In his lectures at the Faculty of Law at Cairo University in 1959-1960, Dr. Muhammad Najeeb Hosni reviewed the steps that leads to the birth of what we call international criminal law, starting from the end of World War II (Al Nahda Al Arabiya Print House- “Lessons in International Criminal Law”). [1]Dr. Najeeb focused on the first and second articles of the United Nations Charter which indicates that the primary mission to this body is to maintain peace and security, in addition to refrain from threatening to use force against the territorial integrity or political independence of any state. He recalls that the Security Council is the body in charge to supervise this, according to Article 43 of the Charter.

On December 11, 1946, the General Assembly adopted the principles of international law of the Nuremberg Tribunal that contained the definition of the criminal character (crimes against peace, war crimes, and crimes against humanity). The Genocide Convention was issued on December 9, 1948, but we had to wait until November 28, 1953 to introduce the crime of aggression as the most serious crime against international peace and security. In 1950, the International Law Commission was responsible for formulating the based principles of the newly born international criminal law and defined its era as follows:

– International responsibility of individuals

– The supremacy of international law over national law

– The lapse of immunity in international crimes

– The supremacy of law over the orders of the national authority and its president

– The right to a fair trial

– Defining international crimes

– The responsibility of the accomplice in international crimes.

As Albert Einstein noted early, the World War II victorious powers deliberately avoided considering war as a crime, and avoided giving the Nuremberg Tribunal the minimum attributes of an independent international criminal court. As a basic condition of its structure and function, the Nuremberg Tribunal enjoyed all the attributes that deprive it of independence: it is a court of exceptional conduct, military in uniform, selective in purpose, and an exclusive affiliation with the victorious powers of the war.

Here, we can say that considering Nuremberg as the starting point for establishing what we call “international criminal justice” was a rooting of an original sin. Because that gave birth to; and has developed, this concept in the waist of the strongest one, not in the womb of the normal historical process of giving birth to international justice that enjoys judicial independence from the supreme executive authority represented by the Security Council, and the “legislative” authority composed of all members of the United Nations General Assembly.

According to Articles 39-43 of the United Nations Charter, the Security Council has alone the power to determine “the existence of any threat to the peace, breach of the peace, or act of aggression” (Article 39). To “call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable” (Article 40), to decide “what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” (Article 41), and to decide that “measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations” (Article 42). The United Nations’ other Members States shall undertake, in order to contribute to the maintenance of international peace and security, to make available to the Security Council, upon its request and in accordance with a special agreement or agreements, such armed forces, assistance and facilities as may be necessary for the purpose of maintaining international peace and security” (Article 43).

In medical language, this puzzle may translated as The Security Council is the one that diagnoses the sickness, and then decides the treatment stages, and then, through its deliberations, demands that everyone must do his duty to implement the treatment plan it has decided upon. In the final analysis, the role of the International Court of Justice does not go beyond presenting and expressing its own diagnosis, without any powers that would allow it to intervene in what is called “achieving of justice” or accountability. Therefore, it is not a judicial authority by any contemporary definition of the word, because the final decision remains in the hands of the Security Council.

Worth to mention that when we say the Security Council, we are not talking about the elected non-permanent member states, but about five members (Big Five), each of whom enjoys a supreme authority called the “veto” authority. This authority stops any draft resolution that contradicts its policies and its interpretation of any armed conflict or internal, regional or international dispute.

International Legitimacy” and the Security Council!

In his book “In Foxes and Chickens”, James A. Paul notes, “The P5 have always sought to keep the Council outside any system of law and beyond any limitation that might tie their hands or pre-determine their action. The United States government, which frequently makes reference to the “rule of law” and the importance of respect for international law, has been especially firm in insisting that the Council sets law but is not bound by law. John Foster Dulles, an influential US lawyer and statesmen, wrote in 1950 that “The Security Council is not a body that merely enforces agreed law. It is a law unto itself.”[2] Dulles went on to say, “No principles of law are laid down to guide it; it can decide in accordance with what it thinks is expedient.”[3] Dulles served shortly after as US Secretary of State”[4].

