Refusal to become a party to the Rome Statute isn’t the only strategy powerful states allegedly use to escape consequences. Even when jurisdiction can be granted through the United Nations Security Council (UNSC) referral, powerful states manipulate their referral power in pursuit of domestic agendas (Collerton, 2021). The Security Council referral is highly significant since it also establishes jurisdiction, in contrast to state parties’ proprio motu referrals, which also require jurisdiction to exist through a state’s ratification or accession to the Rome Statute (Trahan, 2013, p. 419). Under article 16 of the Rome Statute, the UNSC can defer ICC investigations or prosecutions for 12 months (Akande, 2022 p. 646). While this article was initially established to maintain peace and security, it is currently being used by powerful states to possibly politicize the court.

For instance, ICC’s power was geographically limited regarding the war crimes happening in Syria, however, there was a resolution to get Syria’s situation referred to the ICC. Yet, two permanent members casted negative votes which prevented the adoption of a draft resolution that would have referred the situation in Syria to the ICC (United Nations, 2014). Despite the fact that 13 nations supported the resolution and two opposed it: China and Russia, the Council chose not to adopt it because of their veto power (United Nations, 2014). The perception that ICC reportedly has selective justice is further reinforced by the manipulation of legal international systems, especially through veto power at the UNSC. Moreover, the Security Council referred the situation in Darfur, Sudan by Security Council Resolution 1593, and the situation in Libya by Security Council Resolution 1970 (Trahan, 2013, p. 429) This allegedly creates a perception of selective justice as it enables powerful states that control the UNSC to guide ICC’s focus on weaker countries while maintaining their immunity. Overall, the UNSC has become another legal loophole for powerful states to get away from prosecution while the weaker states have to face trial. This undermines the ICC’s principle of equality, and reinforces the idea that the ICC has selective justice.