The International Criminal Court in the System of States and International Organizations

Leiden Journal of International Law

Volumn 16, Issue 3, 2003, Pages 553-591

  Gallant, Kenneth S ^a  

^a UNIVERSITY OF ARKANSAS AT LITTLE ROCK   (United States)

Author keywords

International Criminal Court structure and powers; international organizations and treaties; international organizations relationships among; international organizations structure and powers; United Nations Security Council

Indexed keywords

EID: 34248045477     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156503001298     Document Type: Article

References (162)

1. By contrast, the International Court of Justice (ICJ) has authority to decide disputes between states, and to offer advisory opinions when requested by the General Assembly, the Security Council, or other UN organs or specialized agencies so authorized by the General Assembly. Statute of the International Court of Justice, Art. 36, annex to Charter of theUnitedNations (hereafterUNCharter) (done 26 June 1945; entered into force 24 Oct. 1945), 1 UNTS XVI (hereafter ICJ Statute); UN Charter, Art. 96. The ability of the ICJ to hear matters involving the International Criminal Court is discussed in text and notes 75, 100-15 and 172-4 infra. The European Court of Human Rights can, through a complex procedural mechanism, essentially hear claims that a government that has submitted to its jurisdiction has violated the rights of an individual, group of individuals, or non-governmental organization under the European Convention on Human Rights. See European Convention for the Protection of Human Rights and Fundamental Freedoms, SS. III, IV (done 4 Nov. 1950; entered into force 3 Sept. 1953), 213 UNTS 221. It is not, however, part of a worldwide organization, nor was it established as an international organization to provide an original means for prosecuting individuals-i.e., holding them accountable-in criminal or any other cases.
2. Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, as corrected by the procè s-verbaux of 10 Nov. 1998 and 12 July 1999 (hereafter ICC Statute).
3. This article will not consider the Court's jurisdiction over individuals. The author discusses that separately in K. S. Gallant, ‘Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts’, (2003) 48 Villanova Law Review 763.
4. See generally Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] ICJ Rep. 174 (the seminal case holding that the United Nations has international legal personality). Prof. Kirgis defines international personality as meaning that an entity has ‘rights and duties directly supplied by international law’. F. L. Kirgis, International Organizations in their Legal Setting (1993), 7. There is a large literature on the subject.
5. ICC Statute, generally Reparations for Injuries Suffered in the Service of the United Nations note 2, Art. 4(1). The International Seabed Authority created under the United Nations Convention on the Law of the Sea, UN Doc. A/CONF.62/122 (entered into force 16 Nov. 1994), Art. 176 (hereafter UNCLOS), ‘shall have international legal personality’. The UNCLOS treaty, in creating an Organ of the International Seabed Authority, the Enterprise, gives it legal capacity ‘within the framework of the international legal personality of theAuthority’.UNCLOS, Art. 170(2).However,UNCLOSAnnexVI, creating the International Tribunal for the Law of the Sea, does not contain similar language. According to a leading authority, as of 1994 there was no other international organization open to all states whose constituent documents expressly provided for the organization's international legal personality. C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (1996), 85.
6. See, e.g., Reparations Case, The International Seabed Authority created under the United Nations Convention on the Law of the Sea note 4.
7. ICC Statute, Reparations Case note 2, Art. 4(1).
8. ICC Statute., Art. 44.
9. See generally, e.g., I. Detter, Law-Making by International Organizations (1965), 177-9, suggesting that agreements which constitute operative acts carrying out international policies of international organizations should be judged by international law, but for other mundane agreements, national law might apply. See also H. G. Schermers and N. Blokker, International Institutional Law (1995), secs. 1745-6, at 1094-5. These authorities suggest that conflicts of laws principles might be used to determine the applicability of national or international law where there is a dispute involving an international organization making an agreement with a person or a corporation in a given state. Accord, Amerasinghe, ICC Statute note 5, at 71-2. See section 3 infra for a suggestion that agreements could provide concrete solutions to some of these issues.
10. ICC Statute, Law-Making by International Organizations note 2, Arts. 3(2), 48. These agreements are discussed in section 3 infra.
11. These agreements are discussed in section 3 infra., Art. 4(1) and (2). This can extend to other states by ‘special agreement’ (These agreements are discussed in section 3 infra.).
12. Amerasinghe, This can extend to other states by ‘special agreement’ note 5, at 70-7, discusses how provisions that give an international organization the right to contract or acquire property or to do other legal acts within the territory of member states effectively gives them legal personality within the systems of those states. The fact that the authorization to act in the ICCStatute, This can extend to other states by ‘special agreement’ note 2, Art. 4, is more general does not appear to disqualify it from having legal personality within those systems. Compare Convention on the Privileges and Immunities of the United Nations, GA Res. 22A, I GAOR, UN Doc. A/64, Art. 1 (entered into force 14 Dec. 1946) (the UN shall possess ‘juridical personality’ and ‘shall have the capacity’ to contract, acquire and dispose of property, and institute legal proceedings); Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea, SPLOS/25, Art. 2 (1997) (same language).
13. The notion of ‘objective’ international legal personality is the view that an international organization can have an objective existence (that is, as anentity separate from the states that created it), especially in the sense of being able to interact with non-member states. See generally Reparations Case, sections 3.2 (on agreements) and 5.2 (on situations involving states not party to the ICC Statute) infra note 4, at 185; Amerasinghe, sections 3.2 (on agreements) and 5.2 (on situations involving states not party to the ICC Statute) infra note 5, at 85-91; F. Seyerstad, ‘International Personality of International Organisations’, (1964) 4 Indian J. Int'l L. 1; F. Seyerstad, ‘Is the Intergovernmental Personality of Intergovernmental Organisations Valid vis-a’-vis Non-Members?’, (1964) 4 Indian J. Int'l L. 233.
14. ICC Statute, The notion of ‘objective’ international legal personality is the view that an international organization can have an objective existence note 2, Art. 34.
15. ICC Statute., Art. 35. ‘Judicial function’ here is used in the sense that it is generally used in common law countries, to indicate theneutral decision-making functionof courts.Thecivillawcountries often include theprosecution functionwithin the magistracy-the judicial offices. This civil law usage of ‘judicial function’ is apparent in D. Donat-Cattin, ‘Decision-Making in the International Criminal Court: Functions of the Assembly of States Parties and Independence of the Court's Judicial Organs’, in F. Lattanzi and W. A. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (2001), Vol. II. Because the International Criminal Court will use a hybrid of common law and civil law processes, one can treat either usage of ‘judicial function’ as correct, so long as one is clear about which is being used.
