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Gabriel M. Lentner

This study has demonstrated that the legal nature of the SC referral to the ICC involving states not party to the ICC must be conceptualized as a conferral of powers from the SC to the ICC. In analyzing the legal nature of the SC referral to the ICC, I have pointed to important legal differences between the establishment of the ad hoc tribunals and the referral. Because the general justification for such exercise of the SC’s powers as provided for in the Tadic case cannot, therefore, be applied, it was necessary to scrutinize the Chapter VII powers of the SC to do so.

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Edited by Marc Hertogh and Richard Kirkham

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Gabriel M. Lentner

The previous chapter dealt with the question of how far-reaching are the powers of the SC vis-à-vis the ICC. A different but closely related question is what legal consequences SC measures have on the ICC. This is because the ICC as a separate international organization cannot act beyond its constituent treaty. The incorporation of art 13(b) into the Rome Statute was important not because it gives or determines the powers of the SC but because without it, the ICC as an international organization would have no constitutional basis upon which to legally ground its actions to carry out the SC referral. Hence, the question of what the SC is competent to do under its constituent treaty, the UN Charter, is different from the question of what the ICC is competent to do under its constituent treaty, the Rome Statute, and whether and to what extent the ICC can act upon the authority that the SC is giving the Court through a resolution referring a situation over a non-state party to the ICC.

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Gabriel M. Lentner

The United Nations Security Council (SC) referral to the International Criminal Court (ICC) is arguably the most fundamental operational relationship between the United Nations (UN) and the ICC. It allows the Court to exercise jurisdiction over situations in states not parties to the Rome Statute of the ICC (the Statute, Rome Statute) provided for in art 13(b) of the Statute. In contrast to referrals by states parties (art 14) or the Prosecutor acting proprio motu (art 15), where jurisdiction is conferred to the ICC through the ratification of the Rome Statute, the SC referral would confer jurisdiction to the ICC over situations which it otherwise could not lawfully exercise.

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Moshe Hirsch and Andrew Lang

International legal scholarship has increasingly turned to various traditions of sociology and social thought to challenge the constraints of orthodox international legal thinking, and to develop new kinds of thinking, more suitable for the rapidly transforming social and political landscape in which contemporary international lawyering is done. This Research Handbook seeks to showcase this work, marking the present fertile period of creative borrowing between the disciplines of international law and sociology with a collection of works at its cutting edge. Each contributor to the Research Handbook situates their intervention within a particular tradition of sociological or social theoretical thinking, and then explains how and why this tradition is useful in thinking about some contemporary development, or problem, within the domain of international law and governance. This introductory chapter seeks to clear the ground for the contributions which follow, by outlining a map of some major theoretical conversations within sociology. It identifies three core approaches which are most commonly identified in sociological literature, and briefly reflects on a number of early engagements between international law and sociology (mainly the writings of Max Huber and Julius Stone). It then argues that more recent engagements between international law and social thought stem in significant part from attempts to understand the nature, dynamics, and stakes of globalization as it relates to law, and reflect the main arena in which the significance of post-structural social theory for international law continues to be negotiated and defined.

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Gabriel M. Lentner

The practice of SC referrals raises several legal issues. This chapter will therefore analyze in turn the legal issues arising from the jurisdictional exemption, the temporal jurisdiction, the financing of the SC referrals and the question of obligations for non-party states based on the findings of the legal nature of the SC referral. Again, this study is necessarily limited to those issues that directly relate to the legal nature of SC referrals. It is important to note that to date neither the ICC nor its member states have addressed these issues directly.

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Gabriel M. Lentner

In the previous chapter, I demonstrated that the inclusion of the SC referral proved to be one of the most contentious issues during the preparatory work as well as at the Conference in Rome. However, this debate concerned primarily the question of what role the SC should play with respect to the ICC and did not discuss the legal basis for any such role. Legal issues were raised as to whether the SC indeed possessed such powers, but this was soon overshadowed by political considerations and compromise. Whereas agreement on the text was reached during the negotiations in Rome, some questions remain open when one closely scrutinizes the underlying legal issues, particularly concerning the referral’s legal qualification under international law.

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Gabriel M. Lentner

To understand the underlying and inherent issues with the SC referral, a critical analysis of its legislative history is insightful. This chapter seeks to demonstrate that the controversies surrounding the SC referral and its legal nature can be explained by the general tension between the ideal of the establishment of a universal and permanent institution to end impunity on the one hand, and the realities of international relations as reflected by the legal limitations stemming from political interests and power. As a preliminary remark, there are many histories of ICL and this chapter makes no claim of comprehensiveness. It does however provide an overview of the historical development leading up to the establishment of the ICC in Rome.

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Gabriel M. Lentner

Article 13(b) of the Rome Statute requires that the SC resolution making the referral has to be adopted under Chapter VII of the Charter. As established in the previous chapter, this provision does not affect the powers of the SC under the Charter: a Chapter VII resolution is necessary as a matter of UN Charter law and general international law. Only binding decisions under Chapter VII are capable of creating legal obligations for UN members that have not accepted the obligations arising out of the Rome Statute (either ad hoc or by becoming states parties). For these decisions to be binding, the SC’s decisions must be in accordance with the Charter. The question is therefore whether it is in accordance with the Charter for the SC to confer jurisdictional power to the ICC.

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Edited by Gian Luca Burci and Brigit Toebes