United Nations Security Council referral and deferral powers as a challenge for prosecuting crimes by the International Criminal Court

This thesis offers a critical analysis of the use of United Nations Security Council (UNSC) referral and deferral powers within the International Criminal Court (ICC), specifically focusing on how they may pose as a challenge for prosecuting international crime. At the heart of the research, lies the examination of the interaction between the two institutions, as well as an exploration of the legal foundations and political motives which shape their mechanisms. The research investigates how the use of these powers have been manipulated to reflect the role of power and state interests in the process of conflict intervention. The thesis also draws from legal documents, and scholarly articles to provide a multidimensional understanding of the political landscape in which these challenges form.

By using the case studies of Darfur, Libya and Iraq, the thesis demonstrates how the use of referral and deferral powers causes an inconsistency in outcomes. It illustrates how legal principles are often lost and the pursuit for conflict resolution due to the interference of state interests within their given time. It also implicates the strategic use of veto power to reveal significant geopolitical motivations as well as selective engagement to international justice. Highlighting that the pattern of decisions indicates that the scope of politicisation is significant to shift from primary goals of addressing international crimes or ensuring accountability. Alternatively, deferrals are presented to show attempts of protecting political allies, and raises serious concerns as to the avoidance of accountability from powerful states. Additionally, it implies the broader issues of impartiality and legitimacy of the ICC and international law.

The thesis then analyses the effectiveness of the referral and deferral powers through a wider lens of power politics, international law, and justice and security. It explores how the ICC's dependency on the UNSC resolutions is controversial but necessary nevertheless. It also challenges the implementation and validity of international law, as the external influence weakens its capability to be enforced. The thesis also branches out to the hierarchal power, which enables corrupt manifestations of power and creates a global divide. Finally, interrogating the possibility of reform under all those aspects, the study deduces that the use of referrals and deferrals reinforces global inequalities in the enforcement of international law and pursuit of selective justice.

In conclusion, the thesis contends that while the use of referral and deferral powers are intended as mechanisms to enforce international accountability and cooperation towards justice, the implementation is simply marred by politicisation. Therefore, undermining the cooperative efforts and presumed primacy of the ICC. It closes by cementing that without addressing deeper issues of geopolitical structures and power abuse, these inconsistencies may continue to occur. Summarising thus, that the use of referrals and deferrals perpetuates a tendency for states to be guided by their strategic interests rather than through a universal commitment to providing international justice.