Some preliminary remarks on the relationship between the envisaged international criminal court and the un security council

Netherlands International Law Review

Volumn 46, Issue 3, 1999, Pages 313-342

  Oosthuizen, Gabriel H ^a  

^a Public International Law   (United States)

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EID: 84857086686     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X00002540     Document Type: Article

References (80)

1. UN Doc. A/Conf. 183/9 (1998), 17 July 1998.
2. The ICCS was adopted by a non-recorded vote of 120 states in favour, seven against and 21 abstentions.
3. Art. 126 ICCS.
4. Art. 5(1) ICCS. The crime of aggression and the conditions under which the Court shall exercise its jurisdiction with respect thereto, are still to be circumscribed (Art. 5 (2) ICCS).
5. See, e.g., in relation to the International Criminal Tribunal for Rwanda (ICTR), Judgement, The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Trial Chamber II, 21 May 1999. In relation to the International Criminal Tribunal for the former Yugoslavia (ICTY), Judgement, The Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Trial Chamber II, 10 December 1998; Judgement, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeals Chamber, 15 July 1999; Judgement, The Prosecutor v. Zlatko Aleksovski, Case. No. IT-95-14/1-T, Trial Chamber I, 25 June 1999.
6. P. Kirsch and J.T. Holmes, 'The Rome Conference on an International Criminal Court: The Negotiating Process’, 93 AJIL (1999) p. 2 at p. 4; D.J. Scheffer, 'The United States and the International Criminal Court’, 93 AJIL (1999) p. 12. See also A. McDonald, 'The Year in Review’,1 YIHL (1998) pp. 145–153 atpp. 151–152. 8. All references to non-state parties and state parties relate to the ICCS, unless otherwise indicated.
7. These are not the only features of the envisaged relationship. E.g., the UN SC would most certainly play a pivotal role once the crime of aggression is brought into the purview of the Court in accordance with Art. 5 (2) ICCS (see F. Berman, 'The Relationship Between the International Criminal Court and the Security Council’, in H.A.M. Von Hebei, Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (The Hague, T.M.C. Asser Press 1999) p. 173 at p. 178).
8. See Kirsch and Holmes, Human Rights in the World n. 7, at p. 2. See also M.C. Bassiouni, ed., International Criminal Court Compilation of United Nations Documents and Draft ICC Statute Before the Diplomatic Conference (Rome, No Peace Without Justice 1998). Some of the relevant documents predating the Rome Conference, are: 'Report of the Preparatory Committee on the Establishment of an International Criminal Court’, Draft Statute and Draft Final Act (UN Doc. A/Conf. 183/2/Add. 1, 1998); Report of the Inter-Sessional Meeting From 19 to 30 January 1998 in Zutphen, The Netherlands (UN Doc. A/AC.249/1998/L.13, 1998); 'Report of the Preparatory Committee on the Establishment of an International Criminal Court’, Volume II (Compilation of Proposals) (UN Doc. G.A., 51th Session, Supp. No. 22, A/51/22, 1996); Report of the Ad Hoc Committee on the Establishment of an International Criminal Court (UN Doc. G.A., 50th Session, Supp. No. 22, A/50/22, 1995); Report of the International Law Commission on its Forty-Sixth Session, Draft Statute for an International Criminal Court, 2 May-22 July, 1994 (UN Doc. G.A., 49th Sess., Supp. No. 10, A/49/10,1994), p. 90. 11. A. Cassese, 'The Statute of the International Criminal Court: Some Preliminary Reflections’, 10 European Journal of International Law (1999) p. 144 at p. 161; Kirsch and Holmes, Human Rights in the World n. 7, at p. 8.
9. Art. 13(b) ICCS. The Court would not have retroactive jurisdiction (Art. 11 ICCS).
10. The question whether the UNSC can bind states not members of the UN, will be avoided (see J.A. Frowein, 'Article 39’, in B. Simma, ed., The Charter of the United Nations: A Commentary (Oxford, Oxford University Press 1994) p. 605 at p. 616, and 'Article 41’, Human Rights in the World, p. 621 at p. 627, for a brief discussion of this question). For the purposes of this article it will be assumed that non-state parties to the ICCS are members of the UN. The problems concerning states being parties to the ICCS but not the UNC will also be avoided.
