As previous authors in this debate have argued, there is a clear tension between politics and law in the activities of the International Criminal Court (ICC). Although the ICC is a legal institution, it is surrounded by political actors. Further, it is an institution created by sovereign governments with different political interests to protect. This tension will not disappear, and indeed some of it arises from contradictory provisions in the Rome Statute that established the ICC.
One of the most contentious issues is the relationship between the ICC and the United Nations Security Council (UNSC). States which do not ratify treaties should not, normally, be bound by the provisions of those treaties. However, the Rome Statute makes it possible for the UNSC to refer states to the ICC even if they have not ratified the Rome Statute. This is how the situations in Sudan and Libya (neither of them party to the Rome Statute) came before the ICC. In addition, under Article 16 of the Rome Statute, the UNSC can also suspend ongoing ICC investigations (on any of its cases), if the investigation is seen as a threat to international peace and security. Some scholars have argued these powers clearly prioritize politics over law.
Another contentious provision in the Rome Statute is Article 98. In a controversial interpretation of the provision, the US government has used it to demand states who have joined the ICC grant immunity for US citizens who might have committed international crimes (and find themselves in those states). The resulting ‘bilateral immunity agreements’ (BIAs) signed by several countries with the US government is purely the protection of political interests; these agreements clearly undermine the ICC.
