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The ICC, Peacekeepers and Resolution 1422: Will the Court Defer to the Council?

Published online by Cambridge University Press:  21 May 2009

Zsuzsanna Deen-Racsmány
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Since its adoption in 1998, the United States has criticized the Rome Statute of the International Criminal Court (ICC) on several grounds. One of its major concerns is that its nationals, particularly officials and personnel participating in peacekeeping operations, could be brought to the Court, without US consent, on false charges advanced by enemies of the US. The US delegation unsuccessfully attempted to introduce new articles into the text of the Rome Statute before its adoption to guarantee the immunity of its nationals from the jurisdiction of the Court. Later at the meetings of the Preparatory Commission for the Establishment of the International Criminal Court (PrepCom) it failed to modify the Statute indirectly, through proposals to insert a provision into the Rules of Procedure and Evidence of the Court and subsequently into the Relationship Agreement to this effect.

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Netherlands International Law Review , Volume 49 , Issue 3 , December 2002 , pp. 353 - 388
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Copyright © T.M.C. Asser Press 2002

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References

2. Statute of the International Criminal Court, UN Doc. A/Conf. 183/9* (17 July 1998), corrected 10 November 1998 and 12 July 1999 (English version), available at http://www.un.org/law/icc/statute/romefra.htm, reprinted in 37 ILM 999 (1998) (unconnected version) (hereinafter: ICC or Rome Statute).

3. On the major issues see, for instance, Wedgwood, R., ‘The International Criminal Court: An American View’, 10 EJIL (1999) p. 93 and submissions in 64 Law and Contemporary Problems (2001), No. I (the entire issue deals with ‘The United States and the International Criminal Court’).Google Scholar

4. This body was established after the adoption of the Rome Statute. In contrast, the Preparatory Committee for the Establishment of an International Criminal Court referred to later in this article was the body entrusted with drafting the Statute itself. Its mandate ended upon adoption of the Statute. While this Committee, too, is often mentioned in literature as the ‘PrepCom’, in order to avoid confusion it will be referred to as ‘Preparatory Committee’ in this study.

5. See H.-P., Kaul, ‘The Continuing Struggle on the Jurisdiction of the International Criminal Court’, in Fischer, H., Kreβ, C. and Lüder, S. Rolf, eds. International and National Prosecution of Crimes under International Law: Current Developments (Berlin, Spitz 2001) p. 21Google Scholar. The US concerns were to some extent met at the fifth session of the PrepCom where a compromise text, Rule 195, was inserted into the Rules of Procedure and Evidence (UN Doc. PCNICC/2000/l/Add.l (2000) available at http://www.un.org/law/icc). See ibid.., at pp. 34–35.

6. For the text of the letter of 6 May 2002 by Bolton, John R., Under Secretary of State for Arms Control and International Security to UN Secretary General Kofi Annan announcing that the USA did not intend to ratify the Rome Statute and considered that it had no legal obligations arising out of the signature by the Clinton administration see http://www.wfa.org/issues/wicc/bolton_ICC_unsign.pdf.Google Scholar

7. Section 2005 (‘Restriction on United States participation in certain United Nations peacekeeping operations’) of the Supplemental Appropriations Bill (H.R. 4775), containing the American Servicemembers Protection Act, available at http://www.wfa.org/wicc/ASPA-HR4775.html. Having been passed in the Congress and in the Senate in late July, President George W. Bush signed the Act on 2 August 2002, turning it into Public Law 107–206.

8. See nn. 14–15, infra, and corresponding text.Google Scholar

9. UN Doc. S/Res/1422 (2002), available at http://www.un.org/docs/sc. See also n. 26, infra, and accompanying text.

10. Due to the large volume of criticism directed at the first US draft resolutions, the US attributed a great importance to reaching unanimity on the final resolution, thereby hoping to increase its legitimacy.

11. Both comments are quoted in Lynch, C., ‘U.S. Wins 1-Year Shield From War Crimes Court’, Washington Post, 13 July 2002, A16.Google Scholar

12. Prosecutor v. Tadić, ICTY Trial Chamber, Decision on Defence Motion on Jurisdiction, Case No. IT-94-1-T (10 August 1995) (hereinafter: Decision of the Trial Chamber); Prosecutor v. Tadić, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-I-AR72 (2 October 1995) (hereinafter: Decision of the Appeals Chamber).

13. See nn. 150–152, infra, and corresponding text.Google Scholar

14. Text submitted by US to be included in the SC Resolution renewing the mandate of UNMIBH, available at http://www.wfa.org/issues/wicc/UNSCdraftres.html. The US has submitted a similar draft paragraph to the SC Resolution on the renewal of UNTAET. See http://ww.wfa.org/wicc/UNSCresourcepage.html and articles available at http://www.wfa.org/issues/wicc/immunityeasttimor.html;

http://www.wfa.Org/issues/wicc/noexemption.html; http.//www.wfa.org/issues/wicc/protectpeacekeepers.html.

15. Draft SC resolution submitted by the US on 19 June 2002, available at

http://www.wfa.org/issues/wicc/UNSCdraftres.html.

16. This approach indicates the conviction that even Chapter VII resolutions are binding only on UN member states and do not apply to other legal persons, such as the ICC. (See nn. 93–103, infra, and accompanying text.)Google Scholar

17. See ‘Zero US Exposure to ICC’, chart prepared by the CICC, available at

http://www.iccnow.org/html/USexposuretoICCchart.pdf. It should, moreover, be noted that the jurisdiction of the ICTY would arguably prevail over that of the ICC in the case of crimes committed in the context of this operation. See M., Bohlander, ‘Possible Conflicts of Jurisdiction with the Ad Hoc International Tribunals’, in Cassese, A., Gaeta, P., Jones, J.R.W.D., eds., The Rome Statute of the International Criminal Court: A Commentary (Oxford, Oxford University Press 2002) p. 687 at pp. 688–689.Google Scholar

18. July 3 US-sponsored draft resolution, available at http://www.wfa.org/issues/wicc/us-am.html. Emphases added.

19. Available at http://www.wfa.org/issues/wicc/us-pm.html.

20. July 10 US proposal. The full text is available at http://www.wfa.org/issues/wicc/amend071202.html.

21. ibid.., operative para. 1, emphasis added. For the relevant part of the previous draft text see text accompanying n. 18, supra.

22. See, e.g., the transcripts of the 4568th SC meeting (UN Doc. S/PV.4568 (2002)) for statements made by representatives of Canada (Mr Heinbecker) at p. 4; New Zealand (Mr MacKay) at p. 5; Costa Rica (Mrs Chassoul) speaking also on behalf of the Rio Group at p. 14; Brazil (Mr Fonseca) at p. 22; Switzerland (Mr Staehelin) at p. 23; Mauritius (Mr Koonjul) at p. 25; Mexico (Mr Aguilar Zinser) at p.26; and after the resumption of the meeting (reproduced in UN Doc. S/PV.4568 (Resumption I)) by the representatives of Samoa (Mr Slade) at p. 7; and Germany (Mr Schumacher) at p. 9. See also UN Secretary-General Kofi Annan's letter to US Secretary of State Colin Powell, available at http://www.iccnow.org/html/SGIettertoSC3July2002.doc.

23. See, e.g., comments made at the 4568th SC meeting (n. 22, supra) by representatives of New Zealand (Mr MacKay) at p. 5; Brazil (Mr Fonesca) at p. 22; Mauritius (Mr Koonjul) at p. 25; Mexico (Mr Aguilar Zinser) at pp. 26, 27; and after the resumption of the meeting (n. 22, supra) by the representative of Samoa (Mr Slade) at p. 7. See also Annan's letter to Powell, supra n. 22.

