Can the Security Council Implicitly Amend the Rome Statute?

by Kevin Jon Heller

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.


19 Responses

  1. In my mind, the discussion is wrongly focused on that the U.N. Security Council exemptions are actually engaging in jurisdiction-slicing (at least in previous resolutions) when the UNSC resolutions affect Article 98 of the Statute.

    Through it is easy to interpret language “shall be subject to the exclusive jurisdiction of that State” as changing the jurisdiction of the Court, the better interpretation is that this particular clause is directed at states themselves not to send anyone to the ICC if they are a non-state party outside Libya. Under Article 25 of the U.N. Charter all decision of the Security Council are obligations upon states to “accept and carry out”. At the same time, Article 98 of the Court of the Statute allows states to refrain from cooperating with the Court if they have a competing international obligation, in this case, this U.N. Security Council resolution. This situation under Article 98, while perhaps not-ideal because it in effect denies the Court jurisdiction over this particular class of persons, does not actually deprive the Court of jurisdiction over non-State members not party of Libya (or Sudan, Syria).

    Of course, the catch with my interpretation is that Article 98 of the Statute does not mean that a competing international obligation would preclude assistance with a cooperation request; rather, the state merely has the option of not cooperating with the Court. Thus, a state could breach it’s obligation under the Security Council resolution and execute, for example, an arrest and surrender request. Politically though, such a state would do so at its own peril.

    In the event this interpretation is unpersuasive, I could have to agree with Kevin’s interpretation though on different grounds. Article 21 of the Statute limits the Court’s jurisdiction in a hierarchical matter with the text of the Statute and its progency in the first category; international law (article 21(b)) can only come into play if the Court’s determination under article 21(a) is indeterminate. Thus, if there is a consensus that a jurisdiction-spliced referral has not referred a “situation,” that ends the discussion as there is no room for the Court to get to Article 21(b)–something which would be required to make a determination about the powers of the Security Council in relation to the Court. Thus, even if the UNSC could amend the jurisdiction of the Court in this manner, the Court itself would not have jurisdiction to determine whether this has in fact occurred in this situation. This only increases the reasons for adopting the earlier interpretation, or in the alternative, rejecting the amendment interpretation.

  2. Kevin, 
    I’d tend to agree with Jennifer’s view on this. I think the key to this is the idea that states cannot do in groups what IL doesn’t allow them to do individually. 
    Picking up on your hypothetical, if the Rome Statute did not have Art. 13(b), it would theoretically still be within the capacity of the UNSC, acting under Chapter VII of the UNC, to refer a situation to the ICC. A failure on the part of the ICC or the Conference of Parties to honour that request would then amount to a violation, by each ICC member state individually, of Arts. 25 and 103 (read together) of the UNC. A course of action that is outside the capacity of a state cannot become permissible merely by virtue of said state joining forces with several other states in the creation of a separate IO.
    Continuing within the terms of your hypothetical, does that mean that the UNSC’s discretion under Chapter VII is limitless? Subject to certain important considerations, yes. These considerations are as follows. First, the political dynamics of the UNSC render such indiscriminate use of the Chapter VII powers unlikely. Second, jus cogens continues to operate as a constraint on the powers of the UNSC. The principle of states being unable to combine to achieve what they are individually incapable of achieving applies equally to the UNSC and the UN – the Chapter VII power is not free of all constraint. But yes, I concede that outside of these considerations, the UNSC is free to run riot as it were. 
    However, it would be a mistake to underestimate the practical effect of these two considerations. Arguably, the vesting of potentially limitless Chapter VII power in the UNSC was motivated at least in part by a reliance on these same checks. 
    Abhimanyu George Jain

