Contents - Constitutional Court of Georgia

184
Michael J. Glennon
great a price to pay to justify power-sharing in determining the occurrence of aggression, and the
interrelationship between security and criminal justice cannot be ignored.
The second interpretation, yielding a framework of preemptive Security Council authority, would
meet these difficulties by deeming the Council to have, in effect, “occupied the field” whenever it
determines the existence of aggression. The ICC, under this interpretation, would automatically be
required to defer to the decision of the Council whenever the Council makes an affirmative determination.
When the Council makes no determination or a negative determination, on the other hand,
the ICC would be free to act.
In the real world, unfortunately, events would not likely follow that chronologically neat script,
which seems to assume that the Security Council would act (or decline to act) first. The ICC, in reality,
could always “get the jump” on the Council, and it would be naïve to assume that the ICC’s
earlier decision could be ignored by a Council that would supposedly consider the matter de novo.
If it did get around to considering the matter, the Council could in fact come to a determination opposite
that earlier made by the ICC—resulting in precisely the conflict that the concurrent power
model was supposed to avoid. An obvious remedy would be to permit the Council to act, but only
within a given period of time, after which the ICC would be permitted to take up the question. But
the workability of that cure is doubtful (what event would trigger the time period?) and, in any
event, the whole scheme could be put in place only with an amendment to the Charter. It would
hardly lie within the authority of the states party to the Rome Statute to restrict the Security Council
to determining the existence of aggression only within a given time period.
There is, however, a more serious flaw in the preemptive power argument: the assumption that
inaction by the Security Council constitutes no decision on the underlying issue whether aggression
has occurred. In fact, by remaining silent and declining to act, the Council could decide implicitly
that the given conduct does not constitute aggression, or that whether the given conduct constitutes
aggression is doubtful, or that other considerations counsel against a determination one way
or the other. As Theodor Meron notes,
[t]he Security Council may have legitimate reasons not to proceed through the routes of Article
39 and Chapter VII. The Security Council could choose other avenues such as Chapter VI, which
concerns the pacific settlement of disputes. Failure to act in a particular case need not be a proof
of failure; it may be evidence of statesmanship. 190
This is the most powerful reason for concluding that the third argument, for plenary Security
Council power over aggression, is the most reasonable. The powers to determine or not determine
the existence of aggression are opposite sides of the same coin; the authority to do one necessarily
implies the other. Thus, as Meron has observed, “[t]he [Security] Council’s prerogative to determine
the existence of an act of aggression under Article 39 . . . is exclusive.” 191 The Charter’s travaux
190 Theodor Meron, Defining Aggression for the International Criminal Court, 25 SUFFOLK TRANSNAT’L L. REV. l, l3 (200l).
191 Id. at l4; see also Schuster, supra note l0, at 39 (“[T]he current legal situation prescribes the absolute primacy of the Security Council
when it comes to the question of aggression.”).