Document - International Criminal Court: The unlawful attempt by the Security Council to give US citizens permanent impunity from international justice

International Criminal Court: The unlawful attempt by the Security Council to give US citizens permanent impunity from international justice

INTERNATIONAL CRIMINAL COURT:
The unlawful attempt by the Security Council to give US citizens permanent impunity from international justice

Amnesty International is deeply concerned that the Security Council adopted Resolution 1422 (2002) on 12 July 2002. That resolution seeks to give perpetual impunity from investigation or prosecution by the recently established International Criminal Court to nationals of states that have not ratified the Rome Statute of the International Criminal Court (Rome Statute) for genocide, crimes against humanity and war crimes when these persons were involved in operations established or authorized by the United Nations (UN). It purports to have been adopted under Chapter VII of the Charter of the United Nations (UN Charter), but, contrary to its consistent practice for 57 years and the express requirements of the UN Charter, the Security Council did not even attempt to determine that there was a threat to or breach of international peace and security. Indeed, it could not have done so since there simply was no such threat. The resolution was adopted at the insistence of the United States of America (USA), which wanted to ensure that members of its armed forces stationed abroad, as well as its military and civilian leaders, could never be subject to the jurisdiction of the International Criminal Court for these crimes.

This unprecedented resolution is contrary to the Rome Statute. It would require states parties to the Rome Statute to violate their obligations under that treaty - if they were to comply with the resolution – by refusing to surrender persons accused of these crimes to the International Criminal Court. The resolution also violates the UN Charter and is contrary to other international law, including jus cogens prohibitions, human rights and international humanitarian law. In particular, it is contrary to the fundamental principle of criminal law that all are equal before the law. The adoption of the resolution undermines the legitimacy of the Security Council. Although adopted at the insistence of the USA, it would necessarily apply to the nationals of other states not party to the Rome Statute that have contributed to operations established or authorized by the UN. Amnesty International is calling upon the Security Council not to renew the resolution when it expires on 30 June 2003. If any state were to refuse to surrender an accused to the International Criminal Court based on this resolution – or on any attempt to renew it – the organization would urge the International Criminal Court to determine that the resolution fails to satisfy the requirements of the Rome Statute and other relevant international law.

Section I of this memorandum describes the content of the resolution, identifies some of its most notable features and indicates some of its main flaws. Section II details the drafting history of the resolution, including the overwhelming criticism by at least 116 states of the proposals under consideration. The remaining sections of the memorandum expand and develop these legal arguments made by states during the drafting of the resolution. Section III explains that the International Criminal Court has the power to determine whether the request satisfies the Rome Statute and other relevant international law. Section IV describes the requirements of Article 16 of the Rome Statute that must be satisfied before the International Criminal Court can grant a request by the Security Council for a deferral of an investigation or prosecution and demonstrates why the resolution is contrary to the Rome Statute. Section V discusses the legal constraints on Security Council action under Chapter VII of the UN Charter and demonstrates that the resolution is ultra vires and contrary to international law, including jus cogens prohibitions, human rights and international humanitarian law.

I. THE CONTENT OF THE RESOLUTION AND ITS MAIN FLAWS

This section briefly describes the content of Security Council Resolution 1422, analyses some of its most significant features and identifies its main flaws, which are discussed in more detail below in other sections of the memorandum.

A The content of the resolution

The preamble. In the preamble to the resolution, the Security Council notes the entry into force of the Rome Statute and emphasizes "the importance to international peace and security of United Nations operations". It notes that "not all States are parties to the Rome Statute" and that "States Parties to the Rome Statute have chosen to accept its jurisdiction in accordance with the Statute and in particular the principle of complementarity". This fundamental principle which underlies the entire framework of contemporary international justice, incorporated in the Rome Statute at the insistence in particular of the United States, recognizes that states have the primary responsibility to bring to justice persons responsible for crimes under international law, but provides that when states are unable or unwilling to fulfil this responsibility, international criminal courts with jurisdiction can decide to investigate and prosecute the crimes.(1) The Security Council then notes "that States not Party to the Rome Statute will continue to fulfil their responsibilities in their national jurisdictions in relation to international crimes". This paragraph ignores the very reason for establishing the International Criminal Court, which is designed to act only when states are unable or unwilling genuinely to fulfil their responsibilities to investigate or prosecute these crimes.

The Security Council then made two determinations. First, it determined that "operations established or authorized by the United Nations Security Council are deployed to maintain or restore international peace and security". Second, it determined that "it is in the interests of international peace and security to facilitate Member States' ability to contribute to operations established or authorized by the United Nations Security Council". Neither determination amounts to a determination of the existence of a threat to or breach of international peace and security or an act of aggression, although, as shown below in Section V.B.1, such a determination is required by the UN Charter before the Security Council can adopt a binding resolution under Chapter VII.

The operative paragraphs. The operative paragraphs of the resolution read:

B. Some of the notable features and flaws of the resolution

There are a number of significant aspects of the resolution that should be noted at the outset. In addition, it would be useful to identify briefly here some of its numerous flaws, which are discussed in greater detail below in Sections IV and V.

Absence of the required determination under Article 39 of the UN Charter. As is evident from the above, although the Security Council asserted that it was "[a]cting under Chapter VII of the Charter of the United Nations", the drafting history (Section II below) makes clear that the Security Council did not make the determination in the resolution required under Article 39 of the UN Charter that there was a threat to or breach of international peace and security or a case of aggression or identify any such threat or breach. As explained below in Section V.B.1, it is beyond dispute that such a determination is necessary under the UN Charter before the Security Council can adopt a binding resolution under Chapter VII. This failure is understandable since there simply was no such breach or threat. Indeed, the only such threat reportedly cited during the closed sessions of the Security Council was the threat by the USA to veto the extension of UNMIBH and other UN peace-keeping operations.(2) In the absence of a determination pursuant to Article 39, the Security Council could not adopt a resolution under Chapter VII.

Obstruction of justice limited to the International Criminal Court. The scope of obstruction of justice in the resolution is more limited than that originally sought by the USA. The USA has recognized that the International Criminal Tribunal for the former Yugoslavia (ICTY) has jurisdiction over anyone, including US nationals, suspected of crimes under international law committed in the former Yugoslavia. Nevertheless, it originally attempted to obtain a resolution preventing any court, including the ICTY and the International Criminal Tribunal for Rwanda (ICTR) and national courts (other than the courts of the state contributing personnel to the operation), from exercising jurisdiction over nationals of contributing states that were not parties to the Rome Statute.
However, the Security Council squarely rejected this attempt. The resolution is limited to seeking to prevent the International Criminal Court from exercising its jurisdiction as a court of last resort. The jurisdiction of the ICTY remains unaffected.(3) Similarly, any state may still exercise territorial, passive personality, protective and universal jurisdiction over persons suspected of crimes in the Rome Statute.(4)

Purported consistency with Article 16 of the Rome Statute. In operative paragraph 1 of the resolution, the Security Council claims that its request is "consistent with the provisions of Article 16 of the Rome Statute". However, as explained below in Section IV, this contention is not correct for a number of reasons, including, in particular, the intent of the drafters that Article 16 be invoked only in the rare event when the Security Council made an individualized determination in a particular case that a temporary deferral of an investigation or prosecution would help the Council restore international peace and security. Not only can the Security Council not give an authoritative interpretation of the Rome Statute, but the decision whether the request is consistent with Article 16 is solely for the International Criminal Court to make.

The requested deferral remains in effect for 12 months, unless the Security Council decides otherwise, a qualification that is in practical terms meaningless since it would require the concurrence of all five permanent members of the Security Council, including the USA, and the current US administration has made clear that it would not permit such a decision.(5) Nevertheless, it is important to note that the Security Council seeks to invoke the Rome Statute by requesting that the Court defer investigations and prosecutions and rejected the original US proposals that would have sought to bypass the Court and force member states to refuse to surrender persons to the Court. This decision is an implicit recognition by the Security Council that it had no power to order the Court to defer investigations or prosecutions.(6)

Exclusion of all cases involving entire classes of persons in advance. Operative paragraph 1 is triggered automatically and retroactively to 1 July 2002 "if a case arises" – regardless of circumstances. This provision turns Article 16 on its head, since, as explained below, Article 16 was designed to permit the Security Council to request the International Criminal Court to defer temporarily an investigation or a prosecution when it concluded after an individualized determination in a specific case that an investigation or a prosecution by the International Criminal Court would undermine efforts to maintain or restore international peace and security. In particular, it was intended to prevent temporarily an investigation or a prosecution of a government leader or leader of an armed group involved in peace negotiations conducted under Security Council auspices. It was not designed to block selectively in advance investigations and prosecutions of entire classes of individuals, such as nationals of non-state parties involved in UN established or authorized operations. Thus, the resolution, by dispensing with the fundamental legal principle of equality before the law, seeks to create a permanent two-tiered system of international justice, one for nationals of non-states parties in UN established or authorized operations and one for everyone else in the world.(7)

Individuals and activities covered. The resolution seeks to provide immunity to "current or former officials or personnel" and, thus, applies to civilian, as well as military, officials. Any act or omission "relating to" an operation is covered by the resolution, a very broad wording, which could be interpreted to exempt from investigation or prosecution a wide range of activities, including planning, training, funding and providing logistics and intelligence to an operation.

