Study On Referring A Situation By The SC In The Jurisdiction Of The ICC

Referring a situation by the United Nations Security Council (UNSC) is one ofthe triggering mechanisms of the International Criminal Court (ICC or the Court)jurisdiction in accordance with article13(b) of the Rome Statute. The issue of the ICCjurisdiction was the focus of discussion in entire negotiation process of the Statute, asone of its triggers, of course, Referral of a situation by the SC had caused widespreadcontroversy which referred to the relationship between the UNSC and the ICC.Actually, it is objectively beneficial to the Court to exercise its jurisdiction byempowering the SC to refer situations pursuant to the Statute.Namely, on one hand,the Security Council referrals enhance the role of the Court in the jurisdiction of theinternational crimes. On the other hand, it makes the Court can exercise jurisdictionover non-state parties to a certain extent.From the existing practice of Security Council referrals, it cannot be denied thatthere are some theoretical and practical problems on dealing with the relationshipbetween the SC and the ICC. What’s the legality of the exercise of jurisdiction overnon party state members and nationals on the basis of the ICC Statute under theUNSC resolution? How to resolve the conflict between referring a situation by the SCand “the principle of relative validity of treaty”? And, the permanent members of theSecurity Council can materially affect the ICC jurisdiction with respect to the SCreferral by exercising a veto. Besides, how to get the UN members to activelycooperate with the Court in the process of investigation and prosecution of specificcases after triggering the ICC jurisdiction by the SC referral is still a challenge to faceto not only in theory but also in practice.For the sake of the peace and security of international community and effectivepunishment of international crimes, the jurisdiction of the ICC should be exercisedunder strong guarantee. Especially under the circumstances of triggering the ICCjurisdiction by the SC referrals, and the UNSC is supposed to support actively theICC to give full play to its effect within various options of dealing with the crisis. To deal with the relationship between the Security Council and the InternationalCriminal Court means reducing restrictions on the ICC jurisdiction by the SC as wellas guaranteeing the independence of the Court. In addition, it should also bepromoted the member states of the United Nations to cooperate with the investigationand prosecution concerned to the ICC cases. The SC resolutions are binding andcompulsory to all members of the UN based on some Charter provisions where is theobligation source for them to coordinate the jurisdiction exercised by the Court.China is no state party of the Rome Statute, though, as one of the permanentmembers of the Security Council, it is inevitable that China has connection with theICC during the SC referring a situation to it. Our country has taken different attitudestowards different referrals of situations by the Security Council to date based onmultiaspect considerations. China should take a clear-cut attitude on issues of the ICCand the jurisdiction of international crimes as soon as possible in order to contributeto a standpoint of our country over dealing with those kinds of issues. And that’s whywe shall actively facilitate the Court to exercise its jurisdiction with respect to themost serious international crimes to reflect the determination and image of ourcountry in maintenance of international peace and security. Meanwhile, China shallbe well prepared in several aspects for joining the International Criminal Court at theright time, which including personnel reserve, theoretical research and legislationconcerned, etc.