11. Emphasis added. Art. 12 (3) referred to, provides that, where a state is not a party to the ICCS, it may, by a declaration lodged with the Registrar of the Court, accept the exercise of jurisdiction by the Court with respect to the crime in question. Art. 12(1) reads as follows: '(1) A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.’ 15. Emphasis added.
12. See Art. 12 (3) ICCS.
13. Falling within the jurisdiction of the Court.
14. Instead of referring to a particular crime or case against a particular individual, Art. 13(b) ICCS refers to 'situation’ so as to minimise the politicisation of the Court (see M.H. Arsanjani, 'The Rome Statute of the International Criminal Court’, 93 AJIL (1999) p. 22 at p. 27).
15. Art. 87 (5) ICCS, concerning a non-state party, confirms this interpretation. It provides as follows: 'Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or where the Security Council referred the matter to the Court, the Security Council. ’ The exact meaning of 'an ad hoc arrangement’, 'an agreement’ and 'any other appropriate basis’ is unclear, and whether they are connected to the 'declaration’ referred to in Art. 12, is also unclear. This question is not important for present purposes.
16. See Frowein, 'Article 39’, Human Rights in the World n. 13, at p. 605, for an analysis of Art. 39 UNC. 21. Art. 41 reads: 'The Security Council may 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. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations/ See Frowein, 'Article 41’, Human Rights in the World n. 13, at p. 621, for an analysis of Art. 41 UNC.
17. See Art. 25 UNC ('The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’), Art. 48 UNC and Art. 103 UNC ('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’). See also Frowein, 'Article 41’, Human Rights in the World n. 13, at p. 626; R. Bernhardt 'Article 103’, in Simma, Human Rights in the World n. 13, p. 1116.
18. Art. 27 (3) UNC, which reads, in part: 'Decisions of the Security Council on all [non-procedural] matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.’ See S. Brunner (with B. Simma), 'Article 27’, in Simma, Human Rights in the World n. 13, p. 430 at pp. 449–453, for a discussion of the practice of the UNSC that 'abstaining’ from a vote means to 'concur’ with a decision.
19. Berman, Human Rights in the World n. 9, at p. 174 (original emphasis). Berman, Human Rights in the World, and L. Arbour and M. Bergsmo, 'Conspicuous Absence of Jurisdictional Overreach’, in Von Hebei, et at, Human Rights in the World n. 9, p. 129 at p. 130, further note that the ICCS does not vest the UNSC with powers it does not already have. 25. The question, of course, rekindles the whole debate about the judicial review of the actions of the UNSC. The complexities and peculiarities of the debate fall outside the scope of this article. For a recounting of some aspects relating thereto, see, e.g., K. Roberts, 'Second-guessing the Security Council: the International Court of Justice and its Powers of Judicial Review’, 7 Pace International Law Review (1995–2) p. 281; D. Akando, 'The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’, 46 ICLQ (1997) p. 309; M. Bedjaoui, The New World Order and the Security Council: Testing the Legality of its Acts (Dordrecht, Martinus Nijhoff 1994) p. 37.
20. In its search for the answer, the Court would probably presume that the UNSC was aware of Art. 13(b) ICCS and complied with the voting procedure of the UNC, emphasise the provisions of the UNC and the practice of the UNSC in this regard, amongst other factors. See Bninner (with Simma), Human Rights in the World n. 23, at p. 430, for a discussion of Art. 27 UNC, including these questions. 27. How UN SC decisions concerning the ICC are going to come to the attention of the Court is as of yet unclear. Of course, it could be assumed that 'irregular’ decisions would not be formally transmitted to the Court by the UNSC.
21. It does not seem as the term 'acting’ need to be interpreted as meaning that the UNSC would also have had to decided on Art. 41 UNC or Art. 42 UNC measures in order to make such a referral. The use of the phrase 'acting under Chapter VII’ as opposed to 'in a resolution adopted under Chapter yir (Art. 16ICCS) will later be referred to cursorily. It is possible that the word 'acting’ signifies more than a mere decision in terms of Art. 39 UNC, but for the purposes of this article, it will be assumed that this is not the case.
