The Security Council 'Situation': Challenging the Independence of the International Criminal Court

Abstract

The International Criminal Court, being a tribunal for adjudicating upon the "most serious crimes of concern to the international community" is intended to operate independently, the concept of a 'situation' in art 13 of the Rome Statute allowing the Prosecutor of the Court to determine where to investigate and prosecute free of political pressures. However, the United Nations Security Council, having a definite interest in the administration of international criminal justice and a role in triggering the operation of the ICC, may attempt to define the bounds of a situation through a referral resolution. The effectiveness of this purported limitation on the Court's capacity is difficult to ascertain given that the nature of the ICC's jurisdiction and the corresponding degree of independence that it is to assert when operating pursuant to the Security Council triggering mechanism are ambiguous and contestable. The author seeks to consider how the term 'situation' may be interpreted under the various understandings of the Court which exist. Further, some suggestion is made as to how the ICC may be conceptualised as an institution so as to ensure that it maintains a degree of independence and institutional legitimacy, despite undertaking prosecutions pursuant to a politicised Security Council referral.