The ICC-UNSC Nexus: How Jurisdictional Dependence and Veto Politics Shape the Accountability Gap in a Multipolar World

This paper was ranked 2nd out of the top 3 conference papers for International Conference on “Reinvigorating International Criminal Law by Innovation, Inclusivity, and Global Accountability” organised by Gujrat National Law University, Gandhinagar.

Introduction

The International Criminal Court (ICC) is a permanent international judicial body established with an aim to terminate impunity against perpetrators of genocide, war crimes, crimes against humanity and crimes of aggression¹ thereby promoting accountability and ensuring justice to victims of ineffable atrocities across the globe. With increasing international crimes and disturbance in peace and well-being of the international community, the ICC plays a crucial role in the prevention of those crimes by employing measures at both national and international levels. Nevertheless, recently it has faced complexities relating to structural constraints, jurisdictional dependence and political incongruities leading to enforcement asymmetries, raising concerns over the court’s effectiveness and credibility.

The court was established under the Rome Statute in 2002, and has 125 State parties as of 2026 with recent cases including arrest warrants for Vladimir Putin, Russian President and Benjamin Netanyahu, Israeli Prime Minister in relation with post-2020 wars.² However, major powers like USA, Russia, China and India do not recognise ICC jurisdiction and are not its members.³ The ICC has been subjected to criticisms marking a dynamic in geopolitics, concerns over national sovereignty, questioned credibility, accusations of African bias and incongruities in State cooperation giving rise to institutional gridlock, selective accountability and legitimacy concerns.

It has further indicated an imbalance in enforcement and accountability where major western powers by use of United Nations Security Council (UNSC) referrals and deferrals with permanent five countries (P5) exercise veto thereby limiting prosecution and effective functioning of ICC. Consequently, this creates selectivity bias, accountability gap, power asymmetry and operational failures and this becomes a major concern due to the fact that the States are now multiple powers in the global affairs moving away from single hegemony dominance towards multipolarity. This paper examines how the institutional entanglement of the ICC with political power, by jurisdictional refinement, veto politics and enforcement reliability, has transformed judicial independence from a foundational principle to conditioned practice, raising concerning questions over the intensifying conditions in a multipolar international order.

Theoretical and institutional landscape of the ICC

The effective functioning of the ICC is routed in a well-defined legal as well as an institutional architecture designed under the Rome Statute. As a permanent judicial authority with a distinctive international legal personality, the ICC has jurisdiction over the indescribable crimes consequential to the international community. Its structural architecture evinces a balance betwixt the pursuit of international criminal accountability and principles of State sovereignty. By virtue of this, the court functions within the definite jurisdictional limits and depends substantially on cooperation of the State parties for enforcing its mandate. Its landscape is delineated as:

1. The scope of ICC jurisdiction

The Rome Statute that came into force on 1 July 2002,⁴ delineated the jurisdictional scope of the ICC limiting it to the gravest international crimes such as genocide, crimes against humanity, war crimes and the crime of aggression under Part 2, Articles 5, 6, 7 and 8 of the Rome Statute, respectively. The court is authorised to exercise its mandate on perpetrators accused of said crimes and as such, this framework reflects the court’s fundamental objective to preserve the character of international criminal justice thereby considering that these crimes pose a threat to the global community and must not go unpunished as is affirmed under its Preamble.

The statute also outlines temporal jurisdiction (ratione temporis) under Article 11(1) and (2) which states that ICC only has jurisdiction for crimes committed after the Statute came into force and cannot prosecute crimes that happened before the State parties ratified the statute. This ensures no retroactive criminal jurisdiction unless a State explicitly makes a declaration under Article 12(3).

Additionally, Article 12, Section 2, sub-sections (a) and (b) of the Statute state territorial and personal jurisdiction, respectively, where the court can prosecute the accused if the crime occurs on the territory, vessel or aircraft of a State party and if the accused is a national to a State party. This reflects respect for State sovereignty requiring territorial or nationality links and explicit consent in case of a non-State party.

