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The Rome Statute of the International Criminal Court - A Commentary (2002-07-25)

Volume I, s.3 Jurisdiction, 15 Can the Security Council Extend the ICC’s Jurisdiction?

Luigi Condorelli, Santiago Villalpando

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

Subject(s):
International courts and tribunals, jurisdiction — International Criminal Court (ICC) — International Criminal Tribunal for Rwanda (ICTR) — International Criminal Tribunal for the former Yugoslavia (ICTY) — UN Security Council

(p. 571) 15  Can the Security Council Extend the ICC’s Jurisdiction?

. Introduction

Through the establishment of the ICTY and the ICTR, the Security Council gave a new dimension to the exercise of its powers for the maintenance of international peace and security, by becoming active in the field of the prosecution of international crimes. In this perspective, the Rome Statute takes over from the Security Council’s pioneering action and consolidates the progress accomplished in the field of international criminal law. But it also provides for a new instrument at the Security Council’s disposal for the fulfilment of its primary responsibility under the UN Charter. By establishing a permanent international criminal court, providing for the basic rules that govern its functioning and defining its jurisdiction, and then by allowing the Security Council to ‘trigger’ the proceedings before the (p. 572) Court, the Rome Statute encourages and considerably simplifies this UN organ’s action. In the future, the prosecution of international crimes could be initiated immediately, without the need to establish new tribunals and to define their constitutive elements. In other words, in 1998, the States participating in the Rome Conference seemed to make a ‘gift’ to the Security Council for the accomplishment of its duties under the Charter.

A ‘gift’, however, that appears to be submitted to very strict and ne varietur conditions: the Security Council’s future task in the prosecution of international crimes is certainly facilitated, but its referral to the ICC is also subject to the rigid system created by the Rome Statute—i.e. by a treaty outside the UN system—particularly as to the principles delimiting the Court’s jurisdiction. By contrast, when creating the ad hoc international criminal tribunals, the Security Council has shaped, in all its constitutive elements, new judicial organs aimed at the prosecution of international crimes. In so doing, the Security Council has determined the jurisdiction of these tribunals not only with regard to the requirements of the specific situation at stake, but also on the basis of its own evaluation of the state of modern international law at the time of its action (the product of thorough research conducted by experts in the field specifically appointed for that purpose): particularly, it has defined ratione materiae the crimes under the tribunals’ jurisdiction and the principles governing their prosecution. In this manner, through the creation of new ad hoc international criminal tribunals, the Security Council could adapt the international prosecution of crimes to the changing demands of the international community and to each specific situation. This could never be done under the powers recognized in Article 13(b) of the Statute, since, when referring a situation to the Court, the Security Council would be unable to model this international criminal jurisdiction to the evolution of international law.

The question then arises as to whether the Security Council could change the ‘rules of the game’, extending the ICC’s jurisdiction (ratione materiae, ratione personae, ratione loci, and ratione temporis) beyond the provisions of the Rome Statute and thus overcoming the statutory obstacles to its action and adapting the ICC to the future requirements of the prosecution of international crimes. Concretely, the action by the Security Council could be conceived as an extension of the Court’s jurisdiction, for instance, by attributing to the ICC the power to judge crimes that are not listed in Article 5 of the Statute or by giving a broader definition of those crimes that already fall within the Court’s jurisdiction under the Statute.

The analysis of this intricate issue calls for the consideration of the provisions of the ICC Statute and their relationship with the UN Charter, and specifically with Chapter VII. Their study will demonstrate the impossibility for the Security Council to extend the Court’s jurisdiction beyond the terms of the Statute.

(p. 573) II . The Security Council Cannot Extend the Court’s Jurisdiction under the Statute

. The Provisions of the Statute Exclude the Possibility for the Security Council to Extend the Court’s Jurisdiction

The Rome Statute does not explicitly confer on the Security Council any power to extend the Court’s jurisdiction beyond the provisions of Part 2. On the contrary, it submits the Security Council’s intervention in the activity of the ICC to very restrictive conditions, especially with regard to the terms of jurisdiction. Furthermore, the Statute establishes a complex mechanism of amendment and review of its provisions (including those concerning the Court’s jurisdiction) that is absolutely independent from the UN and specifically from the Security Council.

