. See more generally, for example, Caflisch, L., ‘Toward the Establishment of a Permanent International Criminal Jurisdiction’, 4 International Peacekeeping (1998) No. 5, p. 110.Google Scholar

4. The UN International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda are hereafter referred to as ICTY and ICTR, respectively.

5. Art. 2 of the ICC Statute provides that ‘[t]he 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.’ For the Draft Relationship Agreement between the Court and the United Nations see Report of the Preparatory Commission for the International Criminal Court (continued). Preparatory Commission for the International Criminal Court, PCNICC/2001/1/Add.1, 8 January 2002.

6. A relationship may also develop between the International Court of Justice and the ICC, see Higgins, R., ‘The Relationship between the International Criminal Court and the International Court of Justice’, in Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos, von Hebel, H.A.M., Lammers, J.G., AND Schukking, J., eds. (The Hague, T.M.C. Asser Press 1999) p. 163CrossRefGoogle Scholar. Moreover, on the relationship between the ICC and the ICTY (while the latter continues to exist), see May, R., ‘The Relationship between the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia’Google Scholar, in Von Hebel et al., ibid., at p. 155.

7. As Sir Franklin Berman has observed: ‘In my view far and away the most important of them [the Court's relationships] will prove to be the developing relationship with the Security Council.’ (Berman, F., ‘The Relationship between the International Criminal Court and the Security Council’Google Scholar, in Von Hebel et al., op. cit. n. 6, at p. 173.)

8. The other two ways, contained in Art. 13, are where a reference to the Prosecutor has been made by a state party in accordance with Art. 14 or where the Prosecutor has initiated an investigation at his or her own discretion in accordance with Art. 15 of the Statute. These ways in which the Prosecutor can be seized of a case are, however, a separate question from that of the preconditions which must be met before the Court can exercise its jurisdiction in a case. These are contained in Art. 12 of the Statute. However, in the case of a Security Council referral there is no requirement under Art. 12 that the state or states whose territories are involved in the ‘incident’ must have accepted the jurisdiction of the Court by becoming states parties or accepting the Court's jurisdiction on an ad hoc basis in the particular case (Art. 12(3) of the Statute). As such, a Security Council referral can have the effect of extending the jurisdiction of the Court to include non-states parties.

9. This concern is reflected further in Art. 15 which contains the powers of the Prosecutor. Although Art. 15(1) gives the Prosecutor the competence to initiate investigations ‘proprio motu’ in respect of crimes within the jurisdiction of the Court, it is clear, however, that this is not without constraint: the Prosecutor must make, under Art. 15(3) and (4), representations before a Pre-Trial Chamber of the Court and obtain an authorization for an investigation to proceed.

10. See infra nn. 47, 50 and corresponding text.

11. Scheffer, D., ‘Staying the Course with the International Criminal Court’, 35 Cornell ILJ (2001–2002) p. 47 at p. 90.Google Scholar

12. On the independence of the Prosecutor's discretion from the Security Council, see infra nn. 16–17 and corresponding text.

13. On this consequence of a Security Council referral, see op. cit. n. 8.

14. See Arbour, L. and Bergsmo, M., ‘Conspicuous Absence of Jurisdictional Overreach’Google Scholar, in Von Hebel et al., op. cit. n. 6, p. 129; at pp. 139–140.

15. Crawford, J., ‘The ILC's Draft Statute for an International Criminal Tribunal’, 88 AJIL (1994) p. 140, at p. 147CrossRefGoogle Scholar. Note that under the ICC Statute, as opposed to the ILC Draft Statute, there is the third way of the Prosecutor, subject to certain constraints, being able to bring a case: see op. cit. n. 9.

16. This was reiterated by, for example, Italy and Indonesia at the Rome Conference: see Hafner, G. and Boon, K., Rubesame, A. and Huston, J., ‘A Response to the American View as Presented by Ruth Wedgwood’, 10 EJIL (1999) p. 108, at pp. 114–115.CrossRefGoogle Scholar

17. As Sir Franklin Berman, Head of the UK delegation to the Rome Conference, has stated: ‘the reference by the Council is made to the Prosecutor, not to the judicial arm direct, thus preserving intact the independence of the Prosecutor's functions. As the International Law Commission had originally foreseen, it remains the exclusive responsibility of the Prosecutor “to determine which individuals should be charged with crimes” (now subject of course to the approval of the Pre-Trial Chamber where that is provided for in the Statute).’ (Berman, op. cit. n. 7, at p. 174.)

