GROTIUS CENTRE WORKING PAPER SERIES

GROTIUS CENTRE
WORKING PAPER
2013/005-PSL

UN Peace-Enforcement Missions and

International Criminal Law: Disentangling
the Turf War between the Security Council
and the International Criminal Court
Larissa van den Herik

Leiden University. The university to discover.

 Forthcoming in K. Bannelier-Christakis and T. Christakis (eds.),
Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

UN Peace-Enforcement Missions and International Criminal Law:

Disentangling the Turf War between the Security Council
and the International Criminal Court

Larissa van den Herik*

1. Introduction

The criminalisation of aggression in Kampala can be seen as the most recent attempt to

partially transpose a significant segment of the international regulation on the use of force

from circles of diplomacy and the broader political arenas to the judicial setting of the

International Criminal Court (ICC). 1 The extension of the ICC’s mandate to cover

questions of jus ad bellum may well intensify the already existing territorial struggle

between the ICC and the Security Council.2 These two competing international bodies have

a parallel, and at times intersecting, mandate to address threats to the “peace, security and

well-being of the world”,3 and to save current and future generations from the scourge of

war.4 This chapter addresses the interplay between the two institutions and their governing

regimes in the context of UN peace enforcement missions.

In the contemporary international legal framework, the Security Council and the ICC are

both engaged in international crisis management. Their operations are, however, guided by

different perspectives. The Security Council bears principal responsibility for the

*
Larissa van den Herik is professor of public international law at the Grotius Centre for International Legal
Studies at Leiden University. She is grateful to Adrian Plevin and Dana Burns for excellent research
assistance.
1
See generally, K. Sellars, Crimes Against Peace’ and International Law (2013).
2
On the relationship between the UN Security Council and the ICC, see generally, S. SáCouto and K. Cleary,
War Crimes Research Office, ‘The Relevance of ‘A Situation’ to the Admissibility and Selection of Cases
Before the International Criminal Court’ (2009).
3
Rome Statute of the International Criminal Court, 2187 UNTS 90 (Rome Statute), preamble.
4
Charter of the United Nations, 1 UNTS XVI (UN Charter), preamble, Para. 1.

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“maintenance of international peace and security”, 5 and its mandate is thus primarily

geared towards the enforcement of peace. In contrast, the ICC is a pure law enforcement

agency that operates within strict procedural confines with much more limited policy

discretion. At the international level, this interplay between the monopoly on the use of

force and criminal law mechanisms is informed by different dynamics than it is in domestic

systems. In contrast to the domestic law analogy, international criminal law does not

necessarily operate as a last resort at the international level. The ultimum remedium label is

perhaps rather the prerogative of the international use of force regime. International

criminal law generally functions as the softer alternative to this regime. In this sense, the

reincarnation of international criminal law has also been characterised as ‘a new response’

with the potential to supplement and reinvigorate the existing jus ad bellum regime.6

Despite a potential competition for the ultimum remedium label in terms of seriousness, the

two regimes are not divided along clear temporal dimensions. International criminal law

mechanisms have been used as direct alternatives to the use of force, in particular when the

political will for a timely peace enforcement operation was absent.7 These mechanisms

5
UN Charter, Art. 24.
6
C. Stahn and L. van den Herik (eds.), Fragmentation and Diversification of International Criminal Law
(Martinus Nijhof Publishers: Leiden, 2012), 26.
7
The establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda was reactive, in the sense that there was an absence of
international political will to intervene with force to prevent in the conflicts in the former Yugoslav states and
Rwanda, respectively. Some criticisms go further, to suggest that the ICTR was established as a consequence
of the ‘precedential effect’ of the ICTY, given a desire to ensure the suffering of African victims was seen to
be treated with a similar response to that given to European victims. In this regard, see P. Akhavan, ‘The
International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment’ (1996) 90 American
Journal of International Law 501, 501. See further, P. Akhavan, ‘Justice and Reconciliation in the Great
Lakes Region of Africa: The Contribution of the International Criminal Tribunal for Rwanda’, (1997) 7 Duke
Journal of Comparative and International Law 325, 326-328, and J. O’Brien, ‘The International Tribunal for
Violations of International Humanitarian Law in the Former Yugoslavia’, (1993) 87 American Journal of
International Law 639.

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 Forthcoming in K. Bannelier-Christakis and T. Christakis (eds.),
Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

have also been resorted to in combination with authorized use of force.8 Additionally, they

have been employed in the aftermath of authorized use of force. 9 Yet, in situations of

international criminal responsibility for crimes committed during or as part of UN peace

enforcement operations, the two regimes become more intertwined.

In addition to existing institutional structures and the parallel or subsequent engagement of

the two regimes, there are of course also clear historical connections between the areas of

peace and security and international criminal law. The miscarriages of Sèvres and

Versailles after the First World War and the judicial deliveries in Tokyo and Nuremberg

were all war-related initiatives.10 Moreover, in the early 1990s, it was the Security Council

who acted as international criminal law’s midwife, nurturing its birth through the

mechanisms of Chapter VII of the UN Charter.11 Less than twenty years later, in the first

decade of the 21st century, the claim was made that international criminal justice has

gradually become emancipated from the area of peace and security to become a logic on its

8
For example, the Security Council authorized the use of force in Libya through Resolution 1973 (2011) after
having previously referred the situation in that country to the ICC, by way of Resolution 1970 (2011): SC Res.
1970 (2011) of 26 February 2011, UN Doc. S/RES/1970 (2011); SC Res. 1973 (2011) of 17 March 2011, UN
Doc. S/RES/1973 (2011). Contrarily, the authorization of the use of force in Mali followed the referral of
that situation to the ICC by six months, but the referral by Mali was duly noted. See SC Res. 2085 (2012) of
20 December 2012, UN Doc. S/RES/2085 (2012), 6th preambular paragraph.
9
Consider, for example, the Office of the Prosecutor’s preliminary examinations into the situation in
Afghanistan: ICC Office of the Prosecutor (ICC OTP), Report on Preliminary Examination Activities, 13
December 2011, Paras. 20-30; ICC OTP Report on Preliminary Examination Activities 2012, 22 November
2012, Paras. 20-39.
10
Following the end of World War I, various models of international criminal justice were attempted through
the 1919 Treaty of Versailles and the 1920 Treaty of Sèvres. Rather than achieving international criminal
justice in any meaningful sense, the hallmarks of these efforts were their ineffectiveness and echoes of victors’
justice. On attitudes to the Leipzig trials pursuant to the Treaty of Versailles concluded at the end of the First
World War, see e.g. J. Yarnall, Barbed Wire Disease: British & German Prisoners of War, 1914-19 (History
Press: European Union, 2011); and K. Askin, War Crimes Against Women: Prosecution in International War
Crimes Tribunals (Martinus Nijhoff: Leiden, 1997), p. 112, citing, W. Bosch, Judgment on Nuremburg,
American Attitudes Towards the Major German War Crime Trials (University of North Carolina Press:
Chapel Hill, 1970), p. 9. Also see C. Kreß, Versailles - Nuremberg - The Hague Germany and International
Criminal Law, International Lawyer (ABA), 40 Int'l Law (2006), pp. 15-40.
11
UN Charter, Ch. VII, Arts. 39-51.

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own.12 Yet, the UN-sponsored judicial intervention in Libya has shown that some close ties

still remain between the two areas, both institutionally and substantively.