16. ICC Statute, ICC Statute note 2, Arts. 36 (election), 39 (organization into Divisions and Chambers).
17. ICC Statute., Art. 38.
18. ICC Statute., Art. 43.
19. ICC Statute., Art. 43(2).
20. ICC Statute., Art. 46.
21. ICC Statute., Art. 43(6).
22. Rules of Procedure and Evidence, as adopted and published in Assembly of States Parties to the International Criminal Court, First Session, New York, 3-10 Sept. 2002, Official Records, Doc. No. ICC-ASP/1/3 (hereafter ICC-ASP/1/3), 5, paras. 22, 10-107 (adopted 9 Sept. 2002).
23. Rules of Procedure and Evidence, as adopted and published in Assembly of States Parties to the International Criminal Court., 27-28.
24. ICCStatute, Rules of Procedure and Evidence, as adopted and published in Assembly of States Parties to the International Criminal Court note 2, Arts. 43, 46. InApril 2003, at the second resumption of its First Session, the Assembly of States Parties elected Luis Moreno Ocampo of Argentina to be the first Prosecutor for the ICC.
25. In this paper, ‘Organ’ will be capitalized when referring to an Organ of the Court specified in Art. 34; ‘organ’ will be uncapitalized when referring to a functional unit of the international organization set up by the ICC Statute that is not specified in Art. 34, but which would be considered an organ under the commonly used nomenclature of the law of international organizations. The Assembly of States Parties is a unit that under this view be considered such an ‘organ’. A good overview of the organization of the Court is found in L. Sadat (Wexler), ‘A First Look at the 1998 Rome Statute for a Permanent International Criminal Court: Jurisdiction, Definition of Crimes, Structure and Referrals to the Court’, in M. Cherif Bassiouni (ed.), International Criminal Law (Enforcement) (1999), III, 655, 668-73, 682-6 (preserving the Statute's use of ‘Organ’ to refer to the bodies named as Organs therein). A similar usage is found in G. Nesi, ‘The Organs of the International Criminal Court and their Functions in the Rome Statute’, in F. Lattanzi and W. A. Schabas (eds.), Essays on the Rome Statute of the InternationalCriminalCourt (1999),Vol. I, 233. Those articles consider principally the functioning of the various bodies established through the ICC Statute rather than the international legal personality of the International Criminal Court and the legal consequences flowing therefrom.
26. ICC Statute, Those articles consider principally the functioning of the various bodies established through the ICC Statute rather than the international legal personality of the International Criminal Court and the legal consequences flowing therefrom note 2, Art. 112.
27. Art. 115, ICC Statute., speaks of ‘The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided in the budget decided by the Assembly of States Parties. ‘. See also Arts. 113, 114; budget for the first financial period of the Court, adopted and published in ICC-ASP/1/3, at 5 para. 19, 253-327 (adopted 3 Sept. 2002).
28. Elements of Crimes, as adopted and published in ICC-ASP/1/3, speaks of ‘The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided in the budget decided by the Assembly of States Parties. ‘ note 24, at 5, paras. 22, 108-55 (adopted 9 Sept. 2002). ICC Statute, speaks of ‘The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided in the budget decided by the Assembly of States Parties. ‘ note 2, Art. 9, allowing the use of the Elements to assist interpretation of the ICC Statute, Arts. 6, 7, 8 (the articles defining all crimes currently within the jurisdiction of the Court, but excluding the not-yet-defined crime of aggression). It is not clear whether the Court will treat the Elements of Crimes as binding, to the extent they are consistent with the ICC Statute, or if the Court will treat the Elements as guidance only.
29. Rules of Procedure and Evidence, ICC-ASP/1/3, It is not clear whether the Court will treat the Elements of Crimes as binding, to the extent they are consistent with the ICC Statute, or if the Court will treat the Elements as guidance only note 24, 10; see ICC Statute, It is not clear whether the Court will treat the Elements of Crimes as binding, to the extent they are consistent with the ICC Statute, or if the Court will treat the Elements as guidance only note 2, Art. 51.
30. For a sophisticated discussion of how procedural rules inevitably affect substantive rights, seeA. L. Levin and A. Amsterdam, ‘Legislative Control over Judicial Rulemaking: A Problem in Constitutional Revision’, (1958) 107U. Pa. L. Rev. 1.Although Levin and Amsterdam's discussion concerns rules in common law jurisdictions, its theory of the relationship between procedural and substantive law is applicable to the rules that will be made for the International Criminal Court.
31. ICC Statute, For a sophisticated discussion of how procedural rules inevitably affect substantive rights note 2, Arts. 42, 43, 44, 46.
32. See ICC-ASP/1/3, ICC Statute note 24, at 253-326; ICC Statute, ICC Statute note 2, Art. 114. The Assembly has adopted Financial Regulations and Rules as well, in ICC-ASP/1/3, at 5, paras. 22, 180-214 (adopted 9 Sept. 2002). See also ICC Statute, ICC Statute note 2, Art. 113.
33. ICC Statute, The Assembly has adopted Financial Regulations and Rules as well note 2, Art. 112 (2 and 4).
34. Compare ICC Statute, ICC Statute note 2, Art. 112 (setting forth persons who will take part in the activities of the Assembly of States Parties and its Bureau), with Art. 48 (on privileges and immunities of the Court and its personnel). The ‘agreement on the privileges and immunities of the Court’ ismentioned in ICC Statute, Art. 48 and Final Act, Annex I, Resolution F, secs. 5, 9 (draft text of ‘agreement on the privileges and immunities of the Court’ to be prepared by Preparatory Commission).
35. Schermers and Blokker, draft text of ‘agreement on the privileges and immunities of the Court’ to be prepared by Preparatory Commission note 9, sec. 327, at 238 ('it would be justifiable to state that customary international institutional law provides for the most essential privileges and immunities for all delegations to meetings of international organs'). This theory still leaves out of account employees of the Assembly of States Parties, such as those of the independent oversight mechanism designed to enhance the efficiency and economy of the Court, described in ICC Statute, draft text of ‘agreement on the privileges and immunities of the Court’ to be prepared by Preparatory Commission note 2, Art. 112(4). See also Vienna Convention on the Representation of states in their Relations with International Organizations of a Universal Character, UN Doc. A/CONF.67/16 (done 14 March 1975) (not currently in force). This treaty must, however, be used with care as a guide to codification of customary law, given that it has not achieved sufficient ratifications to enter into force. Compare the widely accepted codification of the customary law of diplomatic relations between states in the Vienna Convention on Diplomatic Relations, 500 UNTS 95 (entered into force 24 April 1964).
36. Agreement on the Privileges and Immunities of the International Criminal Court, as adopted and published in ICC-ASP/1/3, 'it would be justifiable to state that customary international institutional law provides for the most essential privileges and immunities for all delegations to meetings of international organs’ note 24, Art. 13, at 5, paras. 22, 215, 221.
37. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I (Resolutions adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court), Resolution F (hereafter Final Act, Annex I, Resolution). The ‘PrepCom’ was thus a part of the United Nations, whereas the International Criminal Court has a separate international legal personality (though it will be ‘brought into relationship with the United Nations’, ICC Statute, Agreement on the Privileges and Immunities of the International Criminal Court note 2, Art. 2), and will have relationships with the Security Council, General Assembly and the Secretary-General as set forth in ICC Statute, Arts. 13, 16, 53(2), 87(5) and (7) (Security Council); 115 (General Assembly and Security Council); 121-23, 125-27 (Secretary-General)). The PrepCom formally ended its existence at the ‘conclusion of the first meeting of the Assembly of States Parties’. Final Act, Annex I, Resolution F, para. 8. On 23 April 2003, the Assembly of States Parties formally concluded its first meeting, with the end of the Second Resumption of the First Session of the Assembly. The Preparatory Commission was a different body from the Preparatory Committee, a United Nations body which between 1996 and 1998 prepared a draft text of the ICC Statute for the Diplomatic Conference. On organs established in documents separate from the constituent document of an international organization (in this case, the ICC Statute), see generally Schermers and Blokker, Agreement on the Privileges and Immunities of the International Criminal Court note 9, sec. 384, at 272.
38. An attempt has been made to codify the law of treaties made by international organizations in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, UN Doc. A/CONF.129/15, 25 ILM 543 (done 21 March 1986) (not yet in force; 26 states are parties to it-35 state ratifications are necessary for it to take force; in addition 11 international organizations have confirmed their consent to the Convention) (hereafter VCOLT/SIO).
39. ICC Statute, An attempt has been made to codify the law of treaties made by international organizations in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations note 2, Art. 2. Final Act, Annex I, An attempt has been made to codify the law of treaties made by international organizations in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations note 39, Resolution F, sec. 5(c) provides that this agreement shall be drafted by the Preparatory Commission, and it did so. As of this writing, the draft Relationship Agreement between the Court and the United Nations has been approved by the Assembly of States Parties and published in ICC-ASP/1/3, An attempt has been made to codify the law of treaties made by international organizations in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations note 24, at 5-6, paras. 22, 243-52 (approved by ASP 9 Sept. 2002).
40. ICC Statute, As of this writing, the draft Relationship Agreement between the Court and the United Nations has been approved by the Assembly of States Parties and published in ICC-ASP/1/3 note 2, Art. 125(1).
41. ICC Statute., Art. 3. The agreement is ‘to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf’.
42. FinalAct, Annex I, The agreement is ‘to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf’ note 39, Resolution F, sec. 5(d) (charge to PrepCom);Draft basic principles regarding a headquarters agreement to be negotiated between the Court and the host country, PCNICC/2002/1/Add.1 (26 April 2002), approved by the Assembly of States Parties and published in ICC-ASP/1/3, The agreement is ‘to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf’ note 24, at 5, paras. 22, 233-42.
43. See Schermers and Blokker, Draft basic principles regarding a headquarters agreement to be negotiated between the Court and the host country note 9, sec. 1690, at 1055-56. The authors speak in terms of obligations of the international organization and the host state in the absence of a headquarters agreement, but do not use the phrase ‘customary law’.
44. ICCStatute,The authors speak in terms of obligations of the international organization and the host state in the absence of a headquarters agreement, but do not use the phrase ‘customary law’note2, Art.48(reference to'agreementontheprivilegesandimmunitiesoftheCourt’ (lower case initials used)); Final Act, Annex I, Resolution F, secs. 5, 9 (draft text of ‘agreement on the privileges and immunities of theCourt’ to be prepared by Preparatory Commission).Adraft, see PCNICC/2001/WGAPIC/L.l (3 Oct. 2001), was approved by the Final Plenary of the Eighth Session of the Preparatory Commission for referral to the Assembly of States Parties, 5 Oct. 2001, with recommendations. After some amendment, the Agreement on Privileges and Immunities of the International Criminal Court was approved by the Assembly of States Parties, opened for signature by states and published (hereafter Agreement) in ICC-ASP/1/3, The authors speak in terms of obligations of the international organization and the host state in the absence of a headquarters agreement, but do not use the phrase ‘customary law’ note 24, at 5, para. 22, 8, paras. 37, 215-32 (approved 9 Sept. 2002; opened for signature 10 Sept. 2002).
45. ICC Statute, draft text of ‘agreement on the privileges and immunities of theCourt’ to be prepared by Preparatory Commission note 2, Art. 48. The Agreement on Privileges and Immunities, Arts. 15-17, ICC-ASP/1/3, draft text of ‘agreement on the privileges and immunities of theCourt’ to be prepared by Preparatory Commission note 24, at 222-4, provides for privileges and immunities for both employees and non-employees of the Court.
46. There are protections in the Agreement on Privileges and Immunities, Arts. 18-22, ICC-ASP/1/3, The Agreement on Privileges and Immunities note 24, at 224-7, for counsel and persons assisting defence counsel, witnesses, victims, and experts. The author discussed the need for privileges and immunities for defence counsel and investigators in K. S. Gallant, ‘The Role and Powers of Defence Counsel in the International Criminal Court’, (2000) 32 The Int'l Lawyer 21.
47. Agreement on Privileges and Immunities, preamble, ICC-ASP/1/3, There are protections in the Agreement on Privileges and Immunities note 24, at 217.
48. Report of the Preparatory Commission at its Eighth Session, PCNICC/2001/1 (8 Jan. 2002), para. 8.
49. See ICC-ASP/1/3, Report of the Preparatory Commission at its Eighth Session note 24, at 5, para. 22 (approval 9 Sept. 2002), 8, para. 37 (opened for signature 10 Sept. 2002). As of this writing it has not yet received the ten ratifications necessary to take effect. For other examples of agreements on privileges and immunities being approved by the international organization before being submitted to member states, see Convention on the Privileges and Immunities of the United Nations,1 UNTS 15 (done 17 Sept. 1946; entered into force 14 Dec. 1946) (approved by UN General Assembly and then submitted tomember states for ratification or accession); Convention on Immunities of Specialized Agencies (of the United Nations), 33 UNTS 261 (done 21 Nov. 1947) (approved by the UN General Assembly; but does not come into force for any given specialized agency until that agency adopts an appropriateAnnex; ratification or accession by states must specifywhich specialized agency with reference towhich it ratifies or accedes). The International Tribunal for the Law of the Sea (ITLOS)Agreement on Privileges and Immunities was adopted at the SeventhMeeting of states parties, but thisMeeting of states parties has a different place in the regime of the UN Convention on the Law of the Sea (UNCLOS) than the Assembly of States Parties does in the structure of the International Criminal Court.
