Continuous of Discriminatory Justice and Relations between ICC and Security Council

بهمن 4, 1395

 

 

Continuous of Discriminatory Justice and Relations between ICC and Security Council

Abdolhossein, barzegarzadeh1

Atefeh.amininia* 2&3

Mohsen,shakarchizadeh1

1-Department of Law, Najafabad Branch, Islamic Azad University, Najafabad, Iran.

2- Department of Law, Najafabad Branch, Islamic Azad University, Najafabad, Iran (* Author info@ahbz.ir)

3- Department of Law, Varamin Branch, Islamic Azad University, Varamin, Iran

 

Extraction of doctoral thesis

 

Abstract:

The purpose of establishing international criminal court is to fight impunity of great criminals and terminating it. Therefore, Rome Statute is the main responsible for realization of international criminal justice. In other words, Security Council, based on the charter, has been identified as the primary responsible of preserving international peace and security. In spite of clause three of Article 36 of the charter has prohibited Security Council being occupied in judicial, lack of international criminal court and limitless crimes in some hostilities has made the Security Council take attempts directly to establish international criminal courts such as international criminal courts of former Yugoslavia and Rwanda in order to preserve or stabilize peace. Intentional negligence of the council regarding its primarily responsibility and extensive interpretations of its duties and delay in establishing international criminal court has led to the overlap of the functions of these two important international institutes. Thus, the mentioned overlapping and the superiority of policy to law in the international arena can be regarded as obstacles against realization of international criminal justice. This article investigating in this field seeks to approve this matter that imbalanced relations of these two important international institutions results in the restriction of international criminal justice. 

Key words: “international peace and security”, “impunity”, “great crimes”, “international criminal courts”, “security council”

 

 

Introduction:

Article 13 of Rome Statute allows Security Council to refer situations resulting in appearance of crimes as subjects of Article 5 of Statute to the tribunal. This statute based on its Article 16 allows Security Council to suspend, investigate and/or prosecute some of the international crimes by a resolution of seventh chapter of prism, a binding resolution,interfering with court affairs. Since crimes as subjects of jurisdiction of international criminal court is resulted by intersect and clash of great powers inside a country or between two or more countries, so international criminal law area encounters crimes that are completely power-, sovereignty-, and policy-centered by nature. Contrary to municipal law whose crimes are not limited to political crimes in nature, crimes in the global arena have considerable relationship with policy at the same time being a crimeand affect public order and international peace and Security. This makes, following occurrence of great international crimes, international criminal court and Security Council of United Nations regard themselves certain to enter and investigate the crimes. One of them involves in realization of justice and the other one in restoring international peace and security and exercise of jurisdiction. Regardless of the matter that which one is preferred to enter or theoretical discussions such as (no justice without peace) and (follow justice if you want peace), these two apparently competent institutions unite together sometimes when investigating a unit status and some other times stand against each other. Referring of Darfur and Libya status to the court from Security Council is an example of interaction of these two institutions in field of international criminal law as issuing the resolution 1422 of Security Council and peace-keeping forces as national of non-members excepted from court punishment is an example of their contrast. Therefore, the significance of this research is clearly obvious in that how should be the legal occasions of these two international institutions; The main question of this study is whether or not the legal relationship of sovereign between these two offices is justice-based or more supervises protection of international peace and security. Because Security Council and international criminal court, despite exercising some limitations over States, both are the product of unity of governments’ will, up to date, the ruling custom in international criminal law shows that the only thing in their relationship that determines the priority of one of them over the other one is policy. This article supposing the mentioned cases deals with these subjects: breaching of judicial independence, neutrality of Court, existence of judicial veto right to Security Council prolongation of proceeding expressing Article 16 of Rome Statute and prolongation of proceeding as conflicting relations and slight reparation of incomplete universal judicial jurisdiction of court in the hypothesis of exercising Article 13 as a positive event and one-sided relations between them, lack of political and judicial supervision over Security Council. The research method of this study is descriptive.

