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UN Security Council Referrals to the International Criminal Court
Legal Nature, Effects and Limits
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This book offers a unique critical analysis of the legal nature, effects and limits of UN Security Council referrals to the International Criminal Court (ICC). Alexandre Skander Galand provides, for the first time, a full picture of two competing understandings of the nature of the Security Council referrals to the ICC, and their respective normative interplay with legal barriers to the exercise of universal prescriptive and adjudicative jurisdiction. The book shows that the application of the Rome Statute through a Security Council referral is inherently limited by the UN Charter as well as the Rome Statute, and can conflict with other branches of international law, including international human rights law, the law on immunities and the law of treaties. Hence, it spells out a conception of the nature and effects of Security Council referrals that responds to these limits and, in turn, informs the reader on the nature of the ICC itself.
Alexandre Skander Galand, Ph.D. in Law (2015), European University Institute (EUI), is Post-Doctoral Researcher on the project The Individualisation of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict, conducted by the EUI in partnership with the University of Oxford. He has published articles on various aspects of international criminal law, international human rights law and international humanitarian law.
Acknowledgements Introduction Methodological Approaches The Goals of the Book Plan of the Book 1 Conceptions of Courts and their Jurisdiction 1 Types of Jurisdiction 2 Heads of Jurisdiction 3 Delegation of Jurisdiction 4 The Nuremberg & Tokyo Trials 5 The Nuremberg Principles and the work of the International Law Commission 6 The Ad Hoc Tribunals 7 The International Criminal Court 8 The two ‘Conceptions’ 8.1 Universal Jurisdiction Conception 8.2 Chapter
vii
Conception
9 The Amendments to the Rome Statute 9.1 The Kampala Review Conference 9.2 The New York Session Conclusion 2 Article 13 (b) vs State Sovereignty 1 Jurisdiction to Adjudicate 1.1 Chapter
vii
Conception–Taking Judicial Measures under Article 41 UN Charter 1.2 Universal Jurisdiction Conception–The International Community’s Right to Adjudicate International Crimes 2 Jurisdiction to Prescribe 2.1 Does the Rome Statute Impose New Crimes? 2.2 Chapter
vii
Conception–Legislating as an Enforcement Measure 2.2.1 Unilateral in Form 2.2.2 Create or Modify Existing Law 2.2.3 General in Nature 2.2.4 Right to Prescribe Criminal Law (but Presumption against it) 2.2.5 Presumption Rebutted in Case of Rome Statute 2.2.6 Substantive Limits to Prescribe Criminal Law as an Enforcement Measure 2.2.6.1 Case Related Reaction 2.2.6.2 Concrete Effect 2.2.6.3 Temporary Measures 2.3 Universal Prescriptive Jurisdiction 2.3.1 Treaty-based Universal Jurisdiction 2.3.2 A Sui Generis Universal Jurisdiction 2.3.3 The Rome Statute is an act of the International Community as a Whole 2.3.4 Gravity of the Crimes Conclusion 3 Article 13 (b) vs Principle of Legality 1 The Jurisdiction Ratione Temporis of the Court 2 The Principle of Legality 3 The Status and Scope of Nullum Crimen Sine Lege in International Human Rights Law 4 The Specificity of International Criminal Law 5 The Rome Statute Distances itself from the Previous International Criminal Tribunals 6 A Statute Applicable since its Entry into Force 6.1 Exception for the Crimes Adopted after the Entry into Force of the Statute? 7 Universal Jurisdiction Conception–A Law Applicable to all since its Entry into Force 8 Chapter vii Conception–Refers the Situation since… 8.1 By Hook or by Crook–A Principle of Justice 8.2 Presumption of Respect for Human Rights in Relation to the Security Council 8.3 Here comes Super-Legality: Article 21 (3) Rome Statute 8.4 Accessibility and Foreseeability–A Relaxed Application of the Principle of Legality 8.5 A Strict Application of Legality Conclusion 4 Article 13 (b) vs Immunity of State Officials 1 Immunities of State Officials under International Law 2 Chapter
vii
Conception–The Security Council Power to Remove Immunities before International Criminal Courts 3 Universal Jurisdiction Conception–The Rome Statute Provision on Immunity Applies to All 4 The Arrest and Surrender of an Official Entitled to Immunity to the
Icc
4.1 Chapter
vii
Conception 4.1.1 Conflict between SC Referrals and other Treaty Obligations 4.2 Universal Jurisdiction Conception Conclusion 5 If Article 13 (b) Did Not Exist… 1 The SC and the Icc Relationship: An ‘Amour Impossible’ 2 Refer a ‘Situation’ 3 Is the
Icc
bound by Security Council Resolutions? Or, are they simply Bound Together? 4 The ‘Chapter
vii
Conception’ and the Lawful Establishment of the Jurisdiction: An ‘Amour Interdit’? 4.1 Independence and Impartiality Conclusion Conclusion Bibliography Cases Permanent Court of International Justice and International Court of Justice International Criminal Court International Criminal Tribunal for the former Yugoslavia International Criminal Tribunal for the former Yugoslavia Special Court for Sierra Leone Special Tribunal for Lebanon Human Rights Courts and Bodies Other Cases Index