The UN Security Council's involvement in the area of international criminal justice raises concerns about judicial independence. Of primary concern in this study is the degree to which this political organ has come to determine and restrict jurisdiction of international criminal tribunals, with the effect of excluding cases involving alleged grave crimes by actors whose presence in situations of which the Council is seized is supported by its permanent members. This control, it will be argued, undermines the basic conditions for a sound administration of justice, as it impedes these tribunals from selecting the cases that may come before them in accordance with respect for human rights and the rule of law. More specifically, restrictions imposed by political organs, leading to unjustified unequal treatment before the law and the courts of perpetrators and victims of grave crime in a given situation, are contrary to principles of equality and non-discrimination. A theory of international judicial independence should therefore extend to a consideration of the legality of such restrictions and acknowledge it as an essential requirement of independence.
1 Security Council, UN Doc. S/RES/827 (1993).
2 Security Council, UN Doc. S/RES/955 (1994).
3 Security Council, UN Doc. S/RES/1315 (2000). The court was established by Agreement between the UN and Sierra Leone, reproduced in the Security Council, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000).
4 UN Doc. S/RES/1272 (1999); UN Doc. S/RES/1410 (2002); and Regulation No. 2000/15: On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15 (2000).
5 Security Council, UN Doc. S/RES/1244 (1999) at para. 10; and Regulation 64/2000 of 15 December 2000, issued by UNMIK, establishing the panels in the courts of Kosovo, UN Doc. UNMIK/REG/2000/64.
6 Security Council, UN Doc. S/RES/1593 (2005) [hereafter ‘Darfur resolution’]. The ICC Prosecutor opened an investigation on 6 June 2005. See Doc. ICC-OTP-0606–104 (2005).
7 See Security Council, UN Doc. S/RES/1644 (2006). Also see Security Council, UN Doc. S/RES/1757 (2007), establishing the Special Tribunal for Lebanon. The Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon and the Statute of the Special Tribunal for Lebanon [hereafter ‘STL Statute’] are annexed to this resolution.
8 Security Council, UN Doc. S/RES/1970 (2011) [hereafter ‘Libya resolution’]. The ICC Prosecutor opened an investigation on 2 March 2011, and the situation in the Libyan Arab Jamahiriya was assigned to ICC Pre-trial Chamber I on 7 March 2011, Doc. ICC-CPI-20110307-PR634.
9 ICTY Statute, Arts. 1 and 6.
10 ICTR Statute, Art. 1.
11 See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000, recommending the ICTY OTP not to commence any investigation in relation to the bombing campaign or incidents occurring during the campaign, available at: <www.icty.org/sid/10052>. Also see P. Benvenuti, ‘The ICTY Prosecutor and the Review of the NATO Campaign against the Federal Republic of Yugoslavia’, (2001) 2 EJIL 503; and Ratner, S., ‘The International Criminal Court and the Limits of Global Judicialization’, (2003) 38 Texas Journal of International Law 445, at 446.
12 SCSL Statute, Art. 1.1.
13 Security Council, UN Doc. S/RES/1315 (2000), para. 3.
14 SCSL Statute, Arts. 1.2 and 1.3. Note that this rule was not included in the initial draft of the SCSL Statute. See Security Council, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915(2000).
15 STL Statute, Art 1.
16 Security Council, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, UN Doc. S/2006/893(2006), para. 17.
17 STL Statute, Art. 1.
18 Gowlland-Debbas, V., ‘The Relationship between the Security Council and the Projected International Criminal Court’, (1998) 3 Journal of Armed Conflict 97; Goldsmith, J., ‘The Self-Defeating International Criminal Court’, (2003) 70 Chicago Law Review 89, at 90; and Sadat, L. and Carden, S. R., ‘The New International Criminal Court: An Uneasy Revolution’, (2000) 88 Georgia Law Journal 381, at 415, pointing to the risk that the ICC would be institutionally weak.
