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UN Security Council Referrals to the International Criminal Court
Legal Nature, Effects and Limits
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This book offers a unique critical analysis of the legal nature, effects and limits of UN Security Council referrals to the International Criminal Court (ICC). Alexandre Skander Galand provides, for the first time, a full picture of two competing understandings of the nature of the Security Council referrals to the ICC, and their respective normative interplay with legal barriers to the exercise of universal prescriptive and adjudicative jurisdiction. The book shows that the application of the Rome Statute through a Security Council referral is inherently limited by the UN Charter as well as the Rome Statute, and can conflict with other branches of international law, including international human rights law, the law on immunities and the law of treaties. Hence, it spells out a conception of the nature and effects of Security Council referrals that responds to these limits and, in turn, informs the reader on the nature of the ICC itself.
Alexandre Skander Galand, Ph.D. in Law (2015), European University Institute (EUI), is Post-Doctoral Researcher on the project The Individualisation of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict, conducted by the EUI in partnership with the University of Oxford. He has published articles on various aspects of international criminal law, international human rights law and international humanitarian law.
Acknowledgements Introduction âMethodological Approaches âThe Goals of the Book âPlan of the Book 1 Conceptions of Courts and their Jurisdiction â1 Types of Jurisdiction â2 Heads of Jurisdiction â3 Delegation of Jurisdiction â4 The Nuremberg & Tokyo Trials â5 The Nuremberg Principles and the work of the International Law Commission â6 The Ad Hoc Tribunals â7 The International Criminal Court â8 The two âConceptionsâ ââ8.1 Universal Jurisdiction Conception ââ8.2 Chapter
vii Conception
â9 The Amendments to the Rome Statute ââ9.1 The Kampala Review Conference ââ9.2 The New York Session âConclusion 2 Article 13 (b) vs State Sovereignty â1 Jurisdiction to Adjudicate ââ1.1 Chapter vii ConceptionâTaking Judicial Measures under Article 41 UN Charter ââ1.2 Universal Jurisdiction ConceptionâThe International Communityâs Right to Adjudicate International Crimes â2 Jurisdiction to Prescribe ââ2.1 Does the Rome Statute Impose New Crimes? ââ2.2 Chapter vii ConceptionâLegislating as an Enforcement Measure âââ2.2.1 Unilateral in Form âââ2.2.2 Create or Modify Existing Law âââ2.2.3 General in Nature âââ2.2.4 Right to Prescribe Criminal Law (but Presumption against it) âââ2.2.5 Presumption Rebutted in Case of Rome Statute âââ2.2.6 Substantive Limits to Prescribe Criminal Law as an Enforcement Measure ââââ2.2.6.1 Case Related Reaction ââââ2.2.6.2 Concrete Effect ââââ2.2.6.3 Temporary Measures ââ2.3 Universal Prescriptive Jurisdiction âââ2.3.1 Treaty-based Universal Jurisdiction âââ2.3.2 A Sui Generis Universal Jurisdiction âââ2.3.3 The Rome Statute is an act of the International Community as a Whole âââ2.3.4 Gravity of the Crimes âConclusion 3 Article 13 (b) vs Principle of Legality â1 The Jurisdiction Ratione Temporis of the Court â2 The Principle of Legality â3 The Status and Scope of Nullum Crimen Sine Lege in International Human Rights Law â4 The Specificity of International Criminal Law â5 The Rome Statute Distances itself from the Previous International Criminal Tribunals â6 A Statute Applicable since its Entry into Force ââ6.1 Exception for the Crimes Adopted after the Entry into Force of the Statute? â7 Universal Jurisdiction ConceptionâA Law Applicable to all since its Entry into Force â8 Chapter vii ConceptionâRefers the Situation since⦠ââ8.1 By Hook or by CrookâA Principle of Justice ââ8.2 Presumption of Respect for Human Rights in Relation to the Security Council ââ8.3 Here comes Super-Legality: Article 21 (3) Rome Statute ââ8.4 Accessibility and ForeseeabilityâA Relaxed Application of the Principle of Legality ââ8.5 A Strict Application of Legality âConclusion 4 Article 13 (b) vs Immunity of State Officials â1 Immunities of State Officials under International Law â2 Chapter vii ConceptionâThe Security Council Power to Remove Immunities before International Criminal Courts â3 Universal Jurisdiction ConceptionâThe Rome Statute Provision on Immunity Applies to All â4 The Arrest and Surrender of an Official Entitled to Immunity to the Icc ââ4.1 Chapter vii Conception âââ4.1.1 Conflict between SC Referrals and other Treaty Obligations ââ4.2 Universal Jurisdiction Conception âConclusion 5 If Article 13 (b) Did Not Exist⦠â1 The SC and the Icc Relationship: An âAmour Impossibleâ â2 Refer a âSituationâ â3 Is the Icc bound by Security Council Resolutions? Or, are they simply Bound Together? â4 The âChapter vii Conceptionâ and the Lawful Establishment of the Jurisdiction: An âAmour Interditâ? ââ4.1 Independence and Impartiality âConclusion Conclusion Bibliography Cases âPermanent Court of International Justice and International Court of Justice âInternational Criminal Court âInternational Criminal Tribunal for the former Yugoslavia âInternational Criminal Tribunal for the former Yugoslavia âSpecial Court for Sierra Leone âSpecial Tribunal for Lebanon âHuman Rights Courts and Bodies âOther Cases Index