Furthermore, Article 13(a), (b) and (c) enshrine three pathways to the court’s jurisdiction when the situation of a crime is referred to the Prosecutor by a State party, UNSC referrals under Chapter VII of the Charter of the United Nations⁵ and the Prosecutor initiating investigations proprio motu, respectively⁶.

2. The principle of complementarity

The sui generis feature of the statute is its principle of complementarity enshrined in Article 17 of the Rome Statute within which the ICC acts as a court of last resort emphasising that the court recognises national judicial authorities and is complementary rather than their replacement thus only making an intervention when the national courts are perceptibly unable or unwilling to ensure accountability. The rationale behind this principle is the recognition of State sovereignty and the pertinent responsibility of States to investigate and prosecute the perpetrators. Moreover, this principle regulates the relation betwixt the ICC and national jurisdictions.

3. Synergy of State parties

Another distinct feature of the ICC is the lack of autonomous executive mechanisms. Although being an independent judicial body, the ICC lacks a force of its own and relies leniently on State cooperation for arrests, witnesses, evidence collection and the execution of the sentences as reflected in Part 9 of the Rome Statute that speaks of international cooperation and judicial assistance. This design arises from the lack of centralised international prosecuting authority and the persistent paramountcy of States under international polarity order. Nonetheless, the abovementioned framework is intended to facilitate the court’s functions by aligning its workings under the realities of international relations.

Positioning the ICC in the contemporary international legal order

While the institutional architecture of the ICC delineates a mechanism of immense possibilities and developments for the international criminal justice and accountability, its operations in the contemporary international legal milieu reflects myriad complexities betwixt law and politics. With increasing multipolar authorities that feature diffused power and rival political agendas, the ICC is moulded by political dynamics of State consent, UNSC politics and legal mandates. Wherefore, a comprehension and analysis of the court’s existing functional environment is crucial to comprehend jurisdictional dependence and veto politics in pursuit of global accountability.

With the decline of bipolarity in December 1991, the world transitioned to a unipolar phase in the aftermath. Gradually, latest trends indicate multipolarity with multiple States, intricate relations, changing dynamics and global cooperation.⁷ However, with multipolarity, its drawbacks become pronounced as fragmented authority and the birth of competing power blocs consistently impede ICC’s functioning. These power blocs are influenced with numerous socio-economic ties, political dynamics, technological revolution reshaping global landscape to their inclinations and hold significant influence over major world events. Additionally, multipolarity affects consensus-based decisions as they are considerably limited due to incompetence in larger groups, suppression of minority powers and veto paralysis where one member can block a judgment forestalling accountability, execution and real progress. The court, consisting of 125 member states,⁸ and directly impacted by P5 countries has essentially been exposed to such various dynamics.

The ICC is constrained by its institutional architecture of territorial jurisdiction which only allows the court to exercise its mandate on territories of State parties and has no jurisdiction over territories of non-party States. This limits prosecutorial reach as without the declaration from non-party States, the ICC is unable to take an action, making it rely on State consent. Correspondingly, it investigates situations referred to it by the UNSC where the P5 countries can trigger ICC jurisdiction over non-party States with veto power and also block ICC investigations further halting them for renewable 12-month period.⁹ The Council exercises veto power changing the political dynamics and this has raised several accountability concerns where a P5 can veto a referral or affect the principle of complementarity as ICC cannot take action in non-party State without a UNSC referral. Such veto politics and jurisdictional limits make it strenuous for the ICC to function especially in multipolarity where power dynamics affect enforcement of justice.

Institutional model and political constraints of the ICC in practice

1. Jurisdictional dependence-operational implications

Being a Court of International Justice, ICC heavily depends on State consent and territorial jurisdiction which in relation to multipolarity enables powerful nations and their allies to remain insulated from international criminal scrutiny. The ICC under the Rome Statute follows the preconditions to jurisdiction under Article 12 and has mechanisms that initiate prosecution, namely, State referrals, UNSC referrals and prosecutor’s initiative. Thus, the jurisdiction of the court is activated by mechanisms rather than being inherent. Furthermore, the court cannot assert universal jurisdiction as not every State is a party and it explicitly requires UNSC referrals for non-party States indicating the absence of omnipotence.

