Through a Glass Darkly: the ICC, the UNSC and the Quest for Justice in International Law

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.