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The Security Council and international criminal law*
Published online by Cambridge University Press: 07 July 2009
Extract
There is no agreed definition of international criminal law, but the term is a useful way of describing those aspects of public international law and domestic law that are concerned with crimes having an international aspect or dimension. It therefore ranges from the important, but generally unexciting, topic of mutual assistance in criminal matters to the more gripping subject of ‘international crimes’. That term is a convenient way to describe those offences that are the concern of every state because they corrode society. Even when the crime is committed on behalf of a state, international law places individual criminal responsibility on those who commit them. Furthermore, international law generally allows states to prosecute international crimes regardless of where they are committed or the nationality of the accused (universal jurisdiction). The acts constituting international crimes are not a new invention but as old as mankind, but, with the notable exception of piracy, it was only in the twentieth century that a concerted international effort was made to confront them. We will look at how the Security Council has tried to deal with international crimes, inevitably in a piecemeal way.
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References
1. Bassiouni usefully distinguishes between (1) the international legal source of international crimes and (2) enforcement mechanisms, like extradition and mutual legal assistance, that depend on both international and domestic mechanisms: see Bassiouni, C.M., ed., International Criminal Law, 2nd edn. (Ardley NY, Transatlantic Publishers 1999) at pp. 4–17Google Scholar, in which he takes a lengthy overview of the topic.
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33. The case was discontinued in October 2003 by agreement.
34. S/23221, S/23226.
35. S/23308.
36. S/23306.
37. S/1999/726.
38. In 1991 the Libyan Police Syndicate had sent a cheque for £250,000 to the United Kingdom Police Dependants Trust, which the latter declined. Later, in November 1999, Libya, having expressed its regret at the killing of policewoman Fletcher, paid an undisclosed sum to her parents.
39. S/23918.
40. S/23226.
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43. S/23396.
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45. S/23574 and S/23672.
46. ICJ Rep. (1992) p. 3; ILM (1992) p. 662. Later, in Lockerbie (Libya v. United Kingdom) (Preliminary Objections), ICJ Rep. (1998) p. 9, the Court found that it had jurisdiction.
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50. S/1994/900.
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52. S/26500.
53. But not published.
54. S/26523 and S/26629.
55. S/1995/226.
56. S/1997/991.
57. S/1994/373, S/1995/834, S/1997/35, S/1997/273, S/1997/406, S/1997/497 and S/1997/529.
58. See S/1997/529, para. 6.
59. S/1998/795.
60. The text of the resolution, and of the letter, is annexed to the Netherlands/UK Agreement: see UKTS (1999) 43, at pp. 14 and 16. For the texts in Dutch, see Trb. 1999 No. 1, p. 19.
61. S/1999/378 (ILM (1999) p. 939).
62. See S/PRST/1999/10 confirming the suspension of sanctions as from 5 April 1999.
63. S/1999/726, para. 18. Under French law if a person convicted in absentia is later apprehended, a full trial must be held.
64. Res. 2625 (xxv); ILM (1970) p. 1392.
65. Cf., the Dutch Taliban of Afghanistan Sanction Orders of 2001, infra pp. 315–316.
66. See the judgment of the European Court of Justice in Centro-Com (case C-124/95).
67. Since any Council resolution needs to have 9 affirmative votes and no veto, if any 7 members vote against or abstain they can prevent adoption. Since there are 10 elected members and usually 5 or 6 are non-aligned, it is not difficult (at least arithmetically) to muster 7 abstentions or negative votes. In practice, this possibility is an important factor that has to be taken into account by all members.
69. EU legislation already allowed for humanitarian exceptions (Common Position 2001/931/ CFSP of 27.12.01 and Regulation 2580/2001 of the same date implementing SCR 1373). In the United Kingdom there has been one application for release of funds to pay private school fees. It was rejected. See also Resolution 1455 (2003).
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71. See Art. 2(1).
72. Although there have been one or two challenges to listings, no listing by the United Kingdom for the purpose of its implementing legislation has yet been challenged.
73. The late Szasz, Paul C. in ‘The Security Council Starts Legislating’ (96 AJIL (2002) pp. 901–905CrossRefGoogle Scholar) was also not concerned at this development. He pointed out that earlier resolutions, such as 1265 (1999), 1291 (1999), 1296 (2000), 1314 (2000) and 1325 (2000) dealt in general terms with matters such as the protection of women and children during armed conflicts, albeit only Resolution 1291 (2000) on the Democratic Republic of the Congo was made under Chapter VII.
74. The handful which are of some significance would include Resolution 242 (1967) and Resolution 688 (1991), on which the British, French (initially) and US governments relied to justify intervention in Northern Iraq for humanitarian purposes, and later to establish the two no-fly zones. Contrary to popular belief, the zones were never authorised or endorsed by the Council.
75. There is still no Chapter VII resolution on Palestine, though there may be sound political reasons for this continuing until there is a freely negotiated settlement.