The UN Security Council and the ICC Using Security Council Resolution 1970 - Research Paper Example

Name: Tutor: Title: The relationship between the UN Security Council and the ICC using Security Council Resolution 1970 (2011) and Security Council Resolution 1973 (2011) Institute: Date: The relationship between the UN Security Council and the ICC using Security Council Resolution 1970 (2011) and Security Council Resolution 1973 (2011) Introduction On July 22, in the year 1970, Finland, Burundi, Sierra Leone, Zambia and Nepal requested a meeting of the Security Council to put into consideration the report of the Ad Hoc Sub-Committee which was submitted on July 7, in the year 1970. One of the draft resolutions was consequently adopted on 29, July 1970 as resolution no. 283, asking the Member States to take different kinds of measures concerning their relations with South Africa concerning Namibia. This was occasioned by South Africa encroachment on Namibia territory. Since the resolution was constituted and following the establishment of International Criminal Court many years later, the UN Security Council and the International Criminal Court work together in the support of each other. Without the UN Security Council the functions of the International Criminal Court can be incapacitated to a great extent. Take the example of Libya and Darfur, the International Criminal Court acted after the referral of the UN Security Council1. The UN Security Council is a powerful organ of the United Nation that has a responsibility of maintenance of international security and peace. Its powers as stipulated in the UN Charter comprises of operations of peace keeping, International sanctions establishment, and military action authorization. The powers of the organ are practiced by means of the resolutions of the UN Security Council2. The first session of the Security Council was held in January 1946 in London at Church House. Since then subsequent sessions have been held in various cities of the world. The Security Council consists of veto-wielding members who are five (Russia, France, China, United States and United Kingdom) and ten non-permanent elected members given two year terms, bringing the total to fifteen3. The members of the Security Council have always to be present at the New York UN headquarters in order for the Security Council to meet at any time. The United Nations Charter requirement was adopted to address a shortcoming of the League of Nations since it was usually not in a position to quickly respond to a crisis. UN Charter Article 27 stipulates that the Security Council decisions on all matter of importance require the affirmative votes of any nine members. A negative veto by a permanent member, results into the proposal not being adopted even if it has received the required number of votes. Absenteeism is not termed as a veto in spite of the Charter wording. A state that is UN member and not the Security Council member, may only participate in the discussions of the Security Council in matter in which the Security Council agrees that the interest of the country are specifically affected. In recent times the Security Council has interpreted this very loosely permitting many countries to get involved in the discussions. According to the Charter Chapter Six, the Security Council is entitled to make investigations in any situation or dispute which has a possibility of leading to emergence of a dispute or international friction. The Security Council is free to recommend any appropriate methods or procedures of adjustment if it comes to its notice that the situation might threaten international security and peace. The recommendations are unbinding on members of the UN. According to Chapter Seven, the Council has more power to decide on what measures are to be taken in situations that involves, breaches to peace, acts of aggressions and threats to peace. In such circumstances, the Security Council may not be limited to only recommendations but may take actions which will include use of armed forces to restore or maintain international security and peace. This was the legal foundation of the armed action of the UN in the Korean War in 1950 and the utilization of coalition forces in Kuwait and Iraq in 1991. Decisions made under Chapter Seven like economic sanctions are binding on all UN members. The United Nations role in international collective security is outlined by UN Charter which empowers the Security Council with the legitimate authority to: make investigations concerning any circumstance that is a threat to international peace, give methods for dispute peaceful resolution, request other state members to partially or completely interrupt economic relations as together with air, postal, sea, radio communications and interrupt diplomatic relations; enforce its decisions by military means, or any other way; avoid conflict and focuses on cooperation. The International Criminal Court Rome Statute acknowledges that the Security Council possesses authority to refer cases to the court in situations where the court could hitherto not have exercised jurisdiction. The Security Council put this power in application for the first time in March 2005 when it subsequently referred to the court the situation that was ongoing in Darfur since 2002, owing to the fact that Sudan is not party to the Rome Statute, the court could not have taken any action. Such referral was done for the second time in February 2011 when the International Criminal Court was asked to investigate the government of Libya violent response to the uprising in 2011. The International Criminal Court is a permanent tribunal constituted to prosecute individuals charged with crime of genocide, war crimes, crime