Security Council Referrals to the International Criminal Court as Quasi-Legislative Acts

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In 1998, the international community decided to establish the first permanent International Criminal Court (ICC) with jurisdiction over persons for the most serious crimes of international concern, as referred to in the Rome Statute. As noted by many observers, some of the specific crimes within the Rome Statute are not grounded on customary international law but are more germane to treaty-based crimes. Thus, the exercise of treaty-based jurisdiction over non-party States would conflict with the principle pacta tertiis nec nocent nec prosunt. While the ICC jurisdiction is limited to crimes committed in the territory or by nationals of its States Parties, the Court may, where a situation is referred by the UN Security Council under Chapter VII of the UN Charter, exercise jurisdiction over crimes committed in the territory and by nationals of States not party to the Statute. Since the Rome Statute may go beyond existing applicable law, the referrals to the ICC are thus normative in their character. They impose new rules to be observed by any actors in the situations referred. This paper argues that this feature of a Security Council referral fits the definition of an international legislative act. The paper also inquires whether the obligation to cooperate fully with the Court arising from the Security Council resolution and the principle of complementarity require the State to modify its domestic law.