(a) The ICC and Afghanistan-limits of jurisdictional reach

Afghanistan ratified the Rome Statute in May 2003 making it a State party and under territorial jurisdiction, the court has the authority over the crimes committed on Afghan territory after the fall of Islamic Emirate of Afghanistan.¹⁰ Moreover, the court has no authority over pre-2003 atrocities due to non-retroactive jurisdiction especially without UNSC backing. The ICC mandated jurisdiction over alleged war crimes and crimes against humanity by the Taliban, Afghan forces and US Personnel in March 2020.¹¹ Institutionally, the jurisdiction over Afghanistan existed but jurisdictional dependency and UNSC’s veto politics followed dynamics that impeded enforcement reflecting institutional weakness in international justice.

The court’s authoritative reach was limited as the USA, directly opposed the ICC’s jurisdiction over its personnel even though it was not a signatory of the Rome Statute. It pressured allies and employed influence of the UNSC to insulate its nationals from prosecution, directly undermining the court’s authority. Having UNSC deferral power under Article 16 and veto mechanism, the USA could disregard ICC’s legal mandate expressing political clashes and domestic interests above international justice. Yet, as many have argued, the USA is a non-party State and naturally did not recognise the court’s jurisdiction and further Taliban regime in 2025 rejected ICC jurisdiction making territorial jurisdiction inapplicable thereby undermining enforcement.¹²

Investigations pertaining to Afghanistan portrays how UNSC decisions reflect geopolitical interests where absence of action blocks reasonable accountability. This shows how the exercise of veto power by a P5, institutional dependence created by the Rome Statute and reliance on State cooperation can limit prosecutorial reach and discretion over the alleged accused where powerful nations exempt themselves from accountability while weaker ones are under scrutiny, reflecting that accountability is only possible when geopolitics allows it.

Further, the ICC authorised with formal, institutional jurisdiction over crimes in the territory of a State party pursuing accountability, is complicated by the involvement of non-party powerful States as is seen in the situation of Afghanistan. This illustrates limits of jurisdictional reliability in a multipolar regime highlighting that legal competence does not rightly always amount to realistic accountability.

(b) The Russia-Ukraine conflict and the politics of accountability

The ongoing Ukraine conflict evinces the jurisdictional fragility of global criminal accountability when alleged crimes include a P5 member of the UNSC. Despite Ukraine’s activation of ICC’s jurisdiction through ad hoc declarations within Article 12(3) of the Statute,¹³ the court remains structurally limited by the non-party status of the Russian Federation for accountability. With the lack of enforceable mechanisms, the Security Council’s veto paralysis by a P5 member, directly involved within the situation renders collective execution mechanisms inoperative.

Russia is a not a State party to the ICC and therefore does not recognise ICC’s jurisdiction over its territory and nationals. Whereas Ukraine, also being a non-party State accepted ICC jurisdiction under Article 12(3) during 2014 and 2015 crimes. About 43 State parties referred ICC investigation in 2022 during Russia-Ukraine conflict¹⁴ issuing arrest warrants against Vladimir Putin and Russian officials for war crimes, crimes against humanity and genocide. These warrants were denounced as illegitimate by Russia that claimed the court to be biased. The ICC jurisdiction persists this landscape but without enforcement power. Further the UNSC referral under Article 13(b) becomes politically impossible by virtue of veto by Russian Federation. Thus, accountability relies heavily on State cooperation and Security Council configuration.

2. Veto paralysis and the constraints of the UNSC referrals

The formation of the UNSC after World War II emphasised on maintenance of world peace while balancing power dynamics through P5, ensuring these major powers are actively involved with the United Nation system. The P5 members have exclusive veto power to block resolutions under Article 27(3) of the UN Charter¹⁵ essentially protecting P5 interests and preventing UN action against them along with realisation of global participation and realpolitik¹⁶ landscape. However, P5 veto transforms collective security into selective security for powerful States. When a P5 member, such as Russia in the current study, is involved, the action of the Council leads to procedural incapacitation. It creates institutional deadlock giving a P5 structural immunity due to selective activation of execution mechanisms becoming more pronounced in multipolarity.

