Opportunities and Challenges to the UN Security Council Referral under the Rome Statute of the International Criminal Court

Abstract

The establishment of the International Criminal Court (ICC) is an extraordinary phenomenon, and perhaps the most important institutional innovation since the founding of the United Nations (UN). The Court has opened up new hopes, raised new challenges and heralded new dispensation in the administration of international criminal justice. To date, the Court has been seized of only seven situations all of which originate from Africa. Five of the seven situations were voluntarily referred to the ICC by African states themselves. The remaining two (Sudan and Libya) are UN Security Council referrals. There is no doubt that Security Council referral is at the heart of the ICC trigger mechanisms. It ensures respect for the ICC and prevents unnecessary proliferation of ad hoc tribunals. The greatest advantage of the Security Council referral is its imperativeness and binding effect on the ICC's states parties and non-states parties alike. This article examines the prospects and challenges of the Security Council referral mechanism within the ICC framework. The article argues that while the Security Council referral mechanism offers so much hope and opportunity in the global fight against impunity, its abuse portends grave danger to the very existence of the ICC.