James5

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Innomawire has a summary of some of the issues facing the ICC in relation to Sudan in a recent post. It does a good job of outlining some of the issues arising out of the fragmented nature of international law and the inter-relation of treaties.

I wonder though about this section:

The President of the ICC, Philippe Kirsch, and the then Secretary-General of the UN, Kofi Annan, each representing his institution, finally signed this agreement on 4 October 2004. This came after both the Assembly of States Parties of the ICC and the General Assembly of the UN had approved the draft agreement, respectively on 7 and 13 September 2004. Article 2(3) of this Agreement commits both the UN and the ICC to respect each other’s status and mandate. One could therefore argue that all member states of the UN are bound by this agreement, which obligates them to respect the provisions of the Rome Statute. While this Agreement does not establish a direct ICC jurisdiction over UN members, it implies the acceptance, by the UN, of the provisions of Article 13(2) of the Rome Statute. Should the UN Security Council therefore refer to the ICC the situation arising from events in a member state, such as Sudan, in accordance with this prerogative it has accepted in the Rome Statute, that state has to respect and abide by that referral because of its membership of the UN.

I would be doubtful about any attempts to interpret the Realtionship Agreement as a source of binding law on UN member states. First, I’m not sure “respecting” the status and mandate of the Rome Statute requires full co-operation with the ICC.

Second, and more importantly, the agreement seems to be more akin to a relationship between two international legal institutions as opposed to an agreement between their members. As the UN and ICC have separate legal personality from their member States, they can enter into agreements binding on the institutions without impacting directly the rights and obligations of their members. The terms of the UN-ICC Agreement seem to relate much more to the institutional relationship.

That isn’t to say that UN members don’t have to abide by the referral, the broad powers the Security Council has under Chapter VII allows it to bind UN members in precisely the way it did in the referral. Though a somewhat novel exercise of Security Council power, it has tangential precedent in the establishment of the ICTR and ICTY.

Perhaps more interesting is how the Prosecutor is meant to exercise its power under the referral, given that the Security Council resolution doesn’t conform exactly to the requirements of the Rome Statute. Are the non-conforming aspects severable? Additionally, did Rome Statute signatories break their good faith duty to the ICC by voting for this problematic resolution?

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I’m hurriedly ‘finishing off’ an essay on the ICC and Security Council referral, so this post on some of the upcoming issues of jurisdiction and deferral in relation to the ICC and Security Council is very timely. Alex de Waal questions the legality of the Security Council enforcing ICC jurisdiction upon non-parties to the Rome Statute, I’m arguing that the almost plenary powers granted to the Security Council by the UN Charter mean it is able to do that under it’s Chapter VII powers, as evidenced by the creation of the ICTR and ICTY. It’s hard to see how they could create Tribunals and force States to comply with them but not be able to refer situations to existing institutions.

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International politics is a strange world, for example the connection between Rwanda and Georgia. Russian peace-keepers ended up in South-Ossetia due to a compromise reached when trying to get peace-keepers into Rwanda.

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Opinio Juris has a good discussion going over the limits of the powers of the UN Security Council - particularly in referring matters to non-UN judicial bodies such as the ICC.

Chapter VII of the UN Charter grants the Security Council wide discretionary power in regards to maintaining “peace and security”, and even though there was some controversy over the creation of judicial bodies like the ICTR and ICTY (as the Security Council has no judicial power it was questioned whether it had the power to create bodies that did), it now seems clear that the Security Council is able to create subsidiary judicial organs such as the ad hoc tribunals.

I can’t imagine this power wouldn’t also extend to referrals to bodies such as the ICC, given this precedent and the wide discretion available to the Security Council when dealing with matters. The problem is extending the powers of the ICC beyond its signatory nations - even though Sudan hasn’t signed up to the Rome Statute the Security Council is effectively placing their head of state under the ICC’s jurisdiction.

This is especially interesting for the United States who, not having signed the Rome Statute and actively signing immunity agreements, is potentially opening itself up to ‘back door’ ICC prosecution. Of course, given their veto power on the Council they have nothing to fear in reality, but the precedent is now there.

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