CYIL Vol. 6, 2015
CAROLLANN BRAUM CYIL 6 ȍ2015Ȏ since the Court does not yet have jurisdiction over that crime, the examples are still relevant and may give some clues as to how the Council will handle its referrals should the Court gain jurisdiction over aggression. 5. Political Realities: Past and Current Situations By looking at the Council’s recent actions regarding the Court, it is easy to see how clear the political forces are at play. 51 At this moment in history, the Council is a far cry from a neutral body that seeks only to maintain peace and security. In reality, it is the world’s superpowers vying over control and playing a game of political Monopoly. 52 Therefore, a few recent situations can help gauge how the Council might use its referrals and deferrals to the Court in the future with respect to the crime of aggression. Considering the nature of the crime of aggression, where it is the highest political and military officials, undoubtedly very influential people, at issue, there can be no doubt that the politics of the Council will not be reined in any time soon. If theCourt ismeant to be an independent judicial body, then the fact that theCouncil can control if and when the Prosecutor pursues a case seems to fly in the face of the notion of an impartial judiciary, a concept that is highly valued in our modern international legal system. Certainly, however, there may be many legitimate situations where the Council would want to defer prosecution, particularly when it is working to defuse a situation through its powers under Articles 41 and 42. It is no secret that a criminal prosecution can come with a high political cost, particularly in a country struggling through or attempting to recover from conflict. An example can be made using the Council’s referral of the Darfur situation. While it is a referral and not a deferral, it shows how a potential prosecution can be detrimental. 53 As such, perhaps the Council should use it as a future guide for making deferrals instead. When the Council referred the situation in Darfur, Sudan, there was very strong backlash against the Court’s investigation and indictment of Sudanese President Al-Bashir. 54 In fact, violence increased and human rights activists were expelled from the region as a result, thereby creating less peace and stability. 55 Recent decades have seen an increase in Truth and Reconciliation Commissions and similar bodies as the world recognizes that sometimes justice is not what is needed in order to establish and maintain peace after conflict. 56 Therefore, it is only
51 BROOMHALL, cited above, at 161. 52 Id . 53 MOSS, cited above.
54 REDDING, Matthew, Darfur ICC referral turns 10: Reflections on the troubled path to accountability, GlobalJustice , 31 March 2015,
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