It has become standard practice to call on the Security Council to refer situations of imminent or ongoing atrocity crimes to the International Criminal Court (ICC). Syria is an obvious case in point. Besides ensuring justice for victims, a key rationale is the hope that ICC referrals can advance objectives related to the “responsibility to protect” (R2P)—that is, to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. It is assumed that the principle of R2P and the ICC can mutually reinforce each other’s objectives: the ICC can provide international society with an instrument to deter atrocity crimes, while R2P can lend political support and capacity to enforcing international criminal law.
Whether this win-win assumption holds in concrete cases, however, has received surprisingly little systematic scrutiny. There are only three cases where the Security Council has put an ICC referral to a vote. In 2005, the Security Council referred the situation in Darfur to the ICC. In 2011, the Council referred the situation in Libya. And in 2014, a referral of the situation in Syria was vetoed by Russia and China. But the Security Council’s use of the ICC to realize R2P objectives can be more problematic than the conventional narrative might suggest.
The Security Council’s use of the ICC to realize R2P objectives can be more problematic than the conventional narrative might suggest. Asking the same three questions around the cases of Libya and Syria helps illustrate this point: 1) What was the purpose behind the ICC referral proposal? 2) What were the implications for R2P? 3) What were the implications for the ICC?