  3. I largely agree with Jennifer.  The Security Council’s authority comes not from the Rome Statute but from the UN Charter — a point that I’ve made in several essays before.  I’ll spare everyone the self-citation, but the basic point is that this is a common misconception, i.e. that drafters of the Rome Statute could have constrained the Security Council’s authority under the UN Charter by passing a multi-lateral treaty.  Impossible.  The only way of constraining the SC’s Chapter VII authority is by explicitly amending the UN Charter.
    So why does article 13 exist?  Because it exists to control the authority of the ICC, not the Security Council.  That being said, I suspect that the drafters of the Rome Statute might have believed they were granting authority to the Security Council.  But them thinking they could do so does not make it the case.  This is a common mistake when scholars and diplomats limit their analysis to the four corners of the Rome Statute and fail to consider its compliance with other sources of international law, including the UN Charter and specifically article 103 (on treaty conflicts).
    Incidentally, this is not the majority view.  I thought I was the only one.  Apparently Jennifer agrees with me.  So now there are two of us.
    By the way, if the SC has the authority to create the ad hoc tribunals under Chapter VII, then it certainly has the authority to refer cases to the ICC as well, even if the Rome Statute had no provision regarding referrals.  It could also refer its cases to another tribunal if it wanted.

  4. Jens,

    Six Chapter VII hypotheticals: (1) the Security Council passes a resolution demanding that Sudan ratify the Rome Statute; (2) the Security Council passes a resolution demanding that the ICC retry Chui on the same charges; (3) the Security Council passes a resolution ordering Israel to submit to the compulsory jurisdiction of the ICJ; (4) the Security Council passes a resolution eliminating Common Article III from the Geneva Conventions and nullifying AP II; (5) the Security Council passes a resolution ordering the US to close Guantanamo Bay and release all detainees held there; (6) the Security Council passes a resolution ordering the U.S. Supreme Court to grant cert. in Hamdan II.  Would all six resolutions be valid and binding? Which ones would not be — and why not?

  5. Kevin,
    That the SC resolution might be valid and binding is one thing. But the ICC is not obliged to carry it out. The ICC itself is bound by the Rome Statute, and cannot investigate on the basis of a referral that does not comply with the Rome Statute. For instance, your example (2) on the ICC ordering a retrial of Ngudjolo, may well be an instance of a valid SC resolution, but the ICC would be precluded by its own Statute from carrying it out. There is nothing in Article 103 of the Charter that could lead to the contrary conclusion. The United Nations Charter does not bind other international organizations such as the ICC.
    An interesting problem might arise with partial referrals. Should the ICC disregard the SC referral as ‘invalid’, or should it simply brush out the invalid parts and proceed to investigate the whole situation? I think it’s a problem very similar to that presented by invalid reservations to human rights treaties.

  6. One last comment. One instance of SC practice points towards a power to interfere with treaty-making powers. That is the resolution creating the Special Tribunal for Lebanon. In Resolution 1757 (2007) the SC decided, acting under Chapter VII, that “The provisions of [the unratified Agreement between the UN and Lebanon] shall enter into force”. This is of course a far cry from modifying a treaty, but it’s worth noting in any case.

  7. Kevin, yes — legal and binding.  Assuming, of course, that (1) the SC makes a finding that there is a threat or breach to international peace and security, and (2) the security council makes a finding that the measure is necessary to restore international peace and security, and (3) neither of the previous findings is pretextual, i.e. the breach or threat really exists and the resolution is designed to respond to the breach or threat.  These are the only constraints on SC action other than jus cogens.

    Of course, the SC knows better than to engage in such actions, because most states would not comply with them, thus delegitimizing the Charter system in the process.

  8. Kevin, I think you’ve hit the nail on the head with your six hypotheticals. It’s one thing to argue that international legal obligations validly dictated by the Security Council prevail over other international legal obligations. It’s quite another to argue that the SC has plenary, unbounded authority once it determines that there is a tangentially-related “threat to international peace and security”.
    The SC has the authority to set up its own Tribunals (Tadic). But intervention in the affairs of existing tribunals/international organizations is akin to intervention in domestic affairs. Whatever the terminal clause of Art. 2(7) of the Charter means, it cannot be unrestricted license to do that.
    An interesting analogue is ICJ advisory opinion re Effect of awards of compensation by the UN Administrative Tribunal. It concerned the GA, not SC, but was similarly in a domain in which the organ might be said to have plenary authority. The Organization can re-build legal systems, but it cannot make post-hoc decisions to alter the legal effects of existing arrangements.

