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UN Security Council Referrals to the International Criminal Court: Legal UN Security Council Referrals to the International Criminal Court Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute Leiden Studies on the Frontiers of International Law Editors Carsten Stahn Larissa van den Herik Nico Schrijver (Grotius Centre for International Legal Studies, The Hague) VOLUME 5 The titles published in this series are listed at brill.com/ lsfi Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute UN Security Council Referrals to the International Criminal Court Legal Nature, Effects and Limits By Alexandre Skander Galand LEIDEN | BOSTON Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute This is an open access title distributed under the terms of the cc-by-nc 4.0 License, which permits any non-commercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited. This publication, was funded by the European Union’s Programme fp/2007–2013, Grant Agreement N°[340956 – iow]. The content of this publication, represents only the views of the author and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains. The Library of Congress Cataloging- in- Publication Data is available online at http:// catalog.loc.gov LC record available at http:// lccn.loc.gov/2018959351 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill- typeface. ISSN 2212- 4195 ISBN 978-90-04-34222-4 (hardback) ISBN 978-90-04-34221-7 (e- book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid- free paper and produced in a sustainable manner. Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute To Aida and Ismail ∵ Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute Contents Acknowledgements xi Introduction 1 Methodological Approaches 6 The Goals of the Book 9 Plan of the Book 10 1 Conceptions of Courts and Their Jurisdiction 12 1 Types of Jurisdiction 13 2 Heads of Jurisdiction 14 3 Delegation of Jurisdiction 16 4 The Nuremberg & Tokyo Trials 17 5 The Nuremberg Principles and the Work of the International Law Commission 20 6 The Ad Hoc Tribunals 24 7 The International Criminal Court 27 8 The Two ‘Conceptions’ 31 8.1 Universal Jurisdiction Conception 32 8.2 Chapter vii Conception 35 9 The Amendments to the Rome Statute 38 9.1 The Kampala Review Conference 39 9.2 The New York Session 41 Conclusion 45 2 Article 13 (b) vs State Sovereignty 47 1 Jurisdiction to Adjudicate 49 1.1 Chapter vii Conception – Taking Judicial Measures under Article 41 UN Charter 52 1.2 Universal Jurisdiction Conception – The International Community’s Right to Adjudicate International Crimes 55 2 Jurisdiction to Prescribe 63 2.1 Does the Rome Statute Impose New Crimes? 63 2.2 Chapter vii Conception – Legislating as an Enforcement Measure 68 2.2.1 Unilateral in Form 70 2.2.2 Create or Modify Existing Law 70 Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute viii Contents 2.2.3 General in Nature 74 2.2.4 Right to Prescribe Criminal Law (but Presumption against it) 76 2.2.5 Presumption Rebutted in Case of Rome Statute 77 2.2.6 Substantive Limits to Prescribe Criminal Law as an Enforcement Measure 79 2.2.6.1 Case Related Reaction 81 2.2.6.2 Concrete Effect 82 2.2.6.3 Temporary Measures 83 2.3 Universal Prescriptive Jurisdiction 88 2.3.1 Treaty- Based Universal Jurisdiction 89 2.3.2 A Sui Generis Universal Jurisdiction 92 2.3.3 The Rome Statute is an Act of the International Community as a Whole 95 2.3.4 Gravity of the Crimes 97 Conclusion 100 3 Article 13 (b) vs Principle of Legality 104 1 The Jurisdiction Ratione Temporis of the Court 108 2 The Principle of Legality 110 3 The Status and Scope of Nullum Crimen Sine Lege in International Human Rights Law 111 4 The Specificity of International Criminal Law 114 5 The Rome Statute Distances Itself from the Previous International Criminal Tribunals 118 6 A Statute Applicable since Its Entry into Force 120 6.1 Exception for the Crimes Adopted after the Entry into Force of the Statute? 123 7 Universal Jurisdiction Conception – A Law Applicable to All since Its Entry into Force 125 8 Chapter vii Conception – Refers the Situation since … 129 8.1 By Hook or By Crook – A Principle of Justice 131 8.2 Presumption of Respect for Human Rights in Relation to the Security Council 135 8.3 Here Comes Super- Legality: Article 21 (3) Rome Statute 140 8.4 Accessibility and Foreseeability – A Relaxed Application of the Principle of Legality 143 8.5 A Strict Application of Legality 147 Conclusion 150 Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute Contents ix 4 Article 13 (b) vs Immunity of State Officials 153 1 Immunities of State Officials under International Law 153 2 Chapter vii Conception – The Security Council Power to Remove Immunities before International Criminal Courts 160 3 Universal Jurisdiction Conception – The Rome Statute Provision on Immunity Applies to All 167 4 The Arrest and Surrender of an Official Entitled to Immunity to the Icc 176 4.1 Chapter vii Conception 182 4.1.1 Conflict between SC Referrals and Other Treaty Obligations 190 4.2 Universal Jurisdiction Conception 193 Conclusion 197 5 If Article 13 (b) Did Not Exist … 202 1 The SC and the Icc Relationship: An ‘Amour Impossible’ 203 2 Refer a ‘Situation’ 205 3 Is the Icc Bound by Security Council Resolutions? Or, Are They Simply Bound Together? 209 4 The ‘Chapter vii Conception’ and the Lawful Establishment of the Jurisdiction: An ‘Amour Interdit’? 215 4.1 Independence and Impartiality 216 Conclusion 222 Conclusion 224 Bibliography 231 Cases 250 Permanent Court of International Justice and International Court of Justice 250 International Criminal Court 251 International Criminal Tribunal for the Former Yugoslavia 255 International Criminal Tribunal for Rwanda 257 Special Court for Sierra Leone 258 Special Tribunal for Lebanon 258 Human Rights Courts and Bodies 259 Other Cases 260 Index 262 Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute newgenprepdf Acknowledgements During my research on the relationship between the UN Security Council and the International Criminal Court, I incurred many debts. First of all, I want to warmly thank Prof. Martin Scheinin, who supervised my doctoral thesis at the European University Institute and provided me with constant encouragement and valuable inputs. I am also grateful to Judge Christine van den Wyngaert, Prof. Erika De Wet and Prof. Nehal Bhuta for accepting to be members of the examining board of my thesis and for their insightful reports. This book at- tempts to draw from the several recommendations they generously gave me. Moreover, I am indebted to Prof. Başak Çalı for pushing me in the successful transformation of my doctoral work into a book. During my time at the Center for Global Public Law, I was also lucky to have the companionship of Dr. Val- entina Azarova. The research leading to some of my findings has received funding from the European Research Council under the European Union’s Seventh Framework Agreement (FP/2007-2013) / ERC Grant Agreement n. [340956]. I am therefore also grateful to Prof. Jennifer Welsh and Prof. Dapo Akande for welcoming me on board of the Project on the Individualisation of War and giving me the time and ideal environment to complete this work. Finally, this long journey would not have been the same without the sup- port and encouragement of my mother, my sister and my family, including my ‘cousins’ from Aylmer, Québec, Torino, Roma, Florence, Istanbul and Tunis. Lillys, you have made my personal life so rich. The dream continues. Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute Alexandre Skander Galand - 978-90-04-34221-7 Downloaded from Brill.com01/21/2020 09:40:43AM via European University Institute Introduction Crimes such as genocide, crimes against humanity and war crimes are often described as being international crimes punishable by
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