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Volume

72

Abstract

Established in 2002, the International Criminal Court (“ICC”) has become a symbolic cornerstone of international criminal jurisprudence—prosecuting and convicting individuals for the commission of genocide, crimes against humanity, war crimes, and crimes of aggression—collectively referred to as atrocity crimes.

One way the ICC can lawfully exercise jurisdiction is by referral—in the form of a resolution—from the UN Security Council. The language of Charter of the United Nations and the Rome Statute collaborate to provide an avenue for the Security Council to grant the ICC jurisdiction over atrocity crime situations. Such resolutions grant the ICC full jurisdiction over the suspected criminal individual(s), regardless of whether the party has per se accepted ICC jurisdiction.

But, there is a problem. The ICC has been accused to be “all bark, no bite” by some, and as being “a giant without limbs” by others because of its scant conviction record. This has induced calls to amend or abolish the ICC. Even more troublesome is the ICC’s less-than-fruitful association with the Permanent Five members of the Security Council: China, France, Russia, the United Kingdom, and the United States. The incessant disagreement among the Permanent Five has, in effect, tied the jurisdictional hands of the ICC, permitting dozens of perpetrators of atrocity crimes to go without proper adjudication by the ICC.

International law is inherently political, and it can be difficult, if not impossible, to separate Security Council political interests from legal analysis. Therefore, a dramatic reform of pertinent articles of the UN Charter must be considered in an effort to both resolve Security Council paralysis and foster greater influence of the ICC.

The Security Council’s damaging influence on the utility of the ICC has its roots in two sources: (1) the political motives of the Permanent Five and (2), the permissive text of the UN Charter. In statutory terms, those sources are Article 27 of the UN Charter, which empowers each of the Permanent Five with an unrestricted veto when the Security Council is voting to pass a resolution, and Article 41, which affords great deference to the Security Council in determining if an atrocity crime situation is worthy of considering jurisdiction to the ICC. As a result, the Security Council has consistently neglected to draft resolutions—let alone vote on them—concerning alleged crimes and proposing ICC jurisdiction, harmfully keeping the ICC on the sidelines.

This Note proposes additions to the statutory language of Articles 27 and 41 of the UN Charter, aiming to reduce the impact of the political wills of the Permanent Five, and thereby strengthening the link between the Security Council and the ICC. The proposed amendments below may be regarded as improbable or idealistic. However, it is impossible to suggest new language to the UN Charter without some degree of far-reaching optimism—a confidence that the objectivity of the law will eventually prevail over the subjectivity of geopolitics.

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