50. Agreement on Privileges and Immunities, Art. 31, ICC-ASP/1/3, The International Tribunal for the Law of the Sea (ITLOS)Agreement on Privileges and Immunities was adopted at the SeventhMeeting of states parties, but thisMeeting of states parties has a different place in the regime of the UN Convention on the Law of the Sea (UNCLOS) than the Assembly of States Parties does in the structure of the International Criminal Court note 24, at 230. This is meant to refer to ordinarywrongs, such as automobile accidents caused by thewrongful acts of aCourt employee driving a car on Court business, as well as contracts. Compensation for wrongful arrests or convictions is covered by the Statute itself. ICC Statute, The International Tribunal for the Law of the Sea (ITLOS)Agreement on Privileges and Immunities was adopted at the SeventhMeeting of states parties, but thisMeeting of states parties has a different place in the regime of the UN Convention on the Law of the Sea (UNCLOS) than the Assembly of States Parties does in the structure of the International Criminal Court note 2, Art. 85. See also Convention on the Privileges and Immunities of the United Nations, The International Tribunal for the Law of the Sea (ITLOS)Agreement on Privileges and Immunities was adopted at the SeventhMeeting of states parties, but thisMeeting of states parties has a different place in the regime of the UN Convention on the Law of the Sea (UNCLOS) than the Assembly of States Parties does in the structure of the International Criminal Court note 51; Convention on Immunities of Specialized Agencies (of the United Nations), The International Tribunal for the Law of the Sea (ITLOS)Agreement on Privileges and Immunities was adopted at the SeventhMeeting of states parties, but thisMeeting of states parties has a different place in the regime of the UN Convention on the Law of the Sea (UNCLOS) than the Assembly of States Parties does in the structure of the International Criminal Court note 51. Both these documents refer to the appropriate organization having ‘juridical personality’ and deal with more than just the personal privileges and immunities of those persons associated with the organizations.
51. Agreement on Privileges and Immunities, Arts. 4, 6-11, ICC-ASP/1/3, Agreement on Privileges and Immunities note 24, at 218-20. The details of these protections are beyond the scope of this article.
52. See generally P. Benvenuti, ‘Complementarity of the International Criminal Court to National Criminal Jurisdictions’, in Lattanzi and Schabas I, Agreement on Privileges and Immunities note 27 21, 39-42; D. Rinoldi and N. Parisi, ‘International Cooperation and Judicial Assistance Between States Parties and the International Criminal Court’, in Lattanzi and Schabas, I, Agreement on Privileges and Immunities note 27, 339. The practices of the current ad hoc tribunals unfortunately cannot provide amodel formaking operational agreements that canbe fairly transferred to the International Criminal Court. The statuses of the ad hoc tribunals and the Court are simply different. The ad hoc tribunals have been given primacy over national courts in the Statutes creating them, approved by the UN Security Council. Statute of the International Criminal Tribunal for the former Yugoslavia, Arts. 9(2), 29; Statute of the International Criminal Tribunal for Rwanda, Arts. 8(2), 28. The Statutes automatically bind all UNmembers, because they are enforcement actions of the Security Council.UNCharter, Art. 25. By contrast, the International Criminal Court is intended to be complementary to national Courts, ICC Statute, Agreement on Privileges and Immunities note 2, preamble, Art. 17(1), and will be treaty-created, and thus subject to the general rule of international law that, without somespecial reason, its Statute cannot bind non-parties to it. The International Criminal Court will therefore need to make agreements in different legal circumstances than the ad hoc tribunals; the ICC will probably need to make more operational agreements as well. The issue of non-parties to the ICC Statute is discussed in greater detail in section 5.2 infra.
53. ICC Statute, ‘Complementarity of the International Criminal Court to National Criminal Jurisdictions’ note 2, Art. 4(2). The Rules of Procedure and Evidence, Rule 44, deals with this issue in an indirect manner for those non-party states that accept the jurisdiction of the Court over crimes. It states that the Registrar shall inform such a state that this acceptance of jurisdiction means that the state is obligated to co-operate with the Court pursuant to Part 9 of the Statute (on International Cooperation and Judicial Assistance) and the rules thereunder; in other words, agreement to jurisdiction over crimes is agreement to co-operate with theCourt. The Rules do not, however, deal generally with special agreements with non-party states.
54. ICC Statute, The Rules do not, however, deal generally with special agreements with non-party states note 2, Art. 54(3)(d).
55. See generally ICC Statute., Part 9 ('International cooperation and judicial assistance'); Art. 57(3)(b) (request (made to Pre-TrialChamber) of defence for cooperationunder Part 9); Arts. 61(11), 64(6)(a) (authority ofTrialChamber, after confirmation, to exercise relevant functions of Pre-Trial Chamber).
56. 'International cooperation and judicial assistance’., Art. 72(5).
57. ICC Statute, 'International cooperation and judicial assistance’ note 2, Arts. 40(1) (judges shall be ‘independent in the performance of their functions'), 42 (member of Office of the Prosecutor ‘shall not seek or act on instructions from any external source'), 43 (Registrar to operate ‘under the authority of the President of the Court').
58. judges shall be ‘independent in the performance of their functions’., Art. 112(1).
59. Accord, judges shall be ‘independent in the performance of their functions’., Art. 4(2) (Court may operate on territory of states not parties to the ICC Statute ‘by special agreement').
60. It has been suggested that the law of international organizations is a separate corpus from international law generally. See F. Seyersted, ‘Jurisdiction over Organs and Officials of States, the Holy See and Intergovernmental Organisations’, (1965) 14 ICLQ 31, 62. This theoretical discussion need not be entered into at great length here.
61. A.-M. Slaughter, ‘The Real NewWorld Order’, (Sept/Oct 1997) 76 (5) Foreign Affairs 183, 184 A. Moravcsik, ‘A Liberal Theory of International Politics’, 51 Int'l Organization 513, 519 (1997); A.-M. Slaughter, ‘Law in a World of Liberal States’, (1995) 6 EJIL 503.
62. Prof. Slaughter does not, however, believe that the state will lose its role as the primary actor in international affairs, either to international organizations, multinational corporations, non-governmental organizations, or other entities. She indicates that she does not expect international organizations to expand greatly in law-making authority or other types of power, and contrasts her view with those of ‘newmedievalists’, who believe power is expanding up (to international organizations), down (to non-state actors), sideways, and perhaps in other directions. Slaughter ‘The Real NewWorld Order’, citing J. Matthews, ‘Power Shift’, (1997) 76(1) Foreign Affairs 50. The current author is probably closer to Slaughter thanMatthews, in believing that the state is not about to wither away, which is why this article and others he has written work at fitting the International Criminal Court into the prevailing state-centric view of international law. However, he does believe that in the next century it is likely that international organizationswill grow in law-making and other power,more perhaps than Slaughter thinks, which is a good reason to write about new international organizations.
63. For more on the relationship between the ICC and the United Nations, see P. Gargiulo, ‘The Controversial Relationship between the International Criminal Court and the Security Council’, in Lattanzi and Schabas, I, Slaughter does not, however, believe that the state will lose its role as the primary actor in international affairs, either to international organizations, multinational corporations, non-governmental organizations, or other entities note 27, 67.
