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THE POLITICAL REALITIES AND LEGAL POSSIBILITIES CONCERNING …
international criminal court out of fear that they themselves could be brought before
the court and subject to prosecution. Therefore, when the states were attempting
to decide whether the crime would potentially come before the new International
Criminal Court, many states wanted a filter mechanism to prevent the International
Criminal Court’s Prosecutor (hereinafter “the Prosecutor”) from having unchecked
authority to investigate such powerful people.7 This filter mechanism came in the
way of the Security Council.8 The provisions arrived at in Kampala concerning the
Security Council’s role will be the centerpiece of this paper.
Considering these challenges, the aim of this paper will be to outline the key
provisions concerning the relationship between the Security Council (hereinafter “the
Council”) and the crime of aggression at the International Criminal Court (hereinafter
“the Court”), as well as to analyze how this relationship may play out. In order to
fully develop the relationship, the first part will establish the individual and differing
purposes of the Council and the Court. An analysis will then be made in the second
section as to whether the roles are actually in conflict at all or whether they will
be able to complement each other well in tackling this particularly difficult crime.
With their individual roles established, the subsequent part will then explain what
was actually agreed to at Kampala with regard to the role that the Council will play
in the future investigations and prosecutions of the crime of aggression. The last
main section will look both at the Council’s previous and current involvement in
situations before the Court. Its actions have proved very interesting and surprising in
some ways and may shed light on how the Council might behave should the crime
of aggression come before the Court. In sum, the paper will seek to understand how
effective any investigation and prosecution of the crime of aggression may be if the
Council plays a more active role in a particular situation.
2. The Responsibilities of the Security Council and the International
Criminal Court
2.1 The Security Council
The Security Council is first and foremost tasked with maintaining peace and
security in the world.9 Following the Second World War, the international community
recognized that a strong body was needed to see that the atrocities that happened in
7 MOSS, Lawrence, The UN Security Council and the International Criminal Court: Towards a More
Principled Relationship, Friedrich-Ebert-Stiftung, Global Policy and Development (2012), URL: <http://
> [cit. 2015-08-14].
8 CLARK, Roger S., Amendments to the Rome Statute of the International Criminal Court Considered
at the first Review Conference on the Court, Kampala, 31 May-11 June 2010, Goettingen Journal of
International Law (2010), Vol. 2 No. 2, URL:
Kampala%20(Goettingen).pdf> [cit. 2015-08-14].
9 Charter of the United Nations, San Francisco, 26 June 1945, art. 2, para. 4 [hereinafter UN Charter].