against humanity, and crime of aggression ( although it has not gained jurisdiction over this crime). The creation of this court is a land mark reform that was done in international law since 19454. It became recognized in July 2002 when the Rome Statute of the International Criminal court began to function. The court’s headquarter is in The Hague in Netherlands but the proceedings can take place anywhere in the world as long as the country is a party to the Rome Statute. As at April 2011, about one hundred and fourteen states were parties to the court which included half of the countries in Africa, South America and Nearly all European nations. The treaty obliges the member states not tom get involved in actions which will defeat the purpose and object of the treaty5. United States, Sudan and Israel have unsigned the Rome Statute, pulling away from becoming state parties or having any legal obligations as far as the statute is concerned. Member States of the United Nations have neither ratified or signed or acceded to the Rome Statute. Some these states are critical of the court and these include India and China. The court exercise its jurisdiction exclusively in cases where the person accused is a national of a state party, the crime that is alleged happened within the territory of the state party, or a situation is referred to the court specifically by the United Nations Security council as it was the case in Libya. The court has commenced investigations over several situations that include: Uganda, Democratic Republic of Congo, Sudan, Republic of Kenya and Libyan Arab Jamahiriya. Democratic Republic of Congo case, Uganda case and Central Africa Republic case were referred to the court by state parties, whereas Libya and Darfur were referred by the United Nation Security council. The Kenyan case was initiated by the prosecutor. The international tribunal establishment to decide the fate of political leaders that were accused of war crimes was initially called for in 1919 Paris Peace Conference by Commission of Responsibilities. The matter was once again brought forth at a conference that took place in Geneva under League of Nation auspices in 1937 November, but nothing practical emerged from that. The General Assembly for the first time acknowledged the need for an international court that is permanent to take care of atrocities of the type committed at World War II, only after Tokyo and Nuremberg Tribunals. At the request of the General Assembly, International Law Commission was asked to draft two statutes in the wake of 1950s but these were just put aside as the ongoing Cold War made the International Criminal Court establishment very political unrealistic. It after many pleas and advocacy for the establishment of an International Criminal Court that did the international community came up with ad hoc tribunals to take care of war crimes in the then Yugoslavia and Rwanda in 1994 but it brought forth the need for a permanent international Court6. The General Assembly, after years of negotiations, called for a conference in Rome in 1998 June with the purpose of finalizing a treaty. International Criminal Court Rome Statute was adopted in July 1998 with an overwhelming vote of 120 to 7, whereas 21 countries abstained. The countries which voted against the treaty were Iraq, China, Libya, Israel, Yemen, United States and Qatar. On July 1st 2002 the International Criminal Court by the power of the Statute could prosecute war crimes committed after that date7. The International Criminal Court and UN Security Council complement each other in their functions. The International Criminal Court is functionally and legally independent from the United Nations as compared to the International Court of Justice. The United Nation Security Council is granted certain powers by the Rome Statute. Article 13 permits the Security Council to situations to the court that would not automatically fall in the jurisdiction of the court. Article 16 gives power to the UN Security Council to defer from a case investigation for a period of twelve months. Such kind of deferral may indefinitely be renewed by the UN Security Council. The court works hand in hand with the UN in many areas including logistic support and information exchange. The establishment of the International Criminal Court was given momentum by the ever increasing culture of impunity that sees many victims particularly during the war, being subjected to inhuman violations that hitherto went unpunished. In the wake of atrocities committed against the citizen of Libya by an oppressive regime, the United Nation Security Council called for actions by referring the Libya case to be investigated by the International Criminal Court. The relationship between the UN Security Council and the International Criminal Court is very essential and unique. Whereas the International Criminal Court is a judicial institution that is Independent, the Rome Statute acknowledges the Security Council role. The Security Council from time to time discusses themes and issues relevant to the activities and mandate of the court. If a country is a non-member of the International Criminal Court, its citizens will be prosecuted by the International Criminal Court for genocide, war crimes and crimes against humanity only after the United Nations Security Council refers it. The UN Security Council resolution 1970(2011) was used to request the International Criminal Court to commence investigations on the Libyan case after so many atrocities were meted out to innocent citizens. All United Nations members following UN Charter Article 25 agree to unanimously carry out the Security Council decisions. This translates to UN Members obliging to comply