64. See generally C. W. Jenks, The Proper Law of International Organizations (1962). VCOLT/SIO, Arts. 27(2), 46(2), states that an internal rule of an international organization cannot justify failure to perform a treaty obligation, nor can a violation of the treatymaking process of an international organization invalidate that organization's consent to be bound, unless the violationwas ‘manifest and concerned a rule of fundamental importance’. This is analogous to theVienna Convention on the Law of Treaties,Arts. 27, 46, 1155 UNTS 331, repr. in 8 ILM 679 (done 23 May 1969; entered into force 27 Jan. 1988), for treaties among states. However, neither Convention purports to free an organization from its legal obligation to obey its constitutive documents and rules.
65. See text and notes 85-95 infra for a discussion of whether Security Council Resolution 1422, UN Doc. S/RES/1422 (12 July 2002), should be read to request a violation of the ICC Statute. The UN Charter asserts directUNauthority to restrict or compel actions by other international organizations in the case of ‘regional arrangements or agencies’ for dealingwith regional issues of peace and security. Such agencies shall not take enforcement action ‘without the authorization of the Security Council’. UN Charter, Chapter VIII, Arts. 52.
66. ICC Statute, Nowhere does it purport to authorize other international organizations to perform acts beyond those authorized in their own constituent documents note 2, Art. 2.
67. ICC-ASP/1/3, ICC Statute note 24, 5-6, para. 22, 243-51.
68. UN Charter, Art. 57.
69. UN Charter., Art. 65.
70. UN Charter., Art. 96(2); ICJ Statute, Art. 119. The ICC Statute does not contemplate that the International Court of Justice will be an appellate body on matters within the International Criminal Court's jurisdiction. The Court (i.e., the prosecutorial and judicial arm of the ICC as an international organization) is to determine disputes concerning its judicial function. ICCStatute, UN Charter note 2, Art. 119(1). Other disputes, however, are to be settled if possiblewithin the structure of the Assembly of States Parties, or if that is not possible, by use of another dispute resolutionmechanism, including referral to the International Court of Justice. The Statute appears to leave open the possibility that appropriate ICJ casesmight include both contentious cases between two states, or requests for advisory opinions made by the Assembly of States Parties. If the International Criminal Court does not become a specialized agency it cannot be authorized by the General Assembly to make direct requests for advisory opinions to the ICJ. SeeUNCharter, Art. 96(1). TheGeneral Assembly itself could ask for an advisory opinion from the International Court of Justice. Former ICJ President Stephen M. Schwebel has suggested that the General Assembly might establish a committee established to screen requests from international tribunals for such references to the ICJ. UN Press Release GA 9642 (26 Oct. 1999).
71. See, e.g., UN Charter, Arts. 63, 64, 70, 71.
72. ICC Statute, UN Charter note 2, Arts. 13, 16; see Draft Relationship Agreement between the Court and the United Nations, Art. 17, ICC-ASP/1/3, UN Charter note 24, at 249 (notification of referral or of deferral request).
73. ICC Statute, Draft Relationship Agreement between the Court and the United Nations note 2, Art. 87; Draft Relationship Agreement between the Court and the United Nations, Art. 17, ICC-ASP/1/3, Draft Relationship Agreement between the Court and the United Nations note 24, at 249.
74. Gargiulo, Draft Relationship Agreement between the Court and the United Nations note 68; F. Lattanzi, ‘The Rome Statute and state Sovereignty. ICC Competence, Jurisdictional Links, Trigger Mechanism’, in Lattanzi and Schabas, I, Draft Relationship Agreement between the Court and the United Nations note 27, 51, 60-66. For a discussion of Prosecutorial access to United Nations records, another important issue in the relationship between the Court and the United Nations, see D. A. Mundis, ‘The Assembly of States Parties and the Institutional Framework of the International Criminal Court’, (2003) 97 AJIL 132, 135-37.
75. UN Charter, Art. 27. Cf. Draft Relationship Agreement between the Court and the United Nations, Art. 17, ICC-ASP/1/3, ‘The Rome Statute and state Sovereignty. ICC Competence, Jurisdictional Links, Trigger Mechanism’ note 24, at 249 (describing the action of the Security Council variously as a ‘decision’ or a ‘resolution').
76. ICC Statute, describing the action of the Security Council variously as a ‘decision’ or a ‘resolution’ note 2, Art. 13(b).
77. See Security Council Res. 827, UN Doc. S/RES/827 (1993); Prosecutor v. Tadić, IT-94-1, paras. 28-40 (Appeals Chamber, 2Oct. 1995) (decision onjurisdiction) (identifyingUNCharter,Art. 41, as the specific authorization for establishment of the International Criminal Tribunal for the former Yugoslavia). This has been a controversial issue, engenderingmuchwriting. Compare, e.g., R.A.Kolodkin, ‘AnAdHoc International Tribunal for the Prosecution of Serious Violations of InternationalHumanitarian Law in the Former Yugoslavia’, (1994) 5 Crim.L.F. 381; M. Leigh, et al., American Bar Ass'n Sec. Int'l Law and Practice, Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia (1993), 9-11 (both favouring creation under ChapterVII),withA. P. Rubin, ‘An International Criminal Tribunal for the Former Yugoslavia?’, (1994) 6 Pace Int'l L. Rev. 7 (in opposition).
78. ICC Statute, ‘An International Criminal Tribunal for the Former Yugoslavia?’ note 2, Art. 16; see Draft Relationship Agreement between the Court and the United Nations, Art. 17, ICC-ASP/1/3, ‘An International Criminal Tribunal for the Former Yugoslavia?’ note 24, at 249 (notification of deferral request). The delicacy of the Security Council's task in this respect is discussed in Lattanzi, ‘An International Criminal Tribunal for the Former Yugoslavia?’ note 80, at 64-66; Gargiulo, ‘An International Criminal Tribunal for the Former Yugoslavia?’ note 68, at 85-90.
79. Security Council Resolution 1422, UN Doc. S/RES/1422 (12 July 2002).
80. E.g., R. S. Clark, ‘Challenges Confronting the Assembly of States Parties of the International Criminal Court’, Remarks at International Criminal LawNetwork Conference, TheHague, 18-20 Dec. 2002, at 8-17, citing the collection of critical comments by states and editorial commentary in (2002) 36UNL Rev. 117, and Amnesty InternationalPaper InternationalCriminalCourt:USefforts to obtain impunity for genocide, crimes against humanity and war crimes, AI-index: IOR 40/025/2002 of 2 Sept. 2002. Prof. Clark argues that Resolution 1422 violates the United Nations Charter as well.
81. ICC Statute, ‘Challenges Confronting the Assembly of States Parties of the International Criminal Court’ note 2, Art. 119. But see text and notes 113-14 infra.
82. Cf. Schermers and Blokker, ICC Statute note 9, sec. 1324 (citing the constitution of the Organization of Arab Petroleum Exporting Countries (OAPEC) as giving binding effect to the decisions of the Organization of PetroleumExporting Countries (OPEC), even though some OAPECmembers are not members of OPEC).