Limited to operations established or authorized by the Security Council. As explained in Section II below, the Security Council rejected US efforts to obtain comprehensive impunity for all officials, military and civilian, involved not only in any peace-keeping operation established by the Security Council, whether under Chapter VII or some other chapter of the UN Charter, but also those involved in any operation expressly or impliedly tolerated by a UN organ or by the UN Charter. Instead, as the preambular paragraphs make clear, the resolution seeks to give impunity only to persons involved in operations established or authorized by the Security Council..(8) Indeed, France is reported to have emphasized during the closed-door drafting of the resolution that only operations established or authorized by the Security Council were included. In addition, the resolution applies only to persons involved in operations established or authorized under Chapter VII, not under any other chapter.(9) Thus, the restrictive language of the resolution precludes the USA from arguing that it gives impunity from international justice to persons involved with any US civilian or military operation that the USA considered to be authorized under the UN Charter, such as civilian or military anti-terrorist operations, actions taken in individual or collective self-defence under Article 51 of the UN Charter and regional intergovernmental organization peace-keeping operations.(10)

Indeed, as a result of the rejection by the Security Council of the attempt to obtain comprehensive impunity for all US armed forces stationed abroad, the USA has been seeking to gain impunity for those persons not covered by the resolution.(11)

Perpetual renewal, perpetual impunity. As noted above, if operative paragraph 2 did not exist, the resolution would have little practical effect since it would be virtually impossible for the Prosecutor, who will take office at the beginning of June 2003, to complete an analysis of all the information received between 1 July 2002 and 30 June 2003 when the resolution expires, to have sought any additional information needed to determine whether to open an investigation and to have obtained authorization from the Pre-Trial Chamber to do so. However, paragraph 2 expresses the intention to renew the request for a deferral for as long as may be necessary. This phrase is not defined, but, given the rationale for the adoption of the resolution, it is a reasonable assumption that it means "as long as the USA threatens to veto the extension of UN peace-keeping missions if the Security Council does not renew the resolution". Since it is unlikely that the USA will withdraw this threat in the foreseeable future, the Security Council has, in effect, expressed its intention to renew the request indefinitely.

Conflicting obligations. Operative paragraph 3 purports to require states to fulfil two completely contradictory obligations - not to act inconsistently with paragraph 1 and not to act inconsistently with their international obligations. As explained below in Sections IV and V, if states were to comply with paragraph 1, they would be acting in violation of their obligations under the Rome Statute and under other international law. In particular, states parties to the Rome Statute are required under Article 85 to comply with requests to surrender accused persons; all states are obliged not to facilitate impunity.

Perpetually on the agenda. Operative paragraph 4 states that the Security Council [d]ecides to remain seized of the matter, which means that it can only cease to remain seized of the matter with the concurrence of all five permanent members of the Security Council, including the USA.

II. THE DRAFTING HISTORY OF RESOLUTION 1422

The drafting history, in particular, the overwhelming opposition of states from all regions and all legal systems, most of whom participated in the Rome Diplomatic Conference, is helpful in understanding why Security Council Resolution 1422 does not satisfy the requirements of the Rome Statute and why it is contrary to the UN Charter and other international law. The legal arguments discussed in this section made by states during the drafting of the resolution are further developed and expanded in Sections III to V below.

The adoption by the Security Council of Resolution 1422 grew out of the second dramatic reversal of the United States (US) government position on the International Criminal Court in less than four years. On 17 July 1998, at the Rome Diplomatic Conference on the International Criminal Court, the United States of America (USA) was one of seven states, along with Iraq, China and Israel to vote against the adoption of the Rome Statute.(12) However, the USA then played a constructive role in the Preparatory Commission of the International Criminal Court in drafting supplementary instruments, including the Elements of Crimes, which it said reflected customary international law.(13) On 31 December 2000, the USA signed the Rome Statute.

A radical shift with respect to the US position on the International Criminal Court took place after George W. Bush was elected President. The new administration ceased to participate in the work of the Preparatory Commission. It then gave a green light to continued efforts in the US Congress to enact the American Service Members Protection Act (ASPA), which entered into force on 2 August 2002 and bars cooperation with the International Criminal Court if it investigates or prosecutes US citizens.(14) On 6 May 2002, in an unprecedented step for a treaty signatory, the USA repudiated its signature of the Rome Statute.(15) It indicated that the USA would strongly oppose any efforts by the International Criminal Court to exercise its statutory jurisdiction over persons suspected of genocide, crimes against humanity or war crimes if they were US nationals involved in UN peace-keeping operations.(16) The US repudiation of its signature was strongly criticized by governments and non-governmental organizations.(17)

There are few US nationals involved in UN peace-keeping operations.(18) Indeed, one confidential UN study obtained by non-governmental organizations indicated that there were no US peace-keepers in UN peace-keeping operations that could conceivably face arrest and surrender to the International Criminal Court, either because there were no US nationals in the peace-keeping operation or because the host state was not a party to the Rome Statute.

Initially, the USA indicated that it would seek to enter into bilateral agreements with states under which those states would agree not to surrender US nationals to the International Criminal Court. Then, it decided to supplement this effort by going to the Security Council to seek a resolution directing states not to surrender to the International Criminal Court nationals of non-states parties contributing personnel to operations established or authorized by the Security Council.(19)

A. The attempt to obtain impunity for US peace-keepers in East TimorA. The attempt to obtain immunity for US peace-keepers in East Timor

The first attempt to obtain impunity for US peace-keepers from arrest or surrender to the International Criminal Court for genocide, crimes against humanity and war crimes came in mid-May 2002 and involved its peace-keepers in the UN mission in East Timor, which consisted of three unarmed US military monitors and about 80 US police officers.(20) The USA sought to obtain impunity for these US nationals from East Timorese courts as well. However, this effort met with strong resistance from other members of the Security Council and the French Ambassador to the UN, Jean-David Levitte, declared that [t]he U.S. amendment is a violation of the [ICC] treaty, and he added: I would be in violation of [my countrys] own laws if I supported a text that went against the International Criminal Court.(21) On 17 May 2002, the Security Council declined to provide this immunity when it extended the mandate of the UN peace-keeping mission.(22) The US Ambassador to the UN, John D. Negroponte, warned the Security Council that it might withdraw these 83 US nationals from East Timor and other US officials threatened to withdraw US nationals from all 15 UN peace-keeping missions.(23) US officials also indicated that the USA might seek impunity from the International Criminal Court for US nationals serving in all other UN peace-keeping operations.(24)

B. The first attempt to obtain impunity for US peace-keepers in Bosnia and HerzegovinaB. The first attempt to obtain immunity for US peace-keepers in Bosnia and Herzegovina

The USA renewed its efforts to obtain impunity from international justice for its nationals, in mid-June 2002, shortly before the United Nations Mission in Bosnia and Herzegovina (UNMIBH) was due to expire on 30 June 2002 if it was not routinely renewed. On 19 June 2002, 11 days before that deadline, the USA circulated two alternative proposals for a Security Council resolution.(25) The following history of the drafting of Resolution 1422 is based in part on a variety of confidential sources and it does not purport to be definitive. Amnesty International would welcome any corrections and copies of all relevant texts.

The generic US proposal applicable to all operations. In the first US proposal (entitled, OPTION ONE: GENERIC TEXT), the operative paragraphs would have attempted to give impunity to nationals of non-states parties to the Rome Statute involved in operations established or authorized by the UN Security Council to promote the pacific settlement of disputes (a reference to Chapter VI of the UN Charter) or to maintain or restore international peace and security (a reference to Chapter VII of the UN Charter) from the jurisdiction of the International Criminal Court, any other international criminal court, including the International Criminal Tribunal for the former Yugoslavia (Yugoslavia Tribunal) and for Rwanda (Rwanda Tribunal)), and any national court other than the courts of the contributing state.(26)

The US proposal applicable only to UNMIBH. The alternative proposal (OPTION TWO: WITHIN AN UNMIBH RESOLUTION), if the first failed to secure approval, was identical, except that it was limited to member states participating in UNMIBH and in the multinational Stabilization Force (SFOR) in Bosnia and Herzegovina, and similar to the failed proposal for East Timor.(27)

Common elements of the two US proposals. Under each proposal, the Security Council would have decided in an operative paragraph that the contributing state has the responsibility, as appropriate, to investigate crimes with respect to which they have jurisdiction and prosecute offences alleged to have been committed by the nationals in connection with such operations.(28) This description of the scope of state responsibility would leave it to each state to determine – in its own discretion – whether an investigation or prosecution was "appropriate". Each proposal would have prevented, not only any international court, but also the courts of any state – other than those of the contributing state itself – to exercise jurisdiction over genocide, crimes against humanity and war crimes. The fundamental principle of complementarity incorporated in the Rome Statute would have been negated since the International Criminal Court could not exercise jurisdiction even if it were to determine that a national criminal justice system in a particular case was unable or unwilling to investigate or prosecute genuinely these crimes, including states that have not defined all crimes in the Rome Statute as crimes under their national law.(29) The impunity from both international and national justice given in each proposal to persons from contributing states not parties to the Rome Statute suspected of such crimes would have lasted forever, unless the contributing state waived the "immunity" or the Security Council did. However, if the contributing state was a permanent member or allied to a permanent member, a veto could block such a waiver. Both options met a barrage of criticism by other governments, as well as by non-governmental organizations.(30)

The United Kingdom signal of willingness to compromise. However, on Tuesday, 25 June 2002, the United Kingdom (UK) Ambassador to the UN signalled a weakening of the UK opposition to the US proposal. He reportedly stated at a press briefing that peace-keepers were not the place that one would look first for persons who had violated international humanitarian law and that [w]e must make sure the Court is not undermined for the main purposes for which it is set up. There may be a possible compromise for the [peace-keeping] problem that has come up. He added that the European Union, the USA and everyone else must consider the practical results of standing pat on a position of pure principle for the Court, but this was an issue for the politicians to resolve.

The revised US proposal for UNMIBH. On Thursday, 27 June 2002, the USA reportedly circulated a revised text of OPTION TWO: WITHIN AN UNMIBH RESOLUTION and threatened to veto an extention of UNMIBH if this text was not adopted.(31) In contrast to the previous US version, it specifically would have permitted states to comply with orders of the Yugoslavia Tribunal (although it did not mention requests for assistance by the Tribunal). However, the revised text continued to prevent the national courts of states other than those of the contributing state from exercising jurisdiction. The draft further weakened the already weak language on the obligations of contributing states to investigate and prosecute "as appropriate" from the operative paragraphs to the preamble. It also eliminated any reference to waiver by the contributing state or by the Security Council.