24. See, e.g., comments made at the 4568th SC meeting (n. 22, supra) by representatives of Canada (Mr Heinbecker) at p. 3; Jordan (Prince Zeid Ra'ad Zeid Al-Hussein) at p. 16; Liechtenstein (Mrs Fritsche) at p. 20; and after the resumption of the meeting (n. 22, supra) by the representatives of Fiji (Mr Naidu) at p. 2; Samoa (Mr Slade) at p. 7; Germany (Mr Schumacher) at p. 9.

25. See, e.g., comments made at the 4568th SC meeting (n. 22, supra) by representatives of Canada (Mr Heinbecker) at p.3; New Zealand (Mr MacKay) at pp. 5, 6; France (Mr Levitte) at p. 11; Costa Rica (Mrs Chassoul) on behalf of nineteen members of the Rio Group at p. 15; Iran (Mr Fadaifard) at p. 15; Jordan (Prince Zeid Ra'ad Zeid Al-Hussein) at p. 16; Ireland (Mr Ryan) at p.18; Liechtenstein (Mrs Fritsche) at p.20; Brazil (Mr Fonesca) at p. 22; Switzerland (Mr Staehelin) at p. 23; Venezuela (Ms Pulido Santana) at p. 30; and after the resumption of the meeting (n. 22, supra) by the representatives of Fiji (Mr Naidu) at p. 2; Ukraine (Mr Kuchinsky) at p. 4; Guinea (Mr Diallo) at p. 5; Columbia (Mr Valdivieso) at p. 6; Malaysia (Mr Hasmy) at p. 8; Syria (Mr Wehbe) at p. 10; Argentina (Mr Listre) at p.13; Cuba (Mr Rodriguez Parrilla) at p. 14. See also Annan's letter to Powell, supra n. 22.

For further bases of criticism see ibid.., as well as the chart prepared by the NGO Coalition for the International Criminal Court, summarizing governmental positions at this meeting (available at

http://www.iccnow.org/html/countrychart20020710.pdf) and the chart displaying states attitude as presented at the special plenary session of the tenth PrepCom on 3 July 2002 (available at

http://www.iccnow.org/html/countrychart20020703.pdf).

26. Supra n. 9.

27. See nn. 22–25, supra, and accompanying text.Google Scholar

28. Supra n. 22.

29. See the transcripts of the 4568th SC meeting for speeches to this effect, supra n. 22.

30. The insertion of the phrase‘under the same conditions’ in para. 2 of the Resolution (see text accompanying n. 26, supra) suggests that such extension may only be made for another year, hence not permanently, and only through a Chapter VII resolution.

31. Arguably, the Resolution may be binding on the ICC even if proven inconsistent with the Rome Statute. See section 5.1, infra.

32. Bosnia-Herzegovina was among the first 60 states ratifying the ICC Statute, hence the jurisdiction of the ICC over crimes committed on Bosnian territory commenced on 1 July 2002.

33. The Rome Statute is based on the principle of complementarity with regard to the exercise of jurisdiction by the ICC and national courts. In practice this means that national courts have primacy. See preambular para. 10 and Arts. 1, 17 and 18 of the Rome Statute, supra n. 2. On the jurisdiction of the ICC over this operation see also n. 17, supra.

34. See operative para. 3 of the Resolution (text accompanying n. 26, supra).

35. It is not even clear that the US needed this Resolution in order to gain a year of effective immunity for its peacekeepers from the jurisdiction of the ICC. While the Rome Statute entered into force on 1 July 2002, it is likely that the Court will not be able to start investigations before the summer of 2003, making Resolution 1422 superfluous.

On the timetable for making the ICC operational see Coalition for the International Criminal Court, International Criminal Court Treaty Enters into Force: Jurisdiction of First Permanent Criminal Tribunal Begins, Press Release, available at http://vAvw.iccnow.org/html/pressrelease20020701.pdf; Human Rights Watch, Countdown to the International Criminal Court (estimating investigations to start in the second quarter of 2003), available at http://www.hrw.org/campains/icc/timeline.htm.

36. Anonymous European diplomat cited in S., Schememann, ‘US, UN resolve global court rift, American peacekeepers get immunity for 1 year’, Chicago Tribune, 13 July 2002, News, p. 1, zone N.Google Scholar

37. See, for instance, J., Dugard, ‘Obstacles in the Way of An International Criminal Court’, 56 Cambridge I.J(1997) p. 329 at pp. 339–342;Google ScholarHall, C.K., ‘The First Two Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court’, 91 AJIL (1997) p. 177 at p. 185.Google Scholar

38. See Art. 2 of the Rome Statute, supra n. 2.

39. Draft Relationship Agreement between the United Nations and the International Criminal Court, UN Doc. PCNICC/2001/l/Add.l (8 January 2002). The first Assembly of States Parties (ICC) adopted the document without modification on 9 September 2002 (see http://www.un.org/law/icc/asp/aspfra.htm). On the question whether the ICC is bound to respect such decisions under the UN Charter see section 5.1, infra; L., Condorelli and S., Villalpando, ‘Relationship of the Court with the United Nations’, in Cassese, et al., op. cit. n. 17, p. 219 at p. 221.Google Scholar

40. Art. 13(b) of the Rome Statute, supra n. 2 It should moreover be noted that in the absence of a decision on how the ICC should deal with the crime of aggression, there is as of yet no solution for a division of competence in respect of aggression (i.e., about the effect of a determination by one of the two bodies that the act in question constitutes aggression on the determination and duties of the other body). On this issue see the ‘Discussion paper proposed by the Coordinator’ (UN Doc. PCNICC/2002/WGCA/RT. 1) and the ‘Draft resolution of the Assembly of States Parties on the continuation of work in respect of the crime of aggression’ (UN Docs. PCNICC/2002/WGCA/L. 1 and PCNICC/2002/WGC A/L.2/Rev. 1. All three documents are available at http://www.un.org/law/icc/prepcomm/prepfra.htm).

41. See Art. 87(7) of the Rome Statute, supra n. 2.Google Scholar

42. Art. 16 of the Rome Statute, supra n. 2.

43. See the transcripts of statements made at the 4568th meeting of the SC (n. 22, supra) by the representatives of Canada (Mr Heinbecker) at p. 4 and New Zealand (Mr MacKay) at p. 5. (On the travaux préparatoires see, e.g., L. Condorelli and S. Villalpando, ‘Referral and Deferral by the Security Council‘, in Cassese, et al., op. cit. n. 17, p. 627 at p. 647, fn. 82 and corresponding text; M.H., Arsanjani, ‘Reflections on the Jurisdiction and Trigger Mechanism of the International Criminal Court’, in von Hebel, H.A.M., Lammers, J.G. and Schukking, J., eds., Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (The Hague, T.M.C. Asser Press 1999) p. 57 at p. 72.)Google Scholar

44. See ibid., for the statement made by the representative of New Zealand (Mr MacKay) at p. 5.

45. On the rules of treaty interpretation see Vienna Convention on the Law of Treaties (1969) (VCLT), 1155 UNTS p. 331, Arts. 31 (1)-32 at p. 340. These provisions reflect customary international law. See Case concerning Territorial Dispute (Libya v. Chad), ICJ Rep. (1994) p. 6 at pp. 21–22, para. 41.Google Scholar

46. Art. 23(3) in Report of the International Law Commission on the Work of its Forty-Sixth Session, UN Doc. A/49/10(1994), Vol. II, Part I (‘Draft Statute for an International Criminal Court’), p. 85. Emphasis added.Google Scholar