83. Indeed, if an investigation or prosecution can be done fairly in the national system, the case probably will not reach the Court under the principle of complementarity. See ICC Statute, citing the constitution of the Organization of Arab Petroleum Exporting Countries note 2, preamble; Arts. 1, 17.
84. See Clark, Indeed, if an investigation or prosecution can be done fairly in the national system, the case probably will not reach the Court under the principle of complementarity note 86, at 8.
85. ICC Statute, Clark note 2, Arts. 13, 14.
86. ICC Statute., Art. 16.
87. Cf. ICC Statute, ICC Statute note 2, Arts. 13, 14.
88. In the view of the author, Resolution 1422, while questionable, is ultimately valid, both as a Security Council Resolution under Chapter VII, and as a deferral request under the ICC Statute. That does not prevent him from also holding two other non-legal personal opinions. First, it was an unwise idea for the United States to request Resolution 1422 before any matters at all have been taken up by the ICC. Second, and the strongest opinion of the author on these matters: excessive focus by the supporters of the ICC on the opposition of the United States to the Court is counterproductive for two reasons. First, it distracts from the task of simply going forward and building a Court that will operate effectivelywhere it has jurisdiction. Second, it distracts from the fact that many other major powers, such as those mentioned above in the introduction to section 4, are not parties to the ICC Statute, and seem to be more than willing to allow the US government to carry their water on this issue.
89. Assessed contributions of states parties shall be ‘in accordance with an agreed scale of assessment, based on the scale adopted by theUnitedNations for its regular budget, and adjusted in accordancewith the principles on which that scale is based’. ICC Statute, That does not prevent him from also holding two other non-legal personal opinions note 2, Art. 117.
90. Assessed contributions of states parties shall be ‘in accordance with an agreed scale of assessment, based on the scale adopted by theUnitedNations for its regular budget, and adjusted in accordancewith the principles on which that scale is based’., Art. 115(b).
91. See generally, e.g., Jenks, Assessed contributions of states parties shall be ‘in accordance with an agreed scale of assessment, based on the scale adopted by theUnitedNations for its regular budget, and adjusted in accordancewith the principles on which that scale is based’ note 69.
92. In this part, ‘International Criminal Court’ and ‘ICC’ apply to the operative Organs of the ICC, to avoid confusion with the International Court of Justice or ‘ICJ’. See section 1.2 Jenks.
93. See, e.g., Yugoslavia v. Belgium, Order on Request for InterimMeasures, 2 June 1999, General ListNo. 105 (ICJ), and related cases in which decisions were entered the same day.
94. Compare ICC Statute, Art. 6, with Convention on the Prevention and Punishment of the Crime of Genocide, Art. II, 78 UNTS 277 (done 9 Dec. 1948; entered into force, 12 Jan. 1951). Note that Crimes against Humanity, ICC Statute, Arts. 7, 8, do not have a single definition that has become standard in international law in the way Art. II of the Genocide Convention has become. This is also true of some war crimes.
95. Prosecutor v. Tadić, This is also true of some war crimes note 83, para. 11.
96. Compare Prosecutor v. Tadić, Judgement (ICTY A. Ch., 15 July 1999), paras. 68-162, with Nicaragua v. United States of America (Merits) [1986] ICJ Rep. at 14.
97. Prosecutor v. Tadić, Judgement (ICTY A. Ch., 15 July 1999), paras. 103-104.
98. Prof. Charney identified the law of treaties as another area in which two international courts, the ICJ and the Court of Justice of the European Communities (EJC), have already reached arguably conflicting results. J. I. Charney, ‘Third Party Dispute Settlement and International Law’, (1997) 36 Colum. J. Transnat'l L. 65, 77-78 and n. 51.
99. ICCStatute, supranote2, Art. 22(2).Additionally, thisprovisiondoesnotpurportto'affectthecharacterization of conduct as criminal under international law independently of this Statute’. Art. 22(3).
100. Note here that a change in law is not grounds for revision of a judgement of the ICC under the ICC Statute, Additionally, thisprovisiondoesnotpurportto'affectthecharacterization of conduct as criminal under international law independently of this Statute’ note 2, Art. 84, so a previously convicted person would not get the benefit even if the ICC decided to adopt a new, more lenient definition of a crime articulated by the ICJ.
101. ArrestWarrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement, General List No. 121 (ICJ, 14 Feb. 2002), para. 61.
102. ICC Statute, ArrestWarrant of 11 April 2000 note 2, Art. 119.
103. See UN Charter, Art. 96; ICJ Statute, Art. 65.
104. SeeUNCLOS, Art.287(1) and AnnexesVI-VIII;(WTO)Understanding onRules and ProceduresGoverning the Settlement of Disputes, 33 ILM 1226 (entered into force, 1 Jan. 1995). Under the Law of the Sea Convention, states will have a choice of using the International Tribunal for the Law of the Sea, the ICJ, or arbitral tribunals.
105. See L. N. Sadat, The International Criminal Court and the Transformation of International Law (2002), 274 n. 40, citing J. I. Charney, ‘International Law and Multiple International Tribunals’, 271, (1998) Recueil des Cours 101, 352.
106. See ICCStatute, ‘International Law and Multiple International Tribunals’ note 2, Arts. 18, 19, 72, 119 (statespresenting objections toCourt;Court decides disputes over its judicial functions).
107. The pre-trial chambermay ‘Authorize the Prosecutor to take specific investigative steps within the territory of a state Partywithout having secured the cooperation of the state under Part 9, if,whenever possible having regard to the views of the state concerned, the Pre-Trial Chamber has determined in that case that the state is clearly unable to execute a request for cooperation (for specified reasons)’. ICC Statute, statespresenting objections toCourt;Court decides disputes over its judicial functions note 2, Art. 57(b).
108. A case will be inadmissible in the Court if it is being investigated or prosecuted, or has been investigated and prosecuted, by a state, unless the state is unwilling or unable to carry out the investigation or prosecution of the case, the case is not handled independently or impartially, or is subject to unjustified delay, or the investigation or prosecution was a sham designed to protect the individuals involved. See ICC Statute, The pre-trial chambermay ‘Authorize the Prosecutor to take specific investigative steps within the territory of a state Partywithout having secured the cooperation of the state under Part 9, if,whenever possible having regard to the views of the state concerned, the Pre-Trial Chamber has determined in that case that the state is clearly unable to execute a request for cooperation (for specified reasons)’ note 2, Art. 17.TheCourt has authority to determine if the national investigation orprosecutionwasgenuine. ICC Statute, Arts. 17, 18, 19. Formuchmore on these issues see Benvenuti, The pre-trial chambermay ‘Authorize the Prosecutor to take specific investigative steps within the territory of a state Partywithout having secured the cooperation of the state under Part 9, if,whenever possible having regard to the views of the state concerned, the Pre-Trial Chamber has determined in that case that the state is clearly unable to execute a request for cooperation (for specified reasons)’ note 54, 39-50.