18. In the case where the Prosecutor decides not to initiate an investigation having taken into account the gravity of the crimes and the interests of the victims as provided for in Art. 53(1)(c), then he or she must inform the Pre-Trial Chamber.

19. This is where the Prosecutor, in accordance with Art. 53(1)(c), having taken into account ‘the gravity of the crime and the interests of victims, [decides that] there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice’; or where the Prosecutor has decided not to prosecute a case pursuant to Art. 53(2)(c) because he or she has decided that it is ‘not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the crime’.

20. See op.cit. n. 19.

21. See Judge Weeramantry in the Lockerbie case, ICJ Rep. (1992) p. 66, at p. 176; Cot, J-P. and Pellet, A., La Charte des Nations Unies, 2nd edn. (Paris, Economica 1991) at p. 645Google Scholar; and Simma, B., ed., The Charter of the United Nations: A Commentary (Oxford, Oxford University Press 1994) at p. 608.Google Scholar

22. See text that precedes and follows infra n. 24.

23. See on the veto power, for example, Cot and Pellet, op. cit. n. 21, at p. 495; and Simma, op. cit. n. 21, at p. 430.

24. On the competence of the Security Council under the UN Charter to establish such ad hoc criminal tribunals, see Sarooshi, D., ‘The Legal Framework Governing United Nations Subsidiary Organs’, 67 BYIL (1996) p. 413, at pp. 422 et seq.Google Scholar

25. As Arsanjani observed: ‘some States opposed granting such a right to the Security Council. In their view, such a role would reduce the credibility and moral authority of the Court, undermine its independence and impartiality and open a possibility for exerting political influence on the Court.’ (Arsanjani, M., ‘Reflections on the Jurisdiction and Trigger Mechanism of the International Criminal Court’, in Von Hebel et al., op. cit. n. 6, p. 57, at p. 65Google Scholar.) See also Wilmshurst, E., ‘Jurisdiction of the Court’, in Lee, R., ed., The International Criminal Court: The Making of the Rome Statute (The Hague, Kluwer Law International 1999) p. 127, at p. 137Google Scholar; and Bergsmo, M., ‘Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal Court, and Their Possible Implications for the Relationship between the Court and the Security Council’ 69 Nordic JIL (2000) p. 87, at p. 93.Google Scholar

26. As quoted in Bergsmo, ibid.

27. Cf., for example, the earlier position taken by the ILC in its Draft Statute that ‘No prosecution may be commenced under this Statute arising from a situation which is being dealt with by the Security Council as a threat to or breach of the peace or an act of aggression under Chapter VII of the Charter, unless the Security Council otherwise decides.’ (Art. 23(3), Draft Statute for an International Criminal Court, ILC Rep., UN Doc. A/49/10 (1994) II, B, I, p. 85).

28. Kirsch, P., ‘Introduction’, in Von, Hebel et al. , op. cit. n. 6, p. 1, at p. 5.Google Scholar

29. On Part 9 more generally, see Swart, B. and Sluiter, G., ‘The International Criminal Court and International Criminal Co-operation’Google Scholar, in Von Hebel et al., op. cit. n. 6, at pp. 91 et seq.

30. Zimmerman, A., ‘The Creation of a Permanent International Criminal Court’, 2 Max Planck Yearbook of United Nations Law (1998) p. 169, at p. 223.Google Scholar

31. For example, in the case of the ICTY this is in accordance with Rule 59 and Rule 61(E) of the ICTY Rules of Procedure and Evidence. On procedural and evidential issues more generally, see for example, Shaw, M.N., ‘The International Criminal Court - Some Procedural and Evidential Issues’, 3 Journal of Armed Conflict Law (06 1998) p. 65.CrossRefGoogle Scholar

32. Sarooshi, D., ‘The United Nations Collective Security System and the Establishment of Peace’, 53 Current Legal Problems (2000) p. 621, at p. 627.CrossRefGoogle Scholar

