Allies or Foes? A Review of the Relationship between the International Criminal Court and the United Nations Security Co
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Allies or Foes? A Review of the Relationship between the International Criminal Court and the United Nations Security Council Lloyd T. Chigowe1 Accepted: 17 November 2020 © T.M.C. Asser Press 2020
Abstract The question concerning the relationship between the United Nations and the International Criminal Court proved controversial during the drafting of the Rome Statute. While some delegates were concerned about the impact of this relationship on the independence and operations of the Court, others viewed it as key to ensuring the acceptance of the Court. Two decades after the adoption of the Rome Statute and the establishment of the International Criminal Court, this relationship has proved to be a source of problems. This article reviews the efficacy of the relationship between the International Criminal Court and the United Nations Security Council. It argues that the relationship has not only failed to fulfil its intended objectives but has plunged the International Criminal Court into a crisis of legitimacy. The article argues that given the relationship’s failure to live up to the expectations of the drafters of the Statute, and the substantial damage it has caused to the Court’s image, it is in the best interest of international criminal justice to discontinue this relationship. Keywords International criminal court · United Nations security council · Rome statute · Relationship agreement · International crimes · Referrals
1 Introduction The question concerning the relationship between the United Nations and the International Criminal Court (ICC) was a subject of intense debate during the negotiations of the Rome Statute. Central to this discussion was the role that the United Nations was going to play vis-à-vis the future court. Some delegates believed that a relationship between the United Nations and the Court was crucial as it would bestow legitimacy on the court and ensure its acceptance. It was also believed that * Lloyd T. Chigowe [email protected] 1
Faculty of Law, Rhodes University, Makhanda, South Africa
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this relationship would reflect the universal acceptance of the principle of individual criminal responsibility. Other delegates opposed the idea of an international court linked to the United Nations as they believed that such a relationship could undermine its independence. In the end, an independent court with a relationship with the United Nations Security Council was established. The Rome Statute also conferred on the Security Council the powers to refer and defer situations, as well as the mandate to enforce state cooperation with the court. Two decades after the adoption of the Rome Statute, the relationship between the Security Council and the ICC has remained a contested issue. This is largely because of the way the Security Council has exercised its powers vis-à-vis the Court. The purpose of this article is to examine the effectiveness of the relationship between the Security Council and the ICC. In particular, the article examines how the
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