CYIL 2015

CAROLLANN BRAUM

CYIL 6 ȍ2015Ȏ

no arrests had been made in a decade and the United Nations Security Council had

been unwilling to use its powers to help … [G]iven her limited resources and the lack

of political will, she had no other choice, even as the decade-long violence in Darfur,

in western Sudan, was worsening and government-run militias had stepped up attacks

against civilians, especially women.

If the Court is to be effective, therefore, the Prosecutor called on the Council

to make a “dramatic shift” in its approach, which would have to include “concrete

solutions” in carrying out arrest warrants.

As the situation now stands, and the

Council is locked in political gridlock once again, the Prosecutor and the Court

instead find themselves “in a stalemate that can only embolden perpetrators.”

6. Conclusion

At this point in time in 2015, the Kampala Resolution on aggression has not yet

gained the requisite number of ratifications or met the other requirements to become

effective; therefore, it is uncertain whether it will in fact become a prosecutable crime in

the year 2017. As such, the role that the Council will play in reality is something left only

to speculation and deduction based on an analysis of history and modern international

politics. Yet, the Security Council should not be able to conflict or jeopardize the Court.

While there was hope that the Court would play a role in helping the Council with

its mandate by creating the threat of prosecution, it is clear that this has not been the

case. Many hoped that if leaders felt fear that they might be brought before the Court

if they committed atrocities, then they would not commit the atrocities. However, the

weakness of the Court, particularly as a result of the Council’s refusal to enforce arrest

warrants of cases it referred, has made it clear to leaders that they have nothing to fear

with respect to international prosecution. In order for the Court to be truly effective

with the current crimes as well as with any future investigations or prosecutions into

the crime of aggression, dramatic changes in the Council’s actions must be taken.

To resolve this problem and prevent problems in the future, the Council should

ensure that any referrals it makes are carried through. By failing to stand behind the

Prosecutor, the Council seems to be doing more harm than good, both in respect to the

Court’s mandate to end impunity for the worst crimes, as well as to the Council’s own

mandate to ensure international peace and security. At this point, the world should

expect no less in the case of a crime of aggression. A toothless Court and an immobile

Council will accomplish neither justice nor peace. Instead, the Council should support

the Court when necessary and develop internal mechanisms to support the Court and

remain transparent and open about both its referrals and deferrals.

SIMONS, Marlise, Sudan: Prosecutor Halts Darfur Inquiry,

The New York Times

, 12 Dec. 2014, URL:

r=0> [cit:2015-08015].

Id.