Academic journal article Vanderbilt Law Review

Increasing the Effectiveness of the Security Council's Chapter VII Authority in the Current Situations before the International Criminal Court

Academic journal article Vanderbilt Law Review

Increasing the Effectiveness of the Security Council's Chapter VII Authority in the Current Situations before the International Criminal Court

Article excerpt

I. INTRODUCTION1

In 2003, the world was shocked and horrified to hear of the widespread killing, torture, forced displacement, and other atrocities visited upon the people of Darfur in the Sudan by the Sudanese Armed Forces ("SAF') and Arab Janjaweed militias.2 The SAF and Janjaweed allegedly were fighting organized rebel groups,3 but instead of targeting the rebels, they attacked civilian towns and villages based on the rationale that the civilians supported rebel forces.4 The United States defined the killings as genocide5 and pushed the United Nations to develop a court to try and punish those who committed these terrible crimes.6 However, instead of creating a tribunal, similar to those created to prosecute the perpetrators of crimes in the Former Yugoslavia and Rwanda, in 2005 the United Nations security Council chose to refer the crimes committed in Darfur to the International Criminal Court for investigation and possible prosecution. Although the situation in Darfur was not the International Criminal Court's first referral, it was the first initiated by the Ssecurity Council-which meant that, for the first time, the International Criminal Court could act with the full power of the security Council behind it.

Three years earlier, in 2002, the International Criminal Court ("ICC") received its sixtieth ratification, empowering it to try those accused of "the most serious crimes of concern to the international community as a whole."7 These "serious crimes" consist of genocide, crimes against humanity, war crimes, and the crime of aggression.8 Despite the appalling pervasiveness of these crimes, the ICC has jurisdiction in only three instances: (1) if a State Party to the ICC refers a situation9 to the ICC Prosecutor, (2) if the Prosecutor initiates an investigation proprio motu,10 or (3) if the security Council refers a situation to the Prosecutor pursuant to its authority under Chapter VII of the United Nations Charter.11 If the security Council does not refer the situation to the ICC, then the ICC depends entirely on the cooperation of states to conduct investigations and trials. Although the Rome Statute of the International Criminal Court places binding treaty obligations on all ratifying States Parties, and states may put "peer pressure" on each other to comply with or assist the ICC, the ICC lacks an enforcement mechanism with which to threaten States Parties into cooperating with the ICC. A security Council referral, on the other hand, comes with the authority of Chapter VII of the United Nations Charter, which the ICC could use to conduct its investigations and ultimately to enforce its decisions. The security Council, however, does not appear committed to using this authority. Without Chapter VII authority behind its actions, the ICC's investigative and enforcement powers in situations referred by the security Council are much weaker. Which method of bringing a situation before the ICC will prove to be more effective? Does the substance of theoretical Security Council power under Chapter VII enhance enforcement in lieu of binding treaty obligations?

To act effectively, the ICC must have the ability to carry out investigations and prosecute the accused. In particular, the ICC must be able to conduct its investigations with minimal state interference, gain state assistance in enforcing ICC arrest warrants, hold trials in a timely manner, and carry out sentencing orders with the assistance of states. Whether the ICC can accomplish these goals depends on the amount of support (or rather, the lack of opposition) it receives from the United States. The United States opposed the ICC's creation, and Congress enacted legislation to prohibit American cooperation with the ICC.12 The United States also signed a series of bilateral treaties, called Article 98 agreements, which prohibit signatories from referring investigations of any members of the American military stationed in ICC States Parties.13 Not only does the United States' nonmembership in the ICC result in a significant loss of potential funding to the ICC,14 but the opposition of the most powerful state in the world also undermines the ICC's legitimacy, especially if the United States were to take actions impeding the ICC's investigations or trials. …

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