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

investigation and pre-trial procedure 123
Finally, prosecution may be undertaken at the request of the Security
Council. 18 The Statute furnishes no additional details or requirements with
respect to Security Council referral, except to specify that the Council must
be acting under Chapter VII of the Charter of the United Nations. What is
envisaged is the use of the Court as a kind of standing ad hoc tribunal, should
the Security Council resolve to pursue prosecution along the lines of the
tribunals for the former Yugoslavia and Rwanda. An important question of
funding arises here. In the case of tribunals formally created by the Council,
it is normal that they be financed out of United Nations resources. But the
International Criminal Court is not a United Nations organ, and it seems
unreasonable that its facilities be offered to the United Nations free of charge,
so to speak. If it triggers the Court, the Council would have to be prepared
to live within the parameters of the Statute with respect to such matters
as jurisdiction. For example, it could not request that the Court consider
the atrocities committed by the Khmer Rouge in Cambodia during the
late 1970s because Article 11 of the Statute clearly declares that the Court
cannot judge crimes committed prior to the entry into force of the Statute.
In such cases, the Council would be required to set up an additional ad hoc
tribunal. For the same reason, the Council could not transfer the powers of
the existing ad hoc tribunals to the new Court. It remains uncertain whether
the Security Council must also meet the other admissibility criteria and
respect the principle of complementarity, a matter that seems to have been
intentionally left unresolved at the Rome Conference. 19
When prosecution is initiated by referral of a State party or at the request
of the Security Council, it would seem that the Prosecutor has no discretion
as to whether or not to proceed. However, the Statute recognises that in such
cases the Prosecutor may, after launching an investigation, quickly conclude
that further investigation should be halted. The standard to be applied by the
Prosecutor is that of a ‘sufficient basis’ for prosecution. When the Prosecutor
concludes that there is no sufficient basis for prosecution, he or she must
inform the Pre-Trial Chamber as well as the referring State or the Security
Council, as the case may be. Reasons must be provided by the Prosecutor for
the decision not to proceed. The Statute says the Prosecutor may conclude
that there is not a ‘sufficient basis’ because there is an insufficient legal or
factual basis to obtain an arrest warrant or summons, because the case is
18 Rome Statute, Art. 13(b).
19 Ruth B. Philips, ‘The International Criminal Court Statute: Jurisdiction and Admissibility’, (1999)
10 Criminal Law Forum 61 at 73; see also ibid., p. 81.