Can the Security Council Implicitly Amend the Rome Statute?
I argued yesterday that the Security Council cannot refer a situation to the ICC under Art. 13(b) of the Rome Statute while exempting nationals of non-States Parties from the Court’s jurisdiction. Jennifer Trahan disagrees:
I primarily disagree with Kevin’s first point. While it may be objectionable to have an exemption of nationals of non-States Parties, I actually think that the UN Security Council can do this. Kevin makes the point that under article 13(b) of the Rome Statute, the Security Council refers a full “situation” and not particular defendants. Yes, 13(b) governs how the Prosecutors and Judges view a Security Council referral, and they might well take this position. But ultimately the Security Council’s power comes not from 13(b) but from the UN Charter, and the Council has great leeway to act under Chapter VII. Once it has found a “threat to the peace, breach of peace or act of aggression” under article 39, it has open-ended lists of what it is empowered to do under articles 40, 41 and 42, so I think the Security Council has the ability to do the exemption. The problem then with Kevin’s reading is he is setting up a conflict where 13(b) is read to disallow something the Security Council arguably has power to do under Chapter VII. In the event of a conflict between the Charter and a treaty, it is, under article 103 of the Charter, the Charter that prevails. So, if we take Kevin’s reading, and there is such a conflict, it is the Security Council’s reading that I believe would prevail.
I have heard this argument from a number of scholars I respect, but I continue to believe that it is incorrect. My position is straightforward: the ICC is an independent international organization that was consensually created by states via treaty. The Security Council has the power to refer situations to the Court for one reason, and reason only: states decided to include Art. 13(b) in the Rome Statute. The Court thus has no obligation whatsoever to comply with a “referral” that does not comply with Art. 13(b); after all, the very first article of the Rome Statute provides that “[t]he jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”
Indeed, it is important to emphasize the implications of the argument to the contrary. If the Security Council has the power to implicitly rewrite Art. 13(b) by passing a resolution that says a different jurisdictional regime is necessary to address a threat to international peace and security, why does it matter that Art. 13(b) even exists? Assume that there was no Security Council referral power at all in the Rome Statute. If the Security Council didn’t like that limitation and passed a resolution referring a situation to the ICC anyway, we would have the same “conflict between the Charter and a treaty” that Jennifer believes must be resolved in favor the Security Council. So the Court would have to investigate the situation even though doing so was directly contrary to the Rome Statute.
Nor is that all. If the Security Council has the authority under Chapter VII to rewrite the Court’s personal jurisdiction via a referral, what principled reason is there to deny it the same power to change other aspects of the Court’s jurisdiction? Could it pass a resolution deferring an ongoing investigation or prosecution in perpetuity, even though Art. 16 limits the Security Council’s deferral power to one-year increments? Could it refer a situation to the Court that took place in the 1970s — some of the worst excesses of the Dirty War, perhaps — even though the terms of Art. 126 limit the Court’s temporal jurisdiction to actions that took place after 1 July 2002? Could it deem an aggression prosecution necessary to protect international peace and security, even though the aggression amendments are not yet operative?
I don’t see how we can answer these questions in the negative if the text of the Rome Statute is irrelevant and the Security Council’s authority to refer situations to the Court is limited only by its Chapter VII authority. And I don’t see how we can sustain that conception of the Security Council’s authority under Chapter VII. There is no question that Chapter VII empowers the Security Council to do many things. But I don’t think rewriting the text of a carefully drafted treaty is one of them.