Security Council Powers in Maintaining International Peace

Extract

[...] The other argument of the applicant was to demonstrate that the measures of article 41 of the Charter could only be applied by States, and did not allow the Security Council to establish a jurisdiction. This challenge to legitimacy is also dismissed by the Appellate Chamber (§35):Nothing in the article suggests that the measures are limited to those applied by States », repeating the same justification as before. Article 41 does not give a positive definition of non-military measures, but only prohibits the use of force, leaving a significant margin of maneuver to the Security Council. [...]

[...] Article 13 gives the Security Council the power to refer cases to the ICC, with the goal of limiting the proliferation of international criminal courts. Prior to the adoption of the Rome Statute, the Security Council had established two international criminal courts ad hoc, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). This was established in 1993 by Security Council resolution 827, acting under Chapter VII of the United Nations Charter. [...]

[...] Nevertheless, the judgment links this competence to the primary responsibility of the Security Council, without further questioning the delegation of judicial powers. Finally, if Tadic also contests the legality of the ICTY's creation in that it did not allow for 'promote international peace, as demonstrated by the current situation in the former Yugoslavia », the jurisdiction also dismisses this argumentation in its §39. In the same way as in its previous reasoning, the ICTY recalls the wide discretionary power that the Security Council has if it finds one of the three situations of Article 39. [...]

[...] Thus, when Iraq invaded Kuwait, the Council did not speak of aggression, although it was manifest. The Appeals Chamber of the ICTY holds thatit is easier to give a legal definition of the act of aggression, the threat to peace is more a political concept ». In fact, the act of aggression is defined by several treaties and conventions, as well as the Rome Statute of 1998 establishing the ICC. However, this is not the case for the threat to peace, which allows the Security Council to extend its jurisdiction and qualify situations, without having fixed and clearly defined criteria by the Charter. [...]

[...] The framework for the discretionary power of the Security Council in the adoption of measures provided for in the Charter: In this judgment, the Appeals Chamber of the ICTY recalls the articulation of the different measures that the Security Council can take in the context of its responsibility for maintaining international peace and security. Throughout its reasoning, the jurisdiction appears to affirm the discretionary power of the Security Council, while recalling that it is not absolute, as it is limited by the constitutional framework of the United Nations Charter:the Security Council plays a pivotal role and exercises a very wide discretionary power [ . ] but this does not mean that its powers are unlimited ». [...]