From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 30 May 2023
(p. 687) Chapter 18.2 Possible Conflicts of Jurisdiction with the Ad Hoc International Tribunals
With the creation of the ICC as a permanent international criminal court for any future offences under international criminal law, a conflict of jurisdictions between the ICTY and ICTR, on the one hand, and the ICC, on the other, might arise. According to Articles 11 and 24 of the ICC Statute, the new Court will have jurisdiction only over offences committed after the entry into force of the Statute. The question that presents itself therefore is, what the relationship between the ICC and the existing tribunals ICTY and ICTR will be, and to what extent a conflict of jurisdictions could arise with regard to new Ad Hoc Tribunals.
The ICC Statute contains no express provision for this scenario.1 One will therefore have to find a solution based on the jurisdictions of the tribunals and the ICC, as well as on international law in general.
If one looks at a synopsis of the provisions of the Statutes of the ICTR and the ICTY regarding their jurisdictions, the following picture emerges:
III. The Powers of the Security Council under UN Law and the Obligations of the UN Members
Given that there is no express provision for the issue in question, one is thrown back onto the legal framework of the United Nations in order to decide the above-mentioned questions. Here, it is necessary to remember that both the ICTY and the ICTR were established by the Security Council under Chapter VII of the UN Charter. The members of the UN are bound by Article 103 of the UN Charter to give precedence to their obligations under the Charter. The conclusion, therefore, must be that UN Member States must give precedence to decisions of the Security Council establishing Ad Hoc Tribunals, and cannot be relieved of this obligation by a treaty such as the one establishing the ICC, the Rome Statute, that has been merely ‘promoted’ by the General Assembly and to which the UN is not entitled to become a party. UN members in turn are bound by their obligations under the Charter whenever a conflict with other international treaties should arise.
IV. The Relationship between the ICTY and the ICC
The consequence is that the jurisdiction of the ICTY would prevail over that of the ICC, even when the offences were committed after the entry into force of the ICC Statute, because the ICTY was set up under the powers of the Security Council according to Chapter VII, and a disobedience to the ICTY’s jurisdiction Page Id: 688ReferencesCharter of the United Nations (done at San Francisco, United States, on 26 June 1945) (United Nations [UN]) 59 Stat 1031, TS 993, 3 Bevans 1153, 145 BSP 805Ch.VII Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of AggressionCh.XVI Miscellaneous Provisions, Art.103Statute of the International Criminal Tribunal for Rwanda (United Nations Security Council [UNSC]) UN Doc S/RES/955(1994), Annex, SCOR 49th Year 13Art.1 Competence of the International Tribunal for RwandaArt.7 Territorial and Temporal JurisdictionStatute of the International Criminal Tribunal for the former Yugoslavia (as amended) (United Nations Security Council [UNSC]) UN Doc S/RES/827(1993), UN Doc S/25704, Annex, SCOR 48th Year 29Art.1 Competence of the International TribunalArt.8 Territorial and temporal jurisdiction(p. 689) on account of the ICC’s establishment would mean an infringement of the obligations of the UN members.2 One might also wish to argue that the ICTY as a tribunal set up especially for the prosecution of crimes in the former Yugoslavia would take precedence over the ICC on the grounds of speciality.3
This approach to the problem has consequences for the question of the referral of cases by the Prosecutor or a State to the ICC. Even if any of the former Yugoslav States became a party to the ICC Treaty and wanted to refer a case to the ICC in order to avoid the ICTY for some reason, the ICTY could demand the ICC or its Prosecutor not to entertain the case any further, and take charge of the case under its own jurisdiction.
V. Enforcing the Jurisdiction: Problems in Practice
A. The Problem
There remains, however, the problem of how to resolve those potential disputes in future practice, where a State refers a case to the ICC or its Prosecutor does so, although it falls within the jurisdiction of the ICTY. The drafters of the ICC Statute may have considered this to be an academic question because of the temporal jurisdiction of the ICC. However, as was already said above, the open-ended temporal jurisdiction of the ICTY may be of importance for some time to come, given the potential for further conflict to arise in the former Yugoslavia.
Articles 17–19 of the ICC Statute contain a detailed description of the procedure to be followed with respect to matters of admissibility. However, those provisions refer only to the relationship between the ICC and the States or the accused as is stated in Article 19. The ICTY deferral rules under Rules 9 and 10 of the Rules of Evidence and Procedure and Article 9 of its Statute are also only applicable to national courts. Here, additionally, the remedy under Rule 11 is only a report to the Tribunal’s President who may inform the Security Council about the non-compliance.
