Deconstructing the Would-Be Referral

The previous chapter ended with France’s failed attempt to refer the situation in Syria to the International Criminal Court (ICC). After briefly surveying the history of the U.N. Security Council’s engagement with international justice, chapter 4 deconstructs the failed ICC referral draft proffered by France with an eye toward explaining the origins, import, impact, and criticism of several textual elements contained within prior Security Council referrals and France’s draft text (e.g., the provisions that seek to divest the ICC of jurisdiction over the nationals of non-state parties, the prohibition on U.N. funding, the endurance of immunities that potential ICC defendants might enjoy, and the anodyne state cooperation language). Although many (but not all) of these provisions reappeared in the Syria referral draft, subtle textual changes suggest movement on some of the more contentious issues. In an effort to achieve consensus, drafters also devised inventive yet inconspicuous means to cabin the ICC’s jurisdiction; these compromises may or may not be accepted by the Court if it were ever to be allowed to move forward. Because many of the most contentious provisions in the Council’s ICC referral resolutions owe their provenance to concerns of the United States, the draft resolution also presents a microcosm of the United States’ Security Council practice when it comes to advancing international justice.