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

84 introduction to the international criminal court
and Herzegovina, whose role is authorised by a Security Council resolution
although it is not at all under United Nations control. The resolution only
applies to nationals of States that are not parties to the Statute.
Although adopted without opposition in the Council, the initiative was
resoundingly condemned by several States during the debate, including such
normally steadfast friends of the United States as Germany and Canada. Its
legality is highly questionable, of course, because Article 16 contemplates a
specific situation or investigation rather than some blanket exclusion of a
category of persons. Moreover Article 16 of the Statute says that the Council
must be acting pursuant to Chapter VII of the Charter of the United Nations,
applicable only when there is a threat to the peace, a breach of the peace
or an act of aggression. Some United Nations-authorised missions are not
even created pursuant to Chapter VII of the Charter.
Conceivably,theCourtcouldassesswhetherornottheCouncilwasvalidly
acting pursuant to Chapter VII. 64 There has been much debate among international
lawyers about whether or not Security Council resolutions can even
have their legality reviewed by courts. The International Court of Justice has
been hesitant to do this, because the ICJ and the Council are both principal
organs of the United Nations, and the ICJ has felt that the Charter does not
establish a hierarchy in which one principal organ of the United Nations
can review the decision of the other. This consideration does not apply to
the International Criminal Court, which is not created by the Charter of the
United Nations and, for that matter, is not an organ of the United Nations at
all. The International Criminal Tribunal for the Former Yugoslavia considered
that it was entitled to review the legality of Resolution 827, which is in
effect its constitutive act. 65 In other words, Resolution 1422 was an abuse of
the powers of the Security Council whose legality, at least theoretically, could
eventually be challenged in proceedings before the International Criminal
Court.
However, this is probably unlikely to happen, and not so much because
of judicial deference towards the Council as because proceedings against
peacekeepers are unlikely to be at the top of the Prosecutor’s agenda. Peacekeepers
have sometimes been alleged to have participated in crimes that fall
within the jurisdiction of the Court, but these matters have been dealt with
64 See, for example, Z. S. Deen-Racsmany, ‘The ICC, Peacekeepers and Resolution 1422: Will the
Court Defer to the Council?’, (2002) 49 Netherlands International Law Review 378.
65 Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October 1995, (1997) 105 ILR 453, 35 ILM 32.