Conflicts of norms in situations referred to the International Criminal Court by the United Nations Security Council
Title: Conflicts of norms in situations referred to the International Criminal Court by the United Nations Security Council
Author: GALAND, Alexandre Skander
Citation: Florence : European University Institute, 2015
Series/Number: EUI PhD theses; Department of Law
In 1998, the Rome Statute (Statute) of the International Criminal Court (ICC) was adopted with the aim of putting an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole. This thesis assesses conflicts of norms in situations where the ICC exercises jurisdiction without the consent of the State where the crimes have been committed and from where the accused is a national. According to Article 13 (b) of the Statute, if the Security Council (SC) refers a situation under Chapter VII of the UN Charter, the ICC is entitled to exercise jurisdiction over the territory and nationals of a State neither party to the Statute nor consenting to its jurisdiction. This thesis uses the concept-conception distinction to demonstrate that there are different conceptions of the concept of a referral under Article 13 (b) to the ICC. The thesis demonstrates that a referral under article 13 (b) results in the exercise of prescriptive and adjudicative criminal jurisdictions over a situation without being based on the nationality and territoriality principles. The two conceptions that are proposed of this concept are: (1) universal jurisdiction arising from the nature of the crimes; and, (2) jurisdiction based on the powers of the SC under Chapter VII of the UN Charter. The thesis confronts these two conceptions with legal barriers to the ICC's exercise of jurisdiction over nationals and territories of States neither party to the Statute nor consenting to its jurisdiction. The legal barriers examined are the sovereignty of States, the principle of legality and the immunity of State officials. Each conception of the origin of the ICC's jurisdiction over a situation necessarily entails an entirely different relationship with these legal barriers. These relationships are analysed in a comparative conflicts of norms approach. From this comparative analysis the thesis shows which conception seems to interact in the most coherent manner with the sovereignty of States, the principle of legality and the immunity of State officials. On the one hand, the thesis concludes that the universal jurisdiction conception does not cohere with international law as it currently stands. On the other hand, while the Chapter VII powers of the SC are found necessary for the Court to exercise jurisdiction over the territory and nationals of a State not consenting to its jurisdiction, they imply that the Court, when triggered under Article 13 (b), needs to adjust its exercise of jurisdiction to UN law. The thesis however argues that such adjustment does not mean that the ICC is subordinated to the SC.
LC Subject Heading: International criminal law
Defence date: 1 October 2015; Examining Board: Professor Martin Scheinin (supervisor), EUI; Professor Nehal Bhuta, EUI; Judge Christine Baroness van den Wyngaert, International Criminal Court; Professor Erika de Wet, University of Pretoria.
Type of Access: embargoedAccess
Published version: http://hdl.handle.net/1814/60069