CYIL 2015

THE POLITICAL REALITIES AND LEGAL POSSIBILITIES CONCERNING …

An International Criminal Court (‘the Court’) is hereby established. It shall be a permanent

institution and shall have the power to exercise its jurisdiction over persons for the most

serious crimes of international concern, as referred to in this Statute, and shall be

complementary to national criminal jurisdictions. The jurisdiction and functioning of the

Court shall be governed by the provisions of this Statute.

The principle of complementarity, while referring to national jurisdictions, shows

that the Court is not meant to overtake existing institutions, but to work with them.

Of course, there is no doubt that the Court was meant from the outset to also operate

in conjunction with the United Nations, including the Council. The Preamble of the

Statute lays out the Court’s aims and requirements:

Reaffirming the Purposes and Principles of the Charter of the United Nations, and …

Determined to these ends and for the sake of present and future generations, to establish

an independent permanent International Criminal Court in relationship with the

United Nations system, with jurisdiction over the most serious crimes of concern to the

international community…

It is most important to note that the Court was given jurisdiction over the most

serious crimes in an effort to end impunity; but, for the purposes of this paper, we

will need to look directly at the crime of aggression, and what was concluded in

Kampala. However, we will first turn to the relationship between the Court and the

Council before moving on to the crime of aggression.

3. Conflict or Cooperation between Court and the Council

In order to understand the relationship between these two actors, the Principles

of Article 2 of the Negotiated Relationship Agreement between the International

Criminal Court and the United Nations, which govern the relationship between the

two institutions and give the Court a great deal of independence, are of particular

interest:

1. The United Nations recognizes the Court as an

independent permanent judicial

institution

which, in accordance with articles 1 and 4 of the Statute, has

international

legal personality

and

such legal capacity as may be necessary for the exercise of its functions

and the fulfilment of its purposes

2. The Court recognizes the responsibilities of the United Nations under the Charter.

3. The United Nations and the Court

respect each other’s status and mandate

These provisions make it clear that the United Nations, including the Security

Council, should not jeopardize or overstep the mandate and workings of the Court,

unless of course it would threaten the United Nations’ own work. Of course, if an

Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF. 183/9 (1998),

art. 1 [hereinafter Rome Statute].

. at Preamble.

Negotiated Relationship Agreement between the International Criminal Court and the United Nations

ICC-ASP/3/Res.1 (2004), art. 2, emphasis added.