James5

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Opinio Juris has a good discussion going over the limits of the powers of the UN Security Council - particularly in referring matters to non-UN judicial bodies such as the ICC.

Chapter VII of the UN Charter grants the Security Council wide discretionary power in regards to maintaining “peace and security”, and even though there was some controversy over the creation of judicial bodies like the ICTR and ICTY (as the Security Council has no judicial power it was questioned whether it had the power to create bodies that did), it now seems clear that the Security Council is able to create subsidiary judicial organs such as the ad hoc tribunals.

I can’t imagine this power wouldn’t also extend to referrals to bodies such as the ICC, given this precedent and the wide discretion available to the Security Council when dealing with matters. The problem is extending the powers of the ICC beyond its signatory nations - even though Sudan hasn’t signed up to the Rome Statute the Security Council is effectively placing their head of state under the ICC’s jurisdiction.

This is especially interesting for the United States who, not having signed the Rome Statute and actively signing immunity agreements, is potentially opening itself up to ‘back door’ ICC prosecution. Of course, given their veto power on the Council they have nothing to fear in reality, but the precedent is now there.

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