The preparatory works—which commenced under the initiative of the UN, were conducted by several UN subsidiary organs (the ILC, the Ad Hoc Committee, and the Preparatory Committee) and resulted in the appointment of a Diplomatic Conference of Plenipotentiaries under the auspices of the organization—seriously took into account the interrelation between the action of the ICC and the interests of the UN in the maintenance of international peace and security. In particular, issues such as the institutional relationship between the newly founded organism and the UN and the means of participation of the Security Council in the Court’s proceedings occupied a central place in the travaux préparatoires. Interestingly enough, the proposal tending to constitute the Court as a subsidiary organ of the Security Council (or the General Assembly)1—with the immediate implication of accepting the possibility for these organs to modify the Court’s intrinsic characteristics, including its jurisdiction—was considered in the preparatory works and rejected.

The choice of the Rome Conference was to establish a Court that ‘shall be brought into relationship with the United Nations’ but is not part of the UN system. The Statute affirms that the Court shall be ‘independent’2 and have international legal personality;3 in addition, it provides for an exhaustive regulation of all the constitutive elements of the Court, including its terms of jurisdiction.

(p. 574) Several provisions in the Statute relate to the participation of the UN in the activity of the Court.4 None of them opens up the possibility for the Security Council to extend the Court’s jurisdiction: on the contrary, they all tend to confirm that the action of this UN organ is submitted to the rules established by the Statute. When providing that the Court shall be brought into relationship with the UN, Article 2 does not refer in any manner to a possible subordination of the Court to UN organs. The limited ascendancy of the Security Council over the Court is specifically demonstrated by the rigorous conditions imposed under Article 16 on the possibility of deferral of investigations and prosecutions. Furthermore, in regulating the power of the Security Council to refer a situation to the Court, the Statute, while explicitly excluding the applicability of preconditions ratione loci and ratione personae to the exercise of the Court’s jurisdiction (see Article 12(2) ), enunciates in absolute terms the other jurisdictional limitations. The straight-forward interpretation of all these provisions demonstrates that it was not the will of the States adopting the Statute to accept that the Security Council could extend the Court’s jurisdiction.

Furthermore, the intention to exclude any modification of the Court’s jurisdiction by this UN organ is manifest in all the provisions concerning the amendment and review of the Statute. By virtue of Article 121, amendments shall be proposed by States Parties and adopted by the Assembly of States Parties or a Review Conference.5 Seven years after the entry into force of the Statute, a Review Conference shall be convened that will consider any amendments to the Statute, including the issue of the Court’s jurisdiction ratione materiae.6 Article 5(2) provides for the same procedure to be applied with regard to the controversial issues concerning the Court’s jurisdiction for the crime of aggression. Similarly, a resolution adopted by the Rome Conference explicitly recommends that a Review Conference consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion within the Court’s jurisdiction.7 Finally, the Conference entrusted the necessary arrangements for the commencement of the Court’s functions to a Preparatory Commission.8 In sum, the ICC Statute (together with its related resolutions) provides for a complete mechanism of adaptation of its provisions that specifically rules out unilateral intervention by the UN and the Security Council.

(p. 575) . The Security Council Has the Legal Obligation to Abide by the Terms of the Statute

In the logic of the ICC’s system, the Security Council is legally bound by the provisions of the Statute and therefore it is not entitled to extend the jurisdiction of the Court.

