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THE POLITICAL REALITIES AND LEGAL POSSIBILITIES CONCERNING …
This provision certainly makes it clear that the Council has supremacy in dealing
with peace and security and therefore it is logical for it to be able to prevent actions,
including investigations or prosecutions, as the case may be, if they would hinder
peace and security. However, due to the political stalemate that the Council often
suffers from, this supremacy has seen limits.
16
Building upon the previous two mandates, Chapter VII specifies the Council’s
role further. It is titled “Action with Respect to threats to the Peace, Breaches of the
Peace, and Acts of Aggression.” Article 39, as well as the following provisions, is
among the most oft-cited provisions of the Charter. It asserts that:
The Security Council shall determine the existence of any threat to the peace, breach of
the peace, or act of aggression and shall make recommendations, or decide what measures
shall be taken in accordance with Articles 41 and 42, to maintain or restore international
peace and security.
17
As we will see, this determination of an act of aggression comes directly into play
in the Kampala Resolution,
18
which defined the crime of aggression and is currently
awaiting the requisite ratifications and time limit, and is central to the Prosecutor’s
further steps when investigating an alleged crime of aggression. Articles 41 and
42 delineate the actions the Council should take upon determining that an act of
aggression or threat to the peace has occurred. Of course, this refers to acts committed
by states and therefore the Council has historically taken action based on the actions
of states. It is of course a natural inference that such acts would have been in fact
designed and ordered by individuals as states cannot commit acts without the direct
involvement of military or political leaders. Therefore, the actions of individuals are
at issue, particularly with regard to acts of aggression.
In the event that the Council determines a state has committed an act that falls
under its mandate, Article 41 outlines that
The Security Council may decide what measures not involving the use of armed force are
to be employed to give effect to its decisions, and it may call upon the Members of the
United Nations to apply such measures.
19
As we can see, this gives the Council authority to direct the actions of the UN
Member States as it deems necessary, but it does not give it authority over other
independent bodies or organs of the UN or other international institutions. This
provision will become particularly interesting with regard to the Council’s judicial
powers. If these “measures not involving the use of armed forces” are insufficient,
then Article 42 allows for further action:
16
CLARK,
supra
note 8.
17
UN Charter, art. 29.
18
Amendments to Article 8 of the Rome Statute, Resolution RC/Res.6, The Crime of Aggression, (2010)
[hereinafter Kampala Resolution].
19
UN Charter, art. 41.