22. See Frowein, 4 Article 39’, Human Rights in the World n. 13, at pp. 612–614.
23. It is interesting to note that the Preamble recognises that 'such grave crimes [falling within the subject-matter jurisdiction of the Court] threaten the peace, security and well-being of the world’ (para. 3). It is doubtful whether this would have any effect on the decision-making of the UNSC, in the sense of this paragraph assisting the UNSC in determining whether a situation constitutes a threat to or a breach of the peace.
24. If faced with such a question, the Court would probably presume that the UNSC was aware of Art. 13(b) ICCS and complied with the voting procedure of the UNC, emphasise the provisions of the UNC and the practice of the UNSC in this regard, amongst other factors.
25. Whether the agreement to be concluded between the Court and the UN in terms of Art. 2 ICCS would deal with the form of and procedure of transmitting UNSC decisions is unclear. 33. The agreement to be concluded between the Court and the UN in terms of Art. 2 ICCS, might well deal with the form of and procedure of transmitting UN SC decisions to the Court, making it impossible for a Prosecutor, for example, to simply take note of a UN SC decision without it actually constituting a referral decision and having been formally transmitted to the Court. Anyhow, in this instance the Court would also probably make use of presumptions in favour of the UNSC.
26. See H.G. Schermers and N.M. Blokker, International Institutional Law: Unity within Diversity (The Hague, Martinus NijhofT 1995) p. 463, who state that '[i]n accordance with a general principle of law, judicial organs themselves decide whether they have jurisdiction, and whether a party may appear before them. Once a case is declared admissible, the court will decide on its merits.’
27. The competence of a Court to determine its own competence is sometimes referred to as competence de la competence in French and Kompetenz-Kompetenz in German (I. Brownlie, Principles of Public International Law (Oxford, Clarendon Press 1998) p. 715). Similarly, Art. 36 (6) of the Statute of the International Court of Justice provides: 'In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.’ See also Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Dusko Tadic; Case No. IT-94-1-AR72, Appeals Chamber, 2 October 1995, paras. 18 and 19 ('(18) This power. is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its “jurisdiction to determine its own jurisdiction.’’ It is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents of those tribunals, although this is often done. (19) It is true that this power can be limited by an express provision in the arbitration agreement or in the constitutive instruments of standing tribunals, though the latter possibility is controversial, particularly where the limitation risks undermining the judicial character or the independence of the Tribunal. But it is absolutely clear that such a limitation, to the extent to which it is admissible, cannot be inferred without an express provision allowing the waiver or the shrinking of such a well-entrenched principle of general international law’). 36. In general, depending on the workload and activism of the Court, probably neither the Prosecutor nor a Pre-Trial Chamber would be inclined to question the validity of a referral decision. The situation might be different with UNSC deferral decisions.
28. Emphasis added.
29. Unlike Art. 13(a) ICCS, which provides that a situation could be referred to the Prosecutor in accordance with Art. 14 ICCS, and Art. 13(c) ICCS, which provides that the Prosecutor could initiate an investigation in accordance with Art. 15 ICCS.
30. Emphasis added. 40. Whether the three criteria to be considered by the Prosecutor (Art. 53(lXa)-(c)) are exhaustive, or whether the phrase 'reasonable basis to proceed under this Statute’ (Art. 53 (1)) covers more than the three enumerated criteria, is unclear.
31. If the Article means that the UNSC could itself address a request to the Prosecutor, the UN SC would, in practice, probably first request the Prosecutor to reconsider his or her decision, before requesting the Pre-Trial Chamber to review the Prosecutor's decision.
32. Whether a Pre-Trial request to reconsider that decision would be binding on the Prosecutor, is doubtful.
33. The same conditions would appear to apply to the situation where the Prosecutor receives new information following a decision that there is no reasonable basis to initiate an investigation (see Art. 53 (4) ICCS, which reads that '[t]he Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information’). It also does not appear as if the fact that UNSC decisions taken under Chapter VII UNC in order to maintain international peace and security are binding upon UN members would affect the present question (see Arts. 25 and 48 UNC). Art. 48(2) UNC, falling within Chapter VII, e.g., provides that UNSC decisions aimed at maintaining international peace and security 'shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.’ Because of the independence and impartiality of the Prosecutor and judges of the ICC, UN members that are also parties to the 1CCS could not influence them in any way (see Art. 42(1), (5) and (7) ICCS).