Once the Relationship Agreement provided for in Article 2 of the Statute is concluded, this obligation will stem from a conventional source. This Agreement shall be expected to provide for the mutual recognition of the international personality, the responsibilities, and the mandate of the UN and the Court,9 and will consequently imply that UN organs are obliged to respect the principles established in the Statute. In our submission, the conclusion of this Agreement should be interpreted as constituting a means for the UN to ‘participate’ in the system of the ICC and to undertake the formal obligation to abide by the spirit and the rules of the Statute.10

Moreover, in terms of legal logic, it is self-evident that the Security Council could not be allowed to ignore the jurisdictional limits imposed by the ICC Statute. Notably, the reference in Article 13(b) to Chapter VII of the UN Charter cannot be interpreted as a waiver to provide for a regulation: it is intended to ‘integrate’ the exercise of the Security Council’s powers into the pre-established and balanced system of the ICC.11 When referring a situation to the Court, the Security Council is to be considered bound by those elements that constitute the intrinsic and essential features of the ICC as established in the Statute. The extension of the Court’s jurisdiction would be equivalent to diverting the power that the States Parties bestowed on the Security Council from the principles and the purposes that determined its recognition and the establishment of the Court under an autonomous treaty.

III . Chapter VII Does Not Confer on the Security Council the Power to Extend the Court’s Jurisdiction against the Terms of the Statute

As a consequence of the aforementioned findings, in order to argue for the possibility for the Security Council to extend the Court’s jurisdiction, it would have to (p. 576) be demonstrated that a norm outside the Statute (and which prevails over it) attributes to the Security Council a double power to refer a situation to the Court and to depart from the principles of jurisdiction that are normally binding on it by virtue of the Statute. Obviously, the only possible legal source of that power would be the UN Charter, specifically Chapter VII. It will soon become clear, however, that this hypothesis is to be excluded.

. Hypothesis: Chapter VII as the Possible Legal Source for the Power of the Security Council to Depart from the Provisions of the ICC Statute

In the same manner as Chapter VII entitles the Security Council to create new ad hoc international criminal tribunals and determine their jurisdiction, it could be maintained that Chapter VII empowers the Security Council to extend the jurisdiction of a pre-existing international criminal court for the purposes of maintaining international peace and security. Taking into consideration the ‘wide margin of discretion’ that the Security Council enjoys in choosing its course of action under Chapter VII,12 this power would appear prima facie to fall within those contemplated under Article 41 of the Charter.13

This hypothesis would obviously entail that the Security Council should respect the conditions established under Chapter VII and notably that it should determine, in the first place, that there exists a threat to the peace, a breach of the peace, or an act of aggression in the situation in question, and then that it should justify the extension of the Court’s jurisdiction as a means to maintain or restore international peace and security.

As a consequence, in any event, it can first be affirmed that the Security Council would not be entitled under Chapter VII to extend in general and abstract terms the jurisdiction of the permanent ICC.14 If ever it exists, the Security Council’s power shall be exercised on an ad hoc basis, in order to deal with a specific situation. It follows that the Security Council’s potential power to extend the Court’s jurisdiction, though logically separated from the power to refer a situation to the Prosecutor, in practice would always be exercised at the occasion of a referral under Article 13(b) of the Statute, since it would be inevitably justified by the (p. 577) need for the Court to act in a specific situation for the purposes of maintaining or restoring international peace and security.15

. The Case against the Possibility for Chapter VII to Justify an Extension of the Court’s Jurisdiction Departing from the Statute

Several reasons plead against the recognition of any power on the part of the Security Council to extend the Court’s jurisdiction by virtue of Chapter VII of the UN Charter. They concern both the legal status of the ICC with regard to the Charter and the obligations of the Security Council when acting under Chapter VII.

First of all, with regard to the ICC’s legal status, it should be highlighted that the Security Council’s power to extend the Court’s jurisdiction cannot be directly inferred from the recognition of its power to create ad hoc international criminal tribunals. In this latter case, in fact, the Security Council’s activity remains confined to the normative and institutional framework of the UN, since the issue at stake is simply the creation of a new subsidiary organ and the determination of its sphere of competence. On the contrary, the extension of the Court’s jurisdiction entails the intervention in a different conventional set of norms and the modification of the fundamental characteristics of an autonomous legal body.

