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Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore international peace and security.20
These provisions make up the legal bases for Security Council resolutions when
peace and stability have been disrupted and/or acts of aggression have been found.
Recently, with regard to a resolution to refer the situation in Syria to the Court,
Russia claimed that it would hinder the other Article 41 and 42 mandates if the
situation was referred to the Court.21 Consequently, Russia and China, both of
whom have political ties to Syria, vetoed the resolution. Therefore, we can already see
that there may be a conflict between a Court prosecution and the Council mandates.
However, these excuses to veto a referral could certainly be politically motivated and
not legally realistic. At that, it is time to first turn to the onus of the Court and then
explore whether conflict or cooperation will be prevalent.
2.2 The International Criminal Court
The International Criminal Court was by far one of the longest works in progress
of the international community. It has been said that the “road to Rome” was a long,
grueling, and very contentious process.22 Calls for an international criminal court
began long before thoughts of a Security Council. However, it took the trials and
tragedies of the twentieth century for the international community to finally come
to an uneasy consensus on the creation of such a court.23 The process involved the
International Law Commission creating a draft statute for an international criminal
court, a Preparatory Committee (PrepCom) launched by the U.N. General Assembly,
the work of many NGOs and leading international experts, and the United Nations
Conference of Plenipotentiaries on the Establishment of an ICC (Rome Conference),
all leading up to 120 out of the 160 participating nations voting in favor of the final
draft of the Rome Statute and the 60 requisite ratifications and deposits thereof
almost four years later, on 11 April 2002, creating the Assembly of States Parties.24
Finally, the Rome Statute entered into force on 1 July 2002.25 As such, the Assembly
of States Parties announced to the world in Article 1:
20 Id. at art. 42.
21 BLACK, Ian, Russia and China veto UN move to refer Syria to international criminal court, The Guardian,
22 May 2014, URL:
RUSSIA AND CHINA VETO
DRAFT SECURITY COUNCIL RESOLUTION ON SYRIA, UN News Centre, URL: <http://
[cit: 2015-08-15].
22 PARIS, Edna, The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice , 2009.
23 Id.
24 HISTORY OF THE ICC, Coalition for the International Criminal Court, URL: .
org/?mod=icchistory> [cit: 2015-08-13].
25 Id.