This chapter looks at the relationship between the Security Council and the ICC. It zooms

in on the relevance of international criminal law to UN peace enforcement operations and

conversely it addresses the question as to the extent to which the Security Council can

inform the application of international criminal law by the ICC; either through authorizing

the use of force, or otherwise acting under Chapter VII. In this discussion, a distinction

must be drawn between the current core crimes of war crimes, crimes against humanity,

and genocide on the one hand, and the would-be crime of aggression on the other. The

crime of aggression is directly embedded in peace maintenance, and the links to the

Security Council for that crime are therefore more pertinent. With this distinction in mind,

the chapter surveys the interplay between the relevant regimes at two distinct levels. It

starts with an institutional inquiry regarding, (i) the deferral and referral schemes, and (ii)

the potential for ICC review of Security Council practices in this regard. This inquiry is

based on the models presented by both the Darfur, and more particularly, the Libya

interventions. From that springboard, the chapter subsequently jumps into broader and

more hypothetical substantive questions, which specifically examine the relationship

between the Security Council and the ICC in the context of aggression. Given the plethora

of academic writing that already exists on this matter,13 which may remain purely academic

12
See generally, F. Mégret ‘A Special Tribunal For Lebanon: The UN Security Council and the Emancipation
of International Justice’, (2007) 21 Leiden Journal of International Law 485.
13
See e.g., R. Clark, ‘Negotiating Provisions Defining the Crime of Aggression, its Elements and the
Conditions for ICC Exercise of Jurisdiction Over It’, (2009) 20 European Journal of International Law 1103;
R. Heinsch, ‘The Crime of Aggression after Kampala: Success or Burden for the Future?’, (2010) 2
Goettingen Journal of International Law 213; C. Kreß and L. von Holtzendorff, ‘The Kampala Compromise
on the Crime of Aggression’ (2010) 8 Journal of International Criminal Justice 1179; D. Scheffer, ‘The

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

given the intricate ratification and jurisdiction schemes,14 this chapter purports only to zero

in on two specific questions. Firstly, can the use of force, in the course of an operation that

has been authorized by the Security Council, but that gravely exceeds the Security

Council’s mandate, be qualified as aggression despite the authorization? And secondly,

how should the ICC respond to a determination by the Security Council that aggression has

not occurred. On the basis of the analyses of these questions, some overarching

observations are offered on the role of the ICC and international criminal law more broadly,

in the context of UN peace enforcement missions. These reflections include some

preliminary thoughts on whether the Security Council and the ICC actually can, and are

likely to, join forces to execute their shared responsibility to preserve world peace, or

whether they are instead bound to operate in a more competitive fashion.15

2. The institutional turf war

The Relationship Agreement governs the overall institutional arrangements between the

ICC and the United Nations. 16 The concrete rapport between the ICC and the Security

Complex Crime of Aggression under the Rome Statute’, (2010) 23 Leiden Journal of International Law 897;
C. Stahn, ‘The “End”, the “Beginning of the End” or the “End of the Beginning”? Introducing Debates and
Voices on the Definition of “Aggression”’, (2010) 23 Leiden Journal of International Law 875; M. Stein,
‘The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive Is the
Security Council’s Power to Determine Aggression’ (2005-2006) 16 Independent International &
Comparative Law Review 1; C. Wenaweser ‘Reaching the Kampala Compromise on Aggression: The Chair’s
Perspective’, (2010) 23 Leiden Journal of International Law 883.
14
ICC, ‘Amendments to the Rome Statute of the International Criminal Court on the crime of aggression’,
Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala,
31 May – 11 June 2010, part II, ICC-RC/11/Res.6, Annex I, (Kampala Amendments to the Rome Statute) Arts.
15bis(2)-(5) and 15ter(2) and (3).
15
The notion of shared responsibility gives rise to a number of theoretical and practical issues. The
Amsterdam Centre for International Law has recognized the lacuna in academic understandings of these
issues and, in an effort to develop a comprehensive study to address theses issues, has commissioned the
SHARES Project on Shared Responsibility in International Law. See http://www.sharesproject.nl. See: A.
Nollkaemper and D. Jacobs, (2013) ‘Shared Responsibility in International Law: A Conceptual Framework’,
34 Michigan Journal of International Law 359.
16
Negotiated Relationship Agreement between the International Criminal Court and the United Nations, UN
Doc. ICC-ASP/3/Res.1 (2004). This Agreement was concluded in pursuance of Article 2 of the Rome Statute

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Council is principally regulated by three provisions of the Rome Statute that concern the

Security Council’s referral and deferral powers. These provisions are Article 13(b), 16, and

115(b). 17 They reflect a delicate political compromise that balances the respective

prerogatives and mandates of the ICC and the Security Council.

2.1. Selective referrals and their effect in practice

The carefully designed institutional structure drafted and conceptualized in Rome in 1998

was initially torpedoed in practice by the Security Council. Indeed, the Council used its

powers under Article 16 excessively, by making general deferral requests. In the

unanimously adopted Resolution 1422 (2002), 18 the Security Council requested that the

ICC refrain from initiating investigations or prosecutions into the acts or omissions of

peacekeepers from contributing states not party to the Rome Statute.19 The Resolution has

been criticized as being incompatible with the ICC Statute due to its generic and

hypothetical nature, as it was issued in the absence of concrete investigative steps taken by

the Prosecutor. 20 The request was renewed the subsequent year in Resolution 1487

which states, ‘[t]he Court shall be brought into relationship with the United Nations through an agreement to
be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the
Court on its behalf’.
17
Rome Statute, Arts. 13(b), 16, and 115(b).
18
SC Res. 1422 (2002) of 12 July 2002, UN Doc. 1422 (2002). Resolution 1422 was passed unanimously by
the all five of the permanent Security Council members in addition to Bulgaria, Cameroon, Colombia, Guinea,
Ireland, Mauritius, Mexico, Norway, Singapore, and Syria. Security Council, 57th Year: 4572nd Meeting,
Friday 12 July 2002, New York, UN Doc. S/PV.4572.
19
Resolution 1442, supra note 16, Para. 1.
20
On questions surrounding the inconclusive nature of Resolution 1422, see C. Stahn, ‘The Ambiguities of
Security Council Resolution 1422 (2002)’, (2003) 14 European Journal of International Law 85; B.
MacPherson ‘Authority of the Security Council to Exempt Peacekeepers from International Criminal Court
Proceedings’ ASIL Insight, July 2002 available at http://www.asil.org/insight. On the possibility of ‘generic’
Resolutions in the absence of a conflict between international criminal justice and the maintenance of peace
and security in a specific situation, see C. Stahn, ‘Resolution 1422’, 88-9, citing M. Bergsmo and J. Pejic,
‘On Article 16’, in O. Triffterer and C. Rosbaud (eds.), The Rome Statute of the International Criminal Court
(2000), 377, Para. 9.

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(2003). 21 This time it was not adopted unanimously, since three states abstained from

voting.22 After the Abu Ghraib scandal in 2004, the US did not consider it opportune to

reiterate its request for renewal,23 and the deferral came into disuse.

