In a piece for IJCentral in December, I explored the relationship between the U.N. Security Council and the International Criminal Court: The Role of the U.N. Security Council in the ICC.
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The Role of the U.N. Security Council in the ICC
The Rome Statute is a treaty between consenting states. Any individual  who commits a crime on the territory of a state party, or is a national of a state party, can fall under the jurisdiction of the ICC.  When a crime is committed outside state-party territory by a national of a nonparty state, then the preconditions for exercising jurisdiction can still be met if the nonparty state accepts the Court’s jurisdiction.  If the nonparty state does not accept, then jurisdiction can only be triggered through a referral from the U.N. Security Council. For example, under Chapter VII of the U.N. Charter, the Security Council made referrals of the situations in Darfur, Sudan (S/RES/1593(2005)) and in Libya (S/RES/1970 (2011)), even though neither state is a party to the Rome Statute.
When exercising jurisdiction through either territoriality or active nationality, an ICC referral does not need to be made by the Security Council,  but the Council still has the authority to defer a Prosecutor’s investigation or prosecution by (renewable) twelve month terms.  (Throughout the rest of this post, “investigation or prosecution” will be collectively referred to as “prosecution.”) No permanent member of the Security Council—collectively known as the “P5”—can unilaterally defer a prosecution. If the prosecution was triggered by a Security Council resolution, then any P5 member can veto such a referral, effectively blocking the prosecution.
A. Who Should Have Deferral Powers?
The Security Council is likely better suited to make deferral decisions than a judicial or legal entity (i.e., a judge or prosecutor). By providing deferral powers to the Council, the ICC is prevented from making political decisions. Instead, the Court can continue to maintain its neutrality and simply enforce the substantive and procedural laws laid out in the Rome Statute.