The ICC is enslaved to the frameworks of third parties in order for it to function well. Unfortunately, political connotations linger and do play a frequent role in the decisions that the ICC often makes. This comment highlights why the Security Council referral process is of utmost importance in the factor-based analysis: this weighty prong is needed in order for one to secure an overall just result. Each prong will also use a case study for the proposition of enhancement or defeat. This comment argues that the entity that refers the situation to the ICC will have a huge factor on the endgame outcome and will argue that the two other factors will also play a major role in the adjudication of the criminal referral. For example, one is to consider the monetary budget associated with each referral, the investigatory forces and their expertise, and of course, the backing of powerful military groups.

A. Security Council Referral

Pursuant to Article 13(b) of the Rome Statute, the Security Council may refer a criminal situation to the ICC for investigation and adjudication per its Chapter VII resolution power, if it is likely that one or more crimes were committed within the confines of the Court’s jurisdiction, or if authorized per their sovereign power of referral.3 The Rome Statute under the header of Article 13(b) reads:

[A] situation in which a crime or crimes appears to have been committed can be referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter.4

This powerful mechanism allows the Security Council to activate agents that would compel assistance, for example, per Article 41 of the Charter, this body could “impose an arms embargo, a travel ban, and an asset freeze.”5 Essentially, this bylaw gives the United Nations body, through its members, the ability to extend jurisdiction of the ICC to any criminal conduct that occurred anywhere in the world. The most famous case of this practice was that of Libya.

1. Libya Case Study

In Libya, the situational enforcement arm was dispatched due to a referral from the United Nations Security Council Resolution. These situations are limited to when there has been deemed a presence of a threat against the peace, breach of the peace, and acts of aggression.6 Of note, it has been argued internationally that this power of international dominance in an area of criminal concern can subject non-parties to the jurisdiction of the ICC, but at the same time, a way that can bar three of the five permanent member countries from obtaining jurisdiction of criminal offenses; essentially, it was called a political tool to advance the interests of the Security Council’s permanent members.7

Libya was widely seen as an exemplar of how political dominance among the powerful permanent members can steer power by their influence into supreme superiority. For example, it was widely reported that the only reason the United States supported the resolution to refer the situation in Libya to the ICC was because of their attempt to secure a government friendlier to the United States.8 Others were inclined to refer the situation due to the alarm of violent attacks on innocent bystanders and civilian protestors by the Gaddafi regime. Many scholars have attempted to grasp the idea that the same folks who undermine the ICC by not accepting their jurisdiction, are then allowed to refer cases to the very same institution that they do not want to be a part of.9

Many economists have spread the philosophy that money runs the world. This childhood story can be replicated in the provisions of the United Nations. When the UN Security Council refers something to the ICC, this weighty body has some force behind it due to the five great powers’ symbolic blessing. Not only is legitimacy and monetary contributions at the forefront of these referrals, but also the weight of Chapter VII of the UN Security Council. For example, the Libyan situation was encountered in paragraph five of Resolution 1970 with the powerful command of “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” Moreover, when the Security Council acts per its resolution authority, the “duty to cooperate by executing arrest warrants, extends to all UN Member States, regardless of whether or not they are a Party to the Statute.”10 Finally, the Libya situation was resolved in a steadfast fashion due to the “outstanding [Western] support” and “substantial cooperation” as “a critical component of the fast progress of the Libya investigation.”11

i. The Legitimacy of a Given Conflict

Although it is within the purview of the Security Council to refer situations to the ICC, it has been strongly disfavored and seldom used due to the permanent member’s opposition to such sovereign interference. Each permanent member has a veto power to council resolutions, so it is to be expected that the world powers that are not part of the ICC would be inclined to veto most of these resolutions.12 The great powers of this body enhance these resolutions and they are super important because they are legally binding on all UN member countries, so this would give a boost of morale and of international support for the mission at hand.13 The other consideration that the ICC Prosecutor must weigh is the overwhelming violence on the ground of a given situation and its investigatory force’s expertise on a matter of adjudication. If violence is on-going, the Prosecutor should seek urgent assistance to try to persuade others that a massive response is required in order to avoid continued bloodshed.

ii. Backers of the Situational Response

Although the ICC has vast amounts of resources and monetary will from supporting member states, the institution itself suffers dearly due to its very own constraints. The ICC lacks the all-too-important enforcement police force and is extremely dependent on the respect and will from the sovereign entities that make up this organ, through the investigations and prosecution evidence-gathering stages of the process.14 The enforcement dependence has made the Prosecutor vulnerable to manipulation and exploitation of goodwill law enforcement independence. With this insight, it is expected to comprehend that justice is more likely to prevail when the Security Council does indeed provide continuous support. With this support behind it, the ICC Prosecutor is advised to continue an investigation for as long as it has the powerful backing of the Security Council, and that is because of the unified support rooted behind an act of criminal wrongdoing within a certain region. The investigation should only conclude if adjudications are underway or if the Security Council defers ICC interference, after all, they are the body that protects international humanity from the evils of governments and mankind.