Changing track, the Security Council subsequently engaged in a practice of so-called

selective referrals.24 Even if this unexpected engagement by the Security Council was well

received,25 the referrals were also severely criticized for their express acknowledgement of

the bilateral immunity agreements the United States had entered into, relying on Article

98(2) of the Rome Statute.26 Moreover, the superimposed financial arrangements of these

referral Resolutions stipulating that none of the expenses would be borne by the United

Nations trumped Article 115(b) of the Rome Statute and the General Assembly’s

21
SC Res. 1487 (2003) of 12 June 2003, UN Doc. S/RES/1487 (2003). A similar operative paragraph was
also inserted into Resolution 1497 (2003), this time specifically relating to the current or former officials or
personnel from states contributing to the Multinational Force in Liberia, authorized to support the
implementation of the 17 June 2003 ceasefire agreement. See SC Res. 1497 (2003) of 1 August 2003, UN
Doc. S/RES/1497 (2003), Para. 7.
22
These states were France, Germany, and Syria. Relying largely on the belief that a case triggering
Resolution 1422 would never arise and that, in any event, a renewal of that Resolution ‘risks lending credence
to the perception that such exemptions are permanent’, the French delegation abstained. See, Security Council,
58th Year: 4772nd Meeting, Thursday 12 June 2002, New York, UN Doc. S/PV.4772, at 24. The German
delegation meanwhile, expressed a firm view that the Rome Statute ‘should not be amended by a Security
Council resolution’. In their view, ‘[j]ustice is, and must remain, indivisible’. Ibid., at 25. Syria’s abstention
was premised on arguments that Resolution 1422 had been passed while the ICC was still in its infancy, to
enable the Court to function without the constraints of the resolution, that sufficient time had passed to
demonstrate that a prosecution prevented by Resolution 1422 would not arise, and finally, albeit less
convincingly, that there was no need for a blanket resolution pursuant to Article 16 as peacekeeping
operations are inconsistent with the intention to commit war crimes, crimes against humanity, or genocide
under the Rome Statute. Ibid., 25-26.
23
Coalition for the International Criminal Court, Chronology of the Adoption of Resolutions 1422/1487 and
Withdrawal of the Proposed Renewal in 2004, 24 June 2004, available at http://www.iccnow.org/documents.
24
See generally, Cryer’s criticism of Resolution 1593 (2005) referring the situation in the Darfur to the ICC,
as selective enforcement of the law. R. Cryer, ‘Sudan, Resolution 1593 and International Criminal Justice’
(2006) 19 Leiden Journal of International Law 195. See also, SC Res. 1593 (2005) of 31 March 2005, UN
Doc. S/RES/1593 (2005), Para. 6.
25
Cryer, supra note 24, 203 citing UN Press Release SG/SM/9797/AFR/1132, ‘Secretary-General Welcomes
Adoption of Security Council Resolution Referring Situation in Darfur, Sudan, to International Criminal
Court Prosecutor’. For a list of additional sources see Cryer, supra note 22, at 203, note 48.
26
Cryer, supra note 24, 204-205, 210. See Rome Statute, Art. 98(2).

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prerogative over the UN budget.27 Most importantly, referring Darfur and Libya to the ICC,

the Security Council again explicitly exempted nationals from contributing states that were

non-State Parties to the ICC in the notorious operative paragraph 6 of Resolutions 1593

(2005) and 1970 (2011), respectively.28 In the case of Darfur, individuals contributing to

UN and AU peacekeeping missions who were nationals of non-State Parties were thus

exempted from the ICC’s jurisdiction. 29 The verbatim records to the Security Council

discussion preceding Resolution 1593 show an intense debate on the exemption clause in

operative paragraph 6. States such as Brazil and Algeria, which were overall truly

supportive of the ICC, ultimately abstained from voting, instead expressing their

disagreement against political interference with ICC proceedings.30 Interestingly, the very

27
Ibid., 202, 206-207. See Rome Statute, Art. 115(b), which reads: “The expenses of the Court and the
Assembly of State Parties, …, shall be provided for by the following sources: … (b) Funds provided by the
United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses
incurred due to referrals by the Security Council.”
28
Operative paragraph 6, of Resolution 1595 with respect to the situation in the Darfur states that, ‘nationals,
current or former officials or personnel from a contributing State outside Sudan which is not a party to the
Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that
contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established
or authorized by the Council or the African Union unless such exclusive jurisdiction has been expressly
waived by that contributing State’. Resolution 1593, supra note 24, Para. 6. The same text appears almost
verbatim in Resolution 1970 in relation to Libya, save for the term ‘contributing State’ having been replaced
simply by reference to a ‘State’. Resolution 1970, supra note 8, Para. 6.
29
Of the 46 states to contribute military and/or police personnel to the United Nations-African Union Mission
in Darfur (UNAMID), Bangladesh, Côte D'Ivoire, Cameroon, China, Egypt, Ethiopia, Indonesia, Iran,
Jamaica, Kyrgyzstan, Madagascar, Malaysia, Nepal, Pakistan, Palau, Rwanda, Thailand, Togo, Tunisia,
Turkey, Yemen, and Zimbabwe have either never become State Parties to the ICC, or were not State Parties
at the time at the time the UNAMID operation was created by Resolution 1769. See UN, ‘UNAMID Facts
and Figures’, UNAMID African Union/United Nations Hybrid operation in Darfur, available at
http://www.un.org; ICC, ‘State Parties – Chronological List’ available at http://www.icc-cpi.int; SC Res.
1769 (2007) of 31 July 2007, UN Doc. S/RES/1769 (2007).
30
In explaining their abstention from the vote on Resolution 1953, the Algerian representative to the Security
Council, Mr. Baali, expressed,
regret that, out of a concern for compromise at all costs and at whatever price, those defending the
principle of universal justice have in fact ensured that, in this domain, the use of double standards —
of which some have accused the Council — and a two-track justice were most unexpectedly
demonstrated.
In a similar tone, the Brazilian delegation reaffirmed that,
Brazil has consistently rejected initiatives aimed at extending exemptions of certain categories of
individuals from ICC jurisdiction, and we maintain our position to prevent efforts that may have the
effect of dismantling the achievements reached in the field of international criminal justice.

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same paragraph met with much less resistance when it was included in Resolution 1970,

unanimously referring Libya to the ICC.31 Indeed, upon the adoption of Resolution 1970,

only Brazil effectively expressed its hesitation,32 but it did not vote against the Resolution

as it had done with the Darfur referral. Rather than the different composition of the Council,

this change in attitude can most likely be best attributed to the different spirit in which the

international community engaged with Libya.33

In the situation of Libya, the exemption clause had some real shielding potential in relation

to the NATO operation and specifically, the actions of the US and of Qatar as a partner of

the Alliance in that context. Nevertheless and despite this attempt to shield, NATO actions

did come under scrutiny, firstly by the Commission of Inquiry. This Commission, chaired

by Cherif Bassiouni, had been established by the Human Rights Council,34 parallel to the

Security Council referral. It had the task to,

investigate all alleged violations of international human rights law in Libya, to

establish the facts and circumstances of such violations and of the crimes

perpetrated, and, where possible identify those responsible to make

Security Council, 60th Year: 5158th Meeting, Thursday, 31 March 2005, New York, UN Doc. S/PV.5158, 5
and 11.
31
Security Council, 66th Year: 6191st Meeting, Saturday, 26 February 2011, New York, UN Doc. S/PV.6491,
2.
32
Brazilian representative and Security Council President Mrs. Viotti affirmed that, ‘[i]n the face of the
gravity of the situation in Libya and the urgent need for the Council to send a strong, unified message, my
delegation supported this resolution. However, we express our strong reservation concerning paragraph 6. We
reiterate our conviction that initiatives aimed at establishing exemptions of certain categories of individuals
from the jurisdiction of the International Criminal Court are not helpful to advancing the cause of justice and
accountability and will not contribute to strengthening the role of the Court’. UN Doc. S/PV.6491, supra note
31, 6-7.
33
On the rapid and comprehensive response of the international community with respect to the emerging
Libyan crisis in early 2011, see S. Adams, ‘Libya and the Responsibility to Protect’, Global Centre for the
Responsibility to Protect (2012).
34
UN HRC, Situation of human rights in the Libyan Arab Jamahiriya, HRC Res. S-15/1 of 25 February 2011,
UN Doc. A/HRC/RES/S-15/1.

