Re-thinking the Authority of the UN Security Council to Refer Nationals of Non-party States to the ICC

Upon its inception on 17 July 1998, Africa had the largest number of states supporting the ICC. Fast forward to 2018, Africa now represents the single largest regional bloc threatening mass withdrawal from the ICC. The genesis of the sour relationship between the ICC and African states has its roots in one main issue—the indictment and arrest warrant issued against President Omar al Bashir of Sudan. That arrest warrant raised two main legal issues—the international law immunity of sitting heads of state from criminal prosecutions in international criminal tribunals, and the legality of ICC jurisdiction over nationals of a non-party state to the Rome Statute. The former issue generated a great deal of debate in the early days of the ICC but the latter has received less attention and it is the focus of this article. One of the ways the ICC can assume jurisdiction in a certain situation is if this situation is referred to the ICC by the UN Security Council. The legal basis of such a referral under international law warrants closer examination. Some commentators argue that the UN Security Council has the authority to confer jurisdiction over nationals of non-party states on the ICC. In this article, I argue that the authority of the ICC to assume jurisdiction over nationals of a non-state party on the basis of a UN Security Council referral rests on grounds of questionable legality in international law.