19 For the controversial character of the provision, see the debates on the draft statute presented by the International Law Commission (ILC), ILC Report, UN Doc. A/49/10 (1994). Art. 23(3) of the ILC draft statute proposed to give the Council the full power to authorize any investigation or prosecution of the ICC in Chapter VII situations. The final formulation in Art. 16 assumes that the ICC has jurisdiction in such situations unless the Council decides otherwise. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, in Proceedings of the Preparatory Committee (March–April 1996), UN Doc. A/51/22 (1996).
20 C. Stahn, ‘The Ambiguities of UN Security Council 1244 (2002)’, (2003) 14 EJIL 85.
21 Security Council, UN Doc. S/RES/1487 (2003), para. 1, according to which: ‘… the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorised operation, shall for a 12-month period starting 1 July 2003 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise’.
22 A. Remiro Brotóns et al, Derecho Internacional: Curso General (2008), 812–13. Also see Abass, A., ‘The Competence of the Security Council to Terminate the Jurisdiction of the International Criminal Court’, (2005) 40 Texas Journal of International Law 263.
23 Security Council, UN Doc. S/RES/1497 (2003), para. 7, stipulating that ‘… current or former officials or personnel from a contributing State, which is not a party to the Rome Statute of the International Criminal Court, shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to the Multinational Force or United Nations stabilization force in Liberia, unless such exclusive jurisdiction has been expressly waived by that contributing State’.
24 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), Art. 13 [hereafter ‘Rome Statute’].
25 Darfur resolution, supra note 6, para. 1.
26 Libya resolution, supra note 8, preamble.
27 Darfur resolution, supra note 6, para. 6.
28 Libya resolution, supra note 8, para. 5, according to which the Security Council ‘[d]ecides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorised by the Council, unless such exclusive jurisdiction has been expressly waited by the State’.
29 Ratner, supra note 11, at 450. Also see Schabas, W., ‘International Criminal War Crimes Tribunals and the United States’, (2011) 35 Diplomatic History 769, at 786, stressing that the US would prefer that the ICC had an even more clearly established loyalty than now. For a forceful argument about the Rome Statute's lack of sufficient protection of the interests of the Security Council, see R. Wedgwood, ‘The International Criminal Court: An American View’, (1999) 10 EJIL 93.
30 C. Ryngaert, Jurisdiction in International Law (2008), at 234.
31 See Ley Orgánica 1/2014, de 13 de marzo, de modificación de la Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial, relativa a la justicia universal, Boletín Oficial del Estado, No. 63, 14 March 2014.
32 The Burgh House Principles were adopted in 2004 by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, in association with the Project on International Courts and Tribunals, available at: <http://www.ucl.ac.uk/laws/cict/docs/burgh_final_21204.pdf≥.
33 Mackenzie, R. and Sands, P., ‘International Courts and Tribunals and the Independence of the International Judge’, (2003) 44 Harvard International Law Journal 271, at 283–4.
34 Ferejohn, J., ‘Independent Judges, Dependent Judiciary: Explaining Judicial Independence’, (1998–99) 72 Southern California Law Review 353.
35 For an overview of these provisions, see, e.g., Brown, C., ‘The Evolution and Application of Rules Concerning Independence of the “International Judiciary”’, (2003) 2 Law & Practice of International Courts and Tribunals 63.
36 ICTY Statute, Arts. 12.1 and 16.2; ICTR Statute, Arts. 11.1 and 15.2; SCSL Statute, Arts. 13.1 and 15; STL Statute, Arts. 9 and 11.2; Rome Statute, Arts. 40.1 and 42. See also ICTY and ICTR Prosecutor's Regulation no. (1999) on Standards of Professional Conduct.
37 SCSL Statute, Art. 13.1; and STL Statute, Art. 9.
38 Prosecutor v. Duško Tadić a/k/a “DULE”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, A.Ch., 2 October 1995 [hereafter ‘Tadić decision’], para. 42. The appellate decision in the Tadić case was the outcome of an interlocutory appeal from a judgment handed down by Trial Chamber II. See Prosecutor v Tadić, Decision on Jurisdiction, Case No IT-94–1-T, T.Ch.II, 10 August 1995.