34. Emphasis added.
35. Art. 53(3Xa) ICCS includes a reference to Art. 53 (2), meaning that the UNSC may request the Pre-Trial Chamber to review a decision of the Prosecutor not to prosecute and may request the Prosecutor to reconsider that decision.
36. Para. 10 of the Preamble and Art. 1 ICCS.
37. Art. 9 (2) of the ICTY Statute; Art. 8(2) ICTR Statute.
38. See above on the competence of judicial bodies to determine jurisdictional and admissibility issues.
39. M.H. Arsanjani, 'Reflections on the Jurisdiction and Trigger Mechanism of the International Criminal Court’, in Von Hebei, et al., Human Rights in the World n. 9, p. 57 at p. 70. Art. 90 on the obligation of a third state regarding competing requests by the Court and by another state, in Arsanjani's opinion, is similarly of no assistance. 52. Human Rights in the World
40. On the face of it, it seems as if a request for review and reconsideration need not be made under Chapter VII only. However, how could the UN SC address the ICC, which is not a UN member state? For example, Chapter VI ('Pacific settlement of disputes’) UNC, encompassing Arts. 33 to 38, does not appear to provide the UN SC with a basis for such a review request. The Chapter serves as the basis for the UN SC to call upon the parties to a dispute to settle their dispute by peaceful means (Art. 33 UNC) - in general, states are the addressees of UN SC decisions. Similarly, Chapter VIII ('Regional arrangements’) UNC, allowing the UNSC to utilise regional organisations, either directly through its members or indirectly through the regional organisation itself, does not appear to be of any relevance, since the Court would not be a regional organisation (see G. Ress, 'Article 53’, in Simma, Human Rights in the World n. 13, p. 722 at p. 730).
41. Since such a review and reconsideration request does not seem to be a 'procedural matter’ within the meaning of Art. 27 (2) UNC, one can only surmise that it would require nine affirmative votes, without a veto of a permanent UNSC member.
42. It is doubtful whether the agreement envisaged in Art. 2 ICCS, providing for the Court to be 'brought into relationship with the United Nations through an agreement’, could or would clarify this potential problem. 56. Assuming of course, that a mere Art. 39 UNC determination and a referral of a situation to the Court, is binding on a UN member state. For, could it not be argued that only an Art. 39 UNC determination, coupled with Art. 41 or 42 UNC measures are binding on UN member states?
43. Art. 25 UNC reads that ’[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’
44. Art. 48 UNC provides as follows: '(1) The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. (2) Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.’ See B. Bryde, ’Article 48’, in Simma, Human Rights in the World n. 13, p. 651.
45. Art. 103 UNC states that '[i]n 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.’ See Bernhardt, Human Rights in the World n. 22, at p. 1116.
46. Arsanjani, Human Rights in the World n. 18, atp. 28. 61. Human Rights in the World, fn. 14, at p. 28.
47. Arbour and Bergsmo, Human Rights in the World n. 24, at pp. 139–140.
48. Art. 17(1 Xc) ICCS. The assumption is that a state could consent to the jurisdiction of the Court in such a case.
49. See also Art. 21 ('Applicable law’) ICCS. In particular, Art. 21 (3) provides that '[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights.’ 65. It belongs to Part 2 of the ICCS, dealing with jurisdiction, admissibility and applicable law issues.
50. Art. 23 (3) of the Draft Statute for an International Criminal Court of the International Law Commission (ILC Draft Statute) reads as follows: '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 decided1(Report of the International Law Commission, Human Rights in the World n. 10, at p. 85).
51. See M. Bergsmo and J. Pejic, 'Article 16: Deferral of Investigation or Prosecution1(to be published in the forthcoming book edited by O. Triffterer, Commentary on the Rome Statute of the International Criminal Court) for a recounting of the genesis of the Article and an analysis of its final text. See also Kirsch and Holmes, Human Rights in the World n. 7, at p. 8; Arsanjani, Human Rights in the World n. 18, at pp. 26–27.
52. Arsanjani, Human Rights in the World n. 18, at p. 26.
53. See, e.g., the various proposals in the 'Report of the Preparatory Committee on the Establishment of an International Criminal Court1, Draft Statute and Draft Final Act (A/Conf. 183/2/Add. 1, 1998), at pp. 40–42, 46–47. One Bureau proposal even provided for no deferral role for the UNSC (see Bureau Discussion Paper, UN Doc. A/Conf. 183/C.1/L/53, Art. 10 'Deferral1, Option 3 (1998)).