B. State Referral

A State party to the ICC’s Rome Statute can call upon the Prosecutor to investigate a situation, via their referral power mechanism embedded within Article 14:

State Part[ies] may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.15

This referral power has been manipulated, abused, and stripped of its integrity due to the many governmental actors who use it as a plot to remain in power. It has been noted that countries such as Uganda, have been implicit in the weaponizing of such power for their own survival, and for their own standing of political motivational purposes.16

1. Uganda Case Study

Uganda has been mocked for being a celebrity-famous example of this weaponizing doctrine highlighted within. The ICC appreciates self-referrals from member countries, and that is due to the facilitation of situational preparation and on-the-ground support, but unfortunately, the ICC has also used favoritism in conducting their investigations.17 For example, it was widely known that both the power holding government and the various rebel groups were responsible for criminal acts of international jurisdiction offenses. In this context, the ICC made very clear that it would investigate the Lord’s Resistance Army (LRA) activities, and essentially, give a get out of jail card to the holding government.18 This can be seen as a tactical maneuver, as the holding government was itself immune from punishment and rewarded for calling upon the International Prosecutor for help.19 In this sense, the ICC failed at its main judicial purpose, and instead provided a reward system for defendants or perpetrators who become informants; this tactic has been too widely exploited. This practice is seen as a dangerous tool due to the legitimate stake that this Court has for many developing and undeveloped countries who hold rule of law within the hands of this international tribunal, and if these malicious actors come and depict themselves as friends of the Court, then they might not get held to account for their conduct. Ironically, the very own government that sought the ICC for international prosecution reversed course with Uganda’s President Mouseveni, who then shamelessly called for all African Union member states to “get out of that Court of the West” and leave the westerners “with their court.”20

The ICC Prosecutor must be judicially impartial in looking at dual sides of the conflicts and must avoid the reward bonus associated with the government or rebel actor that self-referred the situation to their attention. Donn R. Fudo, Hawaii’s Department of the Prosecuting Attorney for the City and County of Honolulu said “prosecutors are impartial units, and should always see the totality of a situation, and not be seen as persecutors, as this is not the system of justice in this country.” Fudo emphasizes that the moment the Prosecutor steps into the shoes of a side-choosing jurist, then his or her professional attributes to the judicial system are expired.

i. The Legitimacy of a Given Conflict

This prong consideration under this context should be given hefty weight due to the lapse of on-going disputes, and the potential of resolution through the tribunal’s powerful threat of punishment. Although, the ICC Prosecutor should use common sense in dispatching aid, for example, if rebel groups have publicly stated “ICC, you come, millions die” then the ICC is better poised at seeking assistance from the Security Council rather than dispatching with the sole support of the hosting country.

ii. Backers of the Situational Response

With shock, one could imagine a situation in which the Prosecutor would enjoy such referrals. For example, it is perceived that success comes when the support of the State body which has a situation within its geographical region assists the ICC body with their army troops. That is because the very own governmental force would aid in the intelligence and evidence gathering phase, which would result to greater compliance and would ensure fulfillment of its mandate, but ulterior motives might be lingering in the backdrop, so it wise to plan out beforehand any issues of impartiality that might be grey.21 With this in consideration, it is advised that the ICC Prosecutor use time, place, and manner analysis to determine if the special timing warrants a successful completion of an investigation. Also, the ICC Prosecutor should analyze the referring entities’ power to evaluate if conclusion of an investigation is warranted or aggressive pursuit of an investigation is better positioned.