  9. Picking up on Guillermo’s point, the ECJ Kadi case is also instructive…

  10. Guillermo, Miles — I obviously agree with you.  But what about Art. 48(2) of the Charter?  Would that obligate the ASP, which consists of UN member states, to do whatever it could to give effect to a Chapter VII resolution?  And what about the judges, all of whom are nationals of UN member states?  Do they have any kind of obligation under Art. 48(2) — or does the fact that they are acting as representatives of the ICC, not representatives of their states of nationality, make a difference?

  11. I would answer your third and fourth questions in the affirmative, but re-frame it more strongly. ICC judges are not members, nor, generally speaking, legal actors on the international plane. They simply are not susceptible to edicts from the SC.
    Your first two questions are more difficult. I would be curious about the history of Art. 48(2). My guess is that the intention was to ensure that true “agents” (agencies) of members effected the obligations imposed upon the members severally. But it is perhaps significant that Art. 48(2)–retrieving Guillermo’s point–does not simply permit the SC to order independent *institutions* to take action.
    Accordingly, if the question is, “can the SC compel the ASP to try to ‘push through’ such a case?”, I think the answer is “no”. That would be a ruse to compel administrative action by an independent international institution, over which no one state has power or could exercise any kind of “agency”. It would seem to run contrary to the spirit of the Effect of Awards case.
    If the question is, “can the SC order the ASP members, severally, to undertake amendment to the statute?”, I think there is a problem that what is being required is not executive action, but essentially legislation–presumably on both the international and domestic planes. While, arguably, Art 41 is indifferent to such implications, it seems to me that when such “institution-building” is of complexity and lasting effect, it could not have been in the contemplation of the drafters of Chapter VII. If the SC really wants such an “adjunct” tribunal constructed, they can build their own (and almost certainly would, given the exactitude with which they would want to dictate such obligations).

  12. I agree with Kevin on the basis that the UNSC cannot directly bind the Court. The applicable law before the ICC is, “in the first place”, the Rome Statute, and while decisions of the UN Security Council may bind States Parties to the Rome Statute (qua UN Members under art. 113 of the Statute), they do not bind the Court itself. Of course the UNSC could require the States Parties to the Rome Statute (again qua UN Members) to amend the Rome Statute, but such a decision would still only be binding on the States Parties, and not on the Court.
    //Indeed, the difficulty faced by the ECJ in the Kadi case does not even arise. That case dealt with the resolving the tension between an EU State’s contradictory obligations under the UN Charter and under EU law. In essence, it considered the extent to which EU law would take cognizance of the State’s having a contradictory obligation. Here, however, any obligation that would arise under a UNSC decision would be binding on one entity–States–while the potentially-contradictory Rome Statute would be binding on another–the Court. Thus, we have a situation where different subjects of international law would potentially have different obligations, and not the one faced in the Kadi case, where a single subject was bound, by different sources of law both binding on it, both to act and not to act.
    //In any case, even if the UNSC does have the power to bind the Court, the applicable law before the Court remains, “in the first place”, the Rome Statute, and only “in the second place” general international law. This indicates that internal organs of the Court would be bound to follow the Rome Statute, even if that would result in the Court, as a subject of international law, committing a breach of international law. This is Walter’s point and, I gather, Guillermo’s point as well.

