The International Criminal Court at the Mercy of Powerful States

Abstract

Chapter 11 focuses on the deferral power of the Security Council, which is described in Article 16 Rome Statute. This provision deals with the Council’s right to defer ICC proceedings for a renewable period of 12 months and defines the circumstances in which the Security Council may temporarily prevent the Court from exercising jurisdiction over a particular situation or case. While the Council has never deferred any on-going investigations or prosecutions retroactively, it has twice made use of this provision to prevent the ICC from starting investigations or prosecutions with respect to UN peacekeeping personnel. This bears the question as to what extent Article 16 empowers the Council to immunise whole groups of persons (or nationals) from the Court’s jurisdiction. Although retroactive deferrals have yet not been issued by the Council, some African countries—as well as the African Union—have vigorously demanded that Article 16 is invoked with respect to the situations in Darfur and Kenya. Chapter 11 therefore also deals with asymmetries relating to the non-application of Article 16 RS. After analysing the drafting process (Sect. 11.2), Article 16 RS is interpreted (Sect. 11.3) and the previous deferral practice of the Council (Sect. 11.4), as well as the non-application of Article 16 in the context of Darfur and Kenya, are discussed (Sect. 11.5). In the last section, it is assessed whether the (non-) exercise of Article 16 RS may be labelled a case of legal neo-colonialism (Sect. 11.6).