Politicizing the International Criminal Court: Redefining the Role of the United Nations Security Council in the Age of Accountability

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The UN Security Council plays a prominent role in the functioning of the International Criminal Court (ICC). Although the ICC is a judicial institution distinct from the UN system, the Security Council, through provisions in the ICC’s governing treaty (the Rome Statute), can refer situations to the ICC Prosecutor for investigations or prosecutions. This power, contained in Article 13(b) of the Statute, enables the Council to transcend the nationality and territoriality pre-conditions necessary to trigger the Court’s jurisdiction. Through Article 16 the Security Council can prevent the initiation or continuation of investigations or prosecutions for a renewable period of 12 months following the adoption of a resolution under Chapter VII of the UN Charter. In exercising its referral and deferral powers, the Security Council must act under Chapter VII of the Charter, specifically Article 41, which provides that the Council may decide what measures not involving the use of force are to be employed to give effect to its decisions. Between June 2002 and April 2014, the Security Council expressly invoked its deferral powers on three occasions and referred two situations to the Prosecutor: Darfur (2005) and Libya (2011). In this paper I will consider the arguments that this relationship between the ICC and the Security Council has become politicized. I will review the drafting history of the Rome Statute to assess how this relationship was originally envisioned and whether the political undertones of such a relationship were apparent. I then will consider how the Council has applied its powers. Finally I will propose recommendations to redefine the relationship to improve the Court’s effectiveness, with particular emphasis on the Prosecutor’s discretionary powers under Article 53 of the Rome Statute. Ideally a relationship between the ICC and the UN Security Council would serve multiple interests. In drafting the Rome Statute, the International Law Commission (ILC) considered that since the UN Charter confers upon the Council primary responsibility for the maintenance of international peace and security, referral powers would provide the Council with a standby permanent tribunal through which it could adopt international criminal justice as a means