ICC

Opinio Juris

Why the Creation of the ICC Does Not Support Goldsmith and Posner’s Thesis

by Kevin Jon Heller

In the Wall Street Journal editorial Ken mentions below, Goldsmith and Posner argue — in defense of their thesis that Europeans ignore international law if it is not in their interest to obey it — that “when nations led by Europe created the International Criminal Court (ICC), they purported to limit the Security Council’s power to delay or halt ICC trials, also in disregard of the U.N. Charter, which states that Charter obligations trump the requirements of any other treaty.” That argument misunderstands both the ICC and the UN Charter. Goldsmith and Posner seem to be referring to Article 103 of the Charter, which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” As numerous scholars have pointed out, however, the ICC is not a “Member of the United Nations”; it is an independent international organization with a legal personality that is distinct from the legal personality of the Member States that created it. The Security Council thus has no authority to interfere with the ICC beyond the authority specifically given to it by Article 16 of the Rome Statute — in which case the Security Council’s limited ability to “delay or halt ICC trials” is in no way “in disregard of” Article 103…