Can the Security Council Authorize the Arrest and Trial of a Head of State?

by Julian Ku

I’m not sure what to make of this argument by Messrs David Rivkin and Lee Casey in today’s Wall Street Journal questioning the legality of the ICC Prosecutor’s proposed arrest warrant for Sudan’s president:

The U.N. Security Council is not a judicial body, and any legitimate authority it may have to subject member states to the ICC — or its own ad hoc international criminal tribunals like those for the former Yugoslavia and Rwanda — must be found in their onetime consent to the U.N. Charter. The charter requires all members to assist in implementing Security Council decisions.

At the same time, the ICC did not exist when Sudan joined the U.N. in 1956, and referrals to such an institution were hardly foreseeable. . .

This has some plausibility, but it strikes me that joining the U.N. Charter with the almost plenary “international peace and security” powers of the U.N. Security Council means that one could subject oneself to judicial process down the road. After all, the U.N. Security Council can, in theory, invade your country to “maintain international peace and security.” Why can’t it indict your president?  But I’m no U.N. Charter expert. Anyone out there have a better answer?

7 Responses

  1. Here’s my favorite part of the editorial:

    International justice, especially for heads of state, works best after regime change. This was the lesson of the Nuremberg trials, of Saddam Hussein’s trial and punishment by a liberated Iraq, and of the 1990s Balkan wars — where Serbian President Slobodan Milosevic was turned over to the U.N.’s ad hoc court in The Hague after he was toppled.

    One small problem with that: the ICTY indicted Milosevic while he was still the President of the FRY.  Kind of like someone else I can think of…

  2. The answer to Casey and Rivkin is pretty simple, in my view, and along the lines suggested. In ratifying the UN Charter, Sudan (and all other UN members) consented to the allocation of authority the Charter provides for. The Charter gives the Security Council considerable (but not unfettered) discretion to determine what measures are necessary to restore and maintain international peace and security. The question of whether or not the particular action taken by the Council was foreseen is beside the point, the consent is to the right of the Council to decide what is necessary. I cannot put it better than Oscar Schacter did in 1951, when reviewing Kelsens’s Law of the United Nations in the Yale Law Journal “The Charter is surely not to be construed like a lease of land or an insurance policy, it is a constitutional instrument whose broad phrases were designed to meet changing circumstances for an undefined future”.  I don’t think the Security Council is unbound by any law, but its discretion is broad, and if it is lawful to create ad hoc tribunals (and the General Assembly welcomed both the ICTY and ICTR-so the vast majority of UN members seem to think it can) then it seems to me highly implausible that it could not refer a situation to an existing tribunal whose Statute expressly provides for such a referral.

  3. It seems to me that Rivkin and Casey in fact make two arguments (or confuse two arguments). Firstly, that of the general jurisdiction of the ICC over the situation in Darfur pursuant to Resolution 1593 [“it cannot prosecute citizens of nations, such as Sudan, that are not party to the ICC”] and, secondly, the question of immunity for acting heads of state not party to the statute [referring to the Arrest Warrants case], which was discussed extensively on these pages earlier.

  4. The Arrest Warrant Case wouldn’t govern the immunity issue here, would it?  After all, this is an international tribunal, not a domestic court.  I thought the Arrest Warrant Case made a distinction between international tribunals and domestic courts with regard to the immunity of a head of state or high ranking official.  What are the chances of an advisory opinion from the ICJ regarding the arrest warrant for Bashir issued by the ICC?

  5. None. Who would ask for such an opinion, Security Council itself? Not like it would care about what ICJ thinks.

  6. Agreed that the Chapter VII powers of the Security Council could extend to an indictment (Art. 41 of the Charter allows “measures not involving the use of armed force” and Art. 42 allows for armed force “[s]hould the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate….”).  Messrs. Rivkin and Casey make the case that the Security Council’s referral of the Darfur situation to the ICC does not deprive the head of state of sovereign immunity absent acquiescence by the state, despite the Rome Statute’s “Irrelevance of Official Capacity” clause, which states:
    “In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”

    As others have noted, this clause differs from traditional notions of sovereign immunity, but within the framework of the UN Charter.  There’s not much basis to say the Security Council cannot allow the ICC to issue an indictment — it would certainly fit the “measures not involving the use of armed force” under its Chapter VII powers in the Charter.  There is the question of what effect a warrant would have: would the Security Council authorize force to implement the warrant, or wait out the peace process?  If it waits for the peace process to progress further, would it defer any action by the prosecutor’s office for a year?   

    What I find most interesting is the authors’ reference to states’ “onetime consent to the U.N. Charter.”  When dealing with matters referred to the ICC, Security Council member states should be careful how wide they open back doors to leave room for their own potential non-consent to jurisdiction. 

  7. It seems to me that the Charter grants the SC a lot of leeway to take measures for the purpose of achieving peace and security. But does it allow the SC to delegate such decisions to a non-UN institution, like the ICC?  This is obviously an important distinction given that an independent court takes decisions that the SC would not, and the indictment of Sudan’s president is one of them. I am not a legal scholar but I would love to see an answer to this. If I recall correctly, many legal scholars think delegation to regional alliances for peacekeeping is problematic, and there is an explicit charter provision that deals with this (more or less). What in the Charter regulates such delegating capacities by the SC?

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