33. Ibid., at pp. 627–628.

34. Ibid., at pp. 628–632.

35. On the eventual trial in this case, see Aust, A., ‘Lockerbie: The Other Case’, 49 (2) ICLQ (2000) p. 278.CrossRefGoogle Scholar

36. See Plachta, M., ‘The Lockerbie case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare’, 12 EJIL (2001) p. 125, at p. 136.CrossRefGoogle Scholar

37. On this principle, see Jennings, R. and Watts, A., Oppenheim's International Law (London, Addison Wesley Longman 1996) pp. 1260–1263.Google Scholar

38. Art. 41 of the UN Charter gives the Security Council the competence to ‘decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.’

39. Art. 25 of the Charter provides: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’ On Art. 25, see infra n. 45 and corresponding text.

40. Such a case may also have the consequence that a non-state party will, pursuant to Art. 103, have to ignore in a particular case its treaty obligations that conflict with the specific ICC decision that has been effectively adopted by the Council. On Art. 103, see infra n. 48 and corresponding text.

41. Art. 16 of the Statute, entitled ‘Deferral of investigation or prosecution’, provides that ‘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.’

42. On the separate question whether the Security Council can seek to override this temporal limitation and defer an investigation or prosecution by passage of only one Chapter VII resolution, see infra n. 47.

43. As Dr Lee states in relation to the power of deferral under Art. 16: ‘[i]n this way, the Security Council's responsibility for the maintenance of peace and security is recognized and balanced with the Court's role as an instrument for justice’. (Lee, R., ‘Introduction: The Rome Conference and its Contributions to International Law’Google Scholar, in Lee, op. cit. n. 25, p. 1, at p. 36). See also Scheffer, op. cit. n. 11, at p. 91. On the negotiating history of this provision, see Arsanjani, op. cit. n. 6, at p. 72; and Bergsmo, M. and Pejić, J., ‘Article 16’, in Triffterer, O., ed., Commentary on the Rome Statute of the International Criminal Court (Baden Baden, Nomos Verlagsgesellschaft 1999) p. 373.Google Scholar

44. Bergsmo, op. cit. n. 25, at pp. 112–113.

45. See the commentary on Art. 25 in Simma, op. cit. n. 21, at p. 407; White, N., The Law of International Organisations (Manchester, Manchester University Press 1996) pp. 90–91Google Scholar; Cot and Pellet, op. cit. n. 21, at p. 471.

46. Art. 103 of the UN Charter provides: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ On Art. 103, see infra n. 48.

47. This follows from the principle of attribution: that an international organization cannot act beyond those powers attributed to it by member states as set out in its constituent treaty. See Schermers, H.G. and Blokker, N.M., International Institutional Law: Unity Within Diversity, 3rd edn. (The Hague, Martinus Nijhoff 1995) at p. 141Google Scholar. In the case of the ICC, this means, for example, that the Security Council cannot expand the jurisdiction of the Court to include crimes not set out in the Statute, since if the Court were to exercise this expanded jurisdiction then it would be acting ultra vires its Statute. It also means that a Security Council resolution purporting to dispense with the temporal requirement in Art. 16 that a Council deferral must be renewed every 12 months would not bind the Court.

Cf., however, in the case of the Court's jurisdiction the express competence of the Council pursuant to Art. 13(b) of the Statute to make referrals to the Prosecutor thereby potentially extending the jurisdiction of the Court to encompass non-states parties: see op. cit. n. 8.

48. See Schermers and Blokker, ibid., at pp. 1068–1069; Cot and Pellet, op. cit. n. 21, at p. 1381; and Simma, op. cit. n. 21, at p. 1116. See as an example of how Art. 103 operates in practice, the Lockerbie case, Provisional Measures Phase, ICJ Rep. (1992) pp. 3 et seq.