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recommendations, in particular, on accountability measures, all with a view to

ensuring that those individuals responsible are held accountable.35

Through perhaps an overly extensive interpretation of its mandate, the Commission

determined it would not only examine violations of human rights law, but it also assumed

the power to look into violations of international criminal law and international

humanitarian law.36 It alluded to the Security Council referral to justify its invocation of

international criminal law and determined that the fact that an armed conflict had erupted

necessitated the examination of facts under international humanitarian law. 37 It is

questionable to what extent this endeavor to bring international criminal law and

international humanitarian law under the overall heading of human rights law does not

effectively trespass the mandate given to the Commission by the Human Rights Council

(HRC), and perhaps more seriously the mandate of the HRC itself. 38 Nevertheless, the

Commission of Inquiry engaged in this exercise of creativity with a view to scrutinizing

NATO operations. The Commission reported on alleged killings and injuries resulting from

NATO bombardments and air strikes39 but initially found that it was not in a position to

35
Ibid., Para. 11.
36
UN HRC, Report of the International Commission of Inquiry to investigate all alleged violations of
international human rights law in the Libyan Arab Jamahiriya, 1 June 2011, UN Doc. A/HRC/17/44.
37
Ibid., 7.
38
The main tasks of the HRC as set out in its establishing resolution are: promoting universal respect for the
protection of all human rights and fundamental freedoms for all and to address situations of violations of
human rights, including gross and systematic violations. GA Res. 60/251 of 3 April 2006, UN Doc.
A/RES/60/251, Paras. 2-3. On the implication of having the HRC develop, interpret and apply international
humanitarian law in the course of its mandate, see D. Richemond-Bank, ‘Human Rights Council and the
Convergence of Humanitarian Law and Human Rights Law’ in W. Banks (ed.), Shaping a Global Legal
Framework For Counterinsurgency: New Directions in Asymmetric Warfare (Oxford University Press:
Oxford, 2012), available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2015616. See further,
for more policy-oriented arguments in favour of enlarging the HRC’s mandate so as to encompass
examination of issues of international humanitarian law, P. Alston, J. Morgan-Forster and W. Albresch, ‘The
Competence of the Human Rights Council and its Special Procedures in relation to Armed Conflicts:
Extrajudicial Executions in the “War on Terror”’, (2008) 19 European Journal of International Law 183.
39
UN HRC, supra note 36, Paras. 230-234.

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assess the veracity of these claims.40 It also held that there was no evidence that NATO had

intentionally attacked civilian areas or engaged in indiscriminate attacks. 41 In its Final

Report, the Commission held that,

NATO did not deliberately target civilians in Libya. For the few targets struck

within population centres, NATO took extensive precautions to ensure civilians

were not killed. However, there were a small number of strikes where NATO’s

response to the Commission has not allowed it to draw conclusions on the rationale

for, or the circumstances of the attacks. The Commission is unable to conclude,

barring additional explanation, whether these strikes are consistent with NATO’s

objective to avoid civilian casualties entirely, or whether NATO took all necessary

precautions to that effect. NATO’s characterization of four of five targets where the

Commission found civilian casualties as “command and control nodes” or “troop

staging areas” is not reflected in evidence at the scene and witness testimony. The

Commission is unable to determine, for lack of sufficient information, whether

these strikes were based on incorrect or out-dated intelligence and, therefore,

whether they were consistent with NATO’s objective to take all necessary

precautions to avoid civilian casualties entirely.42

Interestingly, the Commission did find that the rebels had committed war crimes and

crimes against humanity,43 and they believed that these rebels had been equipped by third

states, including Qatar and France.44

40
Ibid., Para. 235.
41
Ibid.
42
UN HRC, Report of the International Commission of Inquiry on Libya, 8 March 2012, UN Doc.
A/HRC/19/68, Para. 89.
43
Ibid., Para. 810.
44
Ibid., Para. 70.

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Possibly instigated by the Commission and perhaps also induced by the wish to show that

the ICC did not merely act as the long arm of the Security Council,45 the ICC Prosecutor

announced early on that he would look into all sides of the conflict, potentially including

NATO actions.46 Subsequent to the Final Report of the Commission of Inquiry, the ICC

Prosecutor held that he had found no evidence to conclude that NATO had intentionally

targeted the civilian population or civilian objects and thus only focused on incidental loss

of life or injury under Article 8(2)(b)(iv) of the ICC Statute.47 In this context, the ICC

Prosecutor held that he did not have any information that suggested that NATO’s supreme

decision-making authority, the North Atlantic Council, had authorized the launch of air

strikes with express knowledge that this would cause incidental loss of life or injury that

would be clearly excessive. 48 Furthermore, he observed that the five concrete incidents

identified by the Commission of Inquiry were being investigated by the Government of

Libya as well as by the individual states involved in these operations.49

In this setting, operative paragraph 6 has remained symbolic in the sense that it has not

precluded scrutiny of NATO actions. Yet, in the absence of actual investigations into

actions of non-state party nationals, the legality of operative paragraph 6 has not been

tested nor subjected to scrutiny by judicial ICC actors.

45
See C. Stahn, ‘Libya, the International Criminal Court and Complementarity’, (2012) 10 Journal of
International Criminal Justice 325.
46
ICC Prosecutor Luis Moreno-Ocampo in a statement to the Security Council stated plainly that allegations
against NATO would ‘be examined impartially and independently’ by the Office of the Prosecutor (OTP).
ICC OPT, Statement to the United Nations Security Council on the situation in Libya, pursuant to UNSCR
1970 (2011), 2 June 2011, Para. 18.
47
ICC OTP, Third Report of the Prosecutor of the International Criminal Court to the UN Security Council
pursuant to UNSCR 1970 (2011), 16 May 2012, Para. 55.
48
Ibid., Para. 56.
49
Ibid., Para. 58.

12
 Forthcoming in K. Bannelier-Christakis and T. Christakis (eds.),
Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

2.2. The legality of referrals and the potential of judicial review

The yardstick to test the overall legality of Security Council referrals is Article 13(b),

which reads,

A situation in which one or more of such crimes appears to have been committed is

referred to the Prosecutor by the Security Council acting under Chapter VII of the

Charter of the United Nations.

This provision sets certain conditions that a referral must meet in order to be legal, in

particular that the referral must apply to a given situation and that one or more crimes must

appear to have been committed. Moreover, the requirement that a referral be made under

Chapter VII of the UN Charter brings additional external elements into play, mainly

whether the Security Council has acted in accordance with the limits set by the Charter.

The question whether and to what extent the ICC can examine the legality of these referrals

reinvigorates a discussion that is as old as the UN Charter itself, that of Security Council

review. The ICC Statute is silent on the matter, just like the UN Charter and the ICJ Statute

are on the potential of the ICJ to engage in such an exercise. As is well known, silence in

their Statutes did not preclude the ICTY and the ICTR, albeit the latter less explicitly, from

assuming inherent powers to inspect the legality of their own establishment for the purpose

of ascertaining their primary jurisdiction. 50 At least formally therefore, these ad hoc

50
The Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
Case No. IT-94-1, A.Ch., 2 October 1995; The Prosecutor v. Joseph Kanyabashi, Decision on the Defence
Motion on Jurisdiction, Case No. ICTR-96-15-T, T.Ch.II., 18 June 1997. Interestingly, in a later case, the
ICTR held it did not, “have the authority to review or assess the legality of Security Council decisions and, in
particular, that of Security Council Resolution 955.” The Prosecutor v. Edouard Karemera, Mathieu
Ngirumpatse, Joseph Nzirorera, and Andre Rwamakuba, Caso No. ICTR-98-44-T, T.Ch.III, Decision rélative

13
 Forthcoming in K. Bannelier-Christakis and T. Christakis (eds.),
Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

Tribunals reviewed the Resolutions through which they were established.51 For some time,

the suggestion could thus be entertained that ad hoc and subsidiary organs might be

ingenious, while permanent judicial organs tend to be more reserved and respectful vis-à-

vis the Security Council’s prerogatives. However, the Special Tribunal for Lebanon, being

a temporary judicial enterprise, tainted this impression when it displayed a far more

reserved attitude towards the Security Council and reached the conclusion that it did not

have the power to review its own establishment.52 It still remains to be seen where the ICC

will position itself within the panorama of possibilities.53 From a legal perspective, a strong

argument can be made that the ICC has the incidental power to determine its own

jurisdiction and thus to review the legality of a referral. If it were to find that a referral was

not made in accordance with Article 13(b),54 the consequence thereof would be that the