47. UN Doc. A/50/22 (1995), p. 29, para. 126. Emphasis added. See also ibid.., at p. 29, paras. 124–125.

48. See, for instance, Proceedings of the Preparatory Committee during March-April and August 1996, Vol. 1, UN Doc. A/51/22 (1996), pp. 33–34, paras. 142–143; Hall, op. cit. n. 37, at p. 182Google Scholar; idem, ‘The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court’, 92 AJIL (1998) p. 124 at p. 131;CrossRefGoogle Scholaridem, ‘The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court’, 92 AJIL (1998) p. 331 (no reference to the issue);CrossRefGoogle Scholaridem, ‘The Sixth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court’, 92 AJIL (1998) p. 548 (no reference to the issue);CrossRefGoogle ScholarM., Bergsmo and J., Pejić, ‘Article 16’, in O., Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (Baden-Baden, Nomos Verlagsgesellschaft 1999) p. 373 at pp. 373–378;Google ScholarL., Yee, ‘The International Criminal Court and the Security Council: Articles 13(b) and 16–, in R.S., Lee, ed., The International Criminal Court:The Making of the Rome Statute: Issues, Negotiations, Results (The Hague, Kluwer Law International 1999) p. 143 at pp. 149–152; reports of the fourth-sixth Preparatory Committee meetings prepared by the NGO Coalition for the International Criminal Court (CICC), available at http://www.iccnow.Org/html/n.g.o..html.Google Scholar

49. 1996 Proceedings of the Preparatory Committee, supra n. 48, at p. 34, para. 143. It should be noted that according to a commentator the term ‘matter’ was considered by the drafters as being narrower than ‘situation’ but wider than ‘case’. (Yee, op. cit. n. 48, at pp. 147–148.)

50. E.g., by Mr Heinbecker (Canada) and by Mr Michel (Switzerland) at the special plenary session of the PrepCom on 3 July. Both texts are available at http://www.iccnow.org/html/govt.html.

51. Supra n. 22.

52. See references in n. 22, supra.

53. UN Doc. S/PV.4568, p. 5. Emphases added.

54. There is unambiguous evidence in the text of Art. 16 as well as in reports of the Preparatory Committee that the SC was not intended to have the competence to provide for automatic renewal but has, under Art. 16, to pass a new Chapter VII decision if it intends to renew its request for deferral of investigation and prosecution. The US drafts have been heavily attacked on this issue. As the final text of Resolution 1422 does not provide for automatic renewals, this issue is not dealt with here. (For a discussion of the legality of automatic renewal under Art. 16 of the Rome Statute see B. MacPherson, ‘Authority of the Security Council to Exempt Peacekeepers from International Criminal Court Proceedings’, AS1L Insights (July 2002), available at http://www.asil.org/insights/insigh89.htm.)

55. See statements at the 4568th SC meeting by the French Ambassador (Mr Levitte) quoted in UN Doc. S/PV.4568, p. 11; the Ambassador of Singapore (Mr Mahbubani) at p. 24; and Cameroon's Ambassador (Mr Tidjani) quoted in UN Doc. S/PV.4568 (Resumption 1), p. 11.

56. While the Resolution has been criticized for attempting to rewrite or otherwise modify a multilateral treaty (see n. 25, supra), it technically speaking does not alter the provisions of the Rome Statute. It is, on the other hand, possible to argue that the Resolution may constitute or lead to a de facto modification inasmuch as the interpretation of Art. 16 of the Rome Statute reflected therein – which may constitute a precedent – is inconsistent with the intended meaning of the provision. As a major part of such criticism was probably directed at the provision of the draft resolutions which would have led to the creation of a permanent immunity – through automatic renewal of the decision – it is arguable that the deletion of the relevant part of the text makes this criticism void. Nonetheless, the fact that such complaints have been made even after the adoption of the Resolution (see n. 11, supra, and accompanying text) suggests that it is still seen as reinterpreting the ICC Statute due to the fact that it does not deal with a specific case. Hence it is necessary to consider the power of the SC to modify the Rome Statute. (The Statute should however not be seen as the exclusive source of the Council's authority to pass Resolution 1422. Despite the lack of express powers to do so in the Charter, it is arguable that the competence to consider a general situation as threat to the peace and request deferral by the ICC may flow from the UN Charter. See section 5.3, infra.)

57. Arts. 121–123. See also L., Condorelli and S., Villalpando, ‘Can the Security Council Extend the ICC's Jurisdiction?’, in Cassese, et al., op. cit. n. 17, at p. 571Google Scholar (while addressing a slightly different question, the article also contains general arguments on the right of the SC to amend the Rome Statute).

58. See Arts. 24(1) and 33–50of the UN Charter.Google Scholar

59. See Arts. 1 and 2 of the UN Charter and text accompanying nn. 124–128, infra.Google Scholar

60. Certain Expenses of the United Nations, Advisory Opinion, ICJ Rep. (1962) p. 151.Google Scholar

61. Supra n. 12.

62. Decision of the Trial Chamber, supra n. 12, at paras. 25–40; Decision of the Appeals Chamber, supra n. 12, at paras. 31–40.

63. See, for instance, Sarooshi, D., The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford, Oxford University Press 1998);CrossRefGoogle ScholarBlokker, N., ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing’”, 11 EJIL (2000) p. 541 at pp. 547–555.CrossRefGoogle Scholar

64. See, e.g., Matheson, M.J., ‘United Nations Governance of Postconflict Societies’, 95 AJIL (2001) p. 76.CrossRefGoogle Scholar

65. On this doctrine see, e.g., Schermers, H.G. and Blokker, N.M., International Institutional Law: Unity within Diversity (The Hague, Nijhoff 1995) pp. 158–163, paras. 232–236;Google ScholarRama-Montaldo, M., ‘International Legal Personality and Implied Powers of International Organizations’, 44 BYIL (1970) p. 111;Google ScholarSeidl-Hohenveldem, I. and Loibl, G., Das Recht der internationalen Organisationen einschliefilich der supranationalen Gemeinschaften, 6th rev. edn. (Cologne, Heymans 1996) pp. 240–242, paras. 1603–1608a.Google Scholar

It should be noted that another relevant doctrine, the theory of inherent power, would have even more far reaching implications. According to the propositions of this latter theory, the powers of international organizations (possessing international legal personality) are not limited to the powers expressly stated in their constitutions. Rather, the only limits on their powers are those explicitly laid down in their constitutive instruments. Hence, the fact that the UN Charter does not explicitly prohibit the SC from modifying or reinterpreting multilateral treaties would imply under this theory that the SC may do so. (On the theory of inherent powers see F. Seyersted, ‘International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend Upon Their Constitutions?’ 4 Indian JIL (1964) p. 1 at p. 66.) However, this doctrine does not enjoy as widespread support as the theory of implied powers.Google Scholar

66. See, for instance, Lauterpacht, E., ‘The Development of the Law of International Organizations by Decisions of International Tribunals’, 152 Recueil des Cours (1976–IV) p. 377 at pp. 447 et seq.,Google ScholarAmerasinghe, C.F., Principles of the Institutional Law of International Organizations (Cambridge, T.M.C. Asser Press 1996) pp. 48–55;Google ScholarBlokker, N., ‘Beyond “Dili”: On the Powers and Practice of International Organizations’, in G., Kreijen, et al. ,, eds., State, Sovereignty, and International Governance (Oxford, Oxford University Press 2002) p. 299 at pp. 312–319;Google ScholarÖsterdahl, I., Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter (Uppsala, Justus Förlag 1998) p. 90.See also Amerasinghe,Google Scholaribid., at pp. 418–421; Kirgis, F.L. Jr, ‘The Security Council's First Fifty Years’, 89 AJIL (1995) p. 506 at p. 517 on the amendment of constitutions of international organizations through practice. Sed contra,CrossRefGoogle ScholarBlum, Y.Z., Eroding the United Nations Charter (Dordrecht, Nijhoff 1993) (objecting to the modification of the UN Charter through the practice of the Organization).Google Scholar

67. UN Doc. S/Res/748 (1992). This Resolution imposed sanctions on Libya, condemning its failure to prosecute or extradite persons allegedly responsible for the terrorist attack against Pan Am flight 103 at Lockerbie.