49. For a possible example of such a Security Council decision, see text preceding infra n. 53.

50. Cf., however, the attempt by ICTY Trial Chamber III in the Todorovic case to order the North Atlantic Treaty Organization (NATO) to disclose to the Defence for Stevan Todorovic all documentary evidence relating to his detention and arrest by NATO forces (in casu, the Stabilization Force in former Yugoslavia known as SFOR) per its Decision of 18 October 2000. This case is of present interest, since the ICTY as a subsidiary organ of the Security Council was exercising powers delegated by the latter, and as such it raises the issue of the Council's power to issue binding orders to international organizations. There are, nonetheless, serious legal difficulties in the opinion of this writer with the approach by Trial Chamber III. In particular, the ICTY only has the competence under Article 29 of its Statute to make decisions that bind UN member states: it does not possess the competence to make decisions that bind international organizations that possess a legal personality distinct from their members. The Security Council did not even purport to delegate such a power to the ICTY, and as such this case does not change the conclusion in the text.

In the event, the appeal against this order was not heard by the Appeals Chamber, since the challenge by Todorovic to the legality of his arrest and detention, initially by SFOR, before the ICTY was dropped when he pleaded guilty to a reduced number of counts. On the full procedural history of this case, see Prosecutor v. Stevan Todorovic, Sentencing Judgment, 31 July 2001, paras. 1–22 (available at ICTY's web page: www.un.org/icty/todorovic/judgement/tod-tj010731e.htm).

51. Art. 40(1) of the Statute provides that the ICC judges ‘shall be independent in the performance of their functions’.

52. On the independence of the Prosecutor from ICC member states, see op. cit. nn. 16–17 and corresponding text.

53. Art. 110(2) of the ICC Statute states: ‘The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person.’

54. The first of these is contained in Art. 110(3) of the Statute which provides: ‘When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.’ The real difficulty, however, lies in the conditions set out in Art. 110(4) which clearly indicate that the Court is to consider the interests of the ICC when it provides: ‘In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.’ These are of course directed at the ‘justice’ mandate of the ICC which is very different to the ‘peace and security’ mandate of the Council.

55. A more likely type of Security Council decision here may be that the Council decides that a sentenced person should be able to serve out his sentence in the state of his nationality.

56. On the general system of the Statute relating to the acceptance of prisoners for incarceration, see Chimimba, T.P., ‘Establishing An Enforcement Regime’Google Scholar, in Lee, op. cit. n. 25, p. 345 at pp. 350–354; Strijards, G.A.M., ‘Part 10: Enforcement’Google Scholar, in Triffterer, op. cit. n. 43, at p. 1159 et seq.

57. On the ICC – Netherlands relationship more generally, see Corell, H., ‘The Relationship between the International Criminal Court and the Host Country’Google Scholar, in Von Hebel et al., op. cit. n. 6, at p. 181.

58. See op. cit. n. 8 and corresponding text.

59. See op. cit. nn. 37–40 and corresponding text.

60. Wedgwood, for example, has stated that ‘The worry of Washington is that the category of aggression may be misused by some states to discourage the necessary deployment of military forces in peace enforcement, peacekeeping, freedom of navigation and anti-terrorist exercises.’ (Wedgwood, R., “The International Criminal Court: An American View’, 10 EJIL (1999) p. 93, at p. 105CrossRefGoogle Scholar). On the more general concern that potential ICC prosecutions may affect states’ willingness to contribute to UN peace-keeping and enforcement actions, see Scheffer, op. cit. n. 11, at pp. 61 et seq.

61. See op. cit. n. 42 and corresponding text.

62. The possibility of ICC review of Council decisions was an important reason underlying the inclusion by the ILC in its Draft Statute of a consent limitation in respect of the proposed Court's jurisdiction. As Professor Crawford stated after the adoption by the ILC of its Draft: ‘Where the Council is taking action under chapter VII, a prosecution “arising from” that situation may not be commenced without the Council's prior authorization. This proviso is intended to avoid “collateral challenges” to Security Council action that is under way.’ (Crawford, J., ‘The ILC Adopts a Statute for an International Criminal Court’, 89 AJIL (1995) p. 404, at p. 413CrossRefGoogle Scholar). This was not in the end, however, the approach taken at the Rome Conference which instead adopted Art. 16 of the Statute which gives the Council the competence to defer, by adoption of a resolution, an investigation or prosecution by the ICC. See op, cit, n, 42 and corresponding text.