109. Here is one example where jurisdiction over the person is not equivalent to jurisdiction over a state.Assume, for example, that the Prosecutor decides, proprio motu, to investigate an allegation of genocide occurring on the territory of state A, a state party to the Statute. A person who is a national of state B (not a party) is alleged to have committed genocide on the territory of state A. The Court will have jurisdiction to charge the person suspected, butwill not have jurisdiction to order state B to co-operate with the Court unless state B accepts the Court's jurisdiction. ICC Statute, A case will be inadmissible in the Court if it is being investigated or prosecuted, or has been investigated and prosecuted, by a state, unless the state is unwilling or unable to carry out the investigation or prosecution of the case, the case is not handled independently or impartially, or is subject to unjustified delay, or the investigation or prosecution was a sham designed to protect the individuals involved note 2, Art. 12(2). But see M. Morris, ‘High Crimes and Misconceptions’, (2001) 64 Law and Contemporary Problems 13, 43-52 (arguing that jurisdiction to adjudicate over nationals of a statewho enter another state's territory may not be delegated to an international tribunal absent consent of the first state).
110. ICC Statute, Here is one example where jurisdiction over the person is not equivalent to jurisdiction over a state note 2, Art. 12(1).
111. ICC Statute., Art. 12(2) (emphasis added).
112. ICC Statute., Art. 12(3).
113. See ICC Statute., Art. 13.
114. Rules of Procedure and Evidence, Rule 44(2), ICC-ASP/1/3, ICC Statute note 24, at 36.
115. ICC Statute, Rules of Procedure and Evidence note 2, Art. 12(3).
116. Rules of Procedure and Evidence, Rule 44(2), ICC-ASP/1/3, ICC Statute note 24, at 36.
117. Cf. ICC Statute, Rules of Procedure and Evidence note 2, Arts. 12, 53.
118. Cf. ICC Statute., Art. 13(b).
119. See text and note 83, Cf. ICC Statute.
120. See UN Charter, Art. 29; Prosecutor v. Tadić, paras. 37-38.
121. The decisions of the Security Council are to be carried out by states that are UN Members ‘directly and through their action in the appropriate international agencies of which they are members’. UN Charter, Art. 48(2). Specifically, the Security Council may utilize regional international security organizations for enforcement actions. UN Charter, Art. 53.
122. ICC Statute, The decisions of the Security Council are to be carried out by states that are UN Members ‘directly and through their action in the appropriate international agencies of which they are members’ note 2, Art. 4(2). Section 1 of this Article states that the Court has international legal personality.
123. Section 1 of this Article states that the Court has international legal personality., Art. 1.
124. See Vienna Convention on the Law of Treaties, Arts. 34, 35, 38, 1155 UNTS 331, 8 ILM 679 (entered into force Jan. 27, 1988) (hereafter VCOLT). This Convention explicitly applies to a treaty ‘which is the constituent instrument of an international organization’. VCOLT, Art. 5. This Convention applies by its own terms only to treaties where all parties have accepted VCOLT, which is unlikely in the case of the ICC Statute. VCOLT is often seen as codifying the customary law of treaties. Some writers have pointed out that practice under multilateral treaties, especially treaties establishing international organizations, is inconsistent with practice regarding bilateral treaties. Thus, VCOLT must be treated with great care as a guide to the law of treaties establishing international organizations. However, there is no evidence suggesting that the rule concerning third party obligations arising under treaties is different for these treaties for the purposes here.
125. See, e.g., ICC Statute, Vienna Convention on the Law of Treaties note 2, Arts. 12, 13, 54(3)(c), 57(3)(d); compare ICC Statute, Art. 87(5) and (7).
126. TheCourt may have personal jurisdiction over the national of a non-party statewho commits a crime within the jurisdiction of the Court on the territory of a state party if no international agreement prevents the exercise of such jurisdiction. ICC Statute., Arts. 12(2), 98.
127. UN Charter, Art. 25.
128. Specifically, ICC Statute, UN Charter note 2, Arts. 12, 13.
129. Specifically., Art. 13.
130. Rwanda's vote against Security Council Resolution 955, UN Doc. S/RES/955 (8 Nov. 1994), creating the InternationalCriminalTribunalforRwanda,alongwith its laterco-operationwith theTribunal,are especially apposite here.
131. ICC Statute, Rwanda's vote against Security Council Resolution 955 note 2, Art. 12(3) (limiting declarations accepting jurisdiction to cases where a state has referred a situation to the Court, or the Prosecutor has undertaken an investigation proprio motu).
132. This appears to have been the practice as a matter of law under the ICTY Statute, Art. 29, and ICTR Statute, Art. 28. In fact, cooperation with the ICTY has by nomeans been complete.
133. ICC Statute, This appears to have been the practice as a matter of law under the ICTY Statute note 2, Art. 4(2).
134. In most situations, the Court will not have the physical power to operate in the territory of a state in the absence of its consent. The exceptions to this pattern would occur in the case where a state has failed (such as Somalia in the 1990s), but some regional leaders are co-operating; orwhere the territory of the state whose co-operation is needed is under the control of an occupying power (which is co-operating), or is under the control of a regional agency authorized by the Security Council under the UN Charter, part VIII.
135. ICC Statute, most situations, the Court will not have the physical power to operate in the territory of a state in the absence of its consent note 2, Art. 87(5)(b).
136. UN Charter, Art. 25; cf. Security Council Resolution 1441, para. 1, UN Doc. S/RES/1441, 3 (8 Nov. 2002) (deciding Iraq's non-cooperation with UN inspectors and the International Atomic Energy Agency placed it in violation of its obligations to comply with prior Security Council Resolutions).
137. See ICTY Statute, Art. 29; ICTR Statute, Art. 28. Arguments similar to the one here are made in Lattanzi, Security Council Resolution 1441 note 80, 60-64; G. Palmisano, ‘The ICC and Third States’, in Lattanzi and Schabas, I, Security Council Resolution 1441 note 27, 391, 416-19.
138. ICC Statute, Arguments similar to the one here are made in Lattanzi note 2, Art. 4(2).
139. ICC Statute., Art. 87(5).
140. Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo, ICC Statute note 68, at 78-82. He concludes, at 82, ‘If the doubts over the existence of the Security Council's power, both under the UN Charter and in its practice, are well-founded, then in our view the provision itself contradicts the well-established principle of treaty law pacta tertiis nec nocent prosunt ‘, relying on VCOLT, Art. 34. His doubts are based on the view of some states considering the creation of the ad hoc tribunals as based upon exceptional circumstances, and refusing to accept it as precedent. ICC Statute., 78-82 and nn. 30-35. He argues that there is no state consensus regarding the power to set up an ad hoc tribunal, and there were questions raised in the drafting of the ICC Statute indicating a lack of consensus by states on whether referral by the Security Council could violate the rights of third parties. ICC Statute., 73-74 and nn. 15-17. At least one of the states whose opinion he cites, China, wound up opposing the Statute at the end of the Rome Conference, and still remains outside the ICC regime. Thus the ultimate adoption of the Statute by the Rome Conference cannot be considered a change in China's view.