The French counter-proposal seeking to invoke Article 16 of the Rome Statute. At about the same time, France proposed an alternative, reportedly supported by most of the other members of the Security Council, which would have attempted to use Article 16 of the Rome Statute to obtain a deferral.(32) The proposal expressed the Security Councils readiness, pursuant to Article 16, to request deferrals on a case by case basis, but was silent on renewals. In addition, it urged non-states parties to take prompt action to discharge their responsibilities to bring to investigate and prosecute these crimes and to assist each other in this regard. It also said that the resolution was without prejudice to the rights and obligations of states parties to agreements and conventions providing for jurisdiction over crimes under international law.(33)

However, France, along with China, Russia and the UK, made clear that they would not use their veto power to prevent the adoption of the US proposal. These decisions meant that not only could the USA use its veto to block the extensions of all the UN peace-keeping operations coming up for renewal if its proposal were not adopted, but also it simply needed to secure the necessary nine votes for adoption of its resolution without the fear of a veto by one of the other permanent members.

The US veto of the UNMIBH mandate extension. On Friday, 28 June 2002, the USA rejected the French text and renewed its threat to veto the extension of the UNMIBH mandate and, in addition, suggested that it would cease paying its 25% share of the UN peace-keeping operations budget.(34) On Sunday, the UN Secretary-General urged the Security Council to find a solution acceptable to all concerned that respects the principles of the Charter of the United Nations and treaty obligations of Member States.(35) Despite this appeal, the USA carried out the first part of its threat the same day when it vetoed the extension of the UNMIBH mandate when the other members of the Security Council declined to adopt either US proposal.(36)

C. The renewed US proposal made in cooperation with the UKC. The renewed US proposal made in cooperation with the UK

After the US veto on Sunday, 30 June 2002, the Security Council agreed to extend the UNMIBH mandate for three days, ostensibly to allow for an orderly transfer of responsibility from the UN to the European Union, which had been scheduled in any case to assume this responsibility at the end of 2002.(37) However, during this period Amnesty International and other members of the Coalition for the International Criminal Court (CICC) learned that the USA, in close cooperation with the UK, had drafted a proposal, but for the first time purporting to act pursuant to Article 16 of the Rome Statute and under Chapter VII. This effort sought to give impunity from international justice to nationals of non-states parties for acts related to UN established or authorized operations during a 12-month period starting on the date of the adoption of the resolution, to be automatically extended for 12-month periods without limit, unless the Security Council decides otherwise, and for acts during each of these successive one-year periods.(38) The USA could have vetoed any attempt to stop the automatic renewals. When the text of the proposal became known, it immediately met with widespread criticism by governments(39) and non-governmental organizations.(40)

D. The united opposition in the Preparatory Commission on 3 July 2002 to the second US proposalD. The united opposition in the Preparatory Commission on 3 July 2002 to the second US proposal

On Tuesday, 2 July 2002, Germany and several other states participating in the tenth and final session of the Preparatory Commission for the International Criminal Court (Preparatory Commission) (1 to 12 July 2002) requested that a plenary session of the Preparatory Commission be convened to discuss the US initiative. The Chair of the Preparatory Commission, Philippe Kirsch, immediately agreed to convene a plenary session on this subject the following day. This session proved to be the first part of an historic ten-day constitutional debate on the legal limits on the powers of the Security Council, perhaps the most important such debate since the General Assembly adopted the Uniting for Peace Resolution in 1950,(41) half a century earlier. Canada, as the originator of the UN peace-keeping force system, played a leading role in this great debate.(42) These government statements and legal analysis are persuasive evidence of the drafters’ intent, but also strong evidence of state practice and opinio juris on other international law issues.

At the plenary session of the Preparatory Commission on Wednesday, 3 July 2002, the international community expressed its overwhelming opposition to any Security Council resolution that would undermine the integrity of the Rome Statute in an unprecedented series of statements by or on behalf of at least 116 states. Statements were made by Australia on behalf of the 67 members of the Like-Minded Group, by Burundi on behalf of the African Group, by Denmark on behalf of the members of the European Union (EU) and its associated states and by Syria on behalf of the Arab Group.(43) In addition, Argentina, Australia, Brazil, Côte dIvoire, Democratic Republic of the Congo, Fiji, Kuwait, Liechtentstein, Malawi, Mexico, Peru, New Zealand, Samoa, Sierra Leone, Switzerland, Trinidad and Tobago, United Arab Emirates and Venezuela made statements on their own behalf. Indeed, not a single state supported the US proposal (where no citation is given below for the oral statements, they are based on the organizations notes and those of the CICC).

The following points were made by various governments during the debate:(44)

- There were sufficient safeguards in the Rome Statute against frivolous or politically motivated investigations and prosecutions. Canada recognized that the United States has strong concerns about the International Criminal Court, but stated that we do not agree with them, given the extensive concessions and safeguards to preclude frivolous prosecutions.(45) Liechtenstein stated that [t]he concerns regarding frivolous and politically motivated investigations are addressed in a thorough and fully satisfactory manner. There are therefore no substantive reasons, only political and indeed ideological ones to amend any of the provisions of the Statute.(46) Other states emphasized that the Rome Statute had extensive safeguards that addressed US fears, including Australia.(47)

- The US proposal was attempting to amend Article 16. Canada recalled that Article 16 of the Rome Statute was designed for a completely different purpose:

Article 16 was intended to be available to the Security Council on a case-by-case basis, where a particular situation required a twelve-month deferral in the interests of peace and security. Article 16 was the product of protracted and delicate negotiations. Most states were opposed to any Security Council interference in ICC action, regarding it as inappropriate political interference in a judicial process. The requirement for specific action and reconsideration after twelve months was the sole basis on which this provision was acceptable. The Security Council should not purport to remove that fundamental cornerstone.(48)

Switzerland gave a number of reasons why the US proposal would be inconsistent with Article 16:

Liechtenstein, citing the Swiss intervention, stated that

"[t]he deliberations in the Security Council and, more specifically, the draft resolution we all have seen at this point, make it clear that the Council is considering an amendment to Art. 16 of the Rome Statute. We would like to recall the sound legal analysis provided by the Swiss delegation in this respect. As a matter of fact, the draft resolution in the Council, while invoking Art. 16 of the Statute, is in stark opposition to that provision, known as the Singapore proposal, which was the product of complex negotiations."

Other states agreed that the US proposal would violate Article 16, including Argentina, Burundi on behalf of the African Group, Mexico, New Zealand.(50)

- The US proposal would undermine the integrity of the Rome Statute. Australia, speaking on behalf of the Like-Minded Group, stated that [m]embers of the Like-Minded Group are, in particular, committed to the principle of fully safeguarding the integrity of the Rome Statute.(51) Burundi, speaking on behalf of the African Group said, The African Group believes that the adoption of such a proposal would be a violation of the letter and spirit of the Rome Statute.(52) Canada declared: The proposal now under discussion would dramatically alter and undermine the Rome Statute.(53) Fiji stated that [t]he resolution will effectively kill the Court before it is born and called upon states parties to the Rome Statute on the Security Council to oppose the draft resolution and, therefore, maintain the integrity of . . . the Rome Statute.(54) Liechtenstein stated that it expected the Council to act in conformity with its mandate and to fully safeguard the integrity of the Rome Statute, a treaty adopted by a Diplomatic Conference.(55) Malawi, on behalf of SADC, said, The Southern African Development Community regrets the developments in the UN Security Council, which are clearly aimed at undermining the integrity of the International Criminal Court.(56) The United Arab Emirates declared: The principle of granting immunity is an exception to the application of the Rome Statute, and this is a violation of the principles agreed upon when we established the Court.(57) Other states expressed similar concerns, including Côte dIvoire, Mexico, New Zealand, Peru, Samoa, Sierra Leone and Trinidad and Tobago.(58)

- International justice and peace-keeping are complementary. Canada stated: What is now at stake is not the ICC versus peacekeeping.(59) It explained that

the proposed resolution perversely implies that in upholding the most basic norms of humanity, the ICC is somehow a threat to international peace and security. In fact, the precise opposite is true. We have just emerged from a century that saw the works of Hitler, Stalin, Pol Pot, Idi Amin and Slobodan Milosevic, and the Holocaust and the Rwandan genocide. Surely, we have all learned the lessons of this bloodiest of centuries, which is that impunity from prosecution for grievous crimes must end.