  1. A.    Breach of Neutrality and Court Independence:

According to Article 2 of Rome Statute, Court communicates United Nations due to a convention approved by assembly of Members and signed by chief of the court. Since this important has been confirmed by court and United Nations upon Article 3 of a concluded covenant, so court has accepted charter of the United Nations organization and the organization has also accepted the charter of Court.Therefore, this implies independency of these two. But that’s not all and it cannot be claimed that court is completely independent from other international organizations.

One of the issues raised about international criminal courts is their dependency on the states and other international institutions (Cryer, 2010, 432)[1] and most of international crimes are committed by powerful people and military and political authorities. In this situation, non-cooperation of the States in subjects such as to arrest the accused and assist to collect evidence makes it almost impossible access to a just trial (Saber, 2008, 19)[2] and since the concept of justice is the main element of the Statute text and legitimacy of court depends on its justice (Bangmwabo, 2010, 431)[3]. Thus, in spite of selecting judges only for one period which reduces pressures imposed on judges for subsequent selections, although in selecting the judges the completely legal issues and their specialty and commitment are the main conditions, it is the assembly of Members that select the judges of courts. Because assembly of Members, finally, consists of political representatives and diplomatic individuals of Members apply their political considerations in all subjects and decisions such as selecting judges (Faza’eli, 2011, 18)[4] consequently mentioning words such as having high moral individualities, perfection and attributes of neutrality of  candidates membership in court does not prevent acts of political preferences of representatives of the States and so judges can be considered as quasi-political representatives of the states and political powers. In other words, presence or absence of moral and legal perfections in membership candidates will be unrelated to the selectors who are political representatives. For example, in this regard, research branch of criminal court of former Yugoslavia in Furundzija case, although regards existence of an impartial and independent court as the integral part of necessity principle of a fair trial (Cassese, 2009, 486)[5], in response to various objections against dependency of mentioned court is only satisfied with political argument and announces that all criminal courts at last are legislated by a political basis and exempts itself from approving independency of court by its own illegal argument.

It is said that international organizations such as international criminal courts are recognized as public legal persons of international law due to having independent office and privileged competence from its Members. Thus, in addition to jurisdictions stated in statute that is stipulated jurisdictions,these organizations have implied jurisdictions by which they can take actions independently. But, international common and codified law like Article 34 of 1969 Vienna law of treaties namely impossibility of imposing any commitment on them without consent of countries show that among the States the principle in law is limited stipulated jurisdiction of international organizations and their implied jurisdictions has no power to pass through principle of sovereignty consents. Incomplete jurisdictions of criminal courts confirm this claim. Therefore, international criminal courts are strangely dependent on the States. In general, the States especially the powerful states like the United States never restrict their foreign sovereignty and policy to regional and universal treaties of human rights (David, 1995, 117)[6] and therefore establishment of a criminal court with exclusive jurisdiction is incompatible with the principle of sovereignty and national interests of states (Grafreath, 1990, 82)[7]. Additionally, the way the states cooperate with court and some issues such as presenting secret information related to security of country is significantly effective in trial process of court and caused a variety of questions. For example, to what extent the countries are eager to cooperate in presenting their secret information? Or in order to present their secret information, are they allowed to demand in camera proceedings in court? Or should the secret information be a threat for their national security then they can demand such things? (Safferling, 2001, 239)[8]; as a result political interests of states and security council is highly effective on the process and time of hearing and jurisdictions of international criminal courts. This impressionability in some Articles such as Article 17 of statute based on late jurisdiction of Rome Court to national courts, Article 98 regulated on cooperation of states with court or Articles 13 and 16 of statute show court dependency on its Security Council. As a result, international criminal court cannot be called as an independent and impartial one.