ICC could not exercise jurisdiction. Such a finding would not invalidate the Security

Council resolution as such. The position maintained here is that only the International

Court of Justice, as the principal judicial organ of the United Nations, has the prerogative to

make such a finding of invalidity. The ICC would only test the referral against the

à la requête en exception préjudicielle de Nzirorera aux fins de l’acte d’accusation pour défaut de compétence:
Chapitre VII de la Charte des Nations Unies, 29 March 2004, Paras. 9-10.
51
See e.g., Tadić, supra note 50, Paras. 4, 32 and 72; Kanyabashi, supra note 50, Paras. 14-16.
52
Indeed, in its decision on the Defence challenge to jurisdiction and legality, the Trial Chamber rejected the
Tadić methodology, finding that it ‘is not vested with any power to review actions taken by the Security
Council’. The Prosecutor v. Salim Jamil Ayyash and Ors., Decision on the Defence Challenges to the
Jurisdiction and Legality of the Tribunal, Case No. STL-11-01/PT/TC, T.Ch., 27 July 2012, Paras. 51-55.
53
Obviously, on a micro and more technical level the precise legal question that the different judicial entities
grapple with is informed by their respective mandates and institutional relationship with the Security Council,
and the questions underlying the incidental review of a Security Council Resolution establishing a Tribunal
are different from the questions that inform a review of a Security Council referral which is principally
guided by Article 13(b) as a gateway for review. Still on a meta level, all these judicial entities are confronted
with the permeating question of reviewability, either directly or indirectly, of elements of Security Council
resolutions.
54
Rome Statute, Art. 13(b).

14
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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

conditions laid down in Article 13(b) and determine whether the resolution is legally

effective within the ICC legal constellation.55

If the ICC were to engage in review of the referral decision for the purposes of determining

its jurisdiction, traditional questions reappear such as whether Article 39 is inherently

reviewable or not, 56 and more generally whether the Security Council’s power under

Chapter VII is unfettered or whether it can be marginally reviewed.57 These questions have

been subject to extensive scholarly research and will not be engaged with here. It is

sufficient to observe that even if both questions are answered in the affirmative and the ICC

is endowed with the power to engage in marginal substantive review on these delicate

matters, an actual review on these aspects in the Darfur and Libya situations would not

have posed any problems. In the Darfur referral, the Security Council made an express,

textbook determination under Article 39,58 and subsequently, after expressly mentioning

that it was acting under Chapter VII, it ‘decide[d] to refer the situation in Darfur since 1

55
D. Sarooshi, ‘The Peace and Justice Paradox: the International Criminal Court and the UN Security
Council’, in D. McGoldrick, P. Rowe, E. Donnelly (eds.) The Permanent International Criminal Court: Legal
and Policy Issues (Hart Publishing: Oxford, 2004),
56
UN Charter, Art. 39. See e.g., Legal Consequences of States for the Continued Presence of South Africa in
Namibia (South-West Africa) Notwithstanding United Nations Security Council Resolution 276 (1970),
Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16; R. Higgins, ‘Namibia: Which Resolutions Are
Binding Under Article 25 of the UN Charter?’, (1971) 21 International and Comparative Law Quarterly 286.
D. Akande, ‘The International Court of Justice and the Security Council: Is there Room for Judicial Control
of Decisions of the Political Organs of the United Nations?’, (1997) 46 International and Comparative Law
Quarterly 309.
57
One more standard of review regards the distribution of power operated by the Charter. Since budgetary
questions come within the purview of the General Assembly’s mandate, the Council may well have
trespassed its powers with the financial clauses of the referring Resolutions, and the question is still open
what the ramifications thereof should be. See further, G. Fletcher and J. Ohlin, ‘The ICC: Two Courts in
One?’, (2006) 4 Journal of International Criminal Justice, 428, at 429-430, citing W. Reisman, ‘On Paying
the Piper: Financial Responsibility for Security Council Referrals to the International Criminal Court’, (2005)
99 American Journal of International Law 615.
58
Even if Article 39 was not mentioned as such, Resolution 1593, supra note 24, preambular para. 5 was
classical in that it expressly determines, ‘that the situation in Sudan continues to constitute a threat to
international peace and security’. See also Resolution 1590 (2005) of 24 March 2005, UN Doc. S/RES/1590
(2005), preambular para. 23.

15
 Forthcoming in K. Bannelier-Christakis and T. Christakis (eds.),
Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

July 2002’,59 the date of establishment of the ICC.60 The referral was made pursuant to the

recommendation of the Commission of Inquiry to do so.61 Thus it would be hard to argue

that this measure fell outside the Council’s discretion or was inappropriate or inadequate in

any way. In the case of Libya, an explicit Article 39-determination was omitted. This is not

entirely unusual however,62 and the express reference to Chapter VII in the Resolution’s

preamble63 would seem to be sufficient to meet the requirements of Article 13(b) of the

Rome Statute.64 In this case, the situation in Libya was referred as a whole, absent the

imposition of any geographical limitation. The Resolution referred the situation as of 15

February 2011,65 the date on which the protests in Benghazi unleashed the unrest that led to

the civil war. The Libya referral formed part of a broader security strategy that also

included the imposition of sanctions and later on the authorization of the use of force.66

The Security Council referrals thus shape and limit the ICC’s jurisdiction at the same time

in a temporal, geographic, substantive, and personal sense. As for the scope of the temporal

59
Resolution 1593, supra note 24, Para. 6.
60
The Rome Statute entered into force on 1 July 2002. See the footnote at page 1 of the Text of the Rome
Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10
November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002.
61
International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on
Darfur to the United Nations Secretary-General, 25 January 2005, Paras. 569, 571-589.
62
See, e.g., SC Res. 83 (1950) of 27 June 1950, UN Doc. S/RES/83 (1950), with respect to the UN
intervention in Korea; SC Res. 161 (1961) of 21 February 1961, UN Doc. S/RES/161 (1961), in reference to
the killing of Congolese leaders. See further, P. Johansson ‘The Humdrum Use of Ultimate Authority:
Defining and Analysing Chapter VII Resolutions’, (2009) 78 Nordic Journal of International Law 309,
particularly with respect to the classification of Chapter VII resolutions.
63
The preamble states that the Security Council was ‘[a]cting under Chapter VII of the Charter of the United
Nations’. Resolution 1973, supra note 8. In other questionably sufficient resolutions, the Council used the
phrase “mindful of its primary responsibility … ” but did not clearly make an article 39-determination. See,
e.g., SC Res. 1747 (2007) of 24 March 2007, UN Doc. S/RES/1747 (2007); SC Res. 1803 (2008) of 3 March
2008, UN Doc. S/RES/1803 (2008). See also: B. Simma, D. Khan, G. Nolte, and A. Paulus, The Charter of
the United Nations: A Commentary, 3rd edition (Oxford University Press: Oxford, 2012).
64
Rome Statute, Art. 13(b).
65
Resolution 1973, supra note 8, Para. 4.
66
These sanctions included the imposition of a no-fly zone, enforcement of an arms embargo, a ban on flights,
and an asset freeze. See Resolution 1970, supra note 8 and Resolution 1973, supra note 8.

