Questioning the Criminal Justice Imperative: UN Security Council Procedure and the Downside of Chapter VII Decision Making for the Adjudication of International Crimes.

Author:Cullen, Miriam

Security Council - United Nations--Procedural Fairness--Working Methods--International Criminal Justice

1 Introduction

It need hardly be stated that the UN's fifteen-member Security Council has a unique and extraordinarily significant role in international security, international relations, and international law. Scholars of international law are apt to observe that as a matter of course the Security Council invokes, considers, applies, interprets, and endorses international law. Indeed, "when a body as politically significant as the Security Council ... addresses, even indirectly, the issues underlying many international disputes, it cannot but influence how states regard the contours of the relevant norms." (1) The Security Council has routinely not only interpreted the applicable law, but also fundamentally declared its content, through its use of its binding Chapter VII authority. Over time, the Council has increasingly invoked its authority to make decisions of judicial and legislative character, yet it has remained devoid of the standards of procedural fairness required in a court, or the checks and balances of deliberation, transparency, and consultation that characterize a legislative function.

A problematic tension has arguably arisen wherein the desire to attain international criminal jurisdiction has outweighed the need to ensure procedural integrity in the decisions that grant it. The Council's apparent lack of compliance with ordinary standards of procedural fairness has received much scholarly attention, so too its relationship with international criminal courts and tribunals. What is missing is a stand-alone analysis of the link between the two. While some authors have addressed that connection peripherally, few have dedicated attention to the consequences of the Council's procedural practice on international criminal courts and tribunals. (2)

I begin this article by describing elements of procedural fairness evident under the UN Charter and the provisional rules of procedure of the Security Council. I set out existing arguments that transparency might constitute a secondary legal obligation incumbent on the Council, and contend that these are essentially arguments for procedural fairness by another name. I then establish the regression of transparency in Council decision-making in the post-Cold War context, at a time contemporaneous with its establishment of ad hoc criminal tribunals for the former Yugoslavia and Rwanda. In the final sections, I problematize the Council's internal procedures as they relate to the ad hoc tribunals and the International Criminal Court (ICC) before drawing final conclusions.

2 Procedural Fairness in the Security Council

Although rules of procedure are rarely decisive in themselves, they undeniably frame decisions in ways that can impact outcomes. (3) When the Charter was first drafted, delegates to the San Francisco Conference recognized that "procedure and substance often cannot be separated and the outcome of a procedural dispute is likely to influence the substantive issue." (4) Yet the Council appears to hold the somewhat paradoxical position of displaying both a reluctance to amend its rules of procedure and a contemporaneous disregard for them. (5) In this section, I describe procedural fairness, and then examine what elements of it are apparent under the UN Charter and the Security Council's provisional rules of procedure. Drawing on those descriptions, I contend that while procedural fairness in Security Council decision-making probably has no normative charge of its own, it might constitute an ancillary or secondary legal obligation.

In essence, procedural fairness refers to the impartiality and adequacy of procedure to render a decision. It is distinct from substantive fairness, insofar as procedural fairness focuses on justice as the result of fair process rather than specific outcomes per se, although procedural fairness and substantive fairness are obviously interrelated because the former will usually have consequences for the latter. Indeed, Thomas M. Franck recognizes the value of procedural fairness as one of several "fairness" conduits to legal and institutional legitimacy. He observes that "to be effective, the [international legal] system must be seen to be effective. To be seen as effective, its decisions must be arrived at discursively in accordance with what is accepted by the parties as right process." (6) Franck famously speculated that legitimacy is the "compliance pull" by which "powerful nations obey powerless rules," and among those rules is procedural fairness. (7) Antonios Tzanakopoulos, on the other hand, has disputed that legitimacy is a useful analytical tool to explain state compliance and contends that a procedural failure is fundamentally one of legality: "If the States ... find that the Security Council has not decided 'in accordance with the right process,' they are arguing in effect that the Security Council acted illegally and not illegitimately: it did not comply with the process imposed on it by the Charter or general international law." (8) Following Tzanakopoulos' analysis, if we perceive the toolbox for challenging the validity of Security Council decisions is the law, and the tools therein the norms and principles recognized by it, then it is worthwhile determining whether there is some standard of conduct in the process of making its decisions with which the Council must conform. (9)

Procedural fairness is not specifically addressed in the UN Charter, but appears to have been contemplated at least to some degree. Article 31 of the Charter allows a state not a member of the Security Council to participate in Council meetings where its interests are "specifically affected." The Council's provisional rules of procedure also allow for such participation (Rule 37), and allow those same non-member states to submit proposals and draft resolutions to the Council (Rule 38). There is a presumption in favor of the Security Council holding its meetings in public (Rule 48), and a series of rules on the publicity of meetings, access to information, record keeping, and publication (Rules 49-57). (10) That the rules were so drafted signals that the original Council members themselves envisaged that some degree of procedural fairness would govern their work, given that it is the Council itself that adopts and amends its own rules. (11)

Other elements of procedural fairness are evident within the terms of the UN Charter. According to its provisions, the Council must report annually to the General Assembly on its work, (12) and is under a clear obligation to act in conformity with the principles of justice and international law in its settlement of disputes. (13) Relevantly, Erica de Wet has interpreted the words "in conformity with the principles of justice and international law" to mean that the Security Council "must respect basic principles of procedural justice such as independence, impartiality and even-handedness when creating a subsidiary body which will exercise judicial functions" (14) which would include the establishment of criminal tribunals. That obligation is arguably strengthened when considered in conjunction with the duty to act in good faith contained in Article 2(2) of the Charter. (15)

The obligations dispersed in the UN Charter and the provisional rules of procedure are not enough to contend that procedural fairness in Security Council decision-making is a primary norm of international law. That the rules in particular can be adopted and amended only by the Council itself arguably diminishes their normative weight. (16) However, there is a valid question whether there exists an ancillary legal obligation of procedural fairness incumbent on the Council. The idea of ancillary, or secondary, obligations in international law is not new. In questioning whether international law qualified as law at all, H.L.A. Hart posited that the international legal system lacked the requisite ancillary or secondary legal norms that are fundamental to any concept of law. To Hart, international law consisted of only primary rules and was thus bereft of the "secondary rules of change and adjudication which provide for legislature and courts" necessary for a system of "law" to exist. (17)

The idea that the international legal system lies devoid of secondary legal norms has been disputed. Vaughan Lowe contends that as the scope and content of the primary norms is measured and contested, legal principles that sit in the interstices of those primary legal obligations have simultaneously arisen to reconcile competing normative rules. (18) Judge Christopher Weeramantry's Separate Opinion in the Gabcikovo case before the International Court of Justice (ICJ) supports this view. His Honor reasoned that where primary legal obligations conflict "the law necessarily contains within itself the principle of reconciliation" and that

to hold that no such principle exists in the law is to hold that the current law recognizes the juxtaposition of two principles which could operate in collision with each other, without providing the necessary basis of principle for their reconciliation. The untenability [sic] of the supposition that the law sanctions such a state of normative anarchy suffices to condemn a hypothesis that leads to so unsatisfactory a result. (19) Whereas in the Gabcikovo case the clashing norms were between the law of development and the law of the environment, (20) here they are between the Council's power to act and the persistent right of UN member states to undertake some degree of oversight of the application of Council powers, as derived from the text of the Charter itself. Indeed, UN member states constitute the only regular form of oversight on Security Council action, albeit diffuse, and there is no other form of consolidated review of Council decisions. The ICJ could offer Advisory Opinions, but they are rarely...

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