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