54. See Bergsmo and Pejic, Human Rights in the World n. 67, margin 7. 71. Whether Art. 16 ICCS actually is a jurisdictional or admissibility issue, is not wholly clear. It has no obvious link to any of the other Articles immediately preceding (Art. 13 ('Exercise of jurisdiction’), Art. 14 ('Referral of a situation by a State Party’), Art. 15 ('Prosecutor’)) or following (Art. 17 ('Issues of admissibility’), Art. 18 ('Preliminary rulings regarding admissibility’)) it. Generally, jurisdictional issues are said to 'strike at the competence of a tribunal to deal with the merits or admissibility of the claim’, while admissibility issues, in general, 'involves a challenge to the validity of a claim distinct from issues as to jurisdiction or merits’ (Brownlie, Human Rights in the World n. 35, at p. 714). Suffice to say that it appears as if the concept of jurisdiction is used rather broadly in the ICCS (see also Arsanjani, Human Rights in the World n. 18, at p. 26). For current purposes it is assumed that nothing turns on this problem.
55. Arguably, depending on the workload and activism of the Court, it might be more inclined to question deferral decisions in order to remain seized of a case than might be the case with referral decisions. 73. E.g., the relevant options in the 1998 Draft Statute of the Preparatory Committee (Human Rights in the World n. 10) and the Bureau Discussion Paper (UN Doc. A/Conf. 183/C.1/L/53, Art. 10 'Deferral’ Option 3 (1998)) only reinforces the interpretation that the word 'requested’ could not be permissively understood.
56. For interest's sake, see the various proposals in the 1998 Draft Statute of the Preparatory Committee, Human Rights in the World n. 10, at pp. 40 – 42 and 46 – 47). The first proposal read as follows: '[(7) Option 1 No prosecution may be commenced under this Statute arising from a [dispute or] situation [[pertaining to international peace and security or an act of aggression] which [is being dealt with] [actively] by the Security Council] [as a threat to or breach of the peace or an act of aggression] [under Chapter VII of the Charter], [where the Security Council has decided that there is a threat to or breach of the peace and for which it is exercising its functions under Chapter VII of the Charter of the United Nations], [unless the Security Council otherwise decides] [without the prior consent of the Security Council]. Option 2 (1) [Subject to paragraph 4 of this article], no prosecution may be commenced [or proceeded with] under this Statute [for a period of twelve months] where the Security Council has [decided that there is a threat to or breach of the peace or an act of aggression and], acting under Chapter VII of the Charter of the United Nations, [given a direction] [taken a [formal and specific] decision] to that effect. (2) [Notification] [A formal decision of the Security Council to that effect] that the Security Council is continuing to act may be renewed at intervals of twelve months [by a subsequent decision].] (3) [Should no action be taken by the Security Council in accordance with Chapter VII of the Charter of the United Nations within a reasonable time, the Court may exercise its jurisdiction in respect of the situation referred to in paragraph 1 of this article, ]]]’ The second proposal reads as follows: '[. 2. No investigation or prosecution may be commenced or proceeded with under this Statute [for a period of twelve months] after the Security Council[, acting 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.]’ Neither of these proposals unambiguously supports the notion that the UN SC has to determine that the continued activity of the Prosecutor would constitute, at least, a threat to the peace. It is also interesting to note that the second proposal, which essentially won the day and is now Art, 16 ICCS, initially contained the phrase 'acting under Chapter VII’, 75. A possible argument is that 'acting under’ means that an Art. 39 UNC as well as either Art. 41 or 42 UNC come into play, whereas 'in a resolution adopted under’ could simply imply the making of an Art. 39 UNC determination. There is though, no suggestion that this is what the drafters of the ICCS had in mind.
57. See Bergsmo and Pejic, Human Rights in the World n. 67, margin 22.
58. For the view that the UNSC need to explicitly decide that the continuation of the Prosecutor's investigation or prosecution may amount to a threat to the peace, see Cassese, Human Rights in the World n. 11, at p. 163.
59. The renewal of such a deferral request would also have to be made under Chapter VII UNC. The UNSC could shorten the deferral time, but not extend it beyond 12 months.
