71 / 464
57
THE POLITICAL REALITIES AND LEGAL POSSIBILITIES CONCERNING …
vast categories of participants in unknown future military operations and atrocity
situations.”
45
While this provision is part of the original Rome Statute and not
unique to the crime of aggression alone, considering the potential overlap between
the Council’s role in determining acts of aggression as part of its mandate to maintain
peace and security, the insistence by several states that the Council be given a stronger
role with regard to the crime of aggression, and the high political cost of a criminal
accusation of aggression against a high level official, there is concern that the Council
might overstep its bounds and use the Article 16 deferral for political rather than
legal reasons.
46
Moreover, the Council can renew the deferral for unlimited 12 month
periods, which would effectively prevent the Prosecutor from pursuing a case against
certain people who may have committed aggression. This would grant high power
government or military officials effective immunity from prosecution, particularly if
they were nationals of a Permanent Member State or their allies.
4.2
Article 15
ter
While much of the contention surrounds Article 15
bis
rather than 15
ter
, since
there is not as much of an obvious issue when the Council refers a case to the Court,
there have been situations of interest with regard to referrals for the other crimes,
and so it will be discussed as well. In the situation of a referral, the Prosecutor has
discretion as to whether or not he will move forward under Article 53 of the Rome
Statute, and there seems to be no real point of contention. Yet, the actions of the
Council
after
a referral can lead to trouble, even effecting a
de facto
deferral, an
example of which will be discussed further.
The most interesting point about a Council referral under Article 15
ter
is that
the Council can refer a case regardless of whether the state concerned has accepted
the Court’s jurisdiction. This has already happened when the Council referred the
situations in the Sudan (2005)
47
and Libya (2011)
48
. Therefore, in similar vein, if the
Council refers a situation involving the crime of aggression in the future, the Court
may investigate and prosecute the crime with respect to both Non-States Parties and
States Parties, alike.
49
Of course, because the five Permanent Members have veto
power, it is highly unlikely that the Council would ever refer a situation involving
one of their nationals to the Court.
50
Therefore, the U.S., the U.K., Russia, France
and China, and many of their allies, are still effectively insulated from prosecution.
More about the Council’s referral power will be explored in the next section.
While the situations to be discussed do not obviously involve the crime of aggression,
45
MOSS, cited above.
46
CLARK, cited above.
47
Security Council Resolution 1593, S/RES/1593 (2005).
48
Security Council Resolution 1970, S/RES/1970 (2011).
49
MOSS, cited above, at 4.
50
MOSS, cited above.