Why the Creation of the ICC Does Not Support Goldsmith and Posner’s Thesis

In the Wall Street Journal editorial Ken mentions below, Goldsmith and Posner argue — in defense of their thesis that Europeans ignore international law if it is not in their interest to obey it — that “when nations led by Europe created the International Criminal Court (ICC), they purported to limit the Security Council’s power to delay or halt ICC trials, also in disregard of the U.N. Charter, which states that Charter obligations trump the requirements of any other treaty.”  That argument misunderstands both the ICC and the UN Charter. Goldsmith and Posner seem to be referring to Article 103 of the Charter, which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”   As numerous scholars have pointed out, however, the ICC is not a “Member of the United Nations”; it is an independent international organization with a legal personality that is distinct from the legal personality of the Member States that created it. The Security Council thus has no authority to interfere with the ICC beyond the authority specifically given to it by Article 16 of the Rome Statute — in which case the Security Council’s limited ability to “delay or halt ICC trials” is in no way “in disregard of” Article 103.

Moreover — and more importantly — despite what Goldsmith and Posner claim, there is actually no conflict between European states’ obligations to the UN and their obligations to the ICC.  As Dan Sarooshi has pointed out, Articles 25 and 103 of the Charter mean that the former continue to trump the latter:

the Council can seek to influence the Court’s decision… by imposing an obligation on States not to comply with their treaty obligations under the ICC Statute, and thus to seek to render ineffective the Court’s decision in a particular case.  This exists as an option for the Security Council since the effective implementation of a Court judgment and sentencing decision will in the last resort depend on State participation. One need only consider, for example, the case where the Security Council imposes a binding obligation on UN Member States under Chapter VII that in the interests of peace and security a convicted war criminal sentenced to 20 years imprisonment by the IC should receive a reduced sentence of say five years in return for his participation in assisting the Security Council implement a peace agreement.  Such a Security Council decision represents a direct challenge to the authority of the Court… [but] nonetheless, by adopting a decision under Chapter VII the Council could require that all UN Member States release the prisoner after he had served five years incarceration, and this obligation would prevail over those flowing from the ICC Statute.

I don’t have the expertise to address the two other examples that Goldsmith and Posner believe demonstrate that “Europeans obey international law when it advances their interests and discard it when it does not.”  The creation of the ICC, however, clearly fails to support their thesis.