  1. B.     Article 16 Generalizing Right of Veto:

In the course of Rome Conference to hold an international criminal court some of the countries such as America believe that independent hearing of great international crimes by court is, in fact, considered as ignoring the charter of United Nations. Therefore, they emphasize that court should be dependent on Security Council; however, some others emphasized the independency of court (ShariyatBaqueri, 2008, 32)[9]. It is said that according to paragraph 3 of Article 23 ofCommission plan of international law for holding court no prosecution should be done in situations where Security Council is reviewing a situation unless Security Council makes decisions. Audiences in the conference rejected the plan due to the breaching of court impartiality by Security Council (Saber, 2009, 18)[10] but at last Article 16 was included in Rome statute and according to this article, after issuing a resolution from Security Council due to chapter 7 of charter of United Nations (based on suspension demand of research or prosecution) no research or prosecution can begin or continue for 12 months , this demand is renewable by Security Council under the same conditions (Schabas, 2005, 228)[11]. Also, it has been claimed that since replacing of Article 16 with paragraph 3 of Article 23 of Commission plan of international law causes Security Council not to be able to interfere with court activities before referring the subject to introductory branch, thus it has resulted in a limited Security Council and therefore advancement has been produced, though slightly(Stahn, 2012, 231)[12]. However, it should be remembered that measures of public prosecutor has not solved any problem for beginning the research and do not punish any crime. Realization of justice is exclusive to criminal punishment and the penalty will be applied when all introductory primary and even revision stages will exhaust and lead to final judgment.Thus, interference of Security Council in beginning stage of prosecution or hearing in practice will make no change. Also, since 12-month suspension period stipulatedin article 16 is extendable and according to the statute the court is not allowed to reject the suspension demand from Security Council, practically Security Council can suspend investigating a specific and targeted case forever and this is interpreted just as granting the right of judicial veto to Security Council. Therefore, regardless of the matter that court is conditioned to exercise jurisdiction on criminals of invasion defined by Security Council and other needs of court to council, Article 16 indicate court dependency to Security Council by itself. Because the structure of Article 16 of statute and authorities stipulated for Security Council in this article are utterly not interpretable and as a result not limitable by court. If politicization of the Security Counciland using influence and pressure of great powers in that council like issuing resolution 1422 and discriminating non-Members of statute will give court no authority but being a mere observer.

  1. C.    Prolongation of Proceeding:

International criminal court is completely dependent on Members and Security Council, this dependency challenges legitimacy and legality of the court because the fairness of the court is conditioned to its legitimacy (Bengmwabo, 2010, 432)[13]and not only doubts the court justice, but also causes hard prolongation of proceeding.

According to paragraph 1 of Article 18, when the public prosecutor finds documented and acceptable evidence for prosecution regardless of whether the situation is referred by Member or Security Council or the public prosecutor has directly begun to investigate, the public prosecutor is obliged to announce all states that probably are competent to investigate such crimes. After a month from issuing this announcement, the states have right to inform the court that are investigating or have investigated their own nationals and subject citizens of other countriesabout judicial jurisdiction relation to actions included in Article 5 (Schabas, 2007, 229)[14].According to paragraph 3 of Article 18, public prosecutor, up to 6 months after assignment of investigation to a country, has no right to comment on disinclination and incapability of the mentioned government. After possible objections of public prosecutor to unjustified delay in hearings by states, the introductory branch will be responsible for investigating the inclination and ability of the mentioned country. However, public prosecutor will only have the right of demanding to enter an order for protecting evidence until entering an order from introductory branch. In addition to barriers of Article 19, in practice, the court will be in abeyance fall for a year. Whereas the criminals of such crimes have close relationship and higher influence in the states, it is possible that many of the reasons will be lost during the mentioned time. Additionally, lack of adequate criminalization to crimes stipulated in the Statute in municipal rules affects countries’ capability especially trial time (Terracina, 2007, 421)[15]. When in a state Security Council demands suspension of investigation and prosecution based on a resolution of seventh chapter as well as Article 16, as the Council is allowed to extend repeatedly, practically it will be suspended without Security Council authorization procedure. As a result, in all states dependency of the court on the states and Security Council, according to what has been said, generally, has political reasons and prolongers trial which will be in contradiction with fair trial.