with the International Criminal Court, or UN membership suspension by the Security Council. The particular mercenaries mentioned in the article include Tunisia, Ethiopia and Algeria and all those members of the United Nations and must follow the resolutions by the council8. The referral of the UN Security Council was very necessary since Libya is not a party to the Rome Statute that established the International Criminal Court. The International Criminal Court prosecutor needs to report to the Security Council from time to time concerning his progress. The resolution by the UN Security council put in place immediate measures to facilitate humanitarian aid, ensure accountability and to stop violence. The Security Council demanded a stop to violence and requested the authorities in Libya to respect human rights and permit the passage of humanitarian supplies, make sure foreign nations are safe and remove any restrictions imposed on all forms of media9. The resolution puts in place an arm embargo and other arms restrictions. All the states are prevented from providing any kind of arms to Libya and also prevented from permitting the transit to Libya any mercenaries. Libya is not allowed to export any forms of arms to any state and states are requested to thoroughly inspect suspicious cargo that may comprise of arms. If such arms are stumbled upon, states are required to seize and dispose them10. The states are more so called upon to discourage their nationals from entering Libya to take part in human rights violations. The resolution further imposes sanctions on key figures in the regime. Seventeen loyalists of Qadafi are subjected to international travel ban. Six among the seventeen, are subjected to a freeze of their assets. The Security Council ensures that any assets that are frozen are made available to the people of Libya benefit. A Sanctions Committee is constituted to put in place targeted sanctions on additional entities and individuals who are involved in human rights abuses that comprises of aerial bombardments and attacks on civilian facilities or population. All the states are requested to work together to facilitate humanitarian help and support the return of humanitarian agencies11. In pursuant to the Rome Statute, the prosecutor of the International Criminal Court can initiate an investigation on the foundation of referral from the UN Security Council or State Party. Moreover the prosecutor can start investigations proprio motu basing on the information on crimes in the jurisdiction of the court from organizations and individuals. The Central African Republic, Uganda and Democratic Republic of Congo have so far referred situations occurring within their territories to the International Criminal Court. The Security Council has referred the Darfur, Sudan case and the Libya case being the most recent to happen. The pre-Trial Chamber II gave the prosecutor the authority to start an investigation proprio motu in the Kenyan situation. From a critical observation it can be observed that the International Criminal Court and UN Security Council work to complement each others functions. The International Criminal Court will be toothless without the input of the UN Security Council. The UN Security Council enables the accused persons to be apprehended and appear subsequently for prosecution. The International Criminal Court has no police to apprehend the persons who are accused by the various atrocities against humanity but it looks forward to the parties to the Rome Statute to enforce its functions. The Rome Statute parties they are obliged to do so because they are bound by the decisions of the UN Security Council being members of the United Nations12. The matter that is referred to the International Justice Court some times mostly involves international and national boundaries. The aggrieved parties some times can engage in war which will occasion crimes against humanity and hence calling in the UN Security Council to make decisions concerning referral to the International Criminal Court13. Where the UN Security Council decides to take military action as in the case of Libya, later on there will be cases war crimes, genocide and war against humanity that should be taken up by the prosecution at the International Criminal Court as been recommended. Consequently the decisions of the UN Security Council will have a significant impact on the International Criminal Court since it will be called on to prosecute some of the cases. The International Criminal Court prosecution will be futile if the UN Security Council does not help it in making in apprehending the accused or protecting the victims and witnesses from further atrocities. Conclusion In the wake of atrocities committed against the citizens of Libya the UN Security Council recalling the 1970 resolution and 1973 resolution stepped in to ensure that peace and security is maintained. In asking the International Criminal Court to take up the case it demonstrated the important and relevant relationship between the International Criminal Court and itself. Some cases will be hard to handle if the UN Security Council did not step in to help the International Criminal Court. Prior to its inceptions perpetrators of crimes against humanity went scot free without being punished. The relation of the two is complimentary and the International Criminal Court carries out the objectives of the UN Security Council although it is an independent court. Bibliography Sanford, S., 2011, International Law: Contemporary Issues and Future Developments. Colorado: Westview Press. Bassiouni, C.M., 2011, Crimes Against Humanity: Historical Evolution and Contemporary Application. 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