Mark Kerston writes on his blog that the International Criminal Court(ICC) has lost its independence from the United Nations Security Council(UNSC). This independence is the essence of international justice because no other institution should be able to control the court's investigations and judgments. Kerston advocates a more independent role of the court by creating a panel to review the referrals. A review to judge the legitimacy of the UNSC's referral will gain ICC power in the relationship between the two institutions. In this article I argue that this will be the end of a functioning relationship.
The security council has responsibility for maintaining international peace and security. Without the approval of the UNSC the court can not find any legitimate party to put force behind its judgments. Veto power rests in the hands of the five permanent members in all questions concerning just interventions and war. The Security Council has established criminal tribunals in Rwanda and Yugoslavia prior to ICC, so there is already a practice that can replace the court. The referrals have all received the same critic. The mandates exclude investigations and lawful judgement of non ICC parties. This is the price the court pays for being close with the UNSC: exclusion of investigations concerning American, Russian and Chinese participation. The three most powerful nations will not bow to the same rules as the rest. These three, excluding UK and France that are members of the court, will not accept a court that can threaten their position and role in questions of international conflicts.
The legitimacy of the court rests today upon the 122 parties to the Rome Statute who all are members of the UN general assembly as well. This is the reason why the UNSC, lead by the US, has worked out to find a functioning relationship with the court. The UNSC rests upon the legitimacy that rests in the general assembly's state parties, and general assembly accept the Security Council as the muscles securing international peace. If the court confronts the UNSC the general assembly must find another way to pursuit international justice that the Security Council will accept, or the court risks being replaced by a new tool in the pursuit of securing international justice. To remain having legitimacy in support from its numerous members, the court is reluctant to investigate and judge the governments in conflicts they are involved in. With numerous investigations and verdicts of government members the parties to the Statute could withdraw their support. Without member states the court loses its legitimacy and the leverage the court has on the UNSC.
Legitimacy rests upon different foundations for the two. For the ICC it rests solely upon the member states willingness to support the statute. For the UNSC, the UN member states number is supported by granting the five most powerful nations in the world yet further extra powers. Without any means or party to be the force to guarantee in controversial investigations, this is what the court must accept as its boundaries. Kerston's proposal advocates a court in the understanding of national courts, where independence from the government is the trademark of democracy. If the ICC is to be an actor in international politics it must accept obedience to the UNSC interests. If they do not accept that, they must accept being a court purely dependent on the state members acceptance to obey to the courts saying. This scenario accepts the court as an institution that instructs the national government, but not as a supernational institution that can bring justice in the conflicts where it is needed the most.
To read Kerston's argument, visit his blogg at justiceinconflict.org or his article at http://justiceinconflict.org/2012/11/13/the-politics-of-icc-referrals-a-proposal/