Switzerland pointed out that In its preamble, [the draft resolution] repeatedly puts in opposition the Rome Statute and peace-keeping operations. That opposition is completely inappropriate. It is not admissible to say and to repeat that the maintenance of peace is put in danger by the International Criminal Court.(60)

- The Security Council would be acting ultra vires. A number of states pointed out that if the Security Council were to adopt the US proposal, it would be ultra vires (in excess of its powers). According to Canada,

the proposed resolution would set a negative precedent under which the Security Council could change the negotiated terms of any treaty it wished, e.g. the NPT [nuclear Non-Proliferation Treaty], through a Security Council resolution. This would undermine the treaty-making process.(61)

Fiji stated: The Security Council must, therefore, refrain from taking an ultra vires decision which will result from the adoption of the anti-ICC resolution currently before it.(62) Liechtenstein stated that [t]he mandate of the Security Council is clearly laid down in the United Nations Charter. It does not include competence in the area of treaty-making. The Security Council would therefore act in clear violation of its mandate, if it were to amend the Rome Statute or any other treaty for that matter.(63) Switzerland declared that it was extremely disturbing to see the Security Council setting itself up as a legislator and, even more, involving a treaty in force. If it were adopted, the text which we have seen would be to our knowledge without precedent.(64) It added, The Security Council does not have the competence to adopt rules of law that overrule a treaty that is fully in conformity with the Charter of the United Nations.(65)

Syria, on behalf of the Arab Group, stated that the inclusion of Article 16 [in the Rome Statute] did not grant the Security Council the automatic right to grant exemptions. . . . We appeal to the Security Council to assume its responsibility and not accept these exemptions because that might damage the credibility of the Court before it is born. We oppose this resolution.(66) Other states agreed that the Security Council did not have the power to amend the Rome Statute, including Brazil, Côte dIvoire, Democratic Republic of the Congo, Mexico, Samoa, Venezuela.(67)

Several statements indicated that member states were not obliged to comply with resolutions of the Security Council that were adopted ultra vires. Switzerland declared:

Concern about the impact on international law. Fears were expressed for the future of international law and the UN if the US proposal were adopted. Switzerland expressed concern about the possible triumph of political power over law, and stated that the adoption of the [draft] resolution would be very worrying for the future of international law and would not be without consequences regarding what the UN would become in the future.(69)

Concern about double standards. In particular, there was concern that the US proposal would put certain classes of individuals above the law. Canada stated that this proposed resolution would send an unacceptable message that peacekeepers are above the law. It would entrench an unconscionable double standard in international law.(70) The United Arab Emirates expressed concern that the proposal would create a double standard and stated: We recognize the need to prosecute criminals regardless of their origin and without discrimination.(71) Other states, including New Zealand, expressed similar sentiments.(72)

The letter of 3 July 2002 from the Chair of the Preparatory Commission. It was agreed that the Chair of the Preparatory Commission would convey the deep concern of the Preparatory Commission to the Security Council about the US proposal. Unfortunately, the letter, drafted by the Danish Ambassador to the UN and agreed by the Preparatory Commission, was not as strongly worded as the statements made in the debate.(73) The criticisms of governments were echoed by non-governmental organizations.(74)

The letter of 3 July 2002 from the UN Secretary-General to the US Secretary of State. In addition, in an unprecedented letter on 3 July 2002 to the US Secretary of State, Colin Powell, the Secretary-General stated that he was seriously concerned about the US proposal.(75) He noted that Article 16 of the Rome Statute was meant for a completely different situation from the one outlined in the US proposal, which would be for the Security Council to use it for a blanket resolution, preventing the Prosecutor from pursuing cases against personnel in peacekeeping missions, and that, [c]ontrary to the wording of Article 16, the proposal would provide for automatic renewals of the request for a deferral, subject to Security Council approval. After stating that UN peace-keepers and other mission personnel had not been involved in crimes within the jurisdiction of the International Criminal Court, the Secretary-General expressed the fear that reactions against any attempts at, as [states parties and non-governmental organizations] perceive it, undermining the Rome Statute will be very strong.

The Secretary-General also declared that the method suggested in the proposal, and in particular its operative paragraph 2, flies in the face of treaty law since it would force States that have ratified the Rome Statute to accept a resolution that literally amends the treaty. The Secretary-General was concerned that the only real result that an adoption by the Council of the proposal would produce - since the substantive issue is moot - is that the Council risks being discredited and noted that it would not be in our collective interest to see the Councils authority undermined. He suggested that sufficient time be given to finding a satisfactory solution and that to create such time the Security Council could note the primary role of the Yugoslavia Tribunal in the former Yugoslavia.

The 12-day extension of the UNMIBH mandate. After this unanimous opposition to the US proposal was conveyed to the Security Council, it was unable to reach an agreement. On Wednesday evening, 3 July 2002, it agreed to extend the UNMIBH mandate again to Monday, 15 July 2002, three days after the Preparatory Commission session was to end on 12 July 2002.(76)

The 10 July 2002 US proposal. On 10 July 2002, the USA reportedly circulated a modified version of its proposal, with three operative paragraphs. The first operative paragraph contained a request, purportedly consistent with Article 16, that the International Criminal Court not commence or proceed with any investigations or prosecutions of current or former officials from a non-state party for conduct relating to UN established or authorized operations; the second operative paragraph expressed the intention to renew the request annually for as long as necessary; and the third operative paragraph decided that member states should not take any action consistent with the first two paragraphs.(77)

The 10 July 2002 French counter-proposal. On the same day, France responded with a counter-proposal modifying the first two operative paragraphs of the US proposal and deleting the third operative paragraph of that proposal. Instead of purporting to make a request consistent with Article 16 of the Rome Statute, it would have requested the International Criminal Court to notify the Security Council before commencing investigations or prosecutions so that the Security Council could take a decision, as appropriate.(78)

E. The public debate in the Security Council on 10 July 2002

Canada had been urgently seeking a public debate in the Security Council on the US proposal, which the Council initially rejected twice.(79) It finally agreed to hold such a debate on Wednesday, 10 July 2002 after the possibility emerged of a public debate in the General Assembly on the legality of the Security Council adopting a resolution as proposed by the USA. The USA then increased its pressure on other members of the Security Council. This pressure included calls by high-level officials, including the US Secretary of State, Colin Powell, to government leaders in capitals, pressing states to agree to the US proposal. These efforts were supplemented by the pressure from the UK, then holding the Presidency, on other members of the Security Council to reach an accommodation with the USA.

There were statements by or on behalf of approximately 70 states in the public debate in the Security Council on Wednesday, 10 July 2002. Most of the statements were strongly critical of the US proposal, but the extremely weak statements by Norway and by Denmark on behalf of the European Union and associated states, were widely believed to be the result of intense US pressure. Apart from the USA, only one state, India, expressed support for the US proposal.

As the chart compiled by the CICC summarizing interventions in the open debate indicates, many of the same concerns -which to some extent overlap - were reiterated that had been raised in the plenary session of the Preparatory Commission on 3 July 2002:

- There were sufficient safeguards in the Rome Statute against frivolous or politically motivated investigations and prosecutions. Costa Rica, on behalf of the19 members of the Rio Group, stated: We believe that the Rome Statute already provides the necessary safeguards for preventing a politicized or inappropriate use of the ICC.(80) Ireland stated that the concerns of the USA were not well founded as the Rome Statute already contains adequate safeguards against politically inspired investigations or prosecutions before the Court.(81) Jordan said, We join others in believing that the existing safeguards in the Rome Statute are sufficient in reducing to an absolute minimum the likelihood the Court will take up a dubious charge.(82) Malaysia stated that it believed that there were sufficient safeguards, mentioned by previous speakers, to ensure that the ICC does not obstruct the functioning of peacekeeping operations and that it believed that the fears and concerns of the United States are unfounded.(83) South Africa noted that the US fears were unfounded.(84) Other states, including Bosnia and Herzegovina, Brazil, Canada, Liechtenstein, Mexico, Norway, Switzerland, Syria emphasized that the Rome Statute had sufficient safeguards.(85)

- The US proposal was attempting to amend Article 16. Brazil declared:

We strongly discourage proposals or initiatives that ultimately seek to reinterpret or review the Rome Statute, especially with respect to article 16, whose provisions are applicable only on a case-by-case basis and were never intended to give place to ad aeternam deferrals of the Courts jurisdiction.

Canada noted the proposals would drastically amend Article 16:

[T]he proposals now circulating would have the Council, Lewis-Carroll-like, stand article 16 of the Rome Statute on its head. The negotiating history makes clear that recourse to article 16 is on a case-by-case basis only, where a particular situation for example the dynamic of a peace negotiation warrants a 12-month deferral. The Council should not purport to alter that fundamental provision.

Costa Rica, on behalf of the 19 members of the Rio Group, declared: In our opinion, the proposal is completely without legal foundation because article 16 of the Rome Statute, invoked by the proposals advocates, refers to an entirely different situation.(86) New Zealand explained that the proposals were not consistent with the intent of the drafters of Article 16:

[I]ts wording as well as its negotiating history and I can say that I was one of those who was involved in negotiating this among other provisions of the Statute make clear that it was intended to be used on a case-by-case basis by reference to particular situations, so as to enable the Security Council to advance the interests of peace where there might be a temporary conflict between the resolution of armed conflict, on the one hand, and the prosecution of offences, on the other. Here, no conflict between the two arises. The article might also be used as a protection of last resort against frivolous or political prosecutions. Again, that does not arise here. But it certainly provides no basis for a blanket immunity to be imposed in advance. Again, I would reiterate, as one who participated in the negotiations on article 16, that this was a long and drawn-out compromise. There were concerns expressed by members of the Security Council, which were taken into account. There were concerns by non-members of the Security Council, who wished to ensure that a balance be retained; and this balance was the outcome. It would be most unfortunate, to say the least, if article 16 were to be misused in this particular way.(87)

Samoa said that we cannot see how [the US proposal] can be viewed as being consistent with article 16 of the Rome Statute, as the draft asserts, when the very purpose of the Statute is to put an end to impunity.(88) Other states raised similar concerns, including Germany, Mauritius, Mexico, Switzerland.(89)

- The US proposal would undermine the integrity of the Rome Statute. Costa Rica, on behalf of the 19 members of the Rio Group, expressed their concern at the Security Councils consideration of the proposal to grant absolute immunity to the personnel of peacekeeping operations, in violation of the letter and the spirit of the Rome Statute, and added that they cannot accept any erosion of the Rome Statute and consider it essential to maintain the integrity of its provisions.(90) Mongolia emphasized the vital importance of safeguarding not only the integrity of peacekeeping operations but also of the Rome Statute and thus of international law and treaty-making, the rule of law, and the integrity of the Council itself.(91) Samoa stated that the US proposal would undermine the purpose and meaning of the Rome Statute.(92) Venezuela stated that adoption of the US proposal could modify the scope of an international instrument which is not simply conventional law in the strict sense of the term, but also, to a large extent, reflects customary law accepted by all concerning international jurisdiction and international criminal law and would be contrary to the very spirit and purpose of the Rome Statute.(93) Other states, including Argentina, Germany, Mexico, New Zealand, Sierra Leone, Thailand expressed similar sentiments, and China and Russia urged that any resolution respect the integrity of the Rome Statute.(94)