39 See Le Compte, Van Leuven and De Meyere v. Belgium, Merits, Decision of 23 June 1981,  ECHR (Ser. A.), para. 55; Benthem v. Netherlands, Merits and Just Satisfaction, Decision of 23 October 1985,  ECHR (Ser. A.), para. 43; and Belilos v. Switzerland, Merits and Just Satisfaction, Decision of 29 April 1988,  ECHR (Ser. A.), para. 64. With respect to the UNHRC, see, for example, General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14), UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (1984), para. 3.
40 Zand v. Austria, European Commission on Human Rights (1978) DR 8, 167, paras. 69 and 74. The passage has been referred to in the Tadić decision, supra note 38, para. 43.
41 Tadić decision, supra note 38, para 43.
42 Ibid., para 41.
43 Ibid., para. 42.
45 Prosecutor v. Kanyabashi, Decision on the Defence Motion on Jurisdiction, Case No. ICTR-96-15-T, T.Ch., 18 June 1997 [hereafter ‘Kanyabashi decision’], para. 39.
46 Tadić decision, supra note 38, para. 18.
47 Ibid., para. 15.
48 Kanyabashi Decision, supra note 45, paras. 37–38.
49 Tadić Decision, supra note 38, para. 18.
50 SCSL: Prosecutor v. Morris Kallon et al., Case No. SCSL-2004-15-AR72 (E); Case No. SCSL-2004-14-AR72(E); and Case SCSL-2004-15-AR72(E), 13 March 2004, paras. 33–34, 76 [hereafter ‘Kallon Decision’].
51 See, e.g., ICTY: Prosecutor v. Tolimir, Decision on Zdravko Tolimir's Appeal Against the Decision on Submissions of the Accused Concerning Legality of Arrest, Case No. IT-05–88/2-AR72.2, A.Ch., 12 March 2009, paras. 11–12; and ICTR: Nzirorera v. The Prosecutor, Decision Pursuant to Rule 72(E) of the Rules of Procedure and Evidence on Validity of Appeal of Joseph Nzirorera Regarding Chapter VII of the Charter of the United Nations, Case No. ICTR-98-44-AR72, A.Ch., 10 June 2004, paras. 9–10.
52 STL: Prosecutor v. Jamil Ayyash et al., Decision on the Defence Appeals against the Trial Chamber's ‘Decision on the Defence Challenges to the Jurisdiction and the Legality of the Tribunal’, Case No. STL-11-01, A.Ch, 24 October 2012 [hereafter ‘Ayyash decision’].
53 STL: Prosecutor v. Ayyash et al., Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, Case No. STL-II-O1/PT/TC, 27 July 2012, para. 55.
54 ICTY: Prosecutor v. Tadić a/k/a DULE, Decision on the Defence Motion on Jurisdiction, Case No. IT-94-I-T, 10 August 1995, para. 5 (holding that the ICTY was ‘not a constitutional court set up to scrutinise the actions of organs of the United Nations’ and did not have the authority to ‘investigate the legality of its creation by the Security Council’).
55 Ayyash decision, supra note 52, para. 41.
56 Kanyabashi decision, supra note 45, para. 26. Also see ICTR: Prosecutor v. Karemera, Decision on the Defence Motion, Pursuant to Rule 72 of Rules of Procedure and Evidence, Pertaining to, Inter Alia, Lack of Jurisdiction and Defects in the Form of the Indictment, Case No. ICTR-98-44-T, T.Ch.II, 25 April 2001, para. 25, in which the ICTR Trial Chamber affirmed that ‘it does not have the authority to review or assess the legality of Security Council decisions and, in particular, that of Security Council Resolution 955’ and emphasized that ‘Article 39 of the Charter of the United Nations gives a discretionary power to the Security Council in assessing the existence of a threat to the peace’.