68. 10 ILM (1971) p. 1151.Google ScholarGraefrath, B., ‘Leave to the Court What Belongs to the Court: The Libyan Case’, 4 EJIL (1993) p. 184 at p. 194;CrossRefGoogle ScholarGill, T.D., ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’, 26 NYIL (1995) p. 33 at pp. 63–64 (arguing that the SC has the right to modify the rights and obligations of states under multilateral treaties).CrossRefGoogle Scholar

69. Gill, op. cit. n. 68, at p. 63; MacPherson, , supra n. 54, section II.B;Google ScholarGowlland-Debbas, V., ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 ICLQ (1994) p. 55 at p. 87.CrossRefGoogle Scholar

70. For a claim concerning the illegality of the Resolution due to fact that it infringes rights enjoyed by Libya under the Montreal Convention see Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arisingfrom the Aerial Incident at Lockerbie (Libya v. United Kingdom) (hereinafter, Lockerbie case), Order on Provisional Measures, ICJ Rep. (1992) p. 3 at p. 14, paras. 35–36.

71. Ibid., at p. 15, paras. 39–40. See also n. 171, infra. On the facts of the case see, e.g., Gowlland-Debbas, V., ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie case’, 88 AJIL (1994) p. 643 at pp. 644–646.CrossRefGoogle Scholar

72. See, e.g., Lockerbie case, supra n. 70, at p. 15, para. 39 and David, M., ‘Passport to Justice: Internationalizing the Political Question Doctrine for Application in the World Court’, 40 Harvard ILJ (1999) p. 81 at p. 114, fn. 148 (referring to Arts. 25 and 103 of the UN Charter); Gill, op. cit. n. 68, at p. 62 (claiming that this right is based on Arts. 39, 41, 42 and 48 of the UN Charter); Gowlland-Debbas, loc. cit. n. 71, at p. 660 (basing the right on Art. 41). See further Graefrath, loc. cit. n. 68, at pp. 197–199;Google ScholarWatson, G.R., ‘Con-stitutionalism, Judicial Review, and the World Court’ 34 Harvard ILJ (1993) p. 1 at pp. 24–25 (arguing that the rights suspended originated not from the Montreal Convention but from a fundamental principle of general international law (i.e., the sovereign right of states not to extradite their own nationals)).Google Scholar

73. See nn. 93–103, infra, and corresponding text.

74. While the existence of powers in the area concerned raises further problems, it seems clear that implied powers may not violate express powers and that they may cover the same area as is covered by provisions which are not applied in practice.

75. Blokker, op. cit. n. 66, at pp. 305–307; idem, loc. cit. n. 63, at pp. 548–549. See also Campbell, A.I.L., ‘Limits of the Powers of International Organizations’, 32 ICLQ (1983) p. 523.CrossRefGoogle Scholar

76. The reference to Art. 16 of the ICC Statute in the text of Resolution 1422 makes it clear that the SC did not consider that the provision granted powers to the ICC which were incompatible with the UN Charter, rendering such possible exception irrelevant in this context.

77. This issue is distinct from the question whether the SC may violate international law in the exercise of its undisputed Chapter VII powers. (On the latter aspect see, e.g., Gill, op. cit. n. 68, at p. 73; Martenczuk, B., ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’, 10 EJIL (1999) p. 517 at p. 545;CrossRefGoogle ScholarKelsen, H., The Law of the United Nations, 5th printing (New York, Praeger 1966) pp. 294–295;Google ScholarAkande, D., ‘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 at pp. 317–325;CrossRefGoogle ScholarSchweigman, D., The Authority of the Security Council under Chapter VIIof the UN Charter: Legal Limits and the Role of the International Court of Justice (The Hague, Kluwer Law International 2001) pp. 194–203.)Google Scholar

78. Supra n. 45, at p. 341, Art. 39. Emphasis added.

79. See references in n. 25, supra.

80. See the transcripts of the 4568th SC meeting, supra n. 22.

81. Arts. 108–109 of the UN Charter.

82. As the SC based Resolution 1422 explicitly on Chapter VII, it does not appear necessary for the examination of its legality to discuss whether Chapter VI may provide such legal basis.

83. Art. 103 of the Charter gives priority to obligations under the Charter over obligations under any other international agreement. See n. 97, infra.

84. UN Charter, Art. 24(2). See also nn. 124–128, infra; 58, supra, and accompanying text.Google Scholar

85. It has been argued that ‘it is not in fact correct to talk as if this were a power in the Security Council “under” Article 16. As with Article 13, it was clear that it would not have been open to the Rome Conference or to the Statute as a legal instrument to confer a new power on the Security Council or indeed to control the exercise of its existing power under the UN Charter. Great care was taken in the drafting process to ensure that no such implication could be read into the final text. Article 16 simply states the consequences for the powers of the Court if the Council makes the request foreseen.’ Berman, F., ‘The Relationship between the International Criminal Court and the Security Council’, in Von Hebel, et al, op. cit. n. 43, p. 173 at p. 176.Google Scholar

86. See Report of the ILC, n. 46, supra, and accompanying text.

87. Ibid., at pp. 87–88.

88. Hall, op. cit. n. 37, at p. 182. See also sources cited in n. 48, supra; Hafner, G. et al. , ‘A Response to the American View as Presented by Ruth Wedgwood’, 10 EJIL (1999) p. 108 at pp. 113–115;CrossRefGoogle ScholarHaye, E. La, ‘The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising Its Jurisdiction’, 46 NILR (1999) p. 1 at pp. 12–14.CrossRefGoogle Scholar

89. MacPherson, , supra n. 54, section II.C (arguing that there might be circumstances in which a limitation of the right to request deferral may hinder effective action by the SC).Google Scholar

90. It should, however, be noted that according to the text of Art. 40, such measures ‘shall be without prejudice to the rights, claims, or position of the parties concerned’. Considering the ICC as a ‘party’, it could be argued that due to the delay in the investigations crucial evidence may be lost, thereby causing prejudice to its position.

91. Supra. n. 12. It should, however, be recalled that Art. 41 refers to’measures… employed to give effect to [SC] decisions’. It is rather questionable if a deferral request could be covered by this terminology.

92. See nn. 74–75, supra, and corresponding text.

93. See Arts. 25 and 48 of the Charter.

94. VCLT, supra n. 45, Arts. 34–38.

95. See, e.g., Thirlway, H., ‘The Law and Procedure of the International Court of Justice 1960–1989’, Part 8, 67 BYIL (1996) p. 1 at pp. 62–63. Sed contra, e.g.,Google ScholarSchreuer, C., ‘Die Bindung Intemationaler Organisationen an völkerrechtliche Verträgeihrer Mitgliedstaaten’.in K., Ginlher et al. , eds Völkerrechtzwischen normativem Anspruch undpolitischer Realität: Festschrift für Karl Zemanek zum 65. Geburtstag (Berlin, Duncker and Humblot 1994) p. 223 at p. 237 (arguing that, as the constitution of the international community, the UN Charter enjoys a special status, binding not only on member states but also on other actors including international organizations).Google Scholar

96. Art. 2(6) states that ‘[t]he Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’.

97. Art. 103 provides that’ [i]n the event ofa 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’.

98. Arguably Art. 25 imposes this obligation also for – at least certain – Chapter VI decisions. (For various views on this issue see, e.g., Legal Consequencesfor States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. (1971) p. 14 at pp. 52–53, paras. 112–113; Thirlway, op. cit. n. 95, at pp. 60–61; Schweigman, op. cit. n. 77, at pp. 31–32; Delbrück, J., ‘Article 25’, in B., Simma et al. , eds., The Charter of the United Nations: A Commentary (Oxford, Oxford University Press 1994) p. 407 at pp. 410–413;Google ScholarZemanek, K., ‘Is the Security Council the Sole Judge of Its Own Legality?’, in E., Yakpo and T., Boumedra, eds., Liber Amicorum Mohammed Bedjaoui (The Hague, Kluwer Law International 1999) p. 631 at pp. 640–641).Google Scholar

99. Art. 48(2) states that ‘[s]uch decisions [of the SC, adopted under Chapter VII] shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies ofwhich they are members’. It has, however, been suggested that the reference to international agencies applies only to specialized agencies of the UN. (Kelsen, op. cit. n. 77, at p. 97. See also 19 Documents of the United Nations Conference on International Organizations (1954) pp. 288–289.)