Council practice bears out Dulles’ judgment, though superficially it might seem otherwise. The Council constantly speaks with the voice of law. It regularly makes law, interprets law, and enforces law.[5] Council debates and resolutions occasionally refer to international legal norms, the importance of international law, and the need for respect for international law. The Council also has periodic debates on the “rule of law.” Beginning in 2003, there have been seven such general debates that have been organized by interested delegations.[6]

The Council’s practice proves Dulles’s view, although it may appear otherwise. José Alvarez once said, “The Council is constantly speaking with the voice of the law. It regularly makes the law, interprets the law, and applies the law”. The Council’s discussions and decisions often refer to the rules of international law, the importance of international law, and the need to respect international law. The Council also holds regular discussions on the “rule of law.” In the 1990s, the Council created a number of international legal institutions such as specialized criminal courts, ad hoc institutions in place and subject matter for international criminal justice, targeting specific conflicts such as the former Yugoslavia, Rwanda, Sierra Leone, etc.

Partially, these courts have served as an exceptional opportunity to liberate international criminal law from Security Council’s control, especially the Special Criminal Court for the former Yugoslavia that raised the idea of establishing an international criminal court, in addition to the need to globalize international criminal justice and enhance the role of universal criminal jurisdiction in national and regional judiciaries. The Rome meeting in 1998 constituted a serious starting point for the birth of an international criminal court.

During this major conference, which brought together the most important criminal legal experts, a chance of hope appeared for the birth of an independent criminal judicial body, outside the guardianship of the Security Council. As part of International Coalition to Establish the International Criminal Court, we still remember those last dark days that once again confronted the world with the fundamental questions in the emergence of an international criminal court that constitutes a new focal point for international criminal justice:

In the closing days of Rome Diplomatic Conference of 1998, the drafters of the Charter recognized the possibility of the UN Security Council intervening both positively and negatively in the exercise of the Court’s jurisdiction. Essentially, the Security Council was awarded the power of discretion:

(1) To refer cases to the Prosecutor of the International Criminal Court for investigation.

(2) To request the Court not to initiate or proceed with investigations or prosecutions for a renewable period of twelve months.

This is the way in which the drawn relationship have been constructed between the UN Security Council and the ICC, and which in its turn has raised strong concerns among many States Parties to the ICC, and remains a matter of concern for the need for institutional reform of this relationship.

The refusal of three Security Council members (USA, Russia and China) to join the ICC did not prevent the Security Council from playing a major role in the Court’s policies through its “right” to open major cases and to suspend others. When the ICC began its work in 2002, the United States asked the Council to grant blanket immunity from referral to peacekeepers from states that were not parties to the Court, complaining that the new court would subject American citizens to “politically motivated” international justice. Washington threatened to veto all UN peacekeeping missions if the Security Council did not vote to protect them from possible prosecution. The Security Council accepted this blackmail and adopted a resolution in July 2002 granting blanket immunity for twelve months (Resolution 1422/2002). Many Council members were offended by the American threat, but the resolution was passed unanimously.

Again, the United States used its threat of using veto power and successfully renewed the immunity arrangement a year later. However, scandals over the American administration’s torture of detainees in Iraq, Guantanamo Bay, and Afghanistan, in addition to the secret U.S. rendition of prisoners, and other U.S. violations of international justice standards all combined weakened Washington’s position. Therefore, the United States backed down, abandoning the arrangement altogether in 2007.

Two events have played an important role in bringing international human rights conventions into the subject of prosecution and accountability. The first one is the activation of universal criminal jurisdiction, and the second one is the prosecution of US Secretary of Defense Donald Rumsfeld in two European countries on charges of authorizing torture. However, the International Criminal Court remained weaker than the Rome Statute, and did not dare to engage in any battle, directly or indirectly, with the Security Council. Until the first confrontation occurred in accepting the membership of the State of Palestine after six years of resistance, and the second in opening the file of war crimes in Afghanistan, which was the reason for the open confrontation between the former US President and the International Criminal Court.

