U.N. Peace-Enforcement Missions and International Criminal Law: Disentangling the Turf War Between the Security Council and the International Criminal Court
Forthcoming in K. Bannelier-Christakis and T. Christakis (eds.), Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013)
Grotius Centre Working Paper 2013/005-PSL
29 Pages Posted: 6 Jun 2013
Date Written: June 5, 2013
This chapter looks at the relationship between the Security Council and the ICC. It zooms in on the relevance of international criminal law to UN peace enforcement operations, and conversely addresses the question as to the extent to which the Security Council can inform the application of international criminal law by the ICC, either through authorizing the use of force, or otherwise acting under Chapter VII. In this discussion, a distinction must be drawn between the current core crimes of war crimes, crimes against humanity, and genocide on the one hand; and the would-be crime of aggression on the other. The crime of aggression is directly embedded in peace maintenance, and the links to the Security Council for that crime are therefore more pertinent. With this distinction in mind, the chapter surveys the interplay between the relevant regimes at two distinct levels. It starts with an institutional inquiry regarding: (1) the deferral and referral schemes and, (2) the potential for ICC review of Security Council practices in this regard. This inquiry is based on the models presented by both the Darfur, and more particularly, the Libya interventions. From that springboard, the chapter subsequently jumps into broader and more hypothetical substantive questions, which specifically examine the relationship between the Security Council and the ICC in the context of aggression. Given the plethora of academic writing that already exists on this matter, which may remain purely academic given the intricate ratification and jurisdiction schemes, this chapter purports only to zero in on two specific questions. Firstly, can the use of force, in the course of an operation that has been authorized by the Security Council, but that gravely exceeds the Security Council’s mandate, be qualified as aggression despite the authorization? And secondly, how should the ICC respond to a determination by the Security Council that aggression has not occurred. On the basis of the analysis of these questions, some overarching observations are offered on the role of the ICC and international criminal law more broadly, in the context of UN peace enforcement missions. These reflections include some preliminary thoughts on whether the Security Council and the ICC actually can, and are likely to, join forces to execute their shared responsibility to preserve world peace, or whether they are instead bound to operate in a more competitive fashion.
Keywords: international law, international criminal law, Security Council, ICC, peace enforcement missions, aggression, referral and deferral, Security Council review
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