The extension of the Court’s jurisdiction would result from a resolution by virtue of which the Security Council requests (or orders) that the Court take action beyond the terms of the Statute. Such a request per se would imply that the Court would contravene its own constitutive act, thus patently violating the principle of speciality. By virtue of this latter rule,16 the scope of the powers of the ICC are a function of the common objectives that determined its creation and that are specified in its constitutive act. As a consequence, the ICC could not be entitled to act beyond the terms of the Statute, except in case of an amendment or review in that sense approved under the procedure provided for in Part 13 or following a subsequent agreement between all the States Parties.

(p. 578) An important principle of customary international law such as the one of speciality cannot be held to have been tacitly dispensed with, in the absence of any words making clear an intention to do so in the Statute or in the Charter.17 As has been demonstrated above, the Statute clearly does not do so. It follows that the argument for a power on the part of the Security Council to extend the Court’s jurisdiction could only be maintained if it were demonstrated that, under the Charter, the Court is obliged to abide by the resolutions of the Security Council under Chapter VII even if thoses resolutions were to contradict the Statute. This is certainly not the case.

By virtue of Article 25 of the Charter, decisions of the Security Council are binding on UN Member States, and not, in any case, on an autonomous entity such as the ICC, which is not a party to the Charter and is submitted to the powers of the Security Council under its constitutive act only in very specific cases and under restrictive conditions. Moreover, the Relationship Agreement under Article 2 of the Statute will certainly bind the Court to act in conformity with the purposes and the principles of the UN (that are also reaffirmed in the Preamble of the Statute), but could not be interpreted as submitting the Court to the Security Council in contradistinction to what is explicitly provided for under the Statute.18

In the same manner, Article 103 of the Charter does not appear to be capable of sustaining the argument that Security Council resolutions override the provisions of the Statute as far as the Court is concerned. Our hypothesis would simply fall outside the sphere of application ratione personae of that provision, since it would entail a conflict between the injunctions of this UN organ under the Charter and the obligations of a separate entity not party to the Charter arising from its own constitutive act.19

(p. 579) In addition, as far as the powers of the Security Council are concerned, it should be emphasized that Chapter VII of the Charter cannot be interpreted as constituting a waiver for the Security Council to respect its obligations under international law. The Security Council’s duty to abide by the UN Charter and the rules of international law is widely recognized in legal literature.20 It is often inferred from the words of Article 24(2), by virtue of which ‘the Security Council shall act in accordance with the Purposes and Principles of the United Nations’, and of Article 1(1), that, in enunciating the purpose of maintaining international peace and security, refers to ‘the principles of justice and international law’.21 It also follows from a logical interpretation of the UN system, which is based on respect for international law.22 In addition, the obligation to observe the UN Charter proceeds from the principle that an organ is bound by the rules of its constitutive act that delimit its powers;23 the obligation to abide by international law must be inferred from the fact that States cannot attribute to an organ they have created a power that they, the States, do not possess. In sum, when acting under Chapter VII of the Charter, the Security Council is not legibus solutus.

It follows that the Security Council cannot be entitled under Chapter VII to ignore its obligation to comply with the provisions of the Statute as demonstrated above. The Charter allows the Security Council to impose legal obligations on (p. 580) Member States that prevail on other conventional obligations, but it does not entitle the Security Council to overlook its own obligations deriving from a conventional source (such as the Relationship Agreement concluded by the Organization with the Court) or the conditions established in an autonomous treaty (such as the Statute) regarding its intervention in the activity of a separate legal entity. Moreover, specifically with regard to some of the limitations to the Court’s jurisdiction that are determined by essential principles of criminal and international law, the Security Council should not be allowed to extend the Court’s jurisdiction in such a manner as to contradict those principles: for instance, the Security Council could not request the Court to exercise its judicial activity over acts that did not constitute crimes in international law at the time of their commission, since this would entail a violation of the principle nullum crimen nulla poena sine lege.

IV . Conclusions

For all the above-mentioned reasons, it must be concluded that the Security Council is not entitled to extend the jurisdiction of the Court beyond the terms of the Rome Statute.