B. A Possible Solution
The law of the ICC could be modified to make provision for the request of deferral from the ICTY. Given the fact that the jurisdiction of the ICTY as an instrument of Page Id: 689ReferencesInternational Criminal Tribunal for the former Yugoslavia Rules of Procedure and Evidence (International Criminal Tribunal for the Former Yugoslavia [ICTY]) UN Doc IT/32Part 2 Primacy of the Tribunal, r.9 Prosecutor's Request for DeferralPart 2 Primacy of the Tribunal, r.10 Formal Request for DeferralPart 2 Primacy of the Tribunal, r.11 Non-compliance with a Request for DeferralRome Statute of the International Criminal Court (International Criminal Court [ICC]) 2187 UNTS 3, UNTS Reg No I-38544, UN Doc A/CONF.183/9Part 2 Jurisdiction, Admissibility and Applicable Law, Art.17Part 2 Jurisdiction, Admissibility and Applicable Law, Art.19Statute of the International Criminal Tribunal for the former Yugoslavia (as amended) (United Nations Security Council [UNSC]) UN Doc S/RES/827(1993), UN Doc S/25704, Annex, SCOR 48th Year 29Art.9 Concurrent jurisdiction(p. 690) the Security Council always prevails over the jurisdiction of the ICC, there is no strict need to amend the ICC Statute, although it would certainly be the safer and more appropriate option. Yet it is quite obvious that such a proposal would entail lengthy debates and be impracticable. However, a Rule might be included into the ICC’s Rules of Procedure and Evidence to the effect that if the ICTY—or more generally an Ad Hoc Tribunal created under Chapter VII—requires the deferral of a case, then this request must be respected, regardless of the opinion of the ICC.4
VI. New Ad Hoc Tribunals or Referral under Article 13(b)?
In the light of what has been said above, the Security Council is not under law prevented5 by the ICC Statute or any other measure of, or initiative by, the General Assembly or treaties to which the UN are not a party, from creating new Ad Hoc Tribunals, both for States which may become parties to the new ICC Statute and for those who do not wish to accede to it.
However, the ICC Statute offers a simpler solution to this problem. Under Article 13(b) the Security Council may refer a situation to the ICC under Chapter VII of the UN Charter. Read together with Article 12(2) of the ICC Statute, this referral may be made regardless of whether the State in question is a signatory to the ICC Treaty. This provision could make the creation of new Ad Hoc Tribunals superfluous.6 It could also be used to refer cases which would until now fall under the jurisdiction of the ICTY, maybe after the Security Council has abolished the open-ended jurisdiction of the ICTY as from the date when the ICC becomes operational.7
- H. Ahlbrecht, Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert (1999).
- G. H. Oosthuizen, ‘Some Preliminary Remarks on the Relationship between the Envisaged International Criminal Court and the UN Security Council’, 46 NILR (1999) 313;
- M. C. Bassiouni (ed.), International Criminal Court: Compilation of United Nations Documents and Draft ICC Statute before the Diplomatic Conference, Rome (1998).(p. 692)
The views expressed herein are solely those of the author and do not represent the opinion of the ICTY or the UN.
1 The legislative history of the ICC Statute indicates that the parties to the Rome Treaty were of the opinion throughout the whole drafting process that the Ad Hoc Tribunals would take precedence with respect to the jurisdiction of the ICC. See the different drafts in M. C. Bassiouni (ed.), International Criminal Court: Compilation of United Nations Documents and Draft ICC Statute before the Diplomatic Conference, Rome (1998) at 501, 354 (355), 313 (314/315), 143 (162/174), 7 (28).
2 There are only very few States who are not UN members, so the theoretical question with respect to the duties of non-Member States can be neglected for practical purposes.
3 This argument is, however, only of secondary importance because of the primacy of the obligations arising under Art. 103 of the UN Charter. It would only become dispositive of the matter where the two tribunals had been set up on an equal level of binding obligations, e.g. through two treaties by the same State Parties. Whether the argument would hold in the case of different parties to both treaties appears doubtful.
4 The Rule could read as follows: ‘If a tribunal, created by the Security Council of the United Nations under Chapter VII of the UN Charter, which has temporal and territorial jurisdiction over a case pending before the Court or under investigation by the Prosecutor, requests the Court or the Prosecutor to desist from further proceedings, the Court or the Prosecutor, as the case may be, shall comply with that request without delay. The Court or the Prosecutor, before desisting from further proceedings, may perform such investigations or actions which are necessary to preserve evidence that would otherwise be lost, if not preserved immediately.’
5 If the political circumstances would allow this to happen and whether the General Assembly would grant the funding for such a tribunal, is, of course, an entirely different matter.
6 See also H. Ahlbrecht, Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert (1999) 389–390.
7 On the problems of Art. 13(b) and the relationship between the ICC and the Security Council in general, see G. H. Oosthuizen, ‘Some Preliminary Remarks on the Relationship between the Envisaged International Criminal Court and the UN Security Council’, 46 NILR(1999) 313–342.