16
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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

jurisdiction, it is interesting to note that both referrals indicate a clear starting date, i.e., 1

July 2002 and 15 February 2011 respectively, but are silent on the closing date for the

temporal jurisdiction. In this situation, either the date of adoption of the referring resolution

can be regarded as the end date, or the referrals can be perceived as open-ended in nature.67

The open-endedness of Security Council resolutions has also been discussed with regards

to authorization on the use of force.68 In the specific case of Libya, an express resolution

was adopted to end the peace enforcement operation of NATO,69 but a similar closure in

temporal terms for ICC investigations is absent both in the Darfur and Libya contexts. In

practice, the Prosecutor has brought charges against individuals for crimes committed after

the referral,70 which signifies an understanding that the referrals are open-ended in nature.

Clearly, however, the referrals cannot be understood to grant some kind of permanent

jurisdiction for Darfur and Libya. Absent an express Security Council resolution that ends

the referral, it is then up to the organs of the ICC to determine when a threat to peace has

ceased to exist and when the Security Council referral has expired.71

67
W. Schabas, International Criminal Court: A Commentary on the Rome Statute (Oxford University Press:
Oxford, 2010) 298-99.
68
For instance, the ambiguity as to the temporal limits of Resolutions 678 (1990) 687 (1991) formed the basis
of the United States justification for use of force against Iraq in 2003. SC. Res. 678 (1990) of 29 November
1990, UN Doc. S/RES/678 (1990); SC Res. 687 (1991) of 8 April 1991, UN Doc. S/RES/687 (1991). See e.g.
C. Greenwood ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq’, (2003)
4 San Diego International Law Journal 7, 26-36; S. Murphy, ‘Assessing the Legality of Invading Iraq’,
(2003-2004) 92 Georgetown Law Journal 173; R. Wedgwood, ‘The Fall of Saddam Hussein: Security
Council Mandates and Preemptive Self-Defense’ (2003) 97 American Journal of International Law 576. See
also. T. Franck, ‘Lessons of Kosovo’ (1999) 93 American Journal of International Law 857, 857.
69
Resolution 2016 (2011) stated in no uncertain terms that the operative paragraphs of Resolution 1973
authorizing the use of force and implementing a no-fly zone ‘shall be terminated from 23.59 Libyan local
time on 31 October 2011’. Resolution 2016 (2011) of 27 October 2011, UN Doc. S/RES/2016 (2011), Paras.
5 and 6.
70
See e.g., Situation in the Libyan Arab Jamahiriya, Warrant of Arrest for Saif Al-Islam Gaddafi, ICC-01/11,
P.T.Ch.I., 27 June 2011; The Prosecutor v. Omar Hassan Ahmad Al Bashir (Al Bashir), Warrant of Arrest for
Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, P.T.Ch.I., 4 March 2009.
71
W. Schabas, supra note 61, 298. See for reluctance at the ICTR to engage with this precise question, The
Prosecutor v. Edouard Karemera, Mathieu Ngirumpatse, Joseph Nzirorera, and Andre Rwamakuba, Caso No.
ICTR-98-44-T, T.Ch.III, Decision rélative à la requête en exception préjudicielle de Nzirorera aux fins de

17
 Forthcoming in K. Bannelier-Christakis and T. Christakis (eds.),
Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

In relation to the other dimensions of the jurisdictional scope, prosecutorial practice, and

judicial decisions in cases regarding Article 13(a), State Party referrals may also provide

some leads as to which limitations are deemed to be acceptable. For instance, the

geographic limitation of the referral to the Darfur region only, and not the entire Sudanese

state, did not prove problematic and was in line with the Ugandan self-referral that directed

only the situation in Northern Uganda to the ICC. In contrast to this acceptance of

geographic limitations of the referral to a certain territorial segment a state, the Security

Council’s singling out of concrete crimes or specific individuals for investigation has not

been accepted.72 The word ‘situation’ was expressly included in Article 13 to avoid such

encroachment on prosecutorial strategy.73 Indeed, in the Mbarushimana case, the Pre-Trial

Chamber stated that a referral cannot limit the Prosecutor to investigate only certain

l’acte d’accusation pour défaut de compétence: Chapitre VII de la Charte des Nations Unies, 29 March 2004,
Para. 7.
72
The question whether single incidents or events can amount to a situation in the sense of Article 13(b) has
been discussed in relation to the referral by the Union of Comoros of the Israeli raid on the Flotilla as
received by the Prosecutor on 14 May 2013, see e.g., D. Jacobs, The Comoros Referral to the ICC of the
Israel Flotilla Raid: When a ‘situation’ is not really a ‘situation’, Spreading The Jam, 16 May 2013, at
dovjacobs.blogspot.nl. The Korean preliminary examinations into the shelling of Yeonpyeong Island on 23
November 2010 and the sinking of a South Korean warship on 26 March 2010 raise similar queries.
73
For example, in the Darfur proceedings, the Pre-Trial Chamber held that,
… by referring the Darfur situation to the Court pursuant to article 13(b) of the Statute, the Security
Council of the United Nations has also accepted that the investigation into the said situation, as well as
any prosecution arising from it, will take place in accordance with the division of functions and
responsibilities between the Prosecution and the Chamber provided for in the Statute and set out in the
present decision.
The Situation in the Darfur, Decision on Application under Rule 103, ICC-02/05, P.T.Ch.I., 4 February 2009,
Para. 31. See also, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's
Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, P.T.Ch.I., 4
March 2009, Para. 45.

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

crimes. 74 Therefore, the preambular reference in Resolution 1970 to crimes against

humanity75 does not bind the Prosecutor in any way in terms of the selection of charges.76

If it is agreed that the Security Council cannot refer specific individuals or crimes, the

parallel question is whether it can exclude specific individuals from the referral as was

done in paragraph 6 of both resolutions, and how to characterize these exclusionary clauses.

Even if both referring resolutions themselves are slightly ambiguous as to the nature of

operative paragraph 6, probably the most appropriate way to qualify this provision is a

selective referral rather than understanding them as a concrete simultaneous deferring

request under Article 16.77

The issue of selective referrals came up first in relation to the self-referral of Uganda

pursuant to Article 13(a). 78 In that context, the ICC Prosecutor responded that any

selectivity in the referral ratione personae was overridden by the statutory requirements of

Article 13, which stipulates that only situations and not concrete cases can be referred.79 In

a similar vein, the exclusionary clause of paragraph 6 did not preclude the ICC Prosecutor

from addressing to the issue of possible crimes committed in Libya by NATO forces in

74
The Prosecutor v. Callixte Mbarushimana, Decision on the “Defence Challenge to the Jurisdiction of the
Court”, ICC-01/04-01/10, P.T.Ch.I., 26 October 2011, Para. 27.
75
Preambular paragraph 7 reads, ‘[c]onsidering that the widespread and systematic attacks currently taking
place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against
humanity…’. Resolution 1973, supra note 8.
76
Stahn, ‘Libya…’, supra note 45, 329.
77
R. Cryer, supra note 24.
78
Rome Statute, Art. 13(a).
79
Situation in Uganda, Decision to Convene a Status Conference on the Investigation of the Situation in
Uganda in Relation to Article 53, ICC-02/04-01/05, P.T.Ch.I., 2 December 2005, Paras. 3-4. See also, P.
Kastner, International Criminal Justice in bello? The ICC between law and politics in Darfur and Northern
Uganda (Martinus Nijhoff: Leiden, 2012) 55.

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

briefings to the UN Security Council.80 In this setting, the Prosecutor specified that he had

no jurisdiction to look into the legality of the NATO actions from a jus ad bellum

perspective. 81 Yet, he did not make a similar observation regarding the scope of the

personal jurisdiction. In fact, he gave no consideration at all to the distinction between

actions of NATO personnel who were members of State Parties to the Rome Statute vis-à-

vis those who were not. From this, it could be inferred that the Prosecutor does not, prima

facie, feel constrained by operative paragraph 6. The Prosecutor’s repeated statements

reinforce the understanding that he was looking into all sides to the conflict without any

caveat referring to paragraph 6.82 The Prosecutor’s decisions to open investigations into the

situations in the Darfur and Libya83 demonstrate an understanding that while paragraph 6 is

incompatible with the ICC’s statutory framework, general international law, and perhaps

even jus cogens,84 such incompatibility does not render the referrals fully moot and without

any legal effect in the ICC context.