63. Cf., infra Section 2.4.2. in the text.

64. Arsanjani makes the point that Art. 5(2) is ‘intended to take account of the concerns of the permanent members of the Security Council that the statute must not be used to amend the Charter by infringing on the competence of the Council to determine acts of aggression.’ (Arsanjani, M., ‘The Rome Statute of the International Criminal Court’, 93 AJIL (1999) p. 22, at p. 30CrossRefGoogle Scholar.) See also Yee, L., ‘The International Criminal Court and the Security Council: Articles 13(b) and 16’Google Scholar, in Lee, op. cit. n. 25, p. 143, at p. 145.

65. Proposal by Germany concerning Art. 20 of the draft Statute of the ICC to the Preparatory Committee on the establishment of an International Criminal Court, Working Group on Definitions and Elements of Crime, A/AC.249/1997/WG.1/DP.20, 11 December 1997, p. 1, at p. 2.

66. This option 3, adopted by the Preparatory Committee, reflected the outcome of negotiations between the Permanent Members of the Security Council on ‘acceptable language on the crime of aggression’. (Scheffer, D., ‘The United States and the International Criminal Court’, 93 AJIL (1999) p. 12, at p. 14CrossRefGoogle Scholar). The German government also supports the requirement that the Security Council must first determine that a state has committed an act of aggression before the ICC can hear a case involving the crime of aggression: Proposal by Germany concerning Art. 20 of the draft Statute of the ICC to the Preparatory Committee on the establishment of an International Criminal Court, Working Group on Definitions and Elements of Crime, A/AC.249/1997/WG.1/DP.20, 11 December 1997, p. 1, at p. 2.

67. This approach was not, however, universally accepted at the Rome Conference. As Arsanjani observed: ‘While many states preferred a fixed and independent definition of aggression insusceptible to review by the Security Council, other states, including the five permanent members, took the position that the court could exercise jurisdiction with respect to this crime only after the Council determined that an act of aggression had occurred.’ (Arsanjani, op. cit n. 64, at p. 2.).

68. In the words of Professor James Crawford, the ILC Special Rapporteur concerned, ‘Because aggression is the paradigmatic crime of state, there may be a problem in seeking to try individuals for aggression in the absence of a finding against the state. But there is a converse problem: it is primarily within the competence of the Security Council under Chapter VII of the Charter to determine whether an act of aggression has occurred, and such determinations by the Council are capable of having independent legal effects. The [ILC] Draft Statute seeks to resolve the problem by providing that a charge or, or directly related to, an act of aggression may not be brought unless the Security Council has first determined that the state concerned “has committed the act of aggression which is the subject of the charge” (Art. 27).’ (Crawford, J., ‘The ILC's Draft Statute for an International Criminal Court’, 88 AJIL (1994) p. 140, at p. 147.CrossRefGoogle Scholar)

69. Despite having made a number of early determinations that ‘aggressive acts’ had been committed by Southern Rhodesia (UN Secretariat Study, ‘Historical Review of Developments Relating to Aggression’, PCNICC/2002/WGCA/L.1, paras.383–388) and South Africa (ibid., paras. 389–398), and a few such additional determinations in incidents concerning Benin (ibid., para. 399), Tunisia (ibid, paras. 400–402), and Iraq (ibid., paras. 403–404), the Security Council has not made a determination using the term aggression since 1990. The latter was in resolution 667 of 16 September 1990 where the Council, as part of its response to Iraq's invasion of Kuwait, strongly condemned ‘aggressive acts perpetrated by Iraq against diplomatic premises and personnel in Kuwait, including the abduction of foreign nationals who were present in those premises’, but it failed, however, to characterize more generally Iraq's invasion of Kuwait as an act of aggression.

70. Annex 1(F)(7) of the Rome Final Act states that the Preparatory Commission ‘shall prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the states parties in accordance with the relevant provisions of this Statute.’

