The Relationship Between the International Criminal Court, The United Nations Security Council and International Climinal Justice

ABSTRACT The research assessed the relationship between the International Criminal Court (ICC) and the United Nations Security Council (UNSC). Although the establishment of the International Criminal Court was welcomed, and many people thought it to be a measure to avoid the accusations of double standards, or “victor’s justice,” which marked some previous international criminal tribunals, the research question was, whether the relationship between the ICC and the UNSC does not unnecessarily cause judicial interference and as a result lead to injustice. However, upon analyzing the powers of the United Nations security council under the UN Charter of maintaining international peace and security, which power under chapter vii allows the council to take any measure to prevent a threat to security, it is under the same mandate that the Rome statute of the ICC allows the UNSC to refer cases to the international criminal court. Thus the findings of the research disclose that this relationship does not in any way lead to injustice, since this was clearly stated by The International Court of Justice (IC]) in the Lockerbie ca~ where the court tangentially considered this issue1. In its decision on provisional measures, the court accepted that by virtue of article 103 of the UN Charter obligations under the charter (including decisions of the Security Council imposing sanctions) prevailed over obligations contained in other international agreements, there are thoughts that, Article 16 was intended to be applied on a case-by-case basis to specific situations, where ICC proceedings could interfere with efforts to restore or maintain international peace and security. Therefore, this research discloses that, the relationship although necessary, and is intended to serve international criminal justice, there are many concerns over the veto powers of the permanent members and thus the researcher suggests that, if justice is to be seen as done, the structure of membership of the UNSC should be reviewed such that all people are equal before the law as one of the principle of legality.

TABLE OF CONTENTS

DECLARATION A II

DECLARATION B III

APPROVAL SHEET IV

DEDICATION V

ACKNOWLEDGEMENT VI

ABSTRACT VII

TABLE OF CONTENTS VIII

LIST OF TABLES X

LIST OF INTERNATIONAL LEGAL INSTRUMENTS XI

LIST OF CASES XII

ACRONYMS XIII

CHAPTER ONE 1

1.0 THE PROBLEM AND ITS SCOPE 1

1.1 BACKGRouND OFThE STUDY

1

1.2 STATEMENT OF THE PROBLEM

5

1.3 PURPOSE OF THE STUDY

9

1.4 RESEARCH OBJECTIVES

9

1.5. RESEARCH QUESTIONs 9

1.6. HYPOTHESIS 10

1.7. SCOPE 10

1.8. SIGNIFICANCE OFTHE STUDY 11

1.9. OPERATIONAL DEFINmONS OF KEY TERMS 11

1.9.1 THE INTERNATIONAL CRIMINAL COURT (ICC) 11

1.9.2. THE UNITED NATIONS SECURITY COUNCIL (UNSC) 12

1.9.3. THE RELATIONSHIP BETWEEN THE ICC AND UNSC 12

1.9.4. THE CRIMINAL JUSTICE SYSTEM 12

1.9.5. PERMANENT FIVE MEMBERS OF THE UNSC PS- 13

1.9.6. AN INTERNATIONAL CRIME 14

CRIMEISAN; 14

COURTS 14

CHAPTER TWO 16

2.0 REVIEW OF RELATED LITERATURE 16

2.1 INTRODUCTION 16

2.2 CONCEPTS, IDEAS, OPINIONS FROM AUTHORS/EXPERTS 16

2.2. A. IMPLICATIONS 16

vii

2.2. B. RE~~oNsHIP~ .17

THIS IS A STATE OF AFFAIR EXISTING BETWEEN THOSE HAVING RELATIONS OR DEALINGS 17

2.2. C. CRIMINAL JUSTICE SYSTEM 17

2.2.1. CRIMINAL JUSTICE AND THE ICC 20

2.2.1. A. THE RESPONSIBILITY TO PROTECT 21

2.2.2. THE UNSC AND THE ICC 23

2.2.3. THE RELATIONSHIP BETWEEN THE UNSC AND THE ICC 26

2.2.4. RELATED STUDIES 29

CHAPTERTHREE 32

3.0 METHODOLOGY 32

3.1 RESEARCH DESIGN 32

3.2 RESEARCH POPULATION 32

3.3. SAMPLE SIZE 33

TABLE 1 34

3.4 SAMPLING PROCEDURE 34

3.5 RESEARCH INSTRUMENT 34

3.6 VALIDITY AND RELIABILm’ OF THE INSTRUMENT 35

3.7 DATA GATHERING PROCEDURES 35

3.8. DATA ANALYSIS 35

3.9 ETHICAL CoNSIDERATIoNS 36

3.10 LIMrrATI0NS OF THE STUDY 36

CHAPTER FOUR 37

4,0 PRESENTATION, ANALYSIS AND INTERPRETATION OF DATA 37

TABLE 2 38

4.1. THE SIGNIFICANCE OF THE RELATIONSHIP BETWEEN THE ICC AND THE UNSC 43

4.2. JUSTIFICATION OF THE RELATIONSHIP BETWEEN ICC AND THE UNSC 46

4.3. THE UNSC, THE ICC AND INTERNATIONAL CRIMINAL JUSTICE 50

4.4. THE MARRIAGE BETWEEN THE ICC AND THE UNSC AND STATE SOVEREIGNTY 55

4.5. DETERMINE THE GAPS IN THE ICC JURISDICTION AND THE ROLE OF THE UNSC IN

RELATION TO ICC 61

4.6. WHETHER THE RELATIONSHIP BET’NEEN THE UNSC AND THE ICC IS IN THE INTEREST OF

JUSTICE2 66

CHAPTER FIVE 71

FINDINGS, CONCLUSIONS, RECOMMENDATIONS 71

5.0 INTRODUCTION 71

5.1. FINDINGS 71

5.2. CONCLUSIONS 76

5.3. RECOMMENDATIONS 83

BIBLIOGRAPHY 88