(a) The Syrian situation and Security Council deadlock

Syria is a non-party State and hence, ICC has no authority over it unless Syria makes ad hoc declaration under Article 12(3) or the UNSC makes a referral.¹⁷ The heinous crimes documented in Syria violate international humanitarian laws as wells as basic human rights. Several attempts were made by France, Britain but the referrals were vetoed by China and Russia owing to domestic alliances.¹⁸ The ICC jurisdiction and warrants become unenforceable without State cooperation and UNSC referral. In the persistence of a UNSC gridlock, it creates a paralysis due to geopolitics. The absence of ICC authority over the Syrian crisis illustrates how veto politics can effectively suspend meaningful accountability despite the gravity and scale of alleged crimes owing to big power dynamics.

(b) The Libyan situation and the politics of enforcement

Libya is also a non-party State with UNSC referral under Article 13(b) made in 2011 under resolution 1970 against crimes of Muammar Gaddafi, Saif-ul-Islam Gaddafi and Abdullah-ul-Senussi for crimes against humanity.¹⁹ However, the court faced difficulties because of weak and divided Libyan authorities and military power. The ICC is “perceived” as selective due to referral politics where P5 interests are preserved, as other Arab conflicts, namely, Syria was not referred but Libya had been, due to geographical isolation, nationals of non-party States like USA were exempted and disproportionate targeting of African leaders, Gaddafi, in the present study. This evinces how political alignments are considered than legal threshold in global accountability. In a multipolar world, veto power operates not merely as a procedural safeguard but as a structural determinant of who may be subjected to international criminal law.

Multipolarity and its implications on the ICC

The multipolar order that began from the end of cold war in 1991, has given rise to a system where three or more sovereign States hold significant power in global order. Consequently, the contemporary international legal order is essentially characterised by multipolarity. While the post-cold war era marked operations under relatively consolidated political agreements, the persistent multipolar landscape indicates multiple strategic interests and competing visions. This dynamic shift has implications on the functioning of the international legal systems, especially like the United Nations Organisation (UNO), the UNSC, ICC and other global institutions depending on collective will for enforcing justice.

Gradually, the ICC emerged in a quasi-unipolar phase after the end of cold war paving way for aspirational conceptions about collective accountability and ensuring that one power bloc could not enforce norms universally. Yet its institutional design provides a precondition to coherence and an extent for convergence among major powers that has become insubstantial in the multipolar world. Due to this, enforcement becomes selective and realisation of cooperation for global peace interests becomes bargainable. In the multipolar system, there exists distinct views with regard to sovereignty, accountability where intervening from authorities and enforcing these becomes a challenge when some nations accept liberal accountability while others put sovereignty first. Therefore, ICC imposed norms become non-internalised and global accountability standards diminish, becoming politicised.

The asymmetric distribution of power, competing global interests and influences within international institutions often interfere with State cooperation as States favour benefits and interests in cooperation where oftentimes alliances are strategically influencing enforcement decisions like arresting and detention. This reflects ICC’s structural reliance on political alignment than legal liability. In addition to this, there has also been a perceivable increase in the use of veto power at the UNSC whenever P5 and their ally interests are concerned resulting in the hardening of veto and bloc politics. Such an exercise of veto has resulted in causing a gridlock during referrals leading to enforcement paralysis and questionable equal accountability which eventually causes liability fragmentation, geopolitical conflicts, institutional pressures and constraints, leading to instability in the enforcement of international justice. Subsequently, under multipolar configuration, the ICC’s dependence on jurisdictional consent and the UNSC concurrence bears heightened relevance. Though these features appear effective under political convergence, they considerably operate as constraints on accountability in the persistent international order.

The enduring tension between law and politics

The evident link betwixt law and politics has been apparent since ancient times where rulers legitimised their authority with legal codifications while political institutions reinforced them.²⁰ Legal mandates and codes have always been normatively autonomous while enforcing them has been not. The functioning of the ICC indicates repeating tension betwixt the normative inclinations of international criminal law and the political landscape within which the law is implemented. The ICC’s laws and decisions are legally grounded, nevertheless the execution depends on political actors like member States and pertinent international organisations like UNSC through their authorisation. And while the international criminal law aims to function independently of any political influence, its execution essentially remains embedded with State cooperation and consent as already stated earlier in the article.

