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date: 22 October 2020

Abstract and Keywords

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.

Keywords: UN Security Council, International Criminal Court ICC, Rome Statute, Punishment, Expressivism, Legitimacy, Darfur, Libya, Responsibility to Protect (R2P), Humanitarian intervention

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