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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,
turns-10-reflections-on-the-troubled-path-to-accountability/> [cit: 2015-08-14].
55 Id.
56 JOSEPH, Yav Katshung, Truth Commissions and Prosecutions, Global Policy Forum, 17 March
2008, URL: > [cit: 2015-
08015].