- International justice and peace-keeping are complementary. Liechtenstein stated:

Other states, including Argentina, Canada, Malaysia and Venezuela, agreed.(95)

- The Security Council would be acting ultra vires and would undermine its credibility. States warned that the Security Council would exceed its powers under the UN Charter and undermine its credibility and legitimacy if it adopted the US proposal. Argentina stated that adoption of the US or other proposals might also adversely affect the legitimacy of the Security Council, whose activities in this field would appear to exceed the powers conferred on it by the Charter.(96) Brazil explained:

Canada declared that, in the absence of a threat to international peace and security, the Councils passing a Chapter VII draft resolution on the ICC of the kind currently circulating would in our view be ultra vires, acting beyond its mandate would undermine the standing and credibility of the Council in the eyes of the membership and would set a negative precedent under which the Security Council could change the negotiated terms of any treaty it wished - for example - the nuclear Non-Proliferation Treaty - through a Security Council resolution.(98) Costa Rica, on behalf of the 19 members of the Rio Group, noted that

any proposal for its modification must respect the established norms and procedures of general international law, of the law of treaties and of the Rome Statute itself. We are therefore concerned at any initiative attempting to substantially modify the provisions of the Statute by means of a Council resolution. To adopt this kind of proposal would exceed the competence of the Security Council and would have a serious impact on the Councils credibility and legitimacy.(99)

Fiji declared that the Security Councils functions and powers, including those set out in Chapter VII, do not include amending treaties. To do that would violate established principles of international treaty law.(100) Germany declared:

Iran stated that Security Council is not authorized to interpret or amend treaties concluded among States in accordance with the law of treaties a law that recognizes that only parties to a treaty are competent to interpret or amend it.(102) Jordan stated that should the Security Council adopt such a proposal,

ultra vires

Liechtenstein warned that a transgression by the Security Council of its clear mandate

would have not only disastrous consequences for the ICC, but maybe even more devastating ones for the Council itself. We do not want to see the Council put itself in a position in which the United Nations membership at large is forced to question the legality of one of its decisions. Such a situation would have a devastating impact on the credibility of the Council and thus of the Organization as a whole.(104)

It noted that invoking Article 16 would constitute an action outside the mandate of the Security Council and fundamentally alter the process of treaty-making as practiced in the United Nations and that the generic resolution approach could be based only on the untenable notion that the International Criminal Court constitutes a threat to international peace and security. (105) Mongolia said that [n]o State should be placed in a situation in which it is forced to breach its international obligations under either the Charter or the Statute.(106) Samoa explained that it was apparent on the face of Article 16 that

Malaysia warned:

South Africa stated that the Security Councils credibility was seriously threatened and its mandate leaves no room either to reinterpret or even to amend treaties that have been negotiated and agreed by the rest of the United Nations membership.(109) Switzerland said:

The Security Councils adoption of a resolution modifying a treaty that is in conformity with the Charter of the United Nations is inconceivable as a solution. That would be a serious development for the future of international law and of the United Nations, and it would directly affect the authority of the Council itself.(110)

Venezuela made clear that if the Security Council were to adopt the US proposal, such a decision would exceed the Councils competence and would disrupt the international legal order.(111) Other states expressed similar worries, including Colombia, Cuba, Guinea, New Zealand, the Ukraine and Syria.(112)

- The US proposal would undermine international law and the principle of equality before the law. Canada declared:

At stake today are entirely different issues that raise questions about whether all people are equal and accountable before the law; whether everyone in the territory of a sovereign State is subject to that States laws, including international laws binding on that State; and whether States may collectively exercise their sovereignty to prosecute perpetrators of grievous crimes. Those principles were affirmed at Nuremberg and have been affirmed since.(113)

Malaysia stated that it believed that giving immunity to the peacekeepers would send a wrong and unacceptable message that they are above the law and that the viability and effectiveness of UN peace-keeping missions would be seriously affected if it were to allow different sets of rules to govern different groups of peacekeepers.(114) Thailand stated that it feared recent developments in the Security Council may erode the sanctity of international law and multilateralism, and we therefore ask all States to safeguard the independence and the effective functioning of the ICC.(115) Other states, including Brazil, Mexico, Mongolia and South Africa, expressed similar concerns.(116)

F. The adoption of the US proposal, as reportedly modified by the UK, on 12 July 2002F. The adoption of the US proposal, as reportedly modified by the UK, on 12 July 2002

After the public debate in the Security Council, Permanent Representatives of Canada, Brazil, New Zealand and South Africa sent a letter to the President of the Security Council on Friday, 12 July 2002, concerning draft resolution S/2002/747, stating that the Councils consideration of the matter, in spite of the clear opposition of the international community, as most recently expressed in the public debate on 10 July 2002, is damaging international efforts to combat impunity, the system of international justice, and the collective ability to use these systems in the pursuit of international peace and security.(117) The letter left aside the legitimacy of the Security Councils arrogating to itself the right to interpret and to change the meaning of treaties, which the signers challenged, and focussed on one of the unacceptable consequences of the passage of the draft resolution. It noted that

[t]he International Criminal Court was always intended as a court of last resort filling a void where States fail to undertake their international responsibilities to prosecute perpetrators of grievous crimes. The net effect of operative paragraphs 1 and 2 of the Councils resolution will be to remove that possibility in the specific cases of peacekeepers who may have committed crimes under the Courts jurisdiction, if that peacekeeper comes from a State not party to the Rome Statute. Further, the request to the Court in the draft resolution would be renewable on an annual basis, which, for all intents and purposes, would amount to creating a perpetual obstacle to Court action.

The letter also noted that the draft resolution, by directing states not to cooperate with the International Criminal Court in relation to peace-keepers from non-state parties, would lead to impunity in those countries where suspects were found that did not have legislation providing for universal jurisdiction. It requested members of the Council not to pass a resolution that would have such negative consequences.

On 11 July 2002, the day before the joint letter, the USA circulated a draft resolution. The preambular paragraphs and the first three operative paragraphs were substantially the same as those in the resolution that was adopted.(118) An alternative text, reportedly drafted by France, and reportedly acceptable to 13 other members, was abandoned after the USA opposed it. A draft amendment to the 11 July 2002 US proposal replacing its first two operative paragraphs was then presented on 12 July 2002 by Mauritius, a former British colony, but it was reportedly drafted by the UK. The Mauritius proposed amendment introduced the phrase "if a case arises" in the first operative paragraph and the concept of case-by-case review of each successive renewal:

However, the phrase "if a case arises" does not mean that the Security Council would make individualized determinations, but automatic requests in each case without any determination of the necessity for such requests. The Security Council adopted Resolution 1422 on Friday evening, 12 July 2002, with two minor changes from the Mauritius amendment. It added "unless the Security Council decides otherwise" (a decision subject to a US veto) and a fourth operative paragraph deciding to remain seized of the matter. The adoption of the resolution has been called "a black day for international criminal law". (119)

Reasons for the adoption of the resolution. As a preliminary matter, it is important to note that the decision by the Security Council, a political body, was a political, not a legal, decision. None of the 15 members, including the USA, made a cogent legal argument during the debate on 10 July 2002 or at the time of adoption on 12 July 2002 why either the US proposal or Resolution 1422 was consistent with Article 16.(120) Instead, these states spoke solely of compromise and pragmatic considerations.(121) Why did the Security Council unanimously cave in to US pressure, despite the overwhelming opposition by the international community, as reflected in the government statements on 3 and 10 July 2002 and in the legal criticism by non-governmental organizations? There appear to have been several reasons, including the following, which will need to be taken into account by states and non-governmental organizations in the fight to prevent renewal of the resolution in June 2003.

First, crucial swing states on the Security Council like Norway failed to stand up to very high-level US pressure at an early stage when it could have made a difference. Norway did not make a statement in the Preparatory Commission on 3 July 2002. Its statement in the Security Council on 10 July 2002 is in marked contrast to those of China and Russia on the same day, both of which urged that any resolution be consistent with the Rome Statute. The Norwegian statement implicitly placed the supposed threat to UN peace-keeping from the threatened US vetoes of extensions of mandates above the requirements of international justice. Norway’s decision to join the consensus was a major disappointment in the light of the leading role it played over the years as a key member of the Like-Minded Group working to establish the Court and to protect the Rome Statute from efforts by the USA and other states to weaken it.

Second, the European Union was hampered by its decision to take a common public position on the US proposal and not to permit individual statements unless the member was a member of the Security Council. This decision meant that the other members were subject to a position reflecting the lowest common denominator insisted upon by the UK. However, Germany decided to take a principled stand to protect the integrity of the Rome Statute by addressing the Security Council in the public session.

Third, despite their obligations as states parties to the Rome Statute and their obligations to implement the European Union Council’s Common Position adopted on 11 June 2001 and amended in June 2002, the UK and France did not use their power to as permanent members of the Security Council to veto the US proposal or even to abstain in an effort to prevent it from receiving the necessary nine votes. Indeed, persons involved in the informal discussions among members of the Security Council reported their perception that the UK, which had played a major role in the drafting of the Rome Statute, shifted from initial opposition to the US proposals to working closely with the USA. The UK was also perceived as largely responsible for drafting the final compromise text presented by Mauritius.

Fourth, members of the Security Council prefer to operate by consensus and when it appears that a proposed resolution is likely to receive the necessary nine votes, the other states often are willing to have the resolution adopted unanimously.