  1. D.    Article 13 Reparation of universal incomplete jurisdiction of the court:

According to Article 13 of Rome Statute, in addition to Members and public prosecutor, Security Council is authorized to refer situations in which committing crimes included in court jurisdiction takes place. Assigning such authorization to Security Council had different political and legal reasons. But, undoubtedly, the main reason is governments’ fear from continuance of formation case criminal courts and as a result impoverishment of Rome Statute. However, concerns of individual states to judicial domination of Security Council should not be ignored. In other words, the complete reason for granting such a right to Security Council and individual and collective fear of countries was strengthening the judicial role of Security Council.

In spite of being Article 13 included in statute is more due to states’ concerns about the destructive and political role of Security Council than their concentration to strengthen the court and its legal efficiency, regardless of states’ intentions, granting such authority to Security Councilseems to be necessary.

With regards to granting this privilege to Security Council, it should be said that the authority not only is not negative due to its association with primary duty of Security Council, but also due to the following reasons it is necessary and essential. Because granting such an authority causes, first, this procedure to be custom in Security Council of international organization, the solution of all problems is not military or political and many problems can be dealt with law and judicial by international criminal court or other international judicial institutes using minimum human and financial costs. Secondly, formation of this procedure in Security Council makes Security Council avoids holding criminal courts in long terms which for the author it is not in jurisdiction of that political institution. It is obvious that corollary and definite result of Security Council avoidance to hold courts either criminal or non-criminal will be separation and apportion the tasks of organs of the United Nations and order in ways of settlement of international disputes and finally development of international law. Thirdly, existence of legal relationship between Security Council and international criminal court, in turn, encourages and persuades the states to join the court and consequently development of international criminal law.

Although this question may be raised that how is it possible interfere of Security Council with asymmetric combination from few limited countries and with legal but unjust right of veto be effective in courts to promote international law and international criminal law? The response is that the authority unlike its appearance is not a one-step and a direct interference, but, at last, it is the court and introductory branch that decides what situation is acceptable for exercising court jurisdiction and which one is not acceptable. As intervention of 21 August 2008 of Security Council of United Nations about Darfur case from public prosecutor of court, caused demand of public prosecutor of court for issuing arrest of Omar al Bashir from introductory branch, despite the fact that public prosecutor demand contains evidentiary documents for responsibility of Omar al Bashir in mentioned crimes, it did not cause automatically the issuing of arresting Omar al Bashir. Also, not only Security Council, even public prosecutor also did not have ability and authority of issuing such judgment and finally it was the introductory branch of court that adopted the ultimate decision (Tahmasbi, 2009, 142)[16]. Additionally, the presence of three judges to supervise decisions of public prosecutor results in complete prevention of  applying political preferences.

In addition to these, presence of such a right for Security Council is a sort of reparation for lack of universal jurisdiction which necessity of its presence has been frequently expressed by law practitioners (Jennifer, 2013, 420)[17]. Because in state of referring a situation from Security Council according to paragraph B of Article 13, is not the place of committing crime and victim’s or criminal’s nationality as that of Darfur’s case in Sudan and Libya and Security Council takes actions as a representative of all universal society and in terms of legal and charter obligations of itself. This action of Security Council is universal which accepting this authority in Security Council is in fact implied acceptance the universal jurisdiction of court.

Therefore, supposing paragraph B of Article 13 the authorities of council not only leads to interference and weakness of court, but in this regard it is regarded as an effective and worth help to the court in introductory investigations. Additionally, when the situation is referred to the court from Security Council, there is no discrimination as Members and Non-members of the statute which this, in turn, strengthens international justice.