100. See Art. 121 of the Rome Statute, supra n. 2.

101. International legal personality is the capacity of subjects of international law to enjoy rights and assume obligations under international law. (On this concept see, e.g., Schermers and Blokker, op. cit. n. 65, at p. 976, paras. 1562 et seq.; Seidl-Hohenveldern and Loibl, op. cit. n. 65, at p. 38, paras. 301 et seq.; Rama-Montaldo, op. cit. n. 65, at p. 111.) Art. 4( 1) of the Rome Statute (supra n. 2) grants the ICC international legal personality, making it an independent subject of international law.

102. See Pescatore, P., ‘External Relations in the Case-Law of the Court of Justice of the European Communities’, 16 Common Market Law Review (1979) p. 615 at p. 638;Google ScholarSchermers, H.G., ‘The European Communities Bound by Fundamental Human Rights’, 27 Common MarketLaw Review (1990) p. 249 at p. 251; Schermers and Blokker, op.cit. n. 65, at p. 988, para. 1578.Google Scholar

While this argument takes different forms and degrees depending on the consistency of the obligations assumed by various members (see, for instance, Hirsch, M., The Responsibility of International Organizations Toward Third Parties: Some Basic Principles (Dordrecht, Nijhoff 1995) pp. 55–60), here it could be applied t o its fullest extent as all states parties to the ICC have assumed the obligations quoted above. (Switzerland and East Timor were admitted as UN members in September 2002 (see UN Docs. A/Res/57/1 (2002) and A/Res/57/3 (2002), respectively), making the UN truly universal.)Google Scholar

103. Lawson, R.A., Het EVRM en de Europese Gemeemchappen: bouwstenen voor een aansprakelijkheidsregime voor het optreden van Internationale organisaties (Deventer, Kluwer 1999) pp. 61–68, 80–85 (with English summary).Google Scholar

104. Oosthuizen, G.H., ‘Some Preliminary Remarks on the Relationship between the Envisaged International Criminal Court and the UN Security Council’, 46 NILR (1999) p. 313 at p. 330. It should, however, be noted that the SC has never been expressly denied such power either.CrossRefGoogle Scholar

105. See UN Charter; Statute of the International Court ofJustice; Case concerning UnitedStales Diplomatic and Consular Staff in Teheran, ICJ Rep. (1980) p. 3 at pp. 21–22, para. 40, confirmed in Military and ParamilitaryActivities in andagainst Nicaragua (Nicaragua v. UnitedStates of America), Judgment on Jurisdiction and Admissibility, ICJ Rep. (1984) p. 390 at pp. 433–435, paras. 93–95; Thirlway, op. cit. n. 95, at pp. 40–45. Sed contra, Reisman, W.M, ‘The Constitutional Crisis in the United Nations’, 87 AJIL (1993) p. 83 at pp. 90–91 (arguing that the ICJ, while not obliged to, should defer consideration of cases dealt with by the SC under Chapter VII).Google Scholar

106. See, e.g., 1995 Report of the Preparatory Committee, supra n. 47, at p. 28, para. 123; 1996 Report of the Preparatory Committee, supra n. 48, atp. 33, para. 142; Yee, op. cit. n. 48, at pp. 146–147,150;Bergsmo and Pejić, op. cit. n. 48, at p. 375.

107. It should be noted that the SC did not even object to the limitation on the temporal validity of the Resolution stated in Art. 16. This may indicate that the SC did not consider the ICC bound by the UN Charter but it considered itself bound by Art. 16. (Under Chapter VII, the SC could arguably request indefinite deferral by domestic courts.) Alternatively, the formulation of the Resolution in accordance with Art. 16 may reflect the intention of SC members parties to the Rome Statute silently to reconcile their obligations under the Charter with the rights they granted to the ICC.

108. See text accompanying n. 26, supra.

109. See nn. 89–92, supra, and accompanying text. It should, however, be noted that in the unlikely event that para. 3 intends to impose an obligation on states not to surrender, extradite or prosecute the persons covered by Resolution 1422, it would in effect order them to violate the aut dedere autjudicare principle, a fundamental principle of international law. In this case, the legality of this part of the Resolution would appear more controversial. See, e.g., Dugard, J., ‘Judicial Review of Sanctions’, in V., Gowlland-Debbas, ed., United Nations Sanctions and International Law (The Hague, Kluwer Law International 2001) p. 83 at p. 89.Google Scholar

110. See references in nn. 69,72, 77, supra.

111. As it would be difficult to defend a position that the SC considered that the situation prior to the adoption of the Resolution constituted a ‘breach of the peace or act of aggression’, the legal requirements of such determination will not be discussed. Similarly, as it has not been disputed that the SC has fulfilled the procedural requirements of adopting a Chapter VII resolution (see Art. 27 of the UN Charter), these criteria will not be considered.

112. Kirgis, loc. cit. n. 66, at p. 512.

113. This interpretation appears to be adopted in Gowlland-Debbas, loc. cit. n. 69, at p. 61; Gill, op. cit. n. 68, at pp. 46–47. Sed contra, J.A. Frowein, ‘Article 40’, in Simma, et al., op. cit. n. 98, p. 617 at p. 618.

114. See, e.g., UN Docs. S/Res/1207 (1998) (on states’ obligation to cooperate with the ICTY); S/Res/1329 (2000) (creates a pool of ad litem judges for the ICTY, enlarges the membership of the Appeals Chamber and creates two more positions forjudges at the ICTR); S/Res/1411 (2002) (amends Art. 12 of the ICTY Statute and Art. II of the ICTR Statute on determination of nationality of judges in case of dual nationality); S/Res/1431 (2002) (creates a pool of ad litem judges for the ICTR).

115. It is namely difficult to see how, for instance, the absence of clear guide-lines on the determination of the nationality of persons nominated as judges might pose a threat to international peace. Similarly, while the SC's wish for a speedy prosecution of criminals and hence the enlargement of the number of judges is easy to understand, it is less obvious how the lack thereof would constitute a threat to the peace.

116. UN Docs. S/Res/827 (1993) and S/Res/955 (1994), available at http://www.un.org/documents/ scres.htm.

117. Frowein, J.A., ‘Article 39’, in Simma, et al., op. cit. n. 98, p. 605 at pp. 612–613; idem, ‘Article 40’, op. cit. n. 113, at p. 618; idem, ‘Article 41’, in Simma, et al., op. cit. n. 98, p. 621 at p. 624; idem, ‘Article 42’, in Simma, et al., op. cit. n. 98, p. 628 at p. 631; Kelsen, op. cit. n. 77, at p. 739; Graefrath, loc. cit. n. 68, at p. 194; Schweigman, op. cit. n. 77, at pp. 37–38, 184–185; Sarooshi, op. cit. n. 63, at pp. 10, 33.Google Scholar

118. See statements in the transcripts of the 4568th meeting of the SC (see n. 22, supra) by, for instance, the representatives of Canada (Mr Heinbecker) at p. 3; Jordan (Prince Zeid Ra’ad Zeid Al Hussein) at p. 16; Liechtenstein (Mrs Fritsche) at p. 20; and after the resumption of the meeting (see n. 22, supra) by the representatives of Samoa (Mr Slade) at p. 7; Germany (Mr Schumacher) at p. 9; and the United Kingdom (Mr Greenstock). See also n. 156, supra, and corresponding text.

