The competence of the security council to terminate the jurisdiction of the International Criminal Court

Abstract

I. INTRODUCTION On June 23, 2004,1 the United States withdrew its request to the Security Council for the renewal of Resolution 1487.2 This resolution itself renewed Resolution 1422,3 adopted on July 12, 2002. Under the latter Resolution, the Security Council had granted immunity from prosecution by the International Criminal Court (ICC) to U.N. troops contributed by nonparty states under the Statute for twelve months.4 However, on August 1, 2003, the Security Council adopted Resolution 1497.5 Unlike Resolutions 1422 and 1487, this new resolution conferred on states that are not party to the Rome Statute the exclusive jurisdiction over crimes committed by their troops serving under a multinational force or U.N. stabilization force in Liberia,6 except where such jurisdiction has been explicitly waived.7 Resolution 1497 was the culmination of the tension that has characterized the relationship between the Security Council and the ICC since the Rome Statute came into force in July 2002. On the one hand, controversy has surrounded the question as to the extent to which the Security Council should be allowed (or permitted) to influence the ICC in the latter's discharge of its functions under the Statute.8 On the other hand, several nonparties to the Rome Statute, especially the United States,9 have continuously expressed deep concerns10 about certain provisions of the Statute, which ostensibly empower the Court to exercise jurisdiction over their nationals despite their nonparticipation in the Treaty. Certainly, the tenets of Resolution 1497 raise fundamental legal issues concerning the competence of the Security Council not just to defer ICC jurisdiction, which it is empowered to do under Article 16, but to terminate it. This is particularly so because the Resolution contains neither a time bar nor a renewal clause, therefore implying that it remains current, notwithstanding the expiration of Resolution 1487 in June 2004. However, before considering this matter any further, it is desirable to say a few words about the implication, if any, of the United States' refusal to renew Resolution 1487 (not 1497) for the remit of this article. As to be expected, the goodwill gesture from the United States in June 2004 has rekindled the hope, particularly among the human rights community, that the ICC will be able to function more effectively and has been hailed as a victory for international justice. However, for reasons that will be explained shortly, this hope appears to be premature, exaggerated, and seemingly placed out of context. It is widely believed that the United States was impelled to cease seeking periodic immunity from the Court's jurisdiction by the international outcry against the treatment meted out by its forces to Iraqi prisoners in the Abu Ghraib prison.12 Nonetheless, the United States maintained that it would continue to seek individual immunity for its troops by concluding bilateral agreements with state parties to the ICC under Article 98 of the Rome Statute.13 While it remains uncertain how far the United States will carry this threat, especially after international tempers have cooled down with regard to the conduct of its troops in Iraq, the implications of such bilateral treaties for the ICC-which many states have already concluded with the United States-are enormous. Unfortunately, this menace appears to have been drowned by the euphoria of June 23, 2004. Furthermore, there is both a substantive and a practical distinction to be made between a mere resolution such as 1487, which the United States refused to renew, and a terminating resolution, like 1497, when considering the competence of the Security Council to act against the ICC. To begin with, both Resolutions 1422 and 1487 dealt with the deferral of the ICC jurisdiction under Article 16 of the Rome Statute. Neither of these resolutions permanently excluded the ICC from prosecuting U.N. troops contributed by states not party to the Statute. …