This finding, however, does not in any way entail that one cannot adapt the prosecution of international crimes to the demands of the international community. A proper interpretation of the statutory limitations on the Court’s jurisdiction and an appraisal of the general system of international prosecution as it stands following the adoption of the Rome Statute clearly demonstrates the contrary.

. Interpretation of the Statutory Limitations to the Court’s Jurisdiction for the Security Council

The Security Council’s referral to the Court has to respect the jurisdictional limitations that are described in the commentary to Article 13(b).24

The limitations ratione materiae and ratione personae (intended in the sense that only natural persons of more than 18 years of age can be prosecuted) on the Court’s jurisdiction are applicable in case of referral by the Security Council. Accordingly, the Security Council could not request the Court to exercise its judicial activity over crimes not enumerated in Article 5 or define them in a different manner than in the Statute.

Insofar as the formulation of Article 11 could be interpreted in such way as to be inapplicable in case of referral under Article 13(b), the Security Council should be (p. 581) entitled to refer to the Court even a situation where crimes under the Court’s jurisdiction ratione materiae appear to have been committed before the entry into force of the Statute, provided that—in accordance with the principle of non-retroactivity—the conduct was criminalized under international law at the time it took place.25 It has to be emphasized that such a referral would not constitute an extension of the statutory jurisdiction of the Court but would follow a particular interpretation of the terms of the Statute.

The preconditions ratione loci and ratione personae (intended in the sense of a limitation based on the nationality of the individual) to the exercise of the Court’s jurisdiction provided for in Article 12(2), do not apply in case of referral by the Security Council. As a consequence, the Security Council could request the Court to exercise its judicial activity even if the crimes appear to have been committed on the territory of a State that is not a party to the Statute or by persons that have the nationality of such a State.

The Security Council is, however, bound by the principle of complementarity that characterizes the jurisdiction of the ICC.26 Consequently, when referring a situation to the Court, the Security Council should take into account the gravity of the crimes that appear to have been committed and the inability or unwillingness of the relevant States to investigate or prosecute their perpetrators. As has already been highlighted,27 the Security Council is to be considered entitled to refer a situation to the Court when it considers that single national judicial authorities—though available and willing to prosecute—are unable to deal with the crimes committed in their entirety: this would not constitute a rejection of the principle of complementarity, but its application in the logic of the Statute as a whole.

Moreover, as has been noted in the legal literature,28 the Security Council, when referring a situation to the Court under Article 13(b), is entitled to extend the Court’s coercive powers beyond what is provided by the Statute, in order to obtain the States’ cooperation in international judicial activity. Such a power would not constitute an extension of the Court’s jurisdiction against the Statute and would be justified under the terms of Chapter VII of the Charter: in the exercise of its exceptional coercive powers, the Security Council would create new legal obligations on behalf of the States that would go beyond the obligations under the ICC Statute by virtue of Article 103 of the Charter.29

(p. 582) . General Appraisal of the System for the Prosecution of International Crimes after the ICC Statute

The restrictive solution found to our question and the limited powers of the Security Council with regard to the exercise of the Court’s jurisdiction could induce one to be pessimistic about the possible adaptation of the criminal jurisdiction to the changing demands of international criminal law. It should not do so: a general appraisal of the whole system for the prosecution of international crimes reveals its intrinsic equilibrium.

With the establishment of the ICC, international law does not create a monopolistic mechanism for the prosecution of international crimes; on the contrary, it is enriched with a new judicial instrument that the Rome Statute wisely puts at the disposal both of the States and the Security Council. In particular, though restraining the exercise of the ICC’s judicial activity to a rigid system of jurisdictional limits, the Rome Statute does not affect the States’ rights and duties in the prosecution of international crimes and leaves untouched the general powers of the Security Council for the maintenance of international peace and security.