One-sided legal relations between court and Security Council:

If the overall mission of the law is to defend vital interests of human the special mission of criminal law is the criminal defense of interests that is particularly supported. A defense that is done by threat and execution of penalties and is sent to the delinquent as a disaster (Hosseininejad, 1994, 60)[18] regarding the fact that every society needs a public order, international society requires public order, as well. Therefore, the existence of an international institute is an irrefutable necessity to support international public order and responsible for defending universal values of the society and defends ex cathedra the privacy international law and universal collective life of  timely and quick punishment of great criminals. However, the existence of a strong barrier called national sovereignty bans the creation of such a cross-state and independent forum for centuries. Scientists and the fair of the world did not neglect implementation of establishing such an institute through any kind of hope hole until the occurrence of two world wars during human lifetime doubled these attempts by many damages and crimes. After World War II up to now, in the light of these attempts an important international institute was established with general jurisdiction called United Nations covering a military and political institute entitled Security Council to maintenance of international peace and security and punishes its violators. In spite of plenary power and limitless jurisdiction of Security Council of United Nations to combat state protestorsto international peace and security in terms of chapters 6 and 7 of charter, it was (and is ) incapable in combating natural persons and perpetrators of international crimes. The massive deficit of Security Council of United Nations and increasing of crimes against human made the States establish international court by force. However, since there was no exact boundary between peace and justice and no one had priority over the other one, even before international criminal court began to work, the disturbance of duties and missions of these two international institutions came to appearance. In one side, Security Council which its primary task isexplicitly expressed in charter as preserving international peace and security and even dealing with political lawsuits, it was necessary, in proportion to its inherent duties, to be in relation with international states and governments such as international criminal court. In the other side, international criminal court was inevitably in relation with international governments and organizations such as Security Council to accomplish and realize its lofty goals. Although the participants in Rome Conference did their best to organize the relations of these two, Security Council due to a sort of dominance over states as well as state control over Criminal Court were largely unsuccessful in regulating these important relations. Founders of criminal court along with regulating relations between court and council bestowed significant authorities to Security Council in the Statute and paved the way of communicating these two. However, these privileges granted to Security Council underlie heavy reliance of court on council, abeyance of court in hearing invasion crimes before defining it by Security Council and as a result much intervention and corruption of judicial independence of court.

Although in charter and various cases the Security Council has been devoted some duties to preserve international peace and security and consequently the Security Council has been permitted in Articles 33 to 37 in chapter 6 to do some advices in settlement of disputes, in clause 3 of Article 36judicial disputes have been out of jurisdiction of Security Council and every enjoin and forbidding of Security Council to court or forming any court from that council was obviously prohibited. The extremely close relationship between the concepts justice and peace, disasters affecting human such as municipal and international wars, termination of cold wars in spite of widespread oppositions of the states and double position of present secretary-general caused the Security Council ventured to establish international criminal court contrary to clause 3 of Article 36 of charter. The existing procedure in this field indicates the fact that the Security Council due to its unjust political composition seeks to expand its jurisdictions from the area of peace and security to adjudication and recovering of just.

Security Council was not an absolute supervisor for judicial criminal subjects prior to the formation of Rome Court, but according to Article 8 of Convention 1984 on Genocide, parties to the treaty were rightful to ask reliable testimonies of United Nations (Security Council) and based on the charter that to take expedient actions in order to prevent and punishment of genocide. Or, according to Article 6 of Convention 1973 of Apartheid, the Members have obligated that, according to the charter, to accept and put decisions adopted by Security Council into effect in order to eliminate and reprimand apartheid. Moreover, Article 79 of annex protocol 1977 to quad Geneva Conventions has predicted individual and collective cooperation of Members coinciding with the charter. Additionally, the absence of an international criminal court and ………..of impunity,failure to meet the stipulated measures of council in the charter in the field of criminal justice made the council establish the international criminal courts of former Yugoslavia and Rwanda. Given the authorities of Security Council in international peace and security and circumstances leading to issue of resolutions 808, 827 and 955 and availability of establishment two criminal courts by council cited in chapter seven of the charter and existence of such a record in international trial system caused the discussion of independence and dependence of court on Security Council influenced the whole Rome conference (DarabiNiya and ForoghiNiya, 2015, 145)[19]. Therefore, prior to the establishment of court, was not only an impartial observer, but also appeared self-invited as the founder of criminal courts.