57 Posner, E. and Yoo, J., ‘Judicial Independence in International Tribunals’, (2005) 93 California Law Review 1.
58 Helfer, L. R. and Slaughter, A.-M., ‘Why States Create International Tribunals: A Response to Professors Posner and Yoo’, (2005) 93 (3)California Law Review 889.
59 Ibid., 946ff.
60 Ibid., 942.
61 Ginsburg, T., ‘Bounded Discretion in International Judicial Lawmaking’, (2005) 45 (3)Virginia Journal of International Law 631.
62 Steinberg, R. H., ‘Judicial Lawmaking at the WTO: Discursive, Constitutional and Political Constraints’, (2004) 98(2) AJIL 247,
63 Shany, Y., ‘Judicial Independence as an Indicator of International Court Effectiveness: A Goal Based Approach’, in Shetreet, S. and Forsyth, C. (eds.), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (2012), 251 at 252. Also see Y. Shany, Assessing the Effectiveness of International Courts (2014), 97ff, esp. at 105–14.
64 See also Shany, Y., ‘Assessing the Effectiveness of International Courts: A Goal-based Approach’, (2012) 126 AJIL 225, at 267.
65 Ibid., 115.
66 For a consideration of how international human rights treaties have shaped the notion of judicial independence in both domestic and international law, see Shetreet, S., ‘The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges’, (2009–10) 10 Chicago Journal of International Law 275.
67 (Emphasis added).
68 UNHRC, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), at para. 18.
69 UNHRC, General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14), UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (1984), para. 3 (emphasis added).
70 UNHRC, General Comment No. 32, supra note 68, para. 19.
71 J. Ferejohn, supra note 34, 360–1. Renewed attention has been given to this phenomenon in the context of the ‘war on terror’. See, e.g., J. Cooper Alexander, ‘Jurisdiction Stripping in the War on Terrorism’, (2005–6) 2 Stanford Journal of Civil Rights and Civil Liberties 259.
72 J. Ferejohn, ibid.
73 Ibid., 353.
74 Measuring the Effectiveness of the Support Provided by the United Nations System for the Promotion of the Rule of Law in Conflict and Post-conflict Situations: Report of the Secretary-General, UN Doc. S/2013/341 (2013), para. 6.
75 UNHRC, General Comment No. 13, supra note 69, paras. 1 and 2.
76 Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, as amended at Manila, 28 August 1997, para. 4.
77 Bangalore Principles on Judicial Conduct, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25–26 November 2002, preamble and principle I.
78 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, UN Doc. A/RES/671 (2012), para. 13.
79 Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, 17 September 2003, Inter-Am. Ct. H.R. Ser. A No. 18 (2003), para. 91.
80 See, e.g., Marckx v. Belgium, Merits and Just Satisfaction, Decision of 13 June 1979,  ECHR (Ser. A.), para. 33: and Jacobs v. Belgium, Merits, UNHRC, Communication No. 943/2000, UN Doc. CCPR/C/81/D/943/2000, 17 August 2004.
81 See, e.g., Jain, N., ‘A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court’, (2005) 14 EJIL 239.
82 See Independence of Judges and Lawyers: Note by the Secretary-General, UN Doc. A/63/271 (2008), paras. 17–19.
83 Zacklin, R., ‘The Failings of Ad Hoc International Tribunals’, (2004) 2 Journal of International Criminal Justice 541.
84 A. Seibert-Fohr, Prosecuting Serious Human Rights Violations (2009).
85 Mahoney, P., ‘The International Judiciary – Independence and Accountability’, (2008) 7 Law & Practice of International Courts and Tribunals 313, at 318.
86 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, UN Doc. A/67/L.1 (2012), paras. 2 and 13.
87 Ibid., para. 6.
88 See, e.g., Nouwen, S., ‘Legal Equality on Trial: Sovereigns and Individuals before the International Criminal Court’, (2012) 43 Netherlands Yearbook of International Law 151.