In the new system for the prosecution of international crimes that will be born with the entry into force of the Statute, the Security Council will continue to have a promoting role in recognizing the new demands of the international community and the developments of international criminal law. In its action under Chapter VII of the Charter, the Security Council will then be provided with a varied set of options, including the power to incite States to abide by their legal obligations in the prosecution of international crimes, the possibility of referring a case to the ICC if the situation appears to fall within its jurisdiction as defined by the Statute, or even the power to create new ad hoc international criminal tribunals, if it considers that the evolution of the international community so requires. The success (or the failure) of these possible future ad hoc international criminal tribunals will certainly help to determine the evolution of the ICC.

On its side, the ICC will have the function of consolidating the advances that were sensed by the Security Council in its pioneering action under Chapter VII when it established the ad hoc Tribunals. Far from being a static procedural colossus, the ICC Statute provides for numerous mechanisms of amendment and review of its provisions: the States Parties have the instruments to adapt the Court to the evolution of international law. Its adaptation will certainly be slower than the Security Council’s action under Chapter VII, but it will leave favour to precaution: a valuable virtue in international criminal law.

Footnotes:

1  See YILC (1994) Vol. II, Part 2, at 73 and Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/51/22 (13 September 1996), at para. 25.

2  Rome Statute, Preamble, para. 9.

3  Ibid., Art. 4.

4  Notably Art. 2: ‘Relationship of the Court with the United Nations’ (see Ch. 4.3, above); Art. 13: ‘Exercise of jurisdiction’; Art. 16: ‘Deferral of investigation or prosecution’ (see Ch. 17.2, below); or Art. 115: ‘Funds of the Court and of the Assembly of States Parties’ (see Ch. 10, above).

5  Under Art. 122, amendments to provisions of an exclusively institutional nature (specifically enumerated) can be adopted by consensus; if consensus cannot be reached, they shall be submitted to the Assembly of States Parties or a Review Conference.

6  Rome Statute, Art. 123.

7  See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I, Resolution E.

8  See ibid., Annex I, Resolution F.

9  In the same manner as the Agreement on Cooperation and Relationship between the UN and the International Tribunal for the Law of the Sea: see Ch. 4.3, above, at IV.A.

10  See Ch. 4.3, above at II.B.1.

11  See F. Lattanzi, ‘Compétence de la Cour pénale internationale et consentement des états’, 103 RGDIP (1999) at 441.

12  See ICTY, Ap. Ch., Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, Tadić, IT-94-1-AR72, at para. 31.

13  This kind of action would match perfectly the description in Art. 41 of ‘measures not involving the use of force’ and would fall squarely within the powers of the Security Council under this provision, as interpreted by the Appeals Chamber of the ICTY (ibid., at paras. 33–36).

14  As a consequence, the Security Council could not attribute to the Prosecutor a general power to investigate and prosecute cases beyond the jurisdictional limits of the Statute or grant to States a power to refer situations falling outside the jurisdiction of the Court.

15  The attribution to the Prosecutor of the power to investigate and prosecute crimes on the basis of Article 13(c) of the Statute beyond the Court’s normal jurisdiction in a specific situation would be equivalent to refer to him or her that situation under Art. 13(b). The attribution to the States Parties of the power to refer a situation, under Art. 13(a), beyond the limits of the Court’s statutory jurisdiction would constitute a logical nonsense, since it would mean that the Security Council considers that the referral to the Court is an appropriate means to maintain international peace and security, but, at the same time, that it renounces taking action in this respect. For this same reason, it is self-evident that the extension of the Court’s jurisdiction per se, without any further resolution with regards to its seizure, would constitute a useless measure under Chapter VII.

16  The principle of speciality is well-established in customary international law, as was notably recognized by the ICJ in an Advisory Opinion of 1996 (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports (1996) 66, at 78–79).

17  See, in this sense, the principle proclaimed by the ICJ (and partly paraphrased in the text) with regard to the impossibility of dispensing with the rule of the exhaustion of local remedies without an explicit provision in the relevant treaty (Elettronica Sicula S.p.A. (ELSI), ICJ Reports (1989) 15, at 42).

18  Particularly, the Relationship Agreement could not contain a provision allowing the Security Council to extend the Court’s jurisdiction: in so doing, the Court would clearly exceed its treaty-making power as it would act beyond what is provided by the Statute.