The second objection which is unfortunately more dangerous than the first one is the non-democratic combination of Security Council and existence of right of veto and concerns get intensified when the “authority of Council for suspension of prosecution” as extension of the existing right of veto in Security Council is just for the realization of justice. Because the states having the right of veto can oppose any kind of prosecution of their nationalsone-sidedly through the influence and their right of veto due to clause 3 of Article 27 of charter or they can reject any request for suspension for others from Security Council. Although the first condition for applying Article 16 of is the issuing of resolution of Security Council and is not individual, in general, council is not immune from pressure of great powers. For example, due to pressure of America, Security Council was forced to issue resolution 1422 in 2002 for suspension of prosecution of peace-keeping forces being national of non-members. Issuing resolution 1422 only 12 days after starting the courtaffairs shows the easy use of Article 16 of Court Statute by Security Council for or against any country. As there is no limit for number of renewal of issued resolutions as subject of Article 16 of Statute from Security Council provides a political institution being thirsty of justice with 12 months multiply infinite unlimited time.Regarding the existing practice in Security Council on extensive interpretation of its authorities, much interest and enthusiasm of this political entity to establish international criminal courts like former Yugoslavia and Rwanda, insatiable appetite of owners of right of veto in political interference with other countries, lack of encouraging prospects to modify the right of veto at least in the short or medium term, resolution and easy decision-making in Council against issuing legal verdict of court which may last for many years, council having more financial facilities than court underlie open intervention of Security Council in international criminal law such as court.

In addition, granting such a right to non-members of the criminal court and their exemption from court jurisdiction doubts impartiality of the court severely. Resolution 1422 which is one of the most striking examples of policy dominance over law in the universal arena has raised many questions (Jennifer, 2013, 435)[20]. Given that crimes as subject of Article 5 of the statute are all among crimes that are directly involved in international peace and security and also incumbent of international peace and security that is Security Council of a completely political institution. Thus, no case can be found in international criminal court that its subject is non-political and not related to the function of Security Council. It is observed that the recently-mentioned resolution instead of citing to the charter and statute is issued under the threat of America and another case of great powers. In other words, it is impossible to file an action in criminal court of Rome without agreement of Security Council. Unconfined power of Security Council, judicial independence of the court, judges and the public prosecutor challenge it severely and hurt its independency. Besides these two across the Statute there is no trace of compulsion for the states and Security Council against the court; at the same time the court has various obligations to the states and the security council and these do’s and don’ts for the court and its judges and the states’ and Security Council’s freedom of action doubts the impartial fair which both the states and the Security Council as well as the accused have authorities in international criminal law, however, authorities of court is more limited than the all others. And this is contrary to the fair and just as one of the most important features of criminal justice (Stahn, 2012, 206)[21].