In June 2020, Donald Trump issued an executive order allowing the United States to seize the assets of ICC staff because what he called the “Kangaroo Court” [a mock court in which the principles of law and justice are disregarded or perverted] , and ban them and their immediate families from entering the country. In September 2020, US Secretary of State Mike Pompeo said sanctions would be imposed on then-prosecutor Fatou Bensouda and another senior ICC official, Phakiso Mochochoko, under the order, adding that those who “financially support these individuals are also subject to sanctions.”

Message received, the ICC ceiling was set, and it became necessary for the “Prosecutor General” to know the ceiling allowed for him. Britain mobilized to choose a new Prosecutor General for the ICC who knows very well the red lines in his job! However, he also knows that this judicial body is important and necessary in a phase of declining globalization and the birth of a multipolar world, of which the Russian-Ukrainian war was the first sharp expression.

In summary, there has been no reform or change in the Security Council role as the ultimate decision-maker in determining the paths of “achieving justice” at the international level. For all the talk of law, the language of the Council’s decisions follows the patterns of formal legislation. All its decisions contain lengthy preambles filled with reasons for action and references to previous Council action on the same subject, to give the superficial appearance of a court decision. In fact, there are virtually no references to precedents in international law or custom, or even to precedents in the Council’s action outside the specific case and subject of the dispute. The Council’s masters do not recognize precedent, let alone any external legal authority. The Security Council has never found it necessary to specify a precise “legal basis” for its decisions, opting instead for a “broader approach to its legal powers.” The Security Council does not act as if it bound by law—even by its own made law. The Big Five do their utmost to avoid legal constraints on their actions, and have almost succeeded in doing so. In this way, the Council undermines the system of customary international law and the precepts of the Rome Statute, and creates a state of distrust among nations and the public about the law.

The Subordination of the International Court of Justice to the Security Council Oligarchy

The Security Council, as the only decision-maker that allowed to diagnosis criminal cause, needs to take into account the minimum opinions and advice of the International Court of Justice, the main judicial organ of the United Nations. This court is authorized to adjudicate international disputes submitted to it by states, and its jurisdiction overlaps significantly with that of the Security Council. In fact, the Charter suggests that the parties to the disputes should consider resolving them by legal means, and it also suggests that appropriate cases should be referred by the parties to the court, before resorting to the Council (Article 33).

The UN Charter also proposes that the Security Council encourage parties to take their disputes to the Court (Article 36). Finally, the Charter provides that the Security Council may request an advisory opinion from the Court on legal questions arising in the Council’s work (Article 96). Ideally, then, the two institutions should work together as peers, complementing and reinforcing each other. In reality, however, the relationship is quite different. The Council, led by the five permanent members, has been so jealous of its powers that it has belittled the Court’s importance, and has always maintained the Council’s primacy in shaping international law. The Council has refused to give the Court a role as a partner in peacemaking, and has sought to pressure and influence it in a variety of ways. Worth to mention that the difficult relationship has been exacerbated by the policy of the five permanent members which aimed to make the Court’s budget far below of its really needs.

The Security Council, in summary, presents us with a disturbing array of international law-abrogation, law-avoidance, and law-breaking. The Council cannot function at all unless it convinces the world that it is acting largely within the law and legal consistency. Yet in practice, under the P5 rule, it denies the coherent legitimacy process that is essential to inclusive, legitimate governance. With today’s vast scope of activity and its broad claims to authority, the Security Council appears increasingly anomalous and arbitrary as a “law in itself.” That is, the fundamental stumbling block to the progress of international criminal justice, the survival of the law of “might” over the power of “law.”

An End of an era!