  13. I meant “qua UN Members under art. 103 of the Charter” not “art. 113 of the Statute”, of course.

  14. I realize Kevin wasn’t speaking to me, but for fun (and since my answer seems to differ from Jens David Ohlin’s):
    Kevin poses six Chapter VII hypotheticals: (1) the Security Council passes a resolution demanding that Sudan ratify the Rome Statute; (2) the Security Council passes a resolution demanding that the ICC retry Chui on the same charges; (3) the Security Council passes a resolution ordering Israel to submit to the compulsory jurisdiction of the ICJ; (4) the Security Council passes a resolution eliminating Common Article III from the Geneva Conventions and nullifying AP II; (5) the Security Council passes a resolution ordering the US to close Guantanamo Bay and release all detainees held there; (6) the Security Council passes a resolution ordering the U.S. Supreme Court to grant cert. in Hamdan II.  Would all six resolutions be valid and binding? Which ones would not be — and why not?
    In my view, Hypotheticals 1, 3, and 6 would be ultra vires (so yes, invalid and not binding) due to the interaction of Articles 2.7 and 24.2 (as well as the language in the preamble about “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”): 
    2.7            Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.
    Article 24.2 In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.
    These two clauses seem to point at each other, and together arguably indicate an intent to limit the UNSC with respect to matters essentially within the domestic jurisdiction of each state, notwithstanding the terminal language in 2.7.  If the UNSC acts not in accordance with the Purposes and Principles of the United Nations (i.e., Chapter I, Articles 1 and 2), it is in violation of the UN Charter.  This may seem vague, but Chapter I is not without content, and the authority of the UNSC is not without limit.  Perhaps a U.S. federalism comparison is helpful – While valid federal law is supreme over state law, a federal statute seeking to commandeer the state government apparatus to demand the state legislate or take title (see for example, New York v. United States, 505 U.S. 144 (1992)) is invalid, as it violates the core of state sovereignty.  The UNSC cannot tell a State to ratify or amend a treaty or vote in a certain way in an intergovernmental organization when it is that state’s sovereign right to act differently.   The alternative would be absurd – the UNSC could order states to vote a certain way in the USGA, or even with respect to appointment to the UNSC itself.  Perhaps the key to reconciling this view with Jens Ohlin’s is to expand on the question of what is pretextual – it is hard to imagine these hypotheticals happening and not being pretextual.
    Hypothetical  2 would be ultra vires simply because the UNSC has authority over member states, not intergovernmental organizations.  The ICC is not a state.
    I believe Hypothetical 4 would be ultra vires with respect to Common Article III, not least because Common Article III is jus cogens.  In addition, rewriting treaties (the literal meaning of “eliminating Common Article III” seems outside the authority of the UNSC for the same reason 1, 3, and 6 are outside the authority of the UNSC.  AP II might be a closer case, depending on what you mean by nullify and the particular circumstances – such as a temporary or partial suspension or reinterpretation – I’d have to think about it more carefully.
    Hypothetical 5 – This seems the most plausible legally… and the most implausible in a string of implausibles practically, given Charter Articles 23.1 and 27.3 (requiring concurring votes of the permanent members).
    The problem with the endless discussion on UNSC authority is that it generally doesn’t come to a head, so we’re all left to dance around the theoretical question.  UNSC resolutions 1422 and 1487 had no practical effect, and a referral that didn’t include nationals of non-state parties is unlikely to have an effect, unless the OTP wants to imperil the institution by doing something like pursuing Russian officials for aiding and abetting.  So this is fun… but I’m not sure we’ll have a resolution any time soon.

  15. Jens 2.0,

    Again not surprisingly, I’m very sympathetic to your view — and I am anything but a UN Charter expert. But all of the texts I’ve consulted agree that 2.7 simply has no applicability when the SC invokes Chapter VII, as it does in my hypotheticals. Is that position flawed?

    I’m also a bit baffled by the position that both you and Jens 1.0 take — namely, that a pretextual invocation of Chapter VII is invalid.  Pretextual according to whom?  We certainly wouldn’t have allowed, say, Rwanda in 1993 to resist the ICTR with military force because it believed that the Security Council was interested in reinscribing colonialism in Africa, not protecting international peace and security.  The UNGA?  I can’t imagine the SC would take that too kindly.  The ICJ?  That seems unlikely, if not impossible. I simply fail to see how “pretext” can impose a genuine limit on the SC’s power; my guess is that the SC would take the position that the adoption of a resolution under Chapter VII suffices in and of itself to establish that it was not acting pretextually…