In San Francisco Convention and when the duties and authorities of the Security Council was about to be codified there was no trace of international criminal court. While in formation of Rome Conference, the Council and its highly influential members were present in the conference. Since formation of the court at first step was as the accepting of incapability and incompetency of the Security Council in realizing the criminal justice and at the second step was threatening the sovereignty of permanent Members of the Council and owners of the right of veto, so, the Council and its powerful members underwent threat from both sides, the first threat was the Council’s political power against the court and the second threat was limitation of national sovereignty of Members. Two-way threating of sovereignty of powerful states made representatives of permanent Members of the Council in Rome Conference pay attention to the authorities and jurisdiction of the court more than the others; so that regulation of relations between jurisdiction of the court and sovereignty of the states was changed into the problem of problems. It may be imagined that since the emergence of councilis prior to the emergence of criminal court, thus, the lack of any trace of the court in relation to Security Council and non-intervention of international court in the tasks and authorities of the Council, in spite of the commonality of subjects of two institutes, seems to be natural. But, this is an inaccurate imagination, though, criminal court was not proposed in San Francisco Conference, since then international court of justice has been eminent as the main judicial element of United Nations. However, the history of the relations between the Council and justice court and proceduregoverning the judgments of the international court of justice indicate the fact that not only the international court of justice made no supervision over the actions and duties ofSecurity Council, but also due to the dominance of the Council on other organs of the United Nations even such a hypothesis has not been possible to be appeared. A case in point is the issue of resolutions 748 and 731 of Security Council on extradition of two Libyan defendants in explosion of Pun American Airplane in the sky of Lockerbie, Scotland which in spite of Libya’s complaint and demand from justice court to declare the illegality and contradictory of the mentioned resolutions with international law, the court made no opposition in its comments against actions of the Security Council. But, it announced that “since Libya and England as Members of the United Nations and according to Article 25 of the charter are bound to accept and implement decisions of Security Council, the court which in this stage of hearing has the investigation of a demandto issue temporary order in its agenda states that this responsibility (following the decisions of Security Council) is extendable in the beginning to the resolution 748 and according to Article 103 of the charter the obligations of parties in this regard are prior to other obligations based on any other international convention such as Montreal convention”. This did not have too legal complexity to make a court consisting of 15 expert judges to make mistakes. Because obligations originated from resolutions of Security Council will be embedded in Article 103 of the charter when they are in consistent with the charter and its goals and are issued based on Article 25of the charter. While in this case, in fact the request of Libya was that approvals out of Article 25 of charter have not created any obligations included in article 103 of charter, therefore, it is not appropriate to follow. Despite the strong arguments of judge El-Kosheri, ad hoc Libyan judge who argued that the states have right not to observe resolutions contrary to the charter of the Council and the court is rightful to call resolutions contrary to the charter of Council as null and void. The court practically preferred policy over the rights and supported the Council (Amininiya, 2013, 220)[22]. This decision indicated the fact that policy is still superior to law within international law. Opposed to Muhammad Bejavi, the former judge of the Court believing in Council bounded to legal norms in charter, not only the politicalized court, does not believe in Security Council restriction to rules of charter, even general meeting supervising over the Council has been destroyed under Article 12 of charter and such judgments of the court. Thus, in practice there is no international institute responsible for or observing the Security Council. The Council by extensive interpretation of its own authorities in charter creates legal and quasi-legal intervention in international courts at some point and in other times puts it as documented practice and history of its actions to legalize its measures. The spirit of domination of Security Council underlies issuing some resolutions such as 1593 regarding Darfur case and 1970 regarding Libya. Although these resolutions are referred to as positive steps in cooperation of the Council with the court, the public prosecutor of the court is obliged to report periodically every six months to Security Council and this suspect, that the Council wants the court just as a legal instrument at the service of policy and under its own supervision or for its own greed, is strengthen and as a result converts the relations between these two into an illegal practice and a politicalized custom in international law.

Conclusion:

Consequently, Security Council can request the suspension of the investigations and prosecutions of the court, in one side, depending on the conditions that are advisable for it and, in the other side, it can refer a situation to the court that is proportional to its criteria and interests. Thus, despite the fact that the Council is responsible for international peace and order and the court is in charge of international justice, the peace institute dominates over the justice institute.