19  The possible conflict for UN Member States between the obligations under the Charter and those of the Statute (e.g. with regard to cooperation with the Court in the arrest of a person or the collection of evidence) constitutes a different and logically subsequent problem. This issue could only arise once the Court is exercising its extended jurisdiction against the terms of the Statute: it then presupposes that the Security Council is indeed entitled to request the Court to act beyond its statutory jurisdiction, i.e. that the question treated in the text finds a positive answer.

A different situation would arise in case of a decision by the Security Council establishing the obligation for UN Member States to modify the Statute in order to extend the Court’s jurisdiction for a specific situation. Though theoretically solving the problem discussed in the text (since these States would be bound to abide by the Security Council’s resolution and the Court would subsequently apply its own Statute), this hypothesis appears clearly unrealistic as the long negotiations aimed at approving the amendment would never allow the immediate reaction that is necessary in the situations described in Chapter VII of the Charter.

20  On the recent general discussion about the limits to the powers of the Security Council, see, inter alia, M. Bothe, ‘Les Limites des pouvoirs du Conseil de sécurité’, in R.-J. Dupuy (ed.), The Development of the Role of the Security Council: Peace-Keeping and Peace-Building (1993) 67–81; B. Conforti, ‘Le Pouvoir discrétionnaire du Conseil de sécurité en matière de constatation d’une menace contre la paix, d’une rupture de la paix ou d’un acte d’agression’, ibid. at 51–60; M. Bedjaoui, The New World Order and the Security Council: Testing the Legality of its Acts (1994) particularly at 9–36; L. Condorelli, ‘La Corte internazionale di Giustizia e gli organi politici delle Nazioni Unite’, 77 RDI (1994) 897–921; A. Pellet, ‘Rapport introducrif: Peut-on et doit-on contrôler les actions du Conseil de sécurité?’ in Société française de droit international, Colloque de Rennes, Le chapitre VII de la Charte des Nations Unies (1995) 221–238; and M. Bedjaoui, ‘Un contrôle de légalité des actes du Conseil de sécurité est-il possible?’, ibid. at 255–297, and the following debates, ibid. at 299–309.

21  It is often noted, however, that the latter sentence refers to the functions of peaceful settlement of disputes, see L. M. Goodrich et al., Charter of the United Nations: Commentary and Documents (1969) 205.

22  Bothe, supra note 20, at 69; G. Ziccardi Capaldo, ‘Verticalità della comunità internazionale e Nazioni Unite: Un riesame del caso Lockerbie’, in P. Picone (ed.), Interventi delle Nazioni Unite e diritto internazionale (1995) 70–71.

23  The Security Council’s obligation to respect the Charter is not limited to Arts. 1 and 2. In this sense, it should be noted that the second sentence of Art. 24(2) specifies that the powers granted to the Security Council are laid down in Chapters VI, VII, VIII, and XII. In addition one could refer to the dictum of the ICJ according to which: ‘[t]he political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment’ (Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, ICJ Reports (1947–48) 57, at 64). See also Pellet, supra note 20, at 233–234; Bedjaoui, supra note 20, at 264–268; C. Dominicé, ‘L’Article 103 de la Charte des Nations Unies et le droit international humanitaire’, in L. Condorelli et al. (eds.), The United Nations and International Humanitarian Law. Actes du Colloque international à l’occasion du cinquantième anniversaire de l’ONU (Genève, 19, 20 et 21 octobre 1995) (1996) 181.

24  See Ch. 17.2, below, esp. II.B.2. and 3.

25  Ibid., II.B.2.

26  Ibid., II.B.3.

27  Ibid.

28  See S. Zappalà, ‘Il procuratore della Corte penale internazionale: luci e ombre’, 82 RDI (1999) 60–61.

29  The difference with the previous issue of the Security Council’s potential power to extend the Court’s jurisdiction is fundamental, since in the case of extension of the coercive powers of the Court, the Security Council’s resolution will be addressed to the UN Member States themselves, that are bound by the UN Charter.