III. THE POWER OF THE INTERNATIONAL CRIMINAL COURT TO DETERMINE THAT A SECURITY COUNCIL REQUEST IS NOT CONSISTENT WITH THE ROME STATUTE Requirement that the International Criminal Court decide whether the Security Council was really acting pursuant to Chapter VII and that the request is otherwise consistent with the Rome Statute

When the International Criminal Court receives a request to defer an investigation or prosecution, it must itself decide what legal effect under the Rome Statute to give to the request. It must also be convinced that a decision has been taken that would impose a requirement under Article 16 of the Rome Statute - not a requirement under the UN Charter - to defer the investigation or prosecution. The International Criminal Court - not the Security Council - has the sole responsibility for interpreting this exceptional statutory provision authorizing the Security Council to request a temporary deferral of an investigation or a prosecution of the worst crimes in the world. (122) The choice of the word "request" in Article 16, rather than "decide" or "determine", was deliberate.(123) The use of the word "request" was understandable, since the Security Council has no power to order the International Criminal Court, an independent body, or any other intergovernmental organization to take or cease action.(124)

Obligation of the International Criminal Court to determine whether request is consistent with Rome Statute. As explained below in Section IV.B, the International Criminal Court must be convinced that the request is one within the meaning of Article 16 of the Rome Statute – that is, an exceptional request in a particular case for a temporary delay, for example, where the Security Council has made a determination that an investigation or a prosecution of a government leader or leader of an armed group would prevent the leader from participating in peace negotiations under its auspices. The International Criminal Court must also determine whether the request is consistent with the Rome Statute as a whole. (125)

The law governing the International Criminal Court’s determination. In so interpreting its statutory obligations, the International Criminal Court is required under paragraph 1 of Article 21 (Applicable law) to examine, if necessary, three bodies of law. That paragraph provides:

In addition, when applying and interpreting law under Article 21, the International Criminal Court is required to do so consistently with international human rights and without any adverse distinction. Paragraph 3 of that article provides:

Therefore, in determining whether a request by the Security Council should be granted, the International Criminal Court is required to undertake a four-step analysis. First, it must examine the request in the light of the Statute, Elements of Crimes and Rules of Procedure and Evidence. Second, it must examine, "where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict". In doing so, the International Criminal Court will need to be guided by the fundamental principle of both international human rights and international humanitarian law that those responsible for grave violations of that law, such as genocide, crimes against humanity and war crimes – conduct that is contrary to jus cogens prohibitions – must be brought to justice in all cases. Third, to the extent that the first and second bodies of law do not answer the problem of application and interpretation, the International Criminal Court must examine general principles of law. A general principle of law common to all contemporary legal systems is that that all persons are equal before the law.(126) Thus, an attempt to obtain impunity for an entire class of individuals would be contrary to this fundamental principle. Finally, all of these three bodies of law must be applied and interpreted in a manner that is consistent with international human rights and without any adverse distinction.(127) In particular, the International Criminal Court should consider whether the request would deny the human right of victims to reparations, the right of an accused to a speedy trial and the right of a detained person not to be detained indefinitely without trial.(128)

The ability of the International Criminal Court to determine whether the request was consistent with the UN Charter and other international law. As shown below in Section IV, it is possible for the International Criminal Court to assess the compatibility with the Rome Statute of a request by the Security Council in the light of the above criteria based solely on the nature of the request without having to decide the more sensitive question whether the Security Council exceeded its powers under the UN Charter and other international law. However, the International Criminal Court has the power under the Statute to make such a determination as an incidental part of its jurisdiction, for example, in determining whether the Security Council resolution was adopted under Chapter VII.(129) In addressing this alternative ground, the International Criminal Court must first be convinced that the Security Council, in fact, has determined pursuant to the UN Charter that there is a threat to or breach of international peace and security or a case of aggression and, second, that such a threat, breach or case exists (Section V.B.1).(130) Assuming that the International Criminal Court determines that the Security Council has properly made such a determination under Article 39 of the UN Charter, then the Court may then examine whether the Security Council exceeded its powers under the UN Charter and other international law (Section V.B.2 to 4). One essential limitation in Article 16 of the Rome Statute is that the request of the Security Council must be adopted under Chapter VII of the United Nations, but the request must necessarily also be otherwise consistent with the UN Charter and other international law.(131) Of course, it goes without saying that it is not enough for the Security Council simply to say that a request was adopted under Chapter VII; such a labelling exercise cannot be decisive.

In reviewing the Security Council’s request for a deferral, the International Criminal Court must take into account a number of factors:

When the International Criminal Court, acting under the Rome Statute, is "verifying the legality of the action by the Security Council", the Security Council has the burden of justifying its request for deferral. At a minimum, it has been argued,

However, although this view correctly places the burden on the Security Council to justify a request, it would appear to set too low a threshold; there will always be those willing to contend that a suspension of investigations or prosecutions might somehow contribute to the maintenance or restoration of international peace and security. A narrower, but still unsatisfactory, view, since there can be no lasting peace without justice, is that the Security Council must demonstrate that investigations or prosecutions are a threat to international peace and security.(134) As is evident from the text of the resolution and its drafting history, the Security Council did neither.

Therefore, in examining the legality of the Security Council’s request, the International Criminal Court is performing a function that it is required to perform under the Rome Statute. In doing so, it determines whether the Statute compels it to give a specific legal effect to a Security Council resolution that the resolution would not otherwise have had if Article 16 had not been included in the Statute since the UN Charter does not give the Security Council itself the power to order international courts to stop criminal investigations or prosecutions.(135) In conducting this statutory examination, the International Criminal Court is not impinging on the powers of the Security Council under the UN Charter.

IV. THE LIMITED SCOPE OF ARTICLE 16 OF THE ROME STATUTE

Article 16 of the Rome Statute is an unfortunate provision - the inclusion of which Amnesty International and many other non-governmental organizations strongly opposed as an obstruction of justice.(136) This article permits a political body, the Security Council, to undermine the independence of the International Criminal Court in exceptional cases by temporarily preventing the Prosecutor from opening an investigation or commencing a prosecution of the worst possible crimes in the world: genocide, crimes against humanity and war crimes, but only in extraordinary circumstances, as explained below in this section. It provides:

"No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted 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."

As explained below in Section IV.A, the object and purpose of the Rome Statute and the exceptional nature of this article require that it be given the narrowest possible reading. Moreover, as discussed below in Section IV.B, the drafting history of Article 16 demonstrates that it was intended to be used only in a rare case, such as when the Security Council considered that peace negotiations taking place under its auspices with a government leader or leader of an armed group would be impeded by investigations or prosecutions and that a temporary delay in investigations or prosecutions would facilitate the presence of the government leader at the negotiations.(137)

A. The need to interpret the scope of the Article 16 exception narrowly and in accord with the object and purpose of the Statute

Under customary international law, as reflected in Article 31 (1) of the Vienna Convention on the Law of Treaties, [a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.(138) Giving legal effect under the Rome Statute to the attempt by the Security Council to misuse Article 16 to obtain impunity from international justice for a particular class of individuals from non-states parties, simply because a permanent member threatened to veto extensions of mandates of UN peace-keeping operations - an absurd and unreasonable result, could not be considered a good faith interpretation by the International Criminal Court.(139) Such an interpretation would be completely at odds with what the states at Rome intended and, thus, contrary to the overriding principle of treaty interpretation under international law that the intent of the parties must be ascertained.(140)

The requirement that the treaty be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty does not, of course, mean a simplistic, literal interpretation of the words. As Article 31 (1) makes clear, they must be interpreted both in their context and in the light of [the treaty’s] object and purpose. As a leading authority on the law of treaties has explained, while a term may be plain absolutely, what a Court adjudicating upon the meaning of a treaty wants to ascertain is the meaning of the term relatively, that is, in relation to the circumstances in which the treaty was made.(141)

Article 31 (2) of the Vienna Convention explains that the context of the terms includes the text and preamble of the treaty. Article 31 (3) requires that subsequent agreements and practice of the parties, as well as relevant rules of law applicable in the relations between the parties, must be taken into account. The overwhelming rejection by governments, including most of the states parties to the Rome Statute, of the US proposals, much of which was incorporated in Resolution 1422, together with their extensive legal analysis, is compelling evidence of state practice, supported by opinio juris, that must be taken into account in interpreting the scope of Article 16 of that Statute.

In addition, under customary international law, as reflected in Article 32 of the Vienna Convention, recourse may be had to supplementary means of interpretation to confirm the meaning determined in the manner outlined above or when this method leads to ambiguity or absurd or unreasonable results:

It is up to the International Criminal Court, an independent international judicial body, to determine what legal effect under the Rome Statute to give to the request in Resolution 1422 purportedly made pursuant to Article 16. The context of Article 16 in the overall structure of the Rome Statute, the object and purpose of the Statute and the drafting history of that article demonstrate that it was not designed to give impunity to nationals of non-states parties - even if they were permanent members of the Security Council.

B. Article 16 not designed to give impunity to nationals of non-states parties

The context of Article 16 in the overall structure of the Rome Statute, the object and purpose of the Statute and the drafting history of that article demonstrate that it was not designed to give impunity to classes of individuals, such as nationals of non-states parties - even if they are permanent members of the Security Council.