The reason for the one-side relation between international criminal court and Security Council in favor of the council is nothing but ignoring the concept of the first word in the phrase “the primary responsible for keeping international peace and security” by Security Council. Security Council has extended the first word to the final and permanent by extensive interpretation of its own authoritiesby misusing the politicians, authorities and the owners of the right of veto. The extensive interpretation of the authorities and complete benefitting from military and budget facilities of United Nations made the Security Council interfere with the affairs of international justice and appear as filter for international criminal court. Linear and hierarchical relationship between policy and law as well as the recently-mentioned filter cause no case to be filed in the court without the agreement of the states in the first stage and without the consent of the Council in the next stage. Selection of the judges by politicians and the intervention of the political organ of the United Nations that is Security Council in the affairs of the court obviously hurts judicial independency of the court and the independency of the judges and provides conditions that the powerful states depending on the circumstances utilize both Security Council and criminal court as instruments and supply their so-called national interests in any state. This situation has created policy-centered legal relations and principal and agent relation between Security Council and the court. It is obvious that under such conditions the criminal justice will continue on the basis of discrimination.

It is suggested that the states should pay more attention to the main purpose of the court that is fighting impunity and the Security Council should pay more attention to its stipulated duties that is primary responsibility for keeping the peace and the lawyers cannot tolerate the extensive interpretations of the international institutions.

 

 

 

 

 

 

 

 

 

 

 

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[4]MOSTAFA FAZA’ELI, JUST ARBITRATION OF INTERNATIONAL CRIMINAL TRIALS 18 (2011).

[5]Antonio Cassese, Reflections on International Criminal Justice, Modern L. Rev., 2009, at 486.

[6]David P. Forsythe, Human Rights and U. S. Foreign Policy, Two Levels, Two Worlds, Political Studies, 1995, at 111-130, 117.

[7]Bernhard Grafereath, Universal Criminal Jurisdiction and International Criminal Court,6 EJIL 67, 82 (1990).

[8]CHRISTIPH SAFFERLING, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE 239 (2001).

[9]MOHAMMAD JAVAD SHARYAT BAQERI, INTERNATIONAL CRIMINAL LAW 32 (2008).

[10]MAHMOOD SABER, INTERNATIONAL CRIMINAL PROCEDURE 18 (2009).

[11]WILLIAM SCHABAS, AN INTRODUCTION TO INTERNATIONAL CRIMINAL COURT 228 (SeyyedBaqer Mir Abbasi trans., 2005).

[12]CarstenStahn, Between Faith and Facts: By What Standards Should We Assess International Criminal Justice?, 25 LJIL, 231 (2012).

[13]Bangmwabo, F. X. The Right to an Independent and Impartial Tribunal: A Comparative  Study of the Namibian Judiciary and International Judges, (Nov. 14, 2010), http://kas.de/upload/auslandshomepages/Namibia/IndependenceJudiciary/bangmwabo.pdf.

[14]WILLIAM SCHABAS, AN INTRODUCTION TO INTERNATIONAL CRIMINAL COURT 229 (SeyyedBaqer Mir Abbasi trans., 2005).

 

[15]Julio Terracino, National Implementation of ICC Crimes Impact on National Jurisdiction and the ICC, 5 JICI 421, (2007).

[16]JAVAD TAHMASEBI, JURISDICTION OF INTERNATIONAL CRIMINAL COURT 142 (2009).

[17]Jennifer Trahan, The Relationship between the International Criminal Court and the U. N. Security Council Parameters and Best Practices, 24 CLF., 417, 420 (2013).

[18]HOSSEINGOLI HOSSEININEJAD, INTERNATIONAL CRIMINAL LAW 60 (3rd ed., 1994).

[19]MortezaDarabinya&HosseinForoghiniya, The Relationship between Security Council and International Criminal Court in Field of Invasion Crimes, RJCL, 2015, at141-170, 145.

[20]Jennifer Trahan, The Relationship between the International Criminal Court and the U. N. Security Council Parameters and Best Practices, 24 CLF., 417, 435 (2013).

[21]CarstenStahn, Between Faith and Facts: By What Standards Should We Assess International Criminal Justice?, 25 LJIL, 231 (2012).

[22]ATEFEH AMININYA, COMPULSORY ACTIONS OF SECURITY COUNCIL 220 (2013).

 



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