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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.

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.

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.

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.

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.

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.

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.

This chapter analyzes the practice of SC referrals to the ICC. It will build on the theoretical outline established in the previous chapters to address the legal issues arising from the SC’s practice in relation to referrals. It is not a comprehensive record of the practice of the SC and the ICC. Instead it seeks to address the legal questions that have arisen from such practice insofar as they relate to the particularities of SC referrals and its legal nature. This chapter is consequently confined to the legal issues arising directly out of the SC referrals and will therefore not address more general questions relating to ICL or the internal law of the ICC.