by Dylan Presman

For full report click here.

As we approach the new millennium, international human rights law stands poised to move to a whole new level. After 50 years of contemplation, discussion and negotiation, the world is on the brink of creating an international criminal court (ICC) capable of punishing individuals for perpetrating gross violations of international human rights law. The relationship between the proposed ICC and the U.N. Security Council will be pivotal in creating a credible and effective institution able to punish those who commit crimes that shock the conscience of humanity. The capacity to punish will be critical if international human rights law is going to evolve beyond its current de facto status as a voluntary code of conduct, enforced by peer pressure.

This report is concerned with the policy the U.S. administration should adopt regarding the  relationship between the ICC and the U.N. Security Council. In line with its responsibilities to  the people of the United States, the policy pursued by the U.S. administration should be the one which best serves U.S. interests and advances U.S. foreign policy goals and objectives. The primary U.S. foreign policy goal is the maintenance of international peace and stability; the United States should pursue a policy that creates an ICC that advance this goal. In order to do so, the ICC will need to be credible and effective.

The U.S. administration should also work to ensure that the final treaty establishing an ICC is politically feasible, i.e. it can achieve ratification through the U.S. system. This means the ICC treaty will have to get the advice and consent of the U.S. Senate. History shows that an international institution cannot be effective and credible without the support of the United States. To get the support of the U.S. Senate, the U.S. administration will have to ensure that the proposed ICC does not detract from current U.S. powers and privileges internationally, especially regarding the United States’ veto in the Security Council. Thus effectiveness, credibility and political feasibility are the benchmarks by which the U.S. administration should judge policies governing the relationship between the ICC and the Security Council.

There are three policy alternatives available regarding this relationship; the status quo option, the Singapore proposal and the traditional model. The status quo option — contained in Article 23 of the draft ICC treaty — stipulates that only the Security Council and states that are party to the treaty can trigger the ICC’s jurisdiction by referring situations to the ICC’s prosecutor for investigation. The ICC’s prosecutor would have no independent capacity to initiate proceedings. Furthermore, the status quo option precludes the ICC from proceeding on a matter if it is on the Security Council’s active agenda, unless the Security Council specifically says that it can. Permission for the ICC to proceed on a matter could always be vetoed by one of the veto-holding permanent members of the Security Council.

The Singapore proposal — so-called because it was initially put forth by the Singaporean government — subtly alters the balance of power between the Security Council and the proposed ICC. The Singapore proposal does not alter the mechanisms by which situations are channeled to the ICC. However, if a case is referred to the ICC that is on the Security Council’s active agenda, the ICC is free to initiate proceedings on that matter unless the Security Council specifically forbids it to. This means that an attempt to halt the ICC from taking action in a situation could always be scuttled by the veto of any one of the permanent Security Council members.

The traditional model recreates the situation that prevails in most effective national judiciaries at the international level. According to the traditional model, the ICC prosecutor would be empowered to initiate proceeding unfettered by any outside authority. This would create a new international institution able to seek out situations for investigation based on whatever  information it deems appropriate and without interference from political authorities.

In terms of the relationship between the ICC and the Security Council, the status quo option gives primacy to the Security Council over an ICC by giving it a veto over ICC actions. In contrast, the Singapore proposal strikes a balance between the two institutions by limiting the Security Council’s capacity to veto ICC action. The traditional model gives primacy to the ICC by empowering an independent prosecutor to initiate proceedings without having to answer to the Security Council or member states.

This report concludes that, while the status quo option comes closest, none of these three alternatives can effectively achieve U.S. foreign policy goals when viewed through the lens of U.S. objectives of effectiveness, credibility and political feasibility. Because of the interdependent nature of these three objectives, the U.S. administration should not settle for one of these three alternatives, but should adopt a compromise option that combines the most important elements of all three.

• This compromise alternative would continue to allow the Security Council and state parties to the ICC treaty to refer situations to the prosecutor.

• As with the status quo option, the prosecutor could not initiate judicial proceeding regarding a situation of which the Security Council is seized. However, in the compromise, the term “seized” is specifically defined as including a one year time limit introducing an important element of the Singapore proposal. While the Security Council could halt ICC action regarding a particular situation indefinitely, it could only do so after passing a resolution through the Security Council on that situation annually. Thus, just as with the Singapore proposal, any attempt to stop the ICC from addressing a situation would have to win the support of a majority in the Security Council and could always be scuttled by any one of the Council’s permanent members.

• The compromise proposal would allow the ICC prosecutor to initiate investigations ex officio, or on the basis of information obtained from various sources. This would respond to the concern that the Security Council and states parties do not always have the information, means or political will to follow and respond to cases of gross violations of human rights.

• This compromise proposal would not give the prosecutor the authority to initiate judicial proceedings. Such a step would almost certainly make the proposal politically unfeasible. However, in a case where judicial proceedings were stayed as a result of a situation being on the Security Council’s active agenda, there would be no requirement that the investigation be halted. This is essential because timely investigations of gross violations of human rights are critical to preserving necessary evidence for use if, and when, judicial proceedings were initiated.

The compromise proposal combines the most beneficial elements of the status quo option, the Singapore
proposal and the traditional model. Since the Security Council could veto action by the ICC, there is reason to believe that the proposal could be acceptable to the U.S. Senate and other governments and would therefore be politically feasible. The fact that the ICC could only be indefinitely denied access to particular situations as a result of a positive vote in the Security Council means that there is a good chance that it will be able to win the support of the majority of the world’s governments, which would give the institution credibility. The fact that the proposal establishes a formal relationship between the ICC and the Security Council means that the ICC would be able to tap into the Security Council’s formidable enforcement powers, which means that the ICC would be effective.

This report recommends that the U.S. administration pursues this compromise proposal regarding the relationship between the ICC and the Security Council in order to create an institution that can serve U.S. foreign policy goals by acting as a bulwark for international peace and stability.

The establishment of an ICC marks an important development in the evolution of international law. It has taken 50 years of discussion, contemplation and negotiation to get to this point. Such a juncture may not come again for a long time. We cannot afford to fail in our task. The relationship between the ICC and the Security Council will be pivotal in insuring the effectiveness and credibility of the institution. As we prepare for the end of the bloodiest century in the history of the humanity, the U.S. administration must carefully and intelligently pursue policy that can achieve U.S. foreign policy goals and create an institution that is a worthy legacy to future generations.