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The Future We Want?

Reflections on the Exercise of the United Nations Security Council Members’ Veto Powers towards the International Criminal Court

In: Max Planck Yearbook of United Nations Law Online
Authors:
Michael Lysander Fremuth University Professor for Fundamental and Human Rights at the University of Vienna, Scientific Director of the Ludwig Boltzmann Institute of Fundamental and Human Rights, Scientific Director of the Master Programme ‘Human Rights’ at the University of Vienna michael-lysander.fremuth@univie.ac.at

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Konstantina Stavrou Researcher at the Ludwig Boltzmann Institute of Fundamental and Human Rights in the programme ‘Human Rights and International Criminal Law’ PhD candidate at the University of Vienna and Fellow of the Austrian Academy of Sciences konstantina.stavrou@univie.ac.at

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Open Access

The United Nations (UN) Security Council (UNSC) is endowed with the primary responsibility for the maintenance of international peace and security under Art. 24 (1) of the Charter of the United Nations (UNC). The establishment of the ad hoc criminal tribunals for Yugoslavia and Rwanda in the 1990s under Chapter VII of the unc has shown that individual criminal accountability for international core crimes belongs to the instruments to address threats to or breaches of peace (Art. 39 of the UNC). With the International Criminal Court (ICC) a permanent institution has been established to sanction the commission of international core crimes. Acting under Chapter VII, the unsc is entitled to refer a situation to the ICC according to Art. 13 (b) of the Rome Statute of the International Criminal Court (Rome Statute), as well as to defer proceedings (Art. 16 of the Rome Statute). By using their veto power each of the five permanent members of the unsc might block both types of resolutions. While a veto against an ICC referral resolution might hinder the Court from fulfilling its mandate (destructive veto), blocking a deferral resolution might enable the Court to continue its fight against impunity (constructive veto). This article discusses whether obligations stemming from the unc and other sources of public international law, in particular human rights, might impact the decisions of the unsc and the veto exercise in particular in both cases. It intends to contribute to the ongoing discussion by several reflections on the veto powers, and concludes that, even though the veto powers might be influenced by these legal sources, it will be difficult to guide the conduct of the five unsc Permanent Members (P5) with regard to the ICC.

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