Besides this rather indirect practice, the Pre-Trial Chambers have chosen not to engage

with the legality of operative paragraph 6 in obiter dicta. Actual review of the paragraph’s

legality would only come into play if individuals coming within the purview of the

paragraph were investigated, which has not happened so far. Nevertheless, the Court has

80
Security Council, 67th Year: 6772nd Meeting, Wednesday, 16 May 2012, New York, UN Doc. S/PV.6772.
81
Ibid., 3.
82
Ibid., 3, 5.
83
See, ICC-OTP, ‘ICC Prosecutor Opens Investigation in Darfur’, Press Release, ICC-OTP-0606-104,
available at http://www.icc-cpi.int. With respect to the situation in Libya, see ICC OTP, Report (2011), supra
note 9, Para. 15(d).
84
L. Condorelli and S. Villalpando, ‘Referral and Deferral by the Security Council’, in A. Cassese, P. Gaeta
and J. Jones, The Rome Statute of the International Criminal Court: A Commentary Vol. 1 (Oxford
University Press: Oxford, 2002), p. 640. R. Cryer, supra note 24, 219, Stahn, ‘Resolution 1422’, supra note
20. See further, D. Akande, ‘The Legality of Security Council Referrals to the ICC and its Impact on ICC
Immunities’, (2009) 7 Journal of International Criminal Justice 333.

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

been called upon to confront these questions more openly so as to avoid further

politicization. It remains to be seen whether the ICC, as a permanent Court that needs to

conquer and preserve its place in the arena of international society, will be so forthright. In

particular the institutional arrangements of Article 16 and the threat of Security Council

obstruction might render the ICC reluctant to engage in such direct confrontations with the

Council.85

3. A shared responsibility for peace maintenance

The institutional arrangements that were articulated in the previous section reflect the

responsibility shared between the Security Council and the ICC in maintaining and

restoring international peace. Given the close linkages between their respective mandates,

Security Council authorization of the use of force or other Security Council determinations

under Chapter VII may directly inform the application of substantive law by the ICC. The

substantive interplay comes out most clearly in the context of aggression and is examined

in this section through an analysis of two concrete inquiries that aim to provide further

clarification of the Kampala framework. The observations made here are thus based on

theoretical or futuristic assumptions, as they apply the Kampala amendment that has not,

and may never, enter into force.

1. Exceeding the mandate

The first inquiry regards the scenario in which authorized use of force exceeds its mandate

in the course of the operation. Beyond the question of how this affects the legality of the

operation as such, the question entertained here is under what circumstances, if at all, the
85
See Rome Statute, Art. 16.

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

ICC can, in theory, use the qualification of aggression to such excessive action despite the

Security Council’s authorization?

Allegations that peace enforcement missions trespassed the letter of the authorizing

Resolutions have been made against Operation Unified Protector in Libya as well as

Operation Serval in Mali. The mandate given in Resolution 1973 to intervene in Libya was

geared towards the protection of civilians and civilian populated areas under threat of

attack, such as Benghazi, while excluding a foreign occupation force of any form on any

part of Libyan territory.86 In the course of this operation, the Khadaffi regime was toppled

and this led to concerns that the operation had moved beyond its original rationale.87 In the

situation of Mali, the Security Council adopted Resolution 2085 in December 2012

authorizing the use of force.88 This authorization was specifically granted to an African-led

International Support Mission in Mali (AFISMA).89 When France launched its Operation

Serval on 11 January 2013, this Resolution was invoked as one of the legal bases

86
Resolution 1973, supra note 8, Para. 4.
87
G. Ulfstein, and H. Christiansen, ‘The Legality of the NATO Bombing In Libya’ (2013) 62 International
and Comparative Law Quarterly 159. In vetoing Security Council action with respect to Syria, the Russian
delegation stated that,
[t]he situation in Syria cannot be considered in the Council separately from the Libyan experience.
The international community is alarmed by statements that compliance with Security Council
resolutions on Libya in the NATO interpretation is a model for the future actions of NATO in
implementing the responsibility to protect.
The Chinese delegation meanwhile, were somewhat less direct in their criticism of the responsibility to
protect experiment in Libya, stating that whether further action is taken by the Security Council,
should depend upon whether it complies with the Charter of the United Nations and the principle of
non-interference in the internal affairs of States — which has a bearing upon the security and survival
of developing countries, in particular small and medium-sized countries, as well as on world peace and
stability.
Any ambiguity as to the Chinese position was cured, however, by the exercise of their veto. See, Security
Council, 66th year: 6627th Meeting, Tuesday, 4 October 2011, New York, UN Doc. S/PV.6627, 1, 3 and 5.
88
Resolution 2085, supra note 8. Interestingly, the Security Council authorized that AFISMA take all
necessary measures while expressly mentioning that such measures, thus including the use of force, had to be
taken in compliance with ‘applicable international humanitarian law and human rights law’.
89
Ibid., Para. 9.

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

90
supporting the operation. However, technically speaking, France borrowed an

authorization that had been granted to another entity and it was thus not acting within the

black letter of the text of Resolution 2085.91

Neither situation depicts a clear case of illegality. In the situation of Libya, the precise

extent of the mandate can be debated even if considerable agreement exists that the NATO

operations effectively trespassed the mandate.92 In the situation of Mali, alternative legal

bases could be invoked such as the invitation of the Mali government. Beyond these real

life scenarios, the more abstract inquiry is when does the illegal use of force in violation of

the UN Charter reach aggression within the ICC framework.

Pursuant to Article 8bis as agreed in Kampala, aggression under the Rome Statute is an act,

‘which, by its character, gravity and scale, constitutes a manifest violation of the Charter of

the United Nations’. 93 The Understandings that have been annexed further specify that

‘aggression is the most serious and dangerous form of the illegal use of force; and that a

determination whether an act of aggression has been committed requires consideration of

all the circumstances of each particular case, including the gravity of the acts concerned

90
The legal bases on which France relied included: (i) collective self-defence under article 51 of the UN
Charter; (ii) the request by the Economic Community of West African States; (iii) the position taken by the
Peace and Security Council of the African Union; and (iv) the authorization of the Security Council under
Resolution 2085. See T. Christakis and K. Bannelier, ‘French Military Intervention in Mali: It’s Legal, but…
Why? Part I’ EJIL: Talk!, available at http://www.ejiltalk.org.
91
Christakis and Bannelier, see supra n. 90, present the argument that Security Council Press Statements
would allow “an urgent interpretation” of Resolution 2085 which would extend the authorization to use force
to all Member States. Security Council Resolution 2100 of 25 April 2013 counters this possibility as it
welcomes “the swift action by the French forces, at the request of the transitional authorities of Mali”, thus
relying on consent as the legal basis for the operation.
92
See for a presentation of the different points of view, G. Ulfstein, and H. Christiansen, ‘The Legality of the
NATO Bombing In Libya’ (2013) 62 International and Comparative Law Quarterly 159.
93
Kampala Amendments to the Rome Statute, Art. 8bis(1).