141. Practice in regard to the current ad hoc tribunals, along with the other arguments made by Lattanzi, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 80, at 60-64; Palmisano, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 148, at 416-19; and many of the articles cited in Gargiulo, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 69, nn. 31 and 32, demonstrate that doubts over the Security Council's power are not ultimately persuasive. Morris, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 120, at 53-57 would suggest that doubts over the Security Council's power would be persuasive as to non-members of the United Nations. For a US view that a Security Council referral can create jurisdiction over states not party to the ICC Statute, see the quotation from D. Scheffer, ASIL Insight #21 at 2-3, in M. P. Scharf, ‘The Draft Statute for an International Criminal Court’, in Cherif Bassiouni, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 27, at 637, 653. S. A. Williams, ‘Article 12, Preconditions to the Exercise of Jurisdiction’, in Triffterer, note 77, at 329, 341, states ‘It is. a misconception that the Statute binds non-parties’. This is true in the context that the statement was made-situations referred by a state party to the Court or investigated by the Prosecutor proprio motu. The present author believes the situation is different where the Security Council, by resolution subject to veto, refers a case to the Court. The binding force, however, come through the obligation on the state imposed by the Security Council's exercise of power under the UN Charter.
142. ICC Statute, Practice in regard to the current ad hoc tribunals, along with the other arguments made by Lattanzi, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 80, at 60-64; Palmisano, Practice in regard to the current ad hoc tribunals, along with the other arguments made by Lattanzi, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 80, at 60-64; Palmisano, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 148, at 416-19; and many of the articles cited in Gargiulo, Practice in regard to the current ad hoc tribunals, along with the other arguments made by Lattanzi, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 80, at 60-64; Palmisano, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 148, at 416-19; and many of the articles cited in Gargiulo, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 69, nn note 69, nn note 148, at 416-19; and many of the articles cited in Gargiulo, Practice in regard to the current ad hoc tribunals, along with the other arguments made by Lattanzi, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 80, at 60-64; Palmisano, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 148, at 416-19; and many of the articles cited in Gargiulo, Some of the problems reconciling the argumentmade here concerning the authority of the Security Council with the general reluctance to bind third parties to the provisions of treaties are discussed in Gargiulo note 69, nn note 69, nn note 2, Art. 11(2).
143. Cf. VCOLT, Art. 32(b).
144. Cf. VCOLT., Art. 31(1).
145. ICC Statute, Cf. VCOLT note 2, Arts. 12, 13.
146. See UN Charter, Arts. 32, 50; see also Art. 2(6).
147. See generally UN Charter, Art. 53 (addressing issue of ‘enemy state(s)’ of SecondWorldWar).
148. UN Charter, Art. 25 (requiring only UN members to complywith decisions of the Security Council); see also Morris, this sentence, ‘voluntarily’ only refers to the absence of forcible compulsion to do an act-i.e., an act required by law but not compelled by force is ‘voluntary’ note 120, at 53-7.
149. Lack of jurisdiction over non-UN member states is not the same thing as the lack of jurisdiction either to prescribe criminal law or to adjudicate over individuals who are citizens of states not party to the ICC Statute (whether or not UN members), at least in situations referred by the Security Council. See section 5 introduction, requiring only UN members to complywith decisions of the Security Council; Sadat and Carden, requiring only UN members to complywith decisions of the Security Council note 106, at 403-17 (arguing for universal jurisdiction at least over persons in cases of Security Council referrals); Gallant, requiring only UN members to complywith decisions of the Security Council note 3. It is easiest to argue for this jurisdiction to prescribe and adjudicate in cases where the crime alleged is jus cogens (a crime under peremptory norms from which no derogation is permitted), or at least where the crime alleged exists in customary international law (requiring only UN members to complywith decisions of the Security Council.). But cf.Morris, requiring only UN members to complywith decisions of the Security Council note 120, at 43-57 (which arguments, taken together, would suggest that a state neither a member of the United Nations nor a party to the ICC Statute could properly object to the ICC taking jurisdiction over one of its nationals). Totheextent thatSadatandCardencanbereadasarguingforuniversal jurisdiction to prescribearequirement that non-UN member states co-operate with the Court, and to adjudicate claims that states are not so cooperating, their article presents an aspiration ofmany to an overallworld order.Unfortunately, binding third party states in this manner cannot be done under international law as it stands, and thus a state which is neither a party to the ICC Statute nor a UN member does not have an automatic obligation to co-operate with the Court.
150. ICC Statute, Lack of jurisdiction over non-UN member states is not the same thing as the lack of jurisdiction either to prescribe criminal law or to adjudicate over individuals who are citizens of states not party to the ICC Statute (whether or not UN members), at least in situations referred by the Security Council note 2, Arts. 4, 87.
151. This argument ismade in Palmisano, ICC Statute note 148, 419-24, discussing, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, Art. VI, 78 UNTS 277 (entered into force 12 Jan. 1951) (hereafter GenocideConvention).Heidentifiesasasimilar treaty theConventionontheSuppressionandPunishmentof theCrimeofApartheid, Art.V,whichalsoprovidesfor thepossibilityofenforcementthroughaninternational criminal tribunal, and contrasts these treaties with several that do not explicitly contemplate enforcement through an international criminal tribunal, such as Geneva Conventions (Nos. I-IV), 75 UNTS 31 et seq. (all entered into force 21 Oct. 1950). He believes his argument does not apply to acts made punishable only by treaties that do not have reference to an international criminal court, because the judicial assistance and co-operation contemplated by such treaties cannot fairly be said to require co-operation with such a court. Palmisano, ICC Statute note 148, at 423.
152. Genocide Convention, Art. VI.
153. Palmisano, Genocide Convention note 148, at 420.
154. Genocide Convention, Art. IX; ICJ Statute, Art. 36. Note that the International Criminal Court itself could not bring such a contentious case against a state, because it is not itself a state. ICJ Statute, Art. 35.
155. Note that if the referral is not by the Security Council, the Court has authority to exercise its jurisdiction if at all under ICC Statute, Art. 12.
156. Genocide Convention, Arts. IV-VI.
157. ICC Statute, Genocide Convention note 2, Art. 87(5).
158. ICC Statute., Art. 119.
159. ICC Statute., Art. 21(1)(b).
160. UN Charter, Art. 96(1) (reference to ICJ from Security Council or General Assembly).
161. UN Charter, Arts. 57, 63, 96(2); see sections 4.1 and 4.3 UN Charter.
162. See Schermers and Blokker, section 3 section 2.2 section 4.2 UN Charter note 9, sec. 1324.