119. It has been submitted that ‘[a]s in the case of a decision under Art. 39, no express mention of Arts. 39 or 42 is required. However, it must clearly follow from the decision of the SC that the SC is acting on the basis of these provisions. Clarity can only be achieved when at least Chapter VII is mentioned. It therefore appears mistaken to draw a distinction between Art. 39 and Art. 42 with respect to the prerequisites for application … Certainly, it is true that the SC is not forced to make two separate decisions under Arts. 39 and 42.’ Frowein, ‘Article 42’, op. cit. n. 117, at p. 631. See also Freudenschuβ, H., ‘Article 39 of the UN Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council’, 46 Austrian J Publ. Intl. Law (1993) p. 1 at p. 31; Gill, op. cit. n. 68, at p. 45.Google Scholar

120. Frowein, , ‘Article 39’, op. cit. n. 117, at p. 613;Google ScholarFreudenschuβ, , loc. cit. n. 119, at p. 31.Google Scholar

121. See, for instance, Neuhold, H., ‘Peace, Threat to’, in R., Bernhardt et al. ,, eds., Encyclopedia of Public International Law, Vol. 3 (Amsterdam, North-Holland 1997) p. 935 at p. 938;Google Scholar Frowein, ‘Article 39’, op. cit. n. 117, at p. 613; Freudenschuβ, loc. cit. n. 119, at p. 31.

122. Kirgis, loc. cit. n. 66, at pp. 513–517; Schweigman, op. cit. n. 77, at pp. 157–158.

123. Art. 39 of the UN Charter.

124. Art. 24(2) of the UN Charter.

125. Chapter I (Arts. 1 and 2) of the UN Charter.

126. Miiller, J.P. et al. ,, ‘Article 2(2)’, in Simma, op. cit. n. 98, p. 89 at pp. 93–94; Schweigman, op. cit. n. 77, at pp.173–178;Google Scholar Gowlland-Debbas, loc. cit. n. 69, at pp. 93–94. Sed contra, Reisman, loc. cit. n. 105, at p. 93 (considering only the provisions expressly addressed to the Organization as applicable to the SC).

127. Schweigman, op. cit n. 77, at p. 173.

128. Ibid, at p. 178.

129. 11 Documents of the United Nations Conference on International Organization (1945) Doc. 943, p. 12 at p. 17.

130. One can only wonder if the NGO community would have been equally furious and keen on emphasizing that the SC can only make Art. 39 determinations on a case-by-case basis (in general, not in the context of the Charter), had the SC passed a Chapter VII resolution prohibiting the development and production of nuclear weapons, considering those a threat to the peace. It should be noted that, albeit not explicitly referring t o Chapter VII (but arguably constituting a Chapter VII resolution) and addressed primarily but not exclusively to India and Pakistan, Resolution 1172 (UN Doc. S/Res/1172 (1998)) on weapons of mass destruction has not been criticized for treating a general problem, ‘the proliferation of all weapons of mass destruction’, as a ‘threat to the peace’.

131. See Kooijmans, P.H., ‘The Enlargement of the Concept “Threat to the Peace”’, in R.-J., Dupuy, ed., The Development of the Role of the Security Council in Peace-keeping and Peace-Building (Dordrecht, Nijhoff 1993) p. 111;Google ScholarFranck, T.M.Google Scholar, ‘The Security Council and “Threats to the Peace“: Some Remarks on Remarkable Recent Developments’, in Ibid., at p. 83; Blokker, N.M. and Kleiboer, M., ‘The Internationalization of Domestic Conflict: The Role of the UN Security Council’, 9 LJIL (1996) p. 7; Österdahl, op. cit. n. 66, at pp. 85–86;CrossRefGoogle Scholar Kirgis, loc. cit. n. 66, at pp. 512–517.

132. UN Doc. S/Res/1373 (2001). Some earlier resolutions on international terrorism which, albeit not expressly referring to it, were arguably adopted under Chapter VII include UN Docs. S/Res/1189 (1998) (expressing its conviction ‘that the suppression ofacts of international terrorism is essential for the maintenance of international peace and security'); S/Res/1269 (1999) (referring to ‘the increase in acts of international terrorism which endangers … the peace and security of all States'); S/Res/1368 (2001) (stating the Council's determination ‘to combat threats to international peace and security’).

133. UN Doc. S/Res/1325 (2000).

134. UN Docs. S/Res/1261 (1999); S/Res/1314 (2000); S/Res/1379 (2001).

135. UN Docs. S/Res/1265 (1999); S/Res/1296 (2001).

136. UN Doc. S/Res/1209 (1998).

137. UN Doc. S/Res/1308 (2000).

138. UN Doc. S/Res/1172 (1998).

139. E.g., UN Doc. S/Res/1296 (2000).

140. E.g., UN Doc. S/Res/1308 (2000).

141. E.g., UN Doc. S/Res/1172 (1998).

142. E.g., UN Docs. S/Res/1314 (2000); S/Res/1325 (2000); S/Res/1379 (2001).

143. Kooijmans, op. cit. n. 131, at p. 112, fn. 6 and accompanying text.

144. A prominent example of such ambiguous SC decisions is Resolution 731 (1992) on Libya. For a ‘Chapter VII’ interpretation see, e.g., Franck, op. cit. n. 131, at p. 106, fn. 92 and corresponding text; Reisman, loc. cit. n. 105, at p. 87. Sed contra, Graefrath, loc. cit. n. 68, at p. 193. Note further that opinions differ also on the relevance of the use of the term ‘decide’ in SC resolutions for determining whether the resolution was adopted under Chapter VII. For a claim that the use of the term implies an intention to base the resolution on Chapter VII see Ibid., at pp. 193–194. Sed contra, Freudenschuβ, loc. cit. n. 119, at p. 34.

145. See Kelsen, op. cit. n. 77, at p. 727; Österdahl, op. cit. n. 66, at pp. 98, 107; Gill, op. cit. n. 68, at pp. 40–43, 45, 109; Reisman, loc. cit. n. 105, at p. 93; Freudenschuβ, loc. cit. n. 119, at p. 31; Szasz, P.C., ‘Centralized and Decentralized Law Enforcement: The Security Council and the General Assembly Acting under Chapter VII and VIII’, in J., Delbriick, ed., Allocation of Law Enforcement Authority in the International System (Berlin, Duncker and Humblot 1995) p. 17 at pp. 23–24;Google Scholar Kooijmans, op. cit. n. 131, at p. 111; Combacau, J.A., Le pouvoir de sanction de I'ONU (Paris, Pedone 1974) p. 100;Google Scholar Gowlland-Debbas, loc. cit. n. 71, at p. 673; Namibia Advisory Opinion, supra n. 98, at p. 52, para. 110. See also text accompanying nn. 129–130, supra.

146. Similarly, the issue has been raised in the context of Resolution 748 if the real menace to peace had not been posed by the threat of UK and US countermeasures rather than by the refusal of Libya to surrender the persons accused of having committed terrorist acts. See Graefrath, loc. cit. n. 68, at p. 199.