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

and their consequences, in accordance with the Charter of the United Nations’.94 Moreover,

it is stipulated that ‘in establishing whether an act of aggression constitutes a manifest

violation of the Charter of the United Nations, the three components of character, gravity

and scale must be sufficient to justify a “manifest” determination. No one component can

be significant enough to satisfy the manifest standard by itself’.95 The exact legal status of

these Understandings is unclear as is their precise interpretation,96 but at the very least they

serve as guidance and they reflect an acknowledgement that only in exceptional

circumstances will the illegal use of force be qualified as the crime of aggression pursuant

to the ICC definition. From this the argument can be made that it is possible that use of

force authorized by the Security Council under Chapter VII of the UN Charter can still be

characterised as aggression by the ICC, if the use of force exceeds the Security Council

mandate. But simple excess is not enough. Following the Kampala Understandings, it must

be a grave violation with serious consequences.

3.1. The impact of Security Council determinations on substantive international

criminal law

Despite their shared responsibility, the Security Council and the ICC may not always share

the same vision on how best to characterise and respond to certain conflict situations or

threats to the peace. The second inquiry thus corresponds to a hypothetical clash of vision

between the Council and the ICC that could result in obstruction rather than cooperation.

94
ICC, ‘Understandings regarding particular amendments to the Rome Statute of the International Criminal
Court on the crime of aggression’, Official Records of the Review Conference of the Rome Statute of the
International Criminal Court, Kampala, 31 May – 11 June 2010, part II, ICC-RC/11/Res.6, Annex III, Para.
6
95
Ibid., Para. 7.
96
See e.g., K. Heller, ‘The Uncertain Legal Status of the Aggression Understandings’, (2012) 10 Journal of
International Criminal Justice 221.

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

The lead question here is: how should the ICC respond to a determination by the Security

Council that aggression has not occurred?97 The more general query is how and if Security

Council determinations can and should inform the ICC’s application of substantive

international criminal law.

The great surprise of Kampala was the detachment from the Security Council, in the sense

that there is no Security Council determination required as a trigger or precondition for ICC

prosecutions on aggression, and further, that the ICC Prosecutor is able to investigate acts

of aggression if authorized by the full Pre-Trial Chamber proprio motu.98 So as a starting

point, ICC organs can make substantive findings on aggression that deviate from Security

Council interpretations and determinations. This configuration allows the hypothetical

scenario in which the Prosecutor presents an aggression indictment while the Security

Council makes a determination that in the given situation no act of aggression has been

committed. Of course, if the Council couples such a determination with an official deferral

request under Article 16 of the ICC Statute, the scenario is clear. But the query here relates

to the situation in which there is no deferral request. In principle, it seems that a Security

Council determination that no aggression has occurred would not have any legal effect vis-

à-vis the Court. From the perspective of the ICC Statute, Article 15bis(9) of the Kampala

Amendment indicates that a ‘determination of an act of aggression by an organ outside the

Court shall be without prejudice to the Court’s own findings under this Statute’. 99 This

may be applied analogously to a negative determination that no aggression occurred. From

the perspective of the UN Charter, reference could be made to Article 103. Yet, this

provision is only binding on UN Member States and not on distinct international

97
D. Scheffer, supra note 13, 901-2.
98
See, Kampala Amendments to the Rome Statute, Art. 15bis(6).
99
Ibid., Art. 15bis(9).

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organizations.100 Moreover, it gives preference to obligations under the UN Charter but

does not provide for any exterior legal effect for determinations, even if included in a

resolution adopted under Chapter VII. Therefore a Security Council determination that

aggression has not occurred would perhaps have some informal or political effect, but it has

no direct legal effect and is not binding on the ICC in any way.

In terms of substantive law, the two regimes are thus relatively divorced and operate in

accordance with their own political and legal frameworks. Nevertheless in certain instances

there may still be synergies or mutual influences. A relevant example might be the scenario

in which the Security Council authorizes force, but, in a quest to make the authorization

more concrete, 101 it also provides guidelines or indications in the resolution on what

constitute legitimate military targets. If there are subsequent ICC prosecutions for war

crimes, 102 then the question reappears whether the ICC is in any way bound by these

guidelines on legitimate targets. In this case, the argument that the ICC is not bound as

such by Article 103 of the UN Charter, and that guidelines are not obligations under the

UN Charter, may not suffice. The difference in this situation is that the Security Council

guidelines or indications preceded the alleged criminal act. Therefore, from a criminal law

100
D. Sarooshi, ‘The Peace and Justice Paradox: The ICC and the UN Security Council’, in D. McGoldrick, P.
Rowe and E. Donnelly (eds.), The Permanent International Criminal Court: Legal and Policy Issues (Hart
Publishing: Oxford, 2004) 107.
101
On the shifting practice of the Security Council towards more detailed resolutions with a legislative
quality, see generally P. Szasz, ‘The Security Council Starts Legislating’, (2002) 96 American Journal of
International Law 901. Conversely, on the issues caused by a lack of clarity in Security Council resolutions,
see S. Talmon, ‘The Security Council as World Legislature’, (2005) 99 American Journal of International
Law 175, 188-190.
102
For example, in the context of international armed conflict, the war crimes of intentionally directing acts
against civilian objects in international armed conflict, Article 7(2)(b)(ii); intentionally directing an attack
against civilian personnel, instillations, material, units or vehicles involved in humanitarian assistance, Article
7(2)(b)(iii); intentionally launching an attack against a civilian population, Article 7(2)(b)(iv); attacking or
bombarding, by whatever means, towns, villages, dwellings or buildings that are undefended and not military
objectives, Article 7(2)(b)(v); intentionally directing attacks against culturally significant buildings that are
not military objectives, Article 7(2)(b)(ix).

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

perspective the additional question arises whether or not the individual involved in the

operation could legitimately rely on the Security Council indications. In other words, what

is the impact of these guidelines for purposes of constructing the mental element, and can

the Security Council indications be invoked as a defence such as mistake of fact under the

ICC legal framework?103 In this scenario, the Security Council indications could thus have

a certain indirect legal effect within the ICC regime.

4. Conclusion

The Security Council and the ICC share a responsibility for the peace, security and

wellbeing of the global community. This shared responsibility has been translated in

institutional arrangements. In substantive terms, the political and legal frameworks of the

respective regimes continue to be informed by two distinct logics and diverging dynamics.

In their Relationship Agreement, the UN and the ICC have pledged to strive towards a

mutually beneficial relationship104 and to respect each other’s status and mandate in the

execution of this responsibility. 105 The cordial relationship is reinforced by specific

provisions on information-sharing,106 the practices of the ICC Prosecutor reporting to the

UN organs, 107 and mutual interdependence in particular in relation to cooperation

schemes. 108 At the same time, practice shows that differences in outlook, appreciation,

working method, and vision do arise and these have even been respected and codified in

103
See Rome Statute, Art. 32.
104
Negotiated Relationship Agreement, supra note 16, preambular para. 9.
105
Ibid., Art. 2(3).
106
Ibid., Art. 5.
107
Ibid., Arts. 4, 6-7.
108
Ibid., Arts. 15, 17, 18. This relationship of interdependence is highlighted through the Security Council’s
use of the ICC as additional security mechanism, and conversely, the ICC’s need of the Security Council to
ensure cooperation in the absence of any true enforcement mechanisms under the ICC framework. See
generally, G. Fletcher and J Ohlin, ‘The ICC—Two Courts in One?’, (2006) 3 Journal of International
Criminal Justice 428.

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Aux Confins du Ius Ad Bellum et du Ius in Bello (Paris: Pedone, 2013).

concrete institutional arrangements such as Article 16. The alliance can thus be overall

characterized by competing efforts and substantively separate regimes rather than fully

harmonious or complementary approaches. This competition or occasional discord should

not necessarily be regarded with concern but can also be appreciated as ‘productive

friction’109 or a system that is increasingly operating with some mutual checks and balances.

In this sense both the Security Council as well as the ICC have become indispensable

components of the architecture of our contemporary international society.

109
This term is borrowed from M.A. Young (ed.), Regime Interaction in International Law: Facing
Fragmentation (Cambridge University Press: Cambridge, 2012).

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