60. An ambiguous decision could fall under the second and third grounds of limited review. 80. The loose meaning attached to 'substantive review’ in the context of Art. 13(b) ICCS applies here as well.
61. See Berman, Human Rights in the World n. 9, atpp. 176–167.
62. See Cassese, Human Rights in the World n. 11, at pp. 162–163 who the Prosecutor is the addressee.
63. It is assumed that the word 'prosecution’ could include the actual trial phase or even appeals phase. 84. In general, any challenge to the jurisdiction of the Court arising prior to the confirmation of the charges against an accused, must be referred to a Pre-Trial Chamber; thereafter a Trial Chamber must deal with such challenges (Art. 19 (6) ICCS).
64. It provides that ' [t]he Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.’
65. The Article provides as follows: 'The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1(c).’ Art. 19 (2) ICCS provides that '[challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12.’
66. In case of a state challenging the jurisdiction of the Court, the challenge must be made at the earliest opportunity (Art. 19 (5) ICCS). 88. The pertinent part reads:. In proceedings with respect to jurisdiction and admissibility, those who have referred the situation under article 13, as well as victims may also submit observations to the Court.’
67. The Rules of Procedure and Evidence (Rules) of the ICC are being drafted at the moment. Art. 51 ICCS provides that the Rules of Procedure and Evidence shall be adopted by a two-thirds majority of the members of the Court's Assembly of states parties. The Rules has to be consistent with the ICCS (Art. 51 (4) ICCS).
68. Art. 15 (2) ICCS.
69. Should a deferral decision come to the Court's attention during the pre-investigation phase, the Prosecutor could either not proceed to request authorisation from the Pre-Trial Chamber to investigate the case, or, where it doubts the validity of the deferral decision, approach the Pre-Trial Chamber for such an authorisation order. In accordance with Art. 15 (4) ICCS, the Chamber would then have to satisfy itself that the case 'appears to fall within the jurisdiction of the Court'.
70. Although falling outside the scope of this article, it is important to note the following. Bergsmo and Pejic point out that Art. 16 ICCS contains no guidelines for dealing with the many evidentiary and practical problems which are likely to be caused by the issuance of a deferral decision once proceedings have begun. For example, must an arrested person be set free by the custodial state, and what about potential witnesses whose lives may be in danger absent protection from the Court? (Human Rights in the World n. 67, margin 19). Bergsmo and Pejic then state that, '[i]n principle, the [UNSC] may regulate how measures can be taken by the Court in response to the procedural and evidentiary implications of a deferral request by the Council, in a Chapter VII decision pursuant to article 16’ (Human Rights in the World, margin 20). It is unclear whether Bergsmo and Pejic are implying that the UNSC could regulate any procedural or evidentiary problems arising from a deferral decision. Suffice to say that this author is of the view that the Court would have to deal with any procedural and evidentiary questions arising from a deferral request in accordance with the ICCS. Where the ICCS is silent, the Court may consider any measures adopted by the UNSC, but would not be bound by them. 93. Art. 16ICCS.
71. Art. 18 (2) ICCS in equally clear terms states that 'the Prosecutor shall defer’ to a state's investigation, but nevertheless allows for such deferral to be reconsidered, reviewed and appealed, albeit that such reconsideration, review and appeal is expressly provided for (Arts. 18 (2)-(5) ICCS).
72. Emphasis added.
73. Art. 87 (6) ICCS might also be relevant in this regard, but would not be discussed in this article. It provides: 'The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.’ 97. Emphasis added.
74. 'Enforcement mechanism’ is not to be understood to mean only Chapter VII enforcement measures.
75. Encompassing Arts. 33 to 38 UNC. Chapter VI UNC might come into play where the original referral decision under Chapter VII is considered an insufficient basis for attempting to have the state cooperate with the Court.
76. Art. 89 ICCS.
77. Art. 91 ICCS. 102. Emphasis added.
78. Another probably largely theoretical point, is that only where non-state party has entered into either an 'ad hoc agreement’ or 'an agreement’ with the Court, would the Court be able to inform the UNSC of its non-cooperation. The words 'or any other appropriate basis’, used in the first sentence of Art. 87 (5) ICCS, are not repeated in its second sentence.
79. Art. 89 ICCS.
80. Art. 91 ICCS. 106. Berman, Human Rights in the World n. 9, at pp. 179–180.