International Criminal Court: The unlikely mechanism that could derail the investigation
Part of the The International Criminal Court Unpacked series
Since its inception, the International Criminal Court has often been criticized as being heavily politicized. This is due to the existence of two mechanisms made available to the Security Council by the Rome Statute. The investigation of war crimes in Ukraine could potentially be derailed, however it’s unlikely. Here's why.
The Court is governed by the Rome Statute, and Article 13(c) enables the court to exercise jurisdiction where a situation is referred to the prosecutor by the “Security Council acting under Chapter VII of the Charter of the United States”. The Council is made of five permanent members and ten non-permanent members. The ten non-permanent members are elected on two year terms through staggered election, resulting in five non-permanent members being replaced or re-elected every year. Additionally, the five permanent members possess the power to veto. The ability to veto referrals politicizes the court, with Russia and China exercising this power in a Security Council draft resolution that would refer the situation in Syria (2011 onwards) to the Court. Despite having this power, the power has so far remained irrelevant in the referral of war crimes in Ukraine. This is because the referral was completed through other provisions in the Rome Statute, namely referral by states party to the statute (Article 13a).
The main concern is that the Security Council also possesses the power to defer an investigation or prosecution for a period of 12 months, in accordance with Article 16 of the Rome Statute. It is important to note that three of the five members are not party to the statute (US, China, Russia) and this tool could potentially be used to shield themselves. The US has twice used this power to defer the situation in Darfur during negotiations that would prevent the US peacekeepers from being subject to the jurisdiction of the ICC. However, a deferral requires an affirmative vote (nine out of fifteen), therefore to defer the investigation in Ukraine, Russia would need the support of non-permanent members and potentially China. This seems unlikely as the African members (Gabon, Ghana, Kenya) would welcome an investigation considering the court has previously been accused of having a heavy sub-saharan bias. UAE and India may support a deferral as the former has expressed the “depth of friendship” and the recognition of Donetsk and Luhansk regions, whilst the latter has expressed an approach that favors India. This leaves Albania, Brazil, Ireland, Mexico and Norway, all who have expressed their neutrality or condemnation of Russia’s invasion. Therefore, it is unlikely that Russia will be able to use this mechanism to derail the International Criminal Court’s investigation into war crimes in Ukrainian territory.