Abstract
Despite the aspirations of the International Criminal Court (icc), it is unlikely to achieve an end to impunity for crimes of concern to the international community without acknowledgement of and due engagement with the politics of international criminal law. A major threat to the legitimacy of the Court is its relationship with the United Nations Security Council (unsc). unsc referrals of conflict situations under Article 13(b) of the Rome Statute remain subject to geo-political considerations. The exercise is thus arbitrary at best, and may render the icc an instrument of political coercion at worst. An apolitical approach to conflicts given this context is almost antithetical to justice and has already given rise to tensions between the Court and some affected member states. Managing the asymmetry created by unsc referrals and rethinking its seemingly unjustified encroachment in the affairs of less influential states should become the priority for the Court.
Highlights
Despite the aspirations of the International Criminal Court (ICC or Court), it is unlikely to achieve an end to impunity for crimes of concern to the international community without acknowledgement of and due engagement with the politics of international criminal law
Managing the asymmetry created by United Nations Security Council (UNSC) referrals and rethinking its seemingly unjustified encroachment in the affairs of less influential states should become the priority for the Court
It has become increasingly obvious that the relationship between the International Criminal Court (ICC) and the United Nations Security Council (UNSC) will be one of the determining factors in the perceived legitimacy of the Court
Summary
Despite the aspirations of the International Criminal Court (ICC or Court), it is unlikely to achieve an end to impunity for crimes of concern to the international community without acknowledgement of and due engagement with the politics of international criminal law. As a political body originally charged with ensuring world peace and security under the umbrella of the United Nations (UN) system, it was essential that a limited number of states be given the responsibility, power and opportunity to make expeditious decisions to restrain the behaviour of states that threaten this international covenant of peaceful co-existence This same body is, ill-equipped to decide matters of criminal justice given the fact that the UN institutional rules allows its permanent members (P-5) to exercise unfettered discretion over the Council’s decisions through their veto powers. The central argument in this article is that the legitimacy costs incurred by the ICC as a result of its relationship with the UNSC are not unavoidable and can be addressed through the exercise of prosecutorial discretion This can be achieved by declining to act on UNSC referrals so long as the majority of its permanent members remain outside the remit of the Rome Statute.
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