C. Prosecutor’s Proprio Motu Authority

The Prosecutor is a very powerful international law enforcement officer. She is in a position of trust and in a position to create international peace through the sanction of criminal punishment. Per the ICC’s Rome Statute, the Prosecutor has a duty to investigate a criminal query if she believes that there is a reasonable belief that a criminal offense was indeed committed within her territorial boundaries.22 The word that corresponds is shall so therefore eliminating the permissive discretion and mandating the bounds of her office. The Prosecutor’s authority has been controversial, in gentle terms. This authority to investigate can only be launched if the accused actor is a State Party national, or the crime/s took place within the territory of a State Party.23 The first proprio motu investigation was launched in the year 2010, and the subject of this investigation was a violent act referencing the post-2007 election dilemma in Kenya.24

Although at first sight one might be inclined to deem this prosecutorial tool as one with less teeth in the sense of ultimate judicial weight, one should consider the upsides to this powerful tool. For example, one should consider that this initiation process can be a good step when it might be to the targeting of powerful nations, who many times are in the status of permanent membership and deemed to have a veto power. This veto power essentially allows them to get away with criminal offenses without proper justice to follow. This extraordinary power does not impose the Prosecutor with unfettered discretion. For example, the Prosecutor must inform the Security Council about any pending investigations that she initiates, such as crimes of aggression, which then the Security Council has six months’ time to determine if an act of aggression indeed occurred.25 In this context, if the UN Security Council makes no determination, then the Prosecutor may only proceed if authorized by the Court’s Pre-Trial Division judges.26

1. Kenyan Case Study

The country of Kenya has had various turbulent violent situations in the last few decades. On November 26, 2009, the Honorable Prosecutor pleaded with the ICC’s Pre-Trial Chamber to grant him the standing authority to open a query investigation into the post-election violence in Kenya, pursuant to its proprio motu powers found in Article 15 of the Rome Statute.27 Unfortunately, this study resulted in a fiasco of bomb-fires, and this was due to the lack of evidence collection, the lack of enforcement powers, the lack of international support, and the lack of political pressure from powerful ICC-friendly countries.28 With great dismay, this self-initiated power comes with great weaknesses, as it is only used in the absence of a UN Security Council referral, or that of a State equivalent, so this power hinges upon less international support, and is deemed to be viewed as less weighty in the sense of justice driven solutions to mass atrocities. This study has been widely seen as a fiasco due to the Kenyan government’s tampering and evading of “critical information” and due to their tactics of “failing to execute the Office of the Prosecutor’s most important requests for documentary evidence.”29

i. The Legitimacy of a Given Conflict

The ICC Prosecutor should consider irreparable injuries to other innocent parties, continuing evils committed within a regional area, and the systematic exclusions of killings or other ICC related criminal offenses in the weighing of such bold power. Although, it is puzzling that the ICC Prosecutor has weighed peace building vs. justice building in stating, “discretion for short term political goals are inconsistent with the Rome Statute.”30 This flawed criterion has essentially given the party seeking peace-building an incentive to continue an all-war rebellion; something the author is explicitly against. Peace-building, while it lasts, should be a reinforcement of the ICC doing its job in maintaining international world order and peace, and hence subject to a healthy conclusion of a situational investigation.

ii. Backers of the Situational Response

Although the Security Council weight should matter a great deal in the sense of securing judicial accountability, the international organs must be inclined to work together to obtain a prosperous solution. It is within the Security Council’s power to defer or halt a lawful investigation or prosecution for twelve months by its Chapter VII resolution powers.31 This power can help undermine legitimate investigations, and it can help sideswipe the independence of this law enforcement body. George Fletcher and Jens David Ohlin have both cleverly stated that the ICC is “two courts in one,” a criminal court marked by its institutional independence and a “security court,” when called to action by the Security Council.32 This mentality must be deleted from our imaginations, and that is because these bodies work best when they have each other’s positions in referral situations, and not a “you-vs-me” dilemma. Of course, the UN Security Council referral scenario is much stronger because of the Charter-centered hierarchy of hegemonic dominance among its pyramid force. The prime example is the International Criminal Tribunal for the Former Yugoslavia (ICTY), here, the Court had the backing of the Security Council and the assistance of monetary relief and strong Western State’s cooperation. This was largely credited for its wide successes.33 The pressure that the World Powers placed on economic aid and on cooperation with the ICTY led to the arrest of high-ranking military and government officials.34 However, one must be hopeful that these member countries, especially those within the elite sphere of permanent should not only speak with their votes, but should speak with their pockets. These elite referrals have so much potential for success, but this success comes at a price: a price that is not paid by many who are committed to ending the mass array of atrocity criminal offenses.