147. See the transcripts of the 4568th SC meeting (supra n. 22) for statements made by representatives of New Zealand (Mr MacKay) at p. 5; Jordan (Prince Zeid Ra'ad Zeid Al Hussein) at p. 16; Liechtenstein (Mrs Fritsche) at p. 20; and after resumption (supra n. 22) by the representative of Fiji (Mr Naidu) at p. 2.

148. The determination that the matter constitutes a threat to the peace ‘does not automatically entail an allocation of responsibility to any of the parties concerned’ (Neuhold, op. cit. n. 121, at p. 936; Kelsen, H., ‘Collective Security and Collective Self-Defense under the Charter of the United Nations’, 42 AJIL (1948) p. 783 at p. 788)CrossRefGoogle Scholar, nor would the SC need to respect the rights of the parties involved in the conflict when subsequently deciding on the measures to be applied. (See references in n. 77, supra.)

It would, however, appear that there was another way to solve the conflict, namely by leaving the SC blocked and letting the GA take over the responsibility for the situation, through the Uniting for Peace procedure. This mechanism was established in a resolution adopted by the GA in 1950 (UN Doc. A/Res/V/377 (1950)) which provides that the GA could consider matters constituting threat to the peace, breach of the peace or act of aggression and recommend collective enforcement measures if the SC was paralyzed by veto. (On invocations of the Resolution and the achievements of the GA through this procedure see Stein, E. and Morrissey, R.C., ‘Uniting for Peace Resolution’, R., Bernhardt et al. ,, eds., Encyclopedia of Public International Law, Vol. 4 (Amsterdam, North-Holland 2000)p. 1232 at pp. 1234–1235;Google Scholar Neuhold, op. cit. n. 121, at pp. 936–937; McCoubrey, H. and White, N.D., The Blue Helmets: Legal Regulations of United Nations Military Operations (Aldershot, Dartmouth 1996) pp. 45–50.)Google Scholar

Yet, this option would have certain drawbacks. Firstly, the procedure has not been successfully invoked for several decades and it is unlikely that it could be successfully resorted to again with the current composition of the GA. (Neuhold, op. cit. n. 121, at pp. 936–937.) Secondly, not only is the US a major personnel contributor in peacekeeping operations (mainly those authorized by the UN), it also provides a considerable part of the budget of peacekeeping operations. (See, e.g., Hoyos, C., ‘Analysts Say Hardline Conservatives Believe They Can “Kill Peacekeeping and the ICC with One Stone”’, Financial Times, 2 07 2002, p. 11.)Google Scholar Hence, even if the GA could unite to set up peacekeeping operations, and even though it has the authority and duty to adopt the budget for those (this conclusion is born out by the following ICJ Advisory Opinions: Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Rep. (1954) p. 47 at p. 59; Certain Expenses of the United Nations, ICJ Rep. (1962) p. 151 at pp. 157 et seq.), the success of these measures would arguably require a strong commitment by states.

149. Sed contra, Sengupta, K., ‘UK Accused of Preparing a Deal with America over Criminal Court’, The Independent, 10 07 2002Google Scholar (citing accusations that the US and the UK have conspired to give the SC – and its permanent members – veto over prosecution of US peacekeepers).

150. Schermers and Blokker, op. cit. n. 65, at p. 463, para. 693.

151. ICJ Statute, Art. 36(6), available at http://www.icj-cij.org/icjwww/ibasicdocuments.htm; Statute of the United Nations Administrative Tribunal, Art. 2(3) available at http://untreaty.un.org/ola-internet/atstatut.htm; Statute of the International Labour Organization Administrative Tribunal, Art. 2(7), available at http://www.ilo.org/public/english/tribunal/stateng.htm; Statute of the International Tribunal for the Law of the Sea, Art. 28, available at http://www.itlos.org/start2 en.html. While the Statutes of the ICTY and the ICTR do not contain similar provisions, their compétence de la compétence is confirmed in their Rules of Procedure (ICTY Rules of Procedure and Evidence, Part V, Section 6, available at http://www.un.org/icty/basic/rpe/IT32rev22con.hrm; ICTR Rules of Procedure and Evidence, Part V, Section 5, available at http://www.ictr.org.)

152. Art. 19(1) of the Rome Statute, supra n. 2. See also Art. 119(1), Ibid.; Oosthuizen, loc. cit. n. 104, at p. 333.

153. The present analysis assumes (a) that the ICC will confirm the legality of the controversial Art. 12(2)(a) which provides that the consent of the territorial state is sufficient for jurisdiction, thereby conferring jurisdiction on the Court over non-party nationals in the absence of the consent of their state of nationality; and (b) that US Courts will not have prosecuted the persons accused of such crimes before the case is referred to the Court. Moreover, it proceeds, for the sake of argument, on the assumption that the ICC will become operational before 1 July 2003 (see n. 35, supra) or that the deferral request will be prolonged.

154. It should be noted that the Resolution requested the deferral of investigations as well as prosecutions. At the stage of investigations, this question does not come before the Court. Nonetheless, under Art. 15(3–4) of the ICC Statute (supra n. 2) the Prosecutor needs to obtain the authorization of the Pre-Trial Chamber in order to proceed with an investigation. In turn, before granting such permission, the Pre-Trial Chamber needs t o examine – without prejudice to later decisions by the Court – whether the case seems to fall within the jurisdiction of the ICC.

155. In addition to these, Oosthuizen mentions the criteria ‘(a) that the correct voting procedure was followed by the UNSC, (b) that it indeed did adopt a resolution under Chapter VII, and, lastly, (c) that the UNSC in fact did request the Court to defer its proceedings in accordance with Article 16 [of the Rome Statute]'. (Loc. cit. n. 104, at p. 331.) The first and the third of these criteria do not appear to pose any difficulties in the case of Resolution 1422; the decision was adopted unanimously and the text is clear on requesting deferral. With regard to the second criteria it is clear from the Resolution that it was adopted under Chapter VII. What is not clear, however, is if the invocation of Chapter VII was proper (i.e., if the SC satisfied the conditions of invoking Chapter VII, for instance, in the absence of a clear Art. 39 determination).

It has been argued that it should be further examined if the language of the Resolution justifies the consideration that it was meant to bind the Court. This issue has already attracted some attention. It has been claimed that the use of the word ‘requests’ rather than ‘decides’ (the more commonly used term in Chapter VII resolutions) indicates that the SC did not mean to bind the Court through this Resolution. A better interpretation would, however, seem to be that the reason for the choice of terminology is that the SC intended to follow the phrasing of Art. 16 itself, and the express referral to Chapter VII and the use of the imperative ‘shall’ indicate that the SC meant to formulate a binding resolution. (MacPherson, supra n. 54, section II.D.)

156. Oosthuizen, loc. cit. n. 104, at p. 332. See also Condorelli and Villalpando, op. cit. n. 43, at pp. 646–647.

157. For a review of relevant literature and jurisprudence see Schweigman, op. cit. n. 77, at pp. 265–267; Gill, op. cit. n. 68, at p. 117. Sed contra, Martenczuk, loc. cit. n. 77, at pp. 540–545 (claiming, inter alia, that the ‘wording of Article 39 … does not necessarily imply that such determinations would have a preclusive effect’ (Ibid., at p. 541) and that [t]here is nothing inherently special about the terms used in Article 39 that would remove them from the ambit of legal interpretation’ (Ibid., at p. 543)). While referring tojudicial review by the ICJ, these claims arguably apply all the more to the jurisdiction of other judicial organs to review SC decisions.