Article 16 an exceptional provision. Article 16 is an exceptional provision in the overall structure of the Rome Statute and must, therefore, be read narrowly, both in terms of its scope and temporal effect, in the light of the purposes of the Rome Statute. (143) This teleological approach is fully consistent with the overall object and purpose of the Statute, to ensure that all those within the International Criminal Court’s jurisdiction responsible for the worst possible crimes are brought to justice in all cases. The Rome Statute makes clear that although states bear the primary responsibility to bring such persons to justice, if they prove unable or unwilling to do so, then the International Criminal Court may do so as a last resort. Any attempt to use Article 16 to bar the International Criminal Court from exercising jurisdiction for more than a short while would be incompatible with the very purposes of the Rome Statute as set forth in the Preamble. There the states parties declare that the crimes within the International Criminal Court’s jurisdiction "must not go unpunished", that "their effective prosecution must be ensured at the national level", that there must be an "end to impunity" and that the Court must be "complementary to national jurisdictions" when they are unable or unwilling to investigate and prosecute these crimes; they also resolve "to guarantee lasting respect for and the enforcement of international justice".(144)

The intent of the drafters that Article 16 be used rarely and only in exceptional circumstances. As the drafting history demonstrates, Article 16 was based on the dubious view that the Security Council might be impeded in an exceptional situation when it was attempting to restore international peace and security if the International Criminal Court were to investigate or prosecute persons suspected of genocide, crimes against humanity or war crimes while these attempts were continuing. However, Article 16 must be considered in the light of the fundamental principle recently reiterated by the UN Secretary-General:

"There are times when we are told that justice must be set aside in the interests of peace. It is true that justice can only be dispensed when the peaceful order of society is secure. But we have come to understand that the reverse is also true: without justice, there can be no lasting peace."(145)

There was widespread opposition in the Preparatory Committee for the Establishment of an International Criminal Court (1996 to 1998) to including the International Law Commissions draft Article 23 (3) (the forerunner of Article 16). That provision would have required the Security Council to approve all prosecutions arising out of a situation that was being dealt with by the Council as a threat to or breach of international peace and security or as an act of aggression. The minority of states (initially including all five permanent members of the Security Council) that supported including draft Article 23 (3) contended that it would be unacceptable if the International Criminal Court had the power to act in defiance of the Charter of the United Nations and to interfere in delicate matters under consideration by the Security Council, whether under Chapter VII or any other chapter.(146) The Preparatory Committee squarely rejected this draft provision, which would have permitted any permanent member of the Security Council to veto a prosecution when a situation was being considered by the Security Council.(147)

Article 23 (3) was replaced by the Singapore compromise, which is now reflected in Article 16. Under the compromise, the Security Council cannot block an investigation or prosecution, unless a majority of nine states, including all five permanent members, approve a proper request to the International Criminal Court to defer it temporarily. However, at no time in the discussions either in the Preparatory Committee or at the Rome Diplomatic Conference did the drafters envisage that the Security Council could use Article 16 to provide immunity from arrest or surrender to the International Criminal Court of entire classes of persons, such as the nationals of non-state parties participating in UN peace-keeping operations.(148) Although the US did seek to exempt nationals of non-states parties from the International Criminal Courts jurisdiction, it did not seek to do so through draft Article 23 (3).(149)

States that opposed including what became Article 16 argued that even the Singapore compromise could be misused by the Security Council to protect nationals of permanent members or of their allies by giving them impunity from international justice. However, they were repeatedly assured by supporters of this provision that it was intended solely to enable the Security Council to undertake delicate peace negotiations for a period of time in certain exceptional circumstances when it thought that the prospect of investigations or prosecutions by the International Criminal Court would impede those negotiations.(150) Indeed, the intent of the drafters that Article 16 not be a tool for impunity is further confirmed by their decision to limit its scope to investigations and prosecutions by the International Criminal Court and not to include investigations and prosecutions by national courts of states parties exercising territorial or universal jurisdiction.

Authoritative statements by two senior members of the UK delegation at the Rome Diplomatic Conference, both of whom played a major role in drafting Article 16, confirm that the intent of the drafters was that Article 16 be invoked only to permit peace negotiations to proceed under the auspices of the Security Council in rare cases, after individualized determinations and then only for a short while. The head of that delegation explained that the intent of the drafters of Article 16 was that it would be "a minor and a necessary departure given the very special circumstances" when the Security Council was acting pursuant to Chapter VII.(151) He declared that

"[t]he onus lies with the Security Council to decide from case to case (with full application of the veto) whether its action would or would not be jeopardized by proceedings before the Court; and the suspensive effect of any such decision is limited in its duration. These two facts taken together offer the necessary guarantee that the process will be managed with restraint."(152)

The deputy head of the UK delegation stated that despite concerns about the provision in Article 16 permitting the Security Council to request a deferral,

Statements by governments cited above on 3 and 10 July 2002 in Section II.D and E confirm that Article 16 was included in the Rome Statute to address the supposed temporary conflict that might occur between investigations or prosecutions by the International Criminal Court and peace efforts that were being undertaken by the Security Council. For example, Canada recalled on 3 July 2002 that "Article 16 was intended to be available to the Security Council on a case-by-case basis, where a particular situation required a twelve-month deferral in the interests of peace and security". The New Zealand delegate, who was one of those involved in drafting Article 16, stated on 10 July 2002 that Article 16

"was intended to be used on a case-by-case basis by reference to particular situations, so as to enable the Security Council to advance the interests of peace where there might be a temporary conflict between the resolution of armed conflict, on the one hand, and the prosecution of offences, on the other".

Switzerland explained on 3 July 2002 that Article 16 "concerns an authorization to suspend criminal proceedings to give chances for peace".

As a leading commentary on this provision written by two persons present at the Rome Diplomatic Conference indicates:

In practice, Article 16 allows the Council to request the Court not to investigate or prosecute when the requisite majority of its members conclude that judicial action - or the threat of it - might harm the Councils efforts to maintain international peace and security pursuant to the Charter. Article 16 will be the vehicle for resolving conflicts between the requirements of peace and justice where the Council assesses that the peace efforts need to be given priority over international justice.(154)

In the light of the above, it is clear that the request in Resolution 1422 for a blanket prohibition of investigations and prosecutions of an entire class of persons, without any individualized determinations that a temporary deferral was necessary to restore or maintain international peace and security, is not a request within the meaning of Article 16 and it cannot be given any legal effect under the Rome Statute by the International Criminal Court.

No intention to give effect to requests for endless renewals. As governments made clear in their statements on 3 and 10 July 2002 cited in Section II.D and E, the drafters of Article 16 did not intend to permit a request to be perpetually renewed. For example, Brazil declared on 10 July 2002 that the provisions of Article 16 "were never intended to give place to ad aeternam deferrals of the Court’s jurisdiction". Switzerland emphasized on 3 July 2002 that "Article 16 envisages the renewal of a deferral, but not a mechanism of successive unlimited deferrals".

Even a one-year deferral could seriously undermine the ability to conduct an effective investigation or prosecution; a two-year delay occasioned by a renewal would be even more serious; and giving effect to perpetual renewals of a request would be a major setback for international justice. Any interpretation permitting renewals in perpetuity would lead to the absurd, as well as unreasonable, result that a request could prevent any investigation or prosecution in the International Criminal Court for the worst possible crimes in the world, when states were unable or unwilling to investigate or prosecute, forever, or until the Court’s ability to investigate or prosecute would have been severely undermined because witnesses had died, been intimidated or killed and evidence had deteriorated, been concealed or been destroyed.

Such endless renewals would deny victims their right to reparations, deny an accused the right to a prompt trial and, if the accused were in custody, lead to indefinite detention without trial. Given that the International Criminal Court is a court of last resort, perpetual renewals would, as a practical matter, amount to amnesties prior to trial and judgment for genocide, crimes against humanity and war crimes - amnesties which are prohibited under international law.(155) In short, perpetual deferrals – or even a few successive deferrals - would be contrary to the Purposes of the UN, which include promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.(156) The ordinary meaning of the terms of the article are that the original request, but not subsequent renewals, may be renewed. It expressly states: that request may be renewed by the Council under the same conditions, it does not say that the renewal may be renewed.(157) Even if the International Criminal Court were to conclude that more than one renewal were possible, it would certainly determine, for the reasons given above, that Article 16 was not intended to permit endless renewals for the purpose of preventing an entire class of persons from ever being brought to justice before the Court.

V. THE RELEVANT LEGAL CONSTRAINTS ON ACTION BY THE SECURITY COUNCIL

As noted in Section III, the International Criminal Court does not have to determine that the Security Council exceeded its powers in order to determine that the request in Resolution 1422 fails to satisfy the requirements of Article 16 and other provisions of the Rome Statute. However, as explained below in this section, which develops and expands the legal arguments made by governments on 3 and 10 July 2002, a further reason that the International Criminal Court should determine that the request in that resolution should be rejected is that the resolution exceeded the powers of the Security Council under the UN Charter and under other relevant international law. Of course, as noted above, the Court could also choose to make this determination based solely on Article 16 itself, since that article requires that the request by the Security Council must have been made "in a resolution adopted under Chapter VII of the Charter of the United Nations" and, as shown below in this section, the Council failed to comply with the legal requirements of the Charter before attempting to invoke Chapter VII. In addition, the measure taken, purportedly "under Chapter VII" – giving impunity to an entire class of persons from international justice for the worst possible crimes, with the apparent intent that the impunity be perpetual - is not one the Security Council can take under the UN Charter or other international law.

The doctrine of ultra vires applies to the Security Council (Section V.A.1). This means that the Security Council cannot act in excess of its powers and that it must exercise those powers consistently with the Purposes and Principles of the UN (Section V.A.2). As is clear from the Preamble of the UN Charter, which states that "the peoples of the United Nations determined . . . to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained", the Security Council must also act consistently with conventional and customary international law, except to the extent that the UN Charter permits the Council to do otherwise (Section V.A.3). These principles apply with equal force when the Security Council is acting pursuant to Chapter VII (Section V.B). One of the requirements for a request by the Security Council to constitute a request under Article 16 is that the Security Council must have made the request "in a resolution adopted under Chapter VII of the Charter of the United Nations". However, in order to invoke Chapter VII, the Security Council must always make a determination, as required under Article 39 of the UN Charter, that there is a threat to or breach of international peace and security or an act of aggression (Section V.B.1). No such determination was made when the Security Council adopted Resolution 1422 and no such threat or breach existed.