III. Conclusion

The authority who initiated the referral is crucial, but the two other considerations matter dearly. The legitimacy of a given conflict and the backers of the situational response should matter because this is a tripod relationship: all requirements are needed in order for a careful evaluation. As much as we all want a perfect world, we do not live in one. As for the ICC, the Prosecutor cannot function adequately if it does not have the support of the international community, or that of its equivalent state partners, as the ICC is vulnerable in the sense that it cannot obtain evidence, protect survivors, fund its overarching missions, secure peace, and, of course, arrest perpetrators without the assistance of these key players. Pursuant to Article 42(1), it highlights that the role of the Prosecutor is one of independence and true objectivity.35 This Prosecutorial discretion aspiration hones upon the factors of which crimes to investigate, the timing and careful scrutiny of cases, and the proper adjudication venue of charges. Unfortunately, the prosecutor is at its lowest point when it does not have the powerful backing from the international community, and when it does not have the golden blessing from the key ICC state signatories. That is due to its serious purse constraints,36 and of course, due to the on-the-ground considerations that are occurring. Political overtones do indeed affect its everyday operations, but this should not dominate the field of impartiality. In conclusion, the Prosecutor must either have the cooperation of the state under investigation, or of states strong enough to dominate the offending state to cooperate, such as through hardcore economic sanctions, in order for it to be triumphant in the fulfillment of its goal of completion criteria, and in its desire of concluding an intense and successful investigation.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Understanding the International Criminal Court 3 (Aug. 22, 2013) [hereinafter Understanding the ICC], available online. ↩

2. 2.

   See generally, Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Arts. 12, 13, available online.

   (detailing the circumstances under which the ICC may exercise jurisdiction). ↩

3. 3.

   Id. Art. 12(2)

   (giving an explicit understanding that with regard to situations referred to the Court other than by the Security Council, the Court only has jurisdiction where the crime occurred within the territory of a state party or was committed by a national of a state party). ↩

4. 4.

   Id. ↩

5. 5.

   See generally, Security Council Resolution 1970, UN Doc. S/RES/1970 (Feb. 26, 2011), available online.

   (An asset freeze was done in Libya. It is essential to note that Libya was not a state party to the Rome Statute, so the Security Council referral was key in order to satisfy the legal preconditions to the exercise of the Court’s jurisdiction over the situation). ↩

6. 6.

   Gino Vlavonou, Africa: ICC-Does Politics Win Over Justice? All Africa, Oct. 17, 2013, available online. ↩

7. 7.

   Hemi Mistry & Deborah Ruiz Verduzco, The UN Security Council and the International Criminal Court 3 (Mar. 16, 2012), available online. ↩

8. 8.

   Michel Chossudovsky, When War Games Go Live? “Simulating World War III,” Global Res. (Jan. 8, 2012), available online

   (writing that military intervention in Syria and Iran was part of a larger Middle East strategy. Countries like Libya became US military targets because they refused to allow Anglo-American oil companies unlimited access to their oil resources. While a controversial theory, it seems consistent with the countries where the Security Council allowed the use of force to be used for humanitarian purposes. For example, there were similar criticisms launched at NATO’s actions in Libya when it allegedly exceeded the UN’s authorization to protect civilians by actively supporting the rebel movement and executing Gaddafi). ↩

9. 9.

   David Morrison, Referring Libya to the ICC is Blatant Hypocrisy, Personal Blog (Mar. 8, 2011), available online. ↩

10. 10.

    See generally, Understanding the ICC, supra note 1, ¶ 44. ↩

11. 11.

    Luis Moreno-Ocampo, ICC Prosecutor, First Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) ¶¶ 29–33 (May 4, 2011), available online. ↩

12. 12.

    Charter of the United Nations, Art. 23 ¶ 1 (as amended) (Jun. 26, 1945), available online

    (listing the Security Council’s permanent members and describing the implicit veto power of these members). ↩

13. 13.

    Rome Statute, supra note 2, at Art. 25. ↩

14. 14.

    See Office of the Prosecutor, ICC, Strategic Plan: June 2012–2015 ¶ 5 (Oct. 11, 2013), available online.

    (The Office of the Prosecutor is investigating increasingly complex organizational structures that do not fit the model of traditional, hierarchical organizations. It is doing so with more limited investigative tools than are at the disposal of national law enforcement agencies. It can only do so if there is full cooperation from States. Cooperation becomes more than ever before a critical success factor if the Office is to produce positive results). ↩

15. 15.

    Rome Statute, supra note 2, at Art. 14. ↩

16. 16.

    See Sarah M. H. Nouwen & Wouter G. Werner, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan, 21 EJIL Talk 941 (Nov. 1, 2010), available online, doi. ↩

17. 17.

    (By way of background, the Ugandan government wanted a Restorative Justice approach to punishment, such as their traditional mato oput process, which is a process that avoids prison time, but does require:

    1. that the suspect confess his/her crimes;
    2. that the suspect ask for forgiveness from the victim’s clan;
    3. that the suspect pay compensation to the victim’s clan, which is typically in animal transfers and child naming privileges).
    ↩
18. 18.

