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

2017 ◽  
Vol 25 (2) ◽  
pp. 239-260 ◽  
Author(s):  
Victor O. Ayeni ◽  
Matthew A. Olong
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
Institutional Innovation ◽  
Binding Effect ◽  
Un Security Council ◽  
Trigger Mechanisms ◽  
Grave Danger

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.

s.II Spaces, Ch.6 Legitimacy in War and Punishment: The Security Council and the ICC

2020 ◽  
Author(s):  
Dannenbaum Tom
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
Structure And Function ◽  
Criminal Court ◽  
Core Function ◽  
Un Security Council ◽  
And Function

UN Security Council referrals are a legally sufficient basis for International Criminal Court (ICC) action under the Rome Statute and the United Nations (UN) Charter. However, the fact that each permanent member of the Security Council can veto any such referral and that three of those states have declined to ratify the Statute poses a legitimacy problem for the Court. Specifically, it undermines the Court’s moral standing to judge and thus its capacity to deliver on its core function. Because of both the structure and function of the Court, the privileged position of the Council’s permanent members is more undermining of ICC legitimacy than it is of Council-authorized military action in response to atrocity, and even than it was of the ad hoc tribunals created by the Council. One way to remedy this situation would be to vest the ICC with universal jurisdiction. Alternatively, the Court’s legitimacy would be enhanced if Security Council referrals were removed from the Statute. Those, however, are unlikely amendments. More modestly, the Prosecutor should decline all Security Council referrals under the ‘interests of justice’ test.

Managing Setbacks for the International Criminal Court in Africa

2011 ◽  
Vol 56 (1) ◽  
pp. 1-14 ◽  
Author(s):  
Elise Keppler
Keyword(s):  
Civil Society ◽  
Security Council ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Government Officials ◽  
African Government ◽  
Un Security Council

AbstractThe International Criminal Court (ICC) suffered two notable setbacks in Africa in 2010: the African Union's (AU) renewed call for members not to cooperate in executing ICC arrest warrants for Sudanese President al-Bashir; and the president's first visits to the territory of ICC states parties since warrants were issued in 2009 and 2010. Factors surrounding these developments suggest they do not represent the predominant view or approach to the court in Africa, where there is considerable backing for the ICC among African government officials and civil society. African ICC states parties and civil society should enhance initiatives to demonstrate the support that exists for the court, and to ensure that attacks on it are understood as limited efforts that emanate more from criticisms of the UN Security Council than of the court. Developments in 2011 reinforce these assessments.

Status and Intervention in Libya, 2011–2012

2019 ◽  
pp. 88-107
Author(s):  
Courtney J. Fung
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
International Criminal ◽  
Global South ◽  
Criminal Court ◽  
Great Powers ◽  
Tiananmen Square ◽  
Un Security Council ◽  
Feasible Option ◽  
Socially Isolated

Chapter 5 analyzes China’s response to the 2011 Libya crisis. In the space of three weeks, China would vote on two landmark resolutions at the UN Security Council: a yes vote for a unanimous referral of a sitting head of state to the International Criminal Court, and shortly after, an abstention vote permitting sanctions and a “no-fly zone plus” over Libyan territory. China’s votes were largely a surprise—many analyses had predicted that China and Russia would cast tandem vetoes. Status is key to understanding China’s response. China was particularly sensitized to status due to a well-publicized speech by Colonel Gaddafi citing his domestic repression as a parallel to the Tiananmen Square Incident of 1989. Against this status trigger, the great powers (the “P3” of the United States, the United Kingdom, France) came out forcefully for intervention, and representatives of China’s Global South peer group—the African Union, the League of Arab States, the Organization of Islamic Cooperation, and the Gulf Cooperation Council—were among the first to call for a strong response. China was able to reconcile its concerns regarding an International Criminal Court referral of the Libya case as China prioritized status; China was socially isolated from its great powers peers at the UN Security Council and from its Global South peers in regional organizations. When the Global South reference group disagreed about the call for a no-fly zone, China viewed the next most feasible option as an abstention vote, so as to offend no peer.

‘Contested Collisions’: Conditions for a Successful Collision Management – The Example of Article 16 of the Rome Statute

2015 ◽  
Vol 29 (2) ◽  
pp. 551-575
Author(s):  
KERSTIN BLOME ◽  
NORA MARKARD
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Norms ◽  
International Regimes ◽  
Un Security Council ◽  
Collision Rule

AbstractThis article examines the problem of colliding international regimes by reference to the International Criminal Court (ICC) and the UN Security Council. Given the different logics or rationalities of these institutions – the Security Council is first and foremost a (power) political organ, while the ICC is in charge of legal assessments – the collision potential is high. A collision rule was therefore introduced into the Rome Statute in the form of Article 16; however, all instances of its application so far have been highly controversial. While norm application is always controversial to some extent, we argue – in reference to Thomas Franck's work on the legitimacy of international norms – that regime responsiveness, secondary rules or a neutral application control of Article 16 could contribute to successful collision management.

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