Could the Security Council Refer Only Assad’s Use of Chemical Weapons?

An interesting discussion recently broke out on twitter about whether the Security Council could refer the Syrian government’s use of chemical weapons — and only the Syrian government’s use of chemical weapons — to the ICC. Instead of breaking my thoughts into 60 tweets or so, I thought I’d be old-fashioned and write a blog post instead.

The issue raises a number of difficult and important questions. The first is whether such a narrow referral would qualify as a “situation” under Art. 13(b) of the Rome Statute, which provides in relevant part that “[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if… (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” Interestingly, the answer may depend on the theory of interpretation we adopt — an issue that Dapo Akande and I recently debated here, here, and here. Read literally, Art. 13(b)’s “one or more of such crimes” language would seem to permit the Security Council to refer crimes committed only by Syrian government using chemical weapons — the referral would simply have to include at least one crime within the Court’s jurisdiction.

The literal interpretation of Art. 13(b), however, is completely inconsistent with the provision’s drafting history. All of the major scholarly works on Art. 13(b) agree that the drafters did not intend to permit the Security Council to refer crimes committed solely by one side of a conflict. Typical in this regard is Bill Schabas and Sharon Williams’ entry in the definitive Triffterer article-by-article commentary on the Rome Statute:

Indeed, this is why the concept of referral in the Rome Statute relates to “situations” rather than “cases.” The language was adopted specifically to avoid the danger of one-sided referrals, which could undermine the legitimacy of the institution.

Antonio Marchesi makes a similar point in the Triffterer book with regard to, Art. 14, which includes the same “one or more of such crimes” language with regard to State referrals:

Although the proposal that the object of State complaints should be “situations” rather than specific crimes was well-received by the participants in the preparatory process, concern was expressed that the complainant State should not be able to “limit the referral to include crimes committed by one side to a conflict in a situation… or restrict the nationality of those who can be investigated and prosecuted. In other words, “the prosecutor must be free to investigate all persons who may be responsible for crimes within the Court’s jurisdiction in a situation.”

There are, of course, ways to avoid the debate between literal and intended meaning. The most obvious would be to rely on Art. 31(4) of the VCLT, which provides that “[a] special meaning shall be given to a term if it is established that the parties so intended.” I would argue that Art. 31(4) applies to the term “situation,” because the drafter of Arts. 13 and 14 of the Rome Statute preferred “situation” to “matter” — the term used in earlier drafts of the Rome Statute — precisely because they believed that “situation” could not be construed as permitting one-sided Security Council or State referrals. Another way to avoid the literal/intended debate would be to say that Art. 13(b)’s “one or more of such crimes” language is ambiguous — it could mean that even one crime can be considered a situation, or it could mean that the Court has jurisdiction over a situation only if it is convinced that the referred situation does in fact include at least one crime. If Art. 13(b) is ambiguous, the VCLT would permit reference to the provision’s drafting history, which makes clear that one-sided referrals are not situations.

Regardless of how we get there, I don’t believe that Art. 13(b) permits the Security Council to refer only crimes committed by the Syrian government to the ICC. (How those crimes were committed is secondary, although there is obviously an open question as to whether the Rome Statute directly criminalizes the use of chemical weapons. See my exchange with Dapo, linked to above.) But that leads to the second difficult and interesting question: can the Security Council make the referral anyway, as long as it invokes its Chapter VII authority? I don’t want to rehash that issue, which I explored extensively with Jennifer Trahan, Jens Ohlin, and many others here. Suffice it to say that I continue to believe that, because the ICC is an independent international organization and not a UN member state, the Security Council has no authority over the ICC that the Rome Statute does not explicitly give it. (The more interesting scenario would be a Security Council resolution ordering ICC member-states to use the ASP to amend the Rome Statute!) I am not alone in that view; Schabas and Williams take the same position:

If it triggers the Court’s jurisdiction, the Council must live within the parameters of the Statute with respect to such matters as jurisdiction. For example, it could not request that the Court consider the atrocities committed by the Khmer Rouge in Cambodia during the late 1970s because article 11 of the Statute clearly declares that the Court cannot judge crimes committed prior to the entry into force of the Statute.

The third and final question, then, is what the ICC would do if — despite the above — the Security Council attempted to refer the Syrian government’s use of chemical weapons to it. I would hope and expect that the Prosecutor would simply invoke Art. 53(1)(c) of the Rome Statute and refuse to act on the ground that such a one-sided investigation would not be in the interests of justice. Otherwise, the Court would have to reject the referral by invoking its proprio motu authority under Art. 19(1), which provides that “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.” A case cannot be admissible if it took place in a “situation” that was not properly referred to the Court.

The more interesting question is whether, if they concluded that the Security Council’s referral was defective, the OTP or the judiciary would simply have to refuse to act — or whether they could reinterpret the referral in a manner that made it consistent with Art. 13(b). Could, for example, the Court decide to treat the referral as including the use of chemical weapons by any party to the conflict in Syria? That would make the referral legally adequate, and it would not simply be a pretext to investigate the Syrian government given that the rebels have threatened to use chemical weapons, as well. In all honesty, I don’t know whether such reinterpretation of a referral would be within the Court’s power. Nothing in the Rome Statute specifically permits it — but nothing specifically prohibits it, either.

Readers, what do you think?