The national liberation wars against Western colonialism have recorded the greatest breakthrough in the global system through resolutions issued by the General Assembly that considered the right to self-determination an inalienable right for all peoples of the earth. The Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights came to establish this right in their common first article:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

After those two international covenants came into force, has the International Bill of Human Rights become an integral part of international criminal law in the process of transitioning from a non-binding moral declaration (the Universal Declaration of Human Rights) to binding documents for all who have ratified it? Has it really become possible to confront the arrogance of power with the power of justice, especially since the 1980s witnessed the birth of the first international convention against torture, which recognizes the duty of all signatory states to prosecute and hold accountable those who commit serious violations that affect the integrity of the soul and body?

Here arises the bitterest question: Can those who hold the most important keys, in order to control and domination, accept any law that strips them of their privileges in the name of justice, peace and human rights?

For us, we were not naive to believe that the United States of America would accept or submit to regulations that undermine its global hegemony for the sake of human rights, democracy, or any slogan or principle that does not directly serve its interests. I have witnessed with my own eyes the various forms of American resistance to any giving up from this hegemony, from Sarajevo and Kosovo to Iraq, Afghanistan, and Palestine, in the name of defending democracy here and eliminating dictatorship or terrorism there. The United States has not yet ratified anything related to economic, social, and cultural rights, but has brazenly opposed every resolution or charter related to racial discrimination, decolonization, the right to development, or the rights of immigrants. Along with the Israeli government, it is the first two entities to sign the Convention against Torture in which decisions were issued permitting the practice of torture.

In fact, the United States has not only rejected the Rome Statute of the International Criminal Court, but has also signed more than 63 bilateral agreements with member states of the ICC, preventing these states from prosecuting anyone who holds American citizenship. Since declaring the “war on terror,” it has frozen and halted any progress aimed at reforming the United Nations. It has considered unilateral sanctions a weapon of war against any state that disagrees with its policies. While it was the primary source of weapons and money for aggressor states, today everyone knows and sees that without direct military, financial and diplomatic support for Israeli apartheid, the Zionist occupation would not have been able to continue its genocide of the Palestinian people. Despite all this, Benjamin Netanyahu was welcomed as a hero in the US Congress. US President Donald Trump was the most explicit in expressing US policy, in which little has changed when he decided to declare Jerusalem the eternal capital of Israel and the Golan Heights an integral part of it, and considered all UN resolutions a failure and worthless. We lived and heard most of his statements in the mouth of Biden-Blinken in a disgusting manner.

The waged open confrontation that South Africa leads in the International Court of Justice has put all the dots on the letters. So, to what extent is it possible, within the current international judicial system, to open future prospects for prosecution through “international agreements” that form an integral part of the accountability system outside the Security Council (through the so-called respect for these agreements by the signatory and ratifying states)? It has clearly shown the camp that aspires to strengthen and consolidate international criminal law and the one that has not stopped attacking it. The prosecutor of the International Criminal Court still trembles when talking about accountability in everything related to the last apartheid regime on the face of the earth, as this court will not gain the trust of any victim of the genocide that we have been living for nearly a year.

As a conclusion, the logic of the “justice of power” will remain above the “power of justice” as long as the “global order” prevails in our world. That is why we have given this quick historical review the title “Jurisdiction” and not international criminal justice, which remains an unfulfilled human ambition, and so that one of the goals of our legal and human rights struggle is to actually overcome this order that accuse everyone who opposes its brutality as part of the “camp of evil”.

[1] Al Nahda Al Arabiya Print House- Lessons in International Criminal Law, Cairo 1960.

[2] John Foster Dulles, War or Peace, New York, Macmillan, 1950, 194-95.

[3] Ibid.

[4] James A. Paul, Of Foxes and Chickens, 2end Arabic Edition, SIHR/FHM & Jamakan, 2024.

[5] One perspective on the three-fold legal powers of the Council can be found in Ian Johnstone, “The Security Council and International Law,” in von Einsiedel, Security Council, 774-782. For further issues about the Council and international law, see José Alvarez, International Organizations as Law Makers (New York: Oxford University Press, 2005), 184-217.

[6] See, for example, June 22, 2006 (S/PV.5474), June 29, 2010 (S/PV.6847), Feb. 19, 2014 (S/PV.7113).

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