The ICC and the Security Council Referral Power
November 9th, 2008 • Conflict, Law, UN, USA, University
I finally handed in my big essay on the International Criminal Court and the Security Council – a slightly melancholy moment, realising how much better it could have been and all that if only I had given myself more time and picked a topic I was more familiar with. But done it is and it allowed me to encounter some interesting ideas along the way.
My argument began its life around the question of the legality of art 13(b) of the Rome Statute. That is the provision that triggers ICC jurisdiction upon Security Council referral. I had encountered what looked like some people saying art 13(b) empowered the Security Council to act, or at least questioned its legality, so thought it would be good to explore exactly how this article operates.
However, about halfway through it became pretty clear that no-one can honestly think that art 13(b) operates to empower or limit the Security Council. Principles of treaty interpretation, art 103 of the UN Charter, etc, all clearly demonstrate that the only way to limit Security Council power is by explicit amendment to the UN Charter.
Since I couldn’t find anyone explicitly laying out as such, I decided it was worth it to use all the research I had done and spent about 1,000 words detailing the limits of art 13(b), before proposing the obvious solution that art 13(b) empowers the ICC upon Security Council referral. Ultimately, the difference may seem semantic, in that if the ICC is to be empowered technically the referral has to meet art 13(b) requirements, but I think its good to have a clear delineation of powers in international law.
Though there are some interesting questions surrounding how this effects ‘imperfect referrals’ – which arguably Res 1593 could be described as one, with its exclusion of certain peoples from ICC jurisdiction. I touched on this briefly, but didn’t have the words to do it justice.
Instead I spent the remainder of the essay discussing what this shows us about the fragmentation of international law. I focused particularly on the non-hierarchical nature of international law and the implications of this when creating new institutions. I also looked at the United States using the primacy of the Security Council to undermine the ICC via resolutions.
I concluded with fragmentation being bad. Undermine new institutions and creating overlapping norms and obligations for States to abuse.
We shall see what they think!
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