The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect

Abstract

This article argues that the manner in which the Security Council inhibits the consistent application of the Responsibility to Protect (R2P) and International Criminal Court (ICC) referrals reinforces their power in the international order without creating long term peace and stability. The Security Council’s discretionary powers allow it to subjectively determine which situations to address and which lawbreakers to prosecute; this consolidates, and indeed expands, the power of the Security Council in relation to other agents of international law. As a result, international cooperation to protect and promote human rights and punish human rights violators is currently impeded. This article argues that those concerned with the consistent enforcement of international human rights law, and the punishment of human rights violators, must accept the need for reforms to the current international order that would allow a better integration of R2P and the ICC into international law and practice. Our reforms – advanced in the form of general principles taken from legal theory – propose altering the Security Council’s powers and developing new judicial structures to enable the more consistent application of international law.