CYIL 2015

CAROLLANN BRAUM

CYIL 6 ȍ2015Ȏ

investigation and prosecution by the Court would threaten international peace and

security, one can imagine a scenario where the Council would step in and prevent a

continuation of the proceedings. However, it is also very foreseeable, and has been

seen, that the Council, or rather a Permanent Member of the Council, might seek

to prevent an investigation and prosecution for political, rather than legal, reasons.

Unfortunately, as the law seems to stand today, there are no mechanisms to ensure

that the Council does not act on political motivations alone. This leaves the Court

vulnerable to the politics of the Council, thereby making it subject to the whims of

the Permanent Members rather than being an independent judicial body as intended

by much of the international community.

Accordingly, it is important to take a

closer look at whether the Court and the Council are in conflict in such a way that the

Council should have the ability to overstep the Court’s authority without any checks

on the Council’s motivation. If the Council does not have

carte blanche

, then absent

such checks it could be presumed that the Court should be left to run independently

and according to international law rather than the inclinations of the Council.

3.1 Ending Impunity vs. Maintaining Peace

There is no question that the Security Council has primary responsibility for

maintaining international peace and security in the world and the Court’s chief

function is to end impunity for those who commit the gravest crimes. The Council’s

role includes recognizing, preventing, or reacting to acts of aggression by one state

against another state, and the Court is designed to investigate individuals and punish

them should the evidence demonstrate that they are responsible for committing

certain crimes.

Therefore, it can be said that the Court has a subsidiary purpose in

helping to ensure peace by ending impunity and thereby preventing future violence

through the threat of prosecution, which should not be seen as in conflict with the

Council. Similarly, a referral of a situation to the Court by the Council, which will

be explained in detail below, is not meant to substitute the Council’s other measures

to maintain or restore peace and security. In other words, the Court can be seen

as another possible tool for the Council to fulfill its own mandate. Any role in the

Court played by the Council should be meant to ensure accountability for serious

crimes, and to strengthen the general deterrent effect of international criminal law,

thereby leading to greater peace and security in the future.

MOSS, cited above.

BROOMHALL, Bruce,

International Justice & the International Criminal Court: Between Sovereignty

and the Rule of Law

, Oxford University Press, 2004, 160-61.

SCHABAS, William A.,

An Introduction to the International Criminal Court

, Cambridge University

Press, 4

ed., 2012, ISBN 978-0-521-15195-5.