158. Oosthuizen, loc. cit. n. 104, at p. 334. See also n. 145, supra, and accompanying text.

159. See text accompanying nn. 124–128, supra; Condorelli and Villaipando, op. cit. n. 43, at p. 650; Schweigman, op. cit. n. 77, at pp. 173–178; Gowlland-Debbas, loc. cit. n. 71, at p. 633; Dugard, op. cit. n. 109, at p. 88.

160. It should, however, be noted that it has been argued that, ‘should the Court ever rule, for example, that the UNSC could not act under Chapter VII unless it made an Article 39 UNC determination, its finding would relate only to referral [or in this case deferral] decisions – for all other purposes, the UNSC could act in a manner it sees fit'. Oosthuizen, loc. cit. n. 104, at p. 321.

161. See sections 5.2–5.3, supra.

162. See also n. 101, supra.

163. See section 5.1, supra. An acceptance by the ICC of the binding force of the Charter while concluding that Art. 16 limits the powers of the SC to specific situations would constitute an acknowledgement that Art. 16 violates the UN Charter by limiting the powers of the SC. Moreover, such recognition could create an – unpopular – precedent which the SC could invoke subsequently not only in its relation to the ICC but also i n its dealings with other judicial organs (e.g., the International Tribunal for the Law of the Sea). Therefore, it is likely that if the ICC can demonstrate with legal scrutiny that it cannot be proven to be bound by the Charter it will conclude that it is not obliged to abide by SC decisions.

164. Even though the Court is not competent to declare the Resolution null and void, it is unclear what the effect of such finding would be on state compliance. While the ICJ held in the Lockerbie case that SC resolutions are to be treated by members as prima facie valid (supra n. 70, at p. 15, para. 39), it is not unlikely that such finding, especially ifconfirmed by the ICJ (even if not declared null and void), would lead to a refusal by states to comply with the Resolution. On the effects of hypothetical findings by the ICJ that the adoption of a resolution is ultra vires and on the question of invalidity see Thirlway, op. cit. n. 95, at pp. 47–55; Lauterpacht, E., ‘The Legal Effect of Illegal Acts of International Organizations’, in Cambridge Essays in International Law: Essays in Honour of Lord McNair (Dobbs Ferry, NY, Oceana 1965) p. 88 at pp. 115–121;Google Scholar Golland-Debbas, loc. cit. n. 71, at pp. 670–673; Akande, loc. cit. n. 77, at p. 335; de Wet, E., ‘Judicial Review of the United Nations Security Council and General Assembly through Advisory Opinions of the International Court of Justice’, 10 Schweizerische Zeitschrift für internationales und europäischer Recht (2000) p. 237 at p. 267.Google Scholar

165. See text accompanying n. 159, supra.

166. Alvarez, J.E., ‘Judging the Security Council’, 90 AJ1L (1996) p. 1;Google Scholar Watson, loc. cit. n. 72, at pp. 4 et seq.; Thirlway, op. cit. n. 95, at pp. 49–55; De Wet, loc. cit. n. 164; Akande, loc. cit. n. 77.

167. E.g., under Art. 119(2) of the Rome Statute, supra n. 2.

168. It is unclear what the impact of a finding that the adoption of the Resolution was manifestly ultra vires would be. While ICJ judgments given in contentious cases are binding only on the states involved in the dispute, it is likely that – due to its loss of legitimacy – states would refuse to abide by the Resolution even if the ICJ did not have the authority to declare it null and void. See n. 164, supra.

169. Art. 22 of the Agreement (supra n. 39) states merely that the UN and the ICC shall ‘settle any dispute related to the interpretation and application of the … Agreement by appropriate means’.

170. Art. 119(1) of the Rome Statute, supra n. 2.

171. So far, the ICJ has refrained from making a determination of the legality of Resolution 748 considering it prima facie valid but not denouncing the right to pass a decision on its legality at a later stage (Lockerbie case, supra n. 70, at p. 15, para. 39; Declaration by Acting President Oda, Ibid., at p. 129; Separate Opinion by Judge Lachs, Ibid., at p. 138; Separate Opinion by Judge Shahabudden, Ibid., at p. 142). In the latter case the applicant (Bosnia-Herzegovina) argued in its application that inasmuch as the SC intended – in Resolution 713 (1991) imposing an arms embargo on Yugoslavia – also to impose an embargo on Bosnia-Herzegovina, its resolution was ultra vires as it denied the fundamental right of the applicant to self-defense. See Application Instituting Proceedings filed in the Registry of the Court on 20 March 1993 in Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), para. 125, available at http://www.cij-icj.org. The Court declined to confirm the applicants’ right to self-defense (This would have required an analysis of the validity and/or interpretation of Resolution 713 (1991)) arguing that it could not regard the requested measure ‘as within the scope of the jurisdiction under Article IX of the Genocide Convention'. (Ibid., Order of 8 April 1993 on Provisional Measures, ICJ Rep. (1993) p. 3 at pp. 19–20, paras. 35,38; Order of 13 September 1993 on Further Requests for the Indication of Provisional Measures, ICJ Rep. (1993) p. 325 at p. 345, para. 41.)

172. See, e.g., Gowlland-Debbas, loc. cit. n. 71, at p. 673; Reisman, loc. cit. n. 105, at p. 92.

173. E.g., Gowlland-Debbas, loc. cit. n. 71, at pp. 671–672; Watson, loc. cit. n. 72, at pp. 21–22, 40–43; Thirlway, op. cit. n. 95, at p. 47, fn. 166.

174. Art. 17 of the Rome Statute, supra n. 2.

175. Art. 98(2) of the Statute (supra n. 2) provides that ‘[t]he Court may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending state is required to surrender a person of that state to the Court, unless the Court can first obtain the cooperation of the sending state for the giving of consent for the surrender'. This Article was drafted to cover, inter alia, Status of Forces Agreements and diplomatic and state immunity. (Prost, K. and Schlunck, A., ‘Article 98’, in Trifflerer, op. cit. n. 48, p. 1131 at pp. 1131, 1133).Google Scholar The recent US attempts to conclude non-surrender agreements (as of 11 October concluded with Afghanistan, the Dominican Republic, East Timor, Gambia, Honduras, Israel, Marshall Islands, Mauritania, Micronesia, Palau, Romania, Tajikistan and Uzbekistan. See Amnesty International press release of 11 October 2002, AI Index: IOR 30/008/2002, available at http://www.amnesty.org) have been vehemently criticized. See, for instance, Human Rights Watch, ‘United States Efforts to Undermine the International Criminal Court: Article 98 Agreements’, press release of 2 August 2002, available at http://www.iccnow.org/html/hrw20020802.pdf; CICC, Memorandum on US ‘Article 98’ Agreements (23 August 2002) available at http://www.iccnow. org/html/ciccart98memo20020823.pdf; Amnesty International, ‘International Criminal Court: US efforts to obtain immunity for genocide, crimes against humanity and war crimes’, AI Index: IOR 40/025/2002, available at http://www.amnesty.org. Interestingly, however, the records of the open SC meeting show that there was support among the speakers for the idea that the USCould conclude Art. 98 Agreements. See, for instance, the transcripts of the 4568th SC meeting (supra n. 22) for statements made by representatives of Canada (Mr Heinbecker) at p. 4; New Zealand (Mr MacKay) at p. 6; France (Mr Levitte) at p. 11 (les categorical support); Ireland (Mr Ryan) at p. 18; and Brazil (Mr Fonseca) at p. 22. See also Annan's letter to Powell, supra n. 22.

176. UN Doc. S/PV.4563 (2002) p. 3.

177. Art. 27(1) of the Rome Statute, supra n. 2.

178. See, e.g., Szasz, P.C. and Ingadottir, T., ‘The UN and the ICC: The Immunity of the UN and its Officials’, 14 LJIL (2001) p. 867 at pp. 871–874, 880–882.CrossRefGoogle Scholar