ABSTRACT
This chapter explores the influence of the UN Security Council on the International Criminal Court. It begins with a presentation of the two Security Council referrals of Darfur and Libya, questioning the legal and political issues that affected the action of the Court in the two situations through analysis of the two resolutions and the subsequent practice of both the Council and the Court. The study covers the controversial provisions of the resolutions, and enquires into the possible avenues available to the Court to implement its mandate in situations referred by the Council. In particular, it determines how the controversial provisions of Resolution 1593, reiterated in Resolution 1970, hinder effective and legally coherent development of the Court’s action in Darfur and Libya. Examples include the paragraphs that tailor the situation to exclude nationals of other non-states parties from the Court’s jurisdiction and that waive the UN’s responsibility to cover any expense related to the referral. Consequently, the analysis considers possible ways the Security Council and the International Criminal Court can cooperate to achieve the expected aim of holding those responsible for international crimes accountable in the referred situation. As a potential approach to Security Council referrals, the study proposes that the Court could review, and possibly disregard, a referral, and consider the severability of single operative paragraphs on the basis of non-compliance of the resolution with the Rome Statute.