Once the Security Council properly invokes Chapter VII, the measures it takes must be consistent with the Purposes and Principles of the UN and with other international law (Section V.B.2). In particular, this means that the Security Council must not violate jus cogens prohibitions (Section V.B.3) and it must act consistently with human rights and international humanitarian law (Section V.B.4). Moreover, as governments emphasized on 3 and 10 July 2003, the Security Council has no power to amend treaties that are consistent with obligations under the UN Charter, although it may temporarily suspend the operation of certain treaty provisions, such as bilateral commercial trade agreements, when they would conflict with measures taken under Chapter VII after the required determination under Article 39 that there was a threat to or breach of international peace and security (Section V.B.5).

The purported request in Resolution 1422, which seeks to give certain nationals of non-state parties to the Rome Statute who are accused of genocide, crimes against humanity and war crimes, impunity in all cases by preventing their surrender to the International Criminal Court when it has determined that states are unable or unwilling to investigate these crimes, is contrary to the Purposes of the UN. In particular, the resolution facilitates the violation of jus cogens prohibitions and is contrary to international human rights and humanitarian law. The request also attempts to amend a treaty that is fully consistent with obligations under the UN Charter. Moreover, the Security Council’s powers do not extend to ordering intergovernmental organizations to take particular actions.

As explained below, Resolution 1422 exceeded the Security Council’s powers and it cannot bind the International Criminal Court or member states.

A. The Security Council as subject to law

1. The applicability of the doctrine of ultra vires to the Security Council

It goes without saying that each political organ of the UN, an international organization established pursuant to international law, may only exercise powers it has under its constitutive instrument, the UN Charter. This principle has been emphasized by international courts.(158) The Appeals Chamber of the ICTY in the Tadiæ case declared:

Long before this decision, the International Court of Justice had declared in a 1948 advisory opinion:

"The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers and criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of the constitution."(160)

This principle is also well recognized by scholars.(161) Although the Security Council has certain general powers under the UN Charter other than the specific powers in Chapters VI, VII, VIII and XII, these powers are not unlimited.(162) Like any other body established under law, it cannot act in excess of its powers (ultra vires), whether by usurping the powers of other organs in the UN or by attempting to exercise powers it does not possess under its constitutive instrument or in violation of that instrument.(163)

Article 25 of the UN Charter and the requirement that members carry out decisions of the Security Council only that are in accordance with the Charter. Further evidence that the discharge of the Security Councils duties and the exercise of its specific and general powers must be in accordance with the UN Charter is that members of the UN are required to comply with decisions of the Security Council only when they are in accordance with the UN Charter. Article 25 of the UN Charter expressly states: The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

The phrase "in accordance with the present Charter", as its placement indicates, modifies the phrase "the decisions of the Security Council", not the verb "agree". This interpretation is confirmed by the International Court of Justice.(164) Scholars are in accord. (165) Thus, states are not required to carry out decisions of the Security Council that are not in accordance with the UN Charter. One frequently cited example is that the Security Council cannot violate the procedural requirements of the UN Charter.(166) However, this principle applies with equal force to decisions that are not in accordance with its Purposes and Principles or with other substantive rules.(167) As explained below, for a number of reasons, Resolution 1422 is not in accordance with the present Charter.

Intent of the drafters that the Security Council not have unlimited powers. The discussions that took place during the drafting of Article 25 of the UN Charter demonstrate that the drafters intended that the Security Council have limited powers. Indeed, three of the future permanent members of the Security Council made this point clear in response to two proposals made at the San Francisco conference in 1945, one by Belgium that would have limited the obligations of states to carry out decisions of the Security Council and one by Norway that would have expanded the Security Council’s powers.

Belgium proposed to amend paragraph 4 of Chapter VI, Section B of the Dumbarton Oaks Proposals, which was the original version of what is now Article 25 of the UN Charter. The amendment would have limited the obligations of states to carry out decisions of the Security Council to those taken under Chapter VIII of the Dumbarton Oaks Proposals (now Chapter VII of the UN Charter). According to the summary record, the Belgian delegate explained that if member states were obliged to carry out all decisions of the Security Council, including those taken pursuant to other chapters, they "would be giving the Security Council a blank cheque".(168) Although the UK delegate objected to limiting the obligations of member states in the manner proposed by Belgium, according to the summary report, "[h]e suggested that the phrase, ‘in accordance with the provisions of the Charter,’ sufficiently met the point raised by the Belgian delegate".(169) Similarly, although the USSR delegate also objected to limiting the obligations of member states in the way Belgium had suggested, according to the summary report, he declared that "Paragraph 4 did not give unlimited powers to the Security Council."

Norway proposed to give the Security Council the power to enforce any final decision of the Permanent Court of International Justice (replaced by the International Court of Justice) in an interstate dispute or by any other tribunal whose jurisdiction in the matter had been recognized by the states parties to the dispute, even if the dispute did not involve international peace and security. The US delegate objected, indicating that the Security Council’s powers should be limited to dealing with threats to international peace and security. According to the summary record, he

"pointed out that the Norwegian amendment in effect proposed an enlargement of the Council’s powers which had already been criticized as being too wide. The whole theory underlying the Dumbarton Oaks Proposals had been that the Security Council should have those powers necessary for meeting threats to the peace or suppressing them. It seemed unwise, therefore, to give additional powers to the Council and the United States could not support the Norwegian amendment."(170)

2. The requirement that the Security Council must exercise its powers consistently with the Principles and Purposes of the UN

Each organ of the UN, including the Security Council, must exercise its powers in a manner consistent with the UN Charter, including the Purposes and Principles of the UN and the intent of the founders, as evidenced in Article 24 (2), the Preamble, the travaux préparatoires, jurisprudence and scholarly commentary. The scope of the relevant Purposes of the UN is discussed below in Section V.B.2.

A basic limit on the powers of any organ of an intergovernmental organization is that it must act consistently with the purpose of the organization.(171) This principle is expressly incorporated in Article 24 (2) of the UN Charter, which states that the Security Council, when discharging its duties to maintain international peace and security, shall act in accordance with the Purposes and Principles of the UN Charter:

The drafters concluded that Article 24 (2) and other provisions in Chapter V (The Security Council) were sufficient to ensure that the Security Council was obliged to act in accordance with the Purposes and Principles of the UN and with the UN Charter.(172) The legally binding purposes of the UN are to be found not only in Article 1 of the UN Charter, but also in the Preamble, and the Preamble must be taken into account in interpreting the scope of the Purposes of the UN as set forth in Article 1.(173)

Judges of the International Court of Justice have also emphasized that Article 24 (2) requires the Security Council to act in accordance with the Purposes and Principles of the UN. For example, Ad Hoc Judge Lauterpacht stated in his separate opinion in the Bosnia and Herzegovina case:

Similarly, Judge Weeramantry explained in his separate and dissenting opinion in the Lockerbie case that Article 24 (2) defines the boundary of the powers of the Security Council:

Scholars have repeatedly emphasized that the Purposes of the UN in Article 1 of the UN Charter are legally binding on the Security Council. For example, Delbrück states that the first sentence in Article 24 (2)

Similarly, Bowett observed:

Other commentary is in accord.(178)

3. The obligation to act consistently with conventional and customary international law, except to the extent that the UN Charter otherwise permits

The Security Council, like the other organs of the UN, is obliged to act consistently with conventional and customary international law, except to the extent that the UN Charter otherwise permits. The Preamble of the UN Charter declares that

the peoples of the United Nations determined . . . to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained . . ..(179)

The UN and its organs, including the Security Council are subjects of international law . Therefore, the Security Council may derogate from international law only to the extent that the UN Charter permits it to do so. As Malcolm Shaw has explained, "there is little doubt that in the process of making a decision, the Council must follow the dictates of the Charter and the principles of international law to the extent that these have not been modified by the former".(180)

For the reasons discussed in this memorandum, Resolution 1422 undermines, rather than establishes, "conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained".

B. Applicability of legal limits to action under Chapter VII

The legal limits outlined above in Section V.A on the Security Council generally apply with equal force when the Security Council is acting pursuant to Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the UN Charter. The Security Council's powers to maintain or restore international peace and security are limited to the specific and general powers it has under the UN Charter. Thus, it cannot act under Chapter VII unless it complies with the procedural requirements of the UN Charter by making the determination required under Article 39 (Section V.B.1). Moreover, once it properly has made a determination under Article 39, it must exercise its powers under Chapter VII consistently with the Purposes and Principles of the UN Charter and with other international law, except to the extent permitted under the Charter (Section V.B.2). In particular, it must not undermine jus cogens prohibitions and must respect human rights and international humanitarian law (Section V.B.3 to 4).

As the drafting history of Resolution 1422 makes clear, the Security Council failed to make a determination under Article 39 that there was a threat to or breach of international peace and security, and, in the circumstances, it could not have done so. Moreover, that resolution, by seeking to prevent the International Criminal Court from exercising its jurisdiction over an entire class of persons – nationals of non-states parties to the Rome Statute involved in UN established or authorized operations- is not consistent with these requirements.

1. The necessity for a determination under Article 39 in order to invoke Chapter VII

Article 39 of the UN Charter, the first article of Chapter VII (Articles 39 to 51), expressly provides:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Thus, action under Chapter VII must be based on a determination of the existence of a threat to or breach of peace or an act of aggression. Even if there may not be a requirement under the UN Charter that Article 39 be expressly mentioned, it is still necessary for the Security Council to make such a determination before it can invoke Chapter VII. Indeed, its own practice prior to Resolution 1422 demonstrates that the Security Council has never invoked Chapter VII unless it has made such a determination, even if the val