  16. I think STL Judge Baragwanath’s separate opinion on the matter of the legality of the establishment of the STL is an interesting voice in the debate on the powers of the UNSC over an independent judicial institution. It is up to the Judges of that Tribunal (or the ICC) to assess whether the interaction with the UNSC would make the trial unfair and is therefore to be rejected.
    He said, in the context of the creation of a tribunal outside the UN (as the STL is deemed to be), with words that would apply to a referral by the UNSC to the ICC, mutatis mutandis:

    when the Security Council decides to exercise its discretion by establishing a true and independent tribunal, the Council will proceed on the basis of the rule of law: that the defence will test the authority of such a tribunal against the fundamental provisions of the Charter and the relevant judicial authority will pronounce upon its legality. It is therefore expected that the Tribunal be called to consider its founding instruments and interpret them consistently with the rule of law, human rights standards, and their element of fair trial guarantees.

    When it decides to create a tribunal, the Security Council must be deemed to have endowed such a tribunal with not only the trappings of legality, but also implicit authority to consider whether the fundamental norms are duly respected. It is inconceivable that the Security Council would itself accept any lower standard.

  17. Jens 2 has made the proper observation vis a vis Jens 1 — that article 24(2) limits the authority of the SC (and art. 25 either mirrors that limit re: the SC or creates a limit for states with respect to implementation of decisions of the SC — that they be implemented in accordance with the purposes of the Charter).  And the 24(2) limitation can be related directly to the purposes listed in Art. 1, if not the preamble, as well as the obligation of all organs of the UN in art. 55 regarding self-determination of peoples (not states) and human rights.
    Kevin is correct that art. 103 concerns obligations of states and that 2(7) is limited by the lawful authority of the SC, GA, etc. — it begs the question whether a particular matter is essentially within the domestic jurisd. of one state or is essentially a matter within the jurisd. of other entities, including other states under the principle of universal jurisd. The 1970 Dec. on Prin. of IL uses the phrase internal or external affairs “of” a particular state — but, of course, matters of int’l concern are not simplistically the affairs “of” a single state.
    With respect to the purposes of the Charter and the obligation under art. 55, would a SC decision attempting to coerce states to participate in a functional impunity of certain individuals who are reasonably accused of having committed or, for example, abetted core crimes of genocide, other crimes against humanity, or war crimes (and later manifest aggression) actually serve peace, security, self-determination of peoples, and human rights?  Because of arts. 24(2), 25, 55(c) and 56, states should be able to conclude that a particular decision of the SC is ultra vires — and so should the ICJ (although only some four judges have entertained the point in the past).  And yes, jus cogens should trump the Charter.

  18. Kevin,
    I think Guy provides a useful response with regards to your bafflement as to the legal relevance of pretextual findings by the UNSC.  I think the two questions should be separated – the validity of a UNSC resolution is one question, the practical effect of a particular entity asserting that validity is another question.  I can imagine an ad hoc Tribunal questioning the validity of a truly off the wall UNSC resolution, and that questioning having a practical effect.  More generally, outside instances of (or relating to) compétence de la compétence, everyone can assert invalidity, and if this became commonplace it would weaken the UNSC over time.  This hopefully helps prevent the UNSC from acting in a clearly pretextual manner.

  19. The UN Charter is just a multilateral treaty that happens to reflect some principles of customary international law. I don’t think that non-member states are bound to accept the view that Article 103 preempts the Rome Statute.
    It seems to me that non-member states, like Palestine or the Cook Islands, don’t have any conventional obligations with respect to UN Charter Articles 24, 25, or 103.
    The Cook Islands are presumably bound by the terms of their acceptance of the Articles of the Rome Statute that mention the Security Council. But their obligation to do so is NOT based on the terms of the UN Charter. 
    The Registrar advised the Palestinians that, pending a decision by the Judges, their Article 12(3) Declaration had triggered a responsibility to cooperate with the Court in accordance with the rules for state parties contained in Part 9 of the Rome Statute. None of those rules are based upon any particular UN Charter obligation. 

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