71. On this, Bergsmo states: ‘It [the ICC] will probably have competence to investigate aggression sometime in the future, provided agreement is reached on the definition of the crime and the conditions under which the Court may exercise jurisdiction over this crime. Judging from the history of attempts to define aggression and the preliminary work of the Working Group on the Crime of Aggression in the Preparatory Commission, the process is going to be very difficult and time-consuming.’ (Bergsmo, op. cit. n. 25, at p. 98). For a brief description of some of the difficulties in reaching agreement on the definition of aggression at the Rome Conference, see von Hebel, H. and Robinson, D., ‘Crimes within the Jurisdiction of the Court’Google Scholar, in Lee, op. cit. n. 25, p. 79, at pp. 82–83. On the US view of this crime, see ‘U.S. View of Crime of Aggression’, 95 AJIL (2001) p. 400.Google Scholar

72. Tadić case, Case No. IT-94–1-AR72 (2 October 1995), 35 ILM (1996) p. 32, at para. 18. See also Cheng, B., General Principles of Law as applied by International Courts and Tribunals (Cambridge, Cambridge University Press 1953) at pp. 275–301.Google Scholar

73. In the Namibia case the ICJ stated that it did not possess a power of judicial review over Security Council resolutions as a matter of its ‘primary’ jurisdiction, but it then proceeded to examine as a matter of its ‘incidental’ jurisdiction the question of the validity of the Security Council resolutions that had been questioned in the case by South Africa since their legality was a precondition to the Court having jurisdiction in the case. As the Court stated: ‘[T]he question of the validity or conformity with the Charter of General Assembly Resolution 2145 (XXI) or of related Security Council resolutions does not form the subject of the request for advisory opinion. However, in the exercise of its judicial function and since objections have been advanced, the Court, in the course of its reasoning, will consider these objections before determining any legal consequences arising from those Resolutions.’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Rep. (1971) p. 16, as contained in 49 ILR p. 2, at p. 35.)

74. The Appeals Chamber in the Tadić case stated: ‘There is no question, of course, of the International Tribunal acting as a constitutional tribunal, reviewing the acts of the other organs of the United Nations, particularly those of the Security Council, its own “creator”. It was not established for that purpose, as is clear from the definition of the ambit of its “primary” or “substantive” jurisdiction in Articles 1 to 5 of its Statute. But this is beside the point. The question before the Appeals Chamber is whether the International Tribunal, in exercising this “incidental” jurisdiction, can examine the legality of its establishment by the Security Council, solely for the purpose of ascertaining its own “primary” jurisdiction over the case before it.’ (Tadić case, op. cit. n. 72, at para.20.) The Appeals Chamber in Tadić went on to review the validity of Security Council resolution 827 which established the Tribunal, and in so doing discussed the limits of the powers of the Council. Nonetheless, the Appeals Chamber did find that the adoption of resolution 827 was within the powers of the Security Council, (ibid., at para. 36) and that the Tribunal had been lawfully established as a measure under Chapter VII of the Charter, (ibid., at para. 40).

75. The Appeals Chamber stated: ‘A narrow concept of jurisdiction may, perhaps, be warranted in a national context but not in international law. International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system (unless otherwise provided). Of course, the constitutive instrument of an international tribunal can limit some of its jurisdictional powers, but only to the extent to which such limitation does not jeopardize its “judicial character”. (Tadić case, op. cit. n. 72, at para. 11). (Emphasis added).

76. See UN Document: Draft budget for the first financial year of the Court, Preparatory Commission for the International Criminal Court, PCNICC/2001/WGFYB/L.1, 8 August 2001.

77. See UN Document: Report of the Preparatory Commission for the International Criminal Court (continued). Preparatory Commission for the International Criminal Court, PCNICC/2001/1/Add.2, 8 January 2002. These draft Regulations provide, inter alia, further details in relation to the scale of assessment of contributions by states parties. These represent an addition to the general provision already governing this matter contained in Art. 117 of the ICC Statute. On scales of assessment in the financing of international organizations, including the UN, see Schermers and Blokker, op. cit. n. 47, at pp. 610 et seq.

78. The Draft Relationship Agreement between the Court and the UN specifies in Art. 13(1) that the conditions under which any funds may be provided to the Court by General Assembly decision is not covered by the Agreement, and shall be the subject of special arrangements. See UN Document: Draft Relationship Agreement between the Court and the United Nations, Report of the Preparatory Commission for the International Criminal Court (continued), Preparatory Commission for the International Criminal Court, PCNICC/2001/1/Add.1, 8 January 2002.