89 See, e.g., Staton, J. K. and Moore, W. H., ‘Judicial Power in Domestic and International Politics’, (2011) 56 International Organization 553.
90 Bohlander, M., ‘Separation of Powers and the International Judiciary’, in Shetreet, S. and Forsyth, C. (eds.), The Culture of Judicial Foundations. Conceptual Foundations and Practical Challenges (2012), 269 at 274–5.
91 UN Charter, Arts. 24(2) and 1.
92 Tadić decision, supra note 38, para. 42.
93 Ibid., para. 45.
94 That the Security Council has legislative authority has been acknowledged in international judicial decisions, among them, STL: Ayyash Decision, supra note 52, para. 32; ICTY: Prosecutor v. Krajišnik, Decision on Krajišnik's Appeal against the Trial Chamber's Decision Dismissing the Defence Motion for a Ruling that Judge Canivell is Unable to Continue Sitting in this Case, Case No. IT-00-39-AR73.2, 15 September 2006, para. 15. Also see P. Szasz, ‘The Security Council Starts Legislating’, (2002) 96 AJIL 901; and S. Talmon, ‘The Security Council as a World Legislature’, (2005) 99 AJIL 175.
95 See, e.g., Odello, M., ‘Tackling Criminal Acts in Peacekeeping Operations: The Accountability of Peacekeepers’, (2010) 15 Journal on Conflict & Security Law 347; Rawski, F., ‘To Waive or not to Waive: Immunity and Accountability in UN Peacekeeping Operations’, (2002) 18 Connecticut Journal of International Law 1. For the relevance of the SOFA agreements: A. Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU's Evolving Practice’, (2008) 19 EJIL 67; and R. C. Mason, Status of Forces Agreement (SOFA): What Is It and How Has It Been Utilized? US Congressional Research Service, 15 March 2012, available at: <http://www.fas.org/sgp/crs/natsec/RL34531.pdf >.
96 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, Judgment of 14 February 2002,  ICJ Rep. 3.
97 For current efforts to improve the situation, see, e.g., A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations, UN Doc. A/59/710 (2005); and Special Measures for Protection from Sexual Exploitation and Sexual Abuse: Report of the UN Secretary-General. UN Doc. A/66/699 (2012).
98 See, e.g., Amnesty International Report. Libya: The Forgotten Victims of NATO Airstrikes (March 2012).
99 Voting took place on 22 May 2014. While it was backed by 13 members of the Council, Russia and China vetoed the Security Council Resolution that would have referred the Syrian situation to the ICC.
100 Arsanjani, M. H. and Reisman, W. M., ‘The Law-in-Action of the International Criminal Court’, (2005) 99 AJIL 385.
101 C. Del Ponte and C. Sudetić, Madame Prosecutor: Confrontations with Humanity's Worst Criminals and the Culture of Impunity (2009), 60.
102 J. Rawls, A Theory of Justice (1971), 115. For a critical reflection, see Waldron, J., ‘Special Ties and Natural Duties’, (1993) 22 Philosophy and Public Affairs 3, at 5.
103 Also see J. Rawls, A Theory of Justice (1999), 218.
104 Gowlland-Debbas, V., ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’, (1994) 88 AJIL 643. Also see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971,  ICJ Rep. 16; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Areal Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment of 27 February 1998,  ICJ Rep. 115; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo), Advisory Opinion of 22 July 2010,  ICJ Rep. 403.
105 Peters, A., ‘Are We Moving Towards the Constitutionalization of the World Community?’ in Cassese, A. (ed.), Realizing Utopia. The Future of International Law (2012), 135.
* Senior Researcher, Public International Law, Law Faculty, Autónoma University in Madrid [firstname.lastname@example.org]. The author wishes to thank the anonymous reviewers for helpful suggestions and, above all, the editor, Sergey Vasiliev, for his valuable comments. Remaining errors are the responsibility of the author.
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