Furthermore, the jurisdictional scope enshrined in the Rome Statute undeniably exists as one of the foundational theoretical frameworks but its activation requires State parties to consent or render referrals, the UNSC to provide referrals and the State in question to make ad hoc declaration accepting the ICC’s jurisdiction. This legal requirement is visibly politically mediated indicating political control and interests of States as the laws are only activated when the domestic jurisdictions determine if their sovereignty and State interests are well-protected. This development reflects how prudent State consent and referrals are and how they result in the politicisation of law.

Moreover, the P5 within the UNSC retain veto power over referrals and can defer any situation which gives them the exclusive power to determine laws and decisions, interfering with the enforcement of justice. The execution of a decision depends on the P5 countries, which is proportional to their interests, sovereignty and internal order evincing how law passes through political situations before its enforcement.

Reform pathways for enhancing ICC accountability

1. Alternative referral mechanisms

The intervention of the UN General Assembly when the UNSC faces veto paralysis and is unable to enforce the legal mandate is a suggested mechanism. The UNGA could essentially mediate and recommend collective measures and actions serving as a complementary entity where the veto paralysis obstructs pertinent referrals. Although this reformative construction cannot be legally binding on the UNSC due to its supremacy mentioned in the UN Charter but might politically legitimise, bypassing veto paralysis thereby illustrating multipolar legitimacy and protecting institutional balance.

The regional organisations such as African Union, European Union and such other organisations may act as referral stimulus coordinating documentation, cooperation and accountability as they already cooperate with the ICC. This development establishes jurisdictional consent among the States and easily moulds the decentralisation of multipolarity diminishing ICC’s dependence on universal political agreement.

2. Procedural reforms

Enhanced transparency in procedural methods within the prosecutorial discretion may act as a mitigating framework against political pressures. By enunciating decisive criteria, namely, severity of crimes committed, statistic of victims and achievable cooperation, for initiating and prioritising investigations under proprio motu, Article 15 of the Rome Statute, the ICC could establish legitimacy with veto use and negate selective accountability.

Further, conditional acceptance of jurisdiction under Article 12(3) may operate as a flexible mechanism extending global accountability without requiring full ratification. This framework illustrates time-bound, situational decisive jurisdiction for non-party States thereby respecting sovereignty, avoiding veto conflicts and diminishing jurisdictional dependence.

The principle of complementarity which states that ICC can only intervene when national courts are unable or unwilling to prosecute may be strengthened by reinforcing robust domestic authority mechanisms to reduce jurisdictional dependence where accountability can be met without UNSC interventions.

The aforementioned reforms do not repudiate the political constraints that mould the enforcement of ICC. They aspire to recalibrate institutional directives of accountability acknowledging multipolar limitations of the ICC while also upholding its normative aims.

Conclusion

The ICC was perceived to be a permanent authority determined to advance international criminal accountability of perpetrators of heinous crimes beyond the confines of domestic jurisdictions. Howbeit, this study has established that the realisation of accountability internationally remains constrained by jurisdictional dependence and dynamic political developments of the UNSC. They reflect the court’s prosecutorial reach raising concerns over its enforcement capacity.

A scrutiny of the ICC’s institutional model and its contemporary results show that accountability constraints persist due to State-centric cooperation and political dynamics in the international order rather than just non-compliance or institutional incapability and proves that dependence on State consent and exercise of UNSC mechanisms, especially veto, essentially determines the activation of ICC jurisdiction.

With scattered authority and competing global interests due to emerging multipolarity, such dynamics tend to intensify where the diffusion of power disrupts establishment of equal accountability standards thereby identifying political alignment and cooperation than legal obligations.

In the light of these challenges, the future efficacy of the ICC depends highly on developing procedural mechanisms which recognise multipolar dynamics than the removal of political influences while maintaining its commitment to accountability. Although these adaptations cannot entirely shield the court from politics, they may help sustain its prominence in the ever-changing international legal landscape.

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