79. ICJ Rep. (1962) at p. 162.

80. There was brief discussion in the ICC Preparatory Committee of such a type of arrangement with no real enthusiasm for it going ahead. The reasons for this seem to relate mostly to concerns about the nature and functions of the ICC being such that its status as a Specialized Agency was not appropriate. (A. Marchesi, ‘Article 2’, in Triffterer, op. cit. n. 43, p. 65, at p. 69; Clark, R., ‘The Proposed International Criminal Court: Its Establishment and Its Relationship with the United Nations’, 8 Criminal Law Forum (1997) p. 411, at p. 422).CrossRefGoogle Scholar

81. UN Juridical Yearbook (1976) at p. 200.Google Scholar For further examples and analysis of this type of UN treaty organ, see Schermers and Blokker, op. cit. n. 47, at pp. 415–418; and Sarooshi, op. cit. n. 24, at pp. 433–434.

82. Schermers and Blokker, op. cit. n. 47, at p. 411.

83. In fact, a far more radical proposal was made by states at the Rome Conference: to amend the UN Charter and thereby include the ICC as a UN principal organ. (A. Marchesi, ‘Article 2’, in Triffterer, op. cit. n. 43, p. 65 at pp. 66–67.) Such a proposal would clearly have compromised the independence and separate legal personality of the ICC.

84. Sarooshi, op. cit. n. 24, at pp. 432–458

85. The Assembly of states parties has, for example, the power to amend the Elements of Crimes of the Court (Art. 9(3) of the Statute), elect ICC judges (Art. 36), elect the Prosecutor (Art. 42(4)), recommend the Registrar to be elected by the judges (Art. 43(4)), remove from office a judge, the Prosecutor, or a Deputy Prosecutor (Art. 46(2)), amend the ICC Rules of Procedure and Evidence (Art. 51(2)), and consider and decide the budget of the Court (Art. 112(2)(d)). On the Assembly of states parties more generally, see Rama Rao, S., ‘Assembly of States Parties’Google Scholar, in Triffterer, op. cit. n. 43, at pp. 1201 et seq.

86. See Art. 24 of the Draft Relationship Agreement between the Court and the United Nations, Report of the Preparatory Commission for the International Criminal Court (continued), Preparatory Commission for the International Criminal Court, PCNICC/2001/1/Add.1, 8 January 2002. A failure by the General Assembly to act at this time would not, however, preclude the Assembly from adopting the ICC as a UN treaty organ at a later point in time.

87. Scheffer, op. cit. n. 66, at p. 17.

88. Gerson, A., ‘Multilateralism à la Carte: The Consequences of Unilateral ‘Pick and Pay’ Approaches’, 11 EJIL (2000) p. 61, at pp. 63–64.CrossRefGoogle Scholar

89. See e.g., Francioni, F., ‘Multilateralism à la Carte: The Limits to Unilateral Withholdings of Assessed Contributions to the UN Budget’, 11 EJIL (2000) p. 43, at p. 55.CrossRefGoogle Scholar

90. See in support of this general approach the statement by a former President of the International Court of Justice, Judge Winiarski, who in the Expenses case stated that ‘a refusal to pay, as in the case before the Court, may be regarded by a Member State, loyal and indeed devoted to the Organization, as the only means of protesting against a resolution of the majority which, in its opinion, disregards the true meaning of the Charter and adopts in connection with it a decision which is legally invalid’. (Expenses case, ICJ Rep. (1962) at p. 232.)

91. Such a unilateral withholding is a measure of last resort (Francioni, op. cit. n. 89, at p. 59 and Alvarez, J., ‘Financial Responsibility’Google Scholar, in Schachter, O. and Joyner, C., United Nations Legal Order (Cambridge, Cambridge University Press 1995) Vol. 2, p. 1091, at p. 1108Google Scholar) and would need to comply with the limitations on withholdings by a state from the UN budget before it could be deemed lawful. For detailed consideration of these limitations, see Francioni, ibid., at p. 43; and Alvarez, ibid., at p. 1108.

92. Sarooshi, op. cit. n. 24, at pp. 454–455.