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THE POLITICAL REALITIES AND LEGAL POSSIBILITIES CONCERNING …
logical that there are and will be situations in which immediate investigation and
prosecution might destroy the peace process. In these cases, it would be very prudent
for the Council to use its Article 16 deferral power. However, the question arises as to
whether the Council will be able to effectively use deferrals only when an investigation
or prosecution will harm peace and security, rather than for political reasons. Moreover,
what mechanisms are in place to ensure that the Council is consistent and fair in using
the deferral? Unfortunately, the answer is none. Developing them, however, would
be a great step in the right direction.
As a recent news article aptly expressed, “the law by its very nature should be a
single benchmark, otherwise it is not law, it’s an opinion.”57 While this article was
referring to South Africa’s failure to arrest al-Bashir and turn him over to the Court in
June 2015, the quote perfectly embodies the problem between the Council’s role in
the Court with respect to the crime of aggression and its potential for insulating any
leaders that it has an interest in protecting. If the world wants to see a truly effective
International Criminal Court, then the Security Council must not be given carte
blanche to decide who gets investigated and prosecuted and when.
The Sudan situation turned out to be a double-edged sword. Not only did it
show that perhaps sometimes justice is not the right answer at the moment, but it also
illuminated the problem with the Council’s referrals as well.58 If the Council is to play
a role in the Court, then it should go both ways and support the Court in a referral
that it makes. In this situation, the Council should require states to respect the referral
and at least enforce arrest warrants issued as a result of the investigation, perhaps under
its Article 41 power. However, the contrary has played out. After 10 years, and several
Court indictments of high level officials, since the Council made its first referral to
the ICC regarding the situation in Darfur, Sudan,59 two Permanent Members, Russia
and China, both with political connections to the Sudan, have consistently blocked
resolutions to fulfill the Prosecutor’s request for help in apprehending these people.60
This has created the reality of a de facto deferral despite the initial referral. The Council
failure in this regard effectively halted the investigation of the crimes in Darfur. In
December 2014, the current Prosecutor, Fatou Bensouda, announced that she would
have to suspend investigations in the situation because
57 MALIK, Nesrine, By Escaping Justice, Omar al-Bashir has Exposed a Fundamental Flaw in the ICC,
The Guardian, 16 June 2015, URL:
omar-al-bashir-justice-icc-sudanese-president-international-criminal-court> [cit: 2015-08-13].
58 MOSS, cited above.
59 Resolution 1593.
60 BELLINGER, John, The Tenth Year Anniversary of UNSCR 1593, which Referred the Situation
in Darfur to the International Criminal Court, LAWFARE, 31 March 2015, URL: <https://www.
criminal-court> [cit: 2015-08-15].