    Patrick Wegner, Self-Referrals and Lack of Transparency at the ICC —The Case of Northern Uganda, Just. in Conflict (Oct. 4, 2011), available online; See also Adam Branch, Uganda’s Civil War and the Politics of ICC Intervention, 21 Ethics & Int’l Aff. 179 (Jun. 12, 2007), available online, doi; Nouwen & Werner, supra note 16, at 948–49. ↩

19. 19.

    See Matthew Happold, The International Criminal Court and the Lord’s Resistance Army, 8 Melb. J. Int’l L. 159, 161 (2007), available online, paywall.

    (“The legality of self-referrals in the general has been questioned; whilst the form of the referral itself led to suspicions that the Ugandan Government was using the Court as a weapon in its conflict with the LRA.”).

    See also H. Abigail Moy, The International Criminal Court’s Arrest Warrants and Uganda’s Lord’s Resistance Army: Renewing the Debate over Amnesty and Complementarity, 19 Harv. Hum. Rts. J. 267, 273 (2006), available online. ↩

20. 20.

    Duncan Miriri, Uganda’s Museveni Calls on African Nations to Quit the ICC, Reuters, Dec. 12, 2014, available online.

    (Uganda’s President Museveni, who once requested ICC intervention in his own country, now perceives the institution as a “tool for oppressing Africa,” and has called for African States to withdraw from the Rome Statute, stating, “I want all of us to get out of that court of the West. Let them stay with their court.”). ↩

21. 21.

    See Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor, Annex ¶ D (Sep. 5, 2003), available online.

    (Where the Prosecutor receives a referral from the State in which a crime has been committed, the Prosecutor has the advantage of knowing that the State has the political will to provide her Office with all the cooperation within the country that is required to give under the Statute. Because the State, of its own volition, has requested the exercise of the Court’s jurisdiction, the Prosecutor can be confident that the national authorities will assist the investigation, and will be anxious to provide if possible and appropriate the necessary level of protection to investigators and witnesses). ↩

22. 22.

    Rome Statute, supra note 2, at Art. 53. ↩

23. 23.

    Id. Arts. 12, 13(c), 15. ↩

24. 24.

    See Situations Under Investigation, ICC, available online (last visited Feb. 17, 2020); See generally, Situation in the Republic of Kenya, ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (ICC PTC II, Mar. 31, 2010), available online. ↩

25. 25.

    The ICC and the UN Security Council, The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, available online (last visited Feb. 17, 2020). ↩

26. 26.

    Id. ↩

27. 27.

    The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-11, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute (ICC PTC II, May 30, 2011), available online. ↩

28. 28.

    See Anna Holligan, Uhuru Kenyatta Case: Most High-Profile Collapse at ICC, BBC News, Dec. 5, 2014, available online. ↩

29. 29.

    The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Prosecution response to the “Government of Kenya’s Submissions on the Status of Cooperation with the International Criminal Court, or, in the alternative, Application for Leave to file Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence,”¶¶ 1–5 (ICC TC V, May 10, 2013), available online. ↩

30. 30.

    See, e.g., Luis Moreno-Ocampo, ICC Prosecutor, Building a Future on Peace and Justice (Nuremberg, Jun. 24, 2007), available online. ↩

31. 31.

    Rome Statute, supra note 2, at Art. 16. ↩

32. 32.

    Jens David Ohlin, International Law and Prosecutorial Discretion, 8 Whitehead J. of Dipl. & Int’l Rel. 146 (Oct. 1, 2007), available online. ↩

33. 33.

    Wesley K. Clark, Waging Modern War: Bosnia, Kosovo, and the Future of Combat ¶¶ 73, 92 (May 2001), paywall; Carla Del Ponte, Chief Prosecutor of the ICTY and the ICTR, Address at the Policy Briefing, European Policy Centre, Brussels (Jul. 3, 2007), available online. ↩

34. 34.

    R. Jeffrey Smith, Serb Leaders Hand over Milosevic for Trial by War Crimes Tribunal, Wash. Post, Jun. 29, 2001, available online. ↩

35. 35.

    Rome Statute, supra note 2, at Arts. 41(1), 42.

    (“The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source.”). ↩

36. 36.

    See U.S. Constitution, Art. 1, § 7, Art. 1, § 9 (Sep. 17, 1787), available online.

    (This is borrowed from the United States House of Representatives’ “power of the purse,” or the ability to tax and spend public money for the national government. In other words, the ability to control the actions of a given group through the withholding of funding). ↩