An Introduction To The International Criminal Court - Institute for ...

82 introduction to the international criminal court
would simply be unable to prosecute persons who were under eighteen at
the time of the commission of the crime. 59
Security Council veto of prosecution
The Court may be prevented from exercising its jurisdiction when so directed
by the Security Council, according to Article 16. This is called ‘deferral’. It
seems that the measure can be permanent. The Statute says that the Security
Council may adopt a resolution under Chapter VII of the Charter of the
United Nations requesting the Court to suspend prosecution, and that in
such a case the Court may not proceed. This highly controversial provision
is, however, a rather significant improvement upon a text in the original draft
statute prepared by the International Law Commission. In that document,
the Court was prohibited from prosecuting a case ‘being dealt with by the
Security Council as a threat to or breach of the peace or an act of aggression
under Chapter VII of the Charter, unless the Security Council otherwise
decides’. 60 Such a provision would have allowed a single State that was a
member of the Council to obstruct prosecution by placing a matter on
the agenda, something that could only be overridden by a decision of the
Council itself. And a decision of the Council itself can be blocked at any
time by one of the five permanent members – the United States, the United
Kingdom, China, France and the Russian Federation – exercising its veto.
The International Law Commission proposal met with sharp criticism as
an interference in the independence and impartiality of the future court. By
allowing political considerations to influence prosecution, many felt that the
entire process could be discredited. 61 At the same time, it must be recognised
that there may be times when difficult decisions must be taken about the
wisdom of criminal prosecution when sensitive political negotiations are
underway. Should the Court be in a position to trump the Security Council
and possibly sabotage measures aimed at promoting international peace and
security?
The debate in the Preparatory Committee and the Rome Conference itself
about the International Law Commission proposal was in many respects a
59 UN Doc. A/CONF.183/C.1/WGGP/L.1, p. 2.
60 ‘Report of the International Law Commission on the Work of Its Forty-Sixth Session, 2 May–22
July 1994’, note 41 above, Art. 23(3).
61 For the debates, see ‘Report of the Ad Hoc Committee on the Establishment of an International
Criminal Court’, UN Doc. A/50/22, paras. 124–5; ‘Report of the Preparatory Committee on the
Establishment of an International Criminal Court’, UN Doc. A/51/22, paras. 140–4.