The UN Security Council and the International Criminal Court
Lawrence Moss | Friedrich-Ebert-Stiftung | 2012
The UN Security Council's power to refer potential prosecutions to the International Criminal Court (ICC) in situations outside the Court's treaty-based territorial and nationality jurisdiction helps deter the perpetration of genocide, war crimes and crimes against humanity everywhere in the world.
It is unclear if referral to the ICC has had any effect in preventing the commission of further crimes in Darfur or Libya, and referral was no substitute for the Council's use of other measures to restore peace and security. The Council should use referrals to ensure accountability for serious crimes, and to strengthen the general deterrent effect of international criminal law, rather than as a primary tool to address breaches of the peace.
The composition of the Security Council, the veto power of its permanent members, and its need to fashion immediate remedies in crisis situations can endanger the independence and legitimacy of the ICC, particularly if the Council's decisions are seen as politically motivated. In using its power of referral, the Council should apply criteria and processes that are as objective and consistent as possible.
The Council should respect the independent judicial process by persevering in its reluctance to defer any investigation once underway. The Council should use its powers of enforcement to support all ICC investigations in Chapter VII situations. The Council should no longer usurp the decisions of the General Assembly as to funding investigations referred by the Council to the ICC.