Deferrals of Investigations and Prosecutions in the International Criminal Court

Authors Johan D van der Vyver

ISSN: 2522-3062
Affiliations: IT Cohen Professor of International Law and Human Rights, Emory University, School of Law; Extraordinary Professor in the Department of Private Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 1 – 18


In its efforts to stifle the prosecution of Sudanese President Omar al-Bashir from prosecution in the ICC, the AU has appealed to the Security Council of the United Nations to order the deferral of proceedings against the accused within the confines of Article 16 of the ICC Statute. The AU has also submitted a proposal for the amendment of Article 16 of the ICC Statute. The proposed amendment would: (a) authorise states with jurisdiction in a particular situation to request the Security Council to use its Article 16 powers; and (b) grant the power to defer proceedings in the ICC to the General Assembly in cases where the Security Council, within a period of six months, fails to take action under Article 16. The fact, though, is that Article 16 was inserted into the ICC Statute to avoid a conflict of interest between the Security Council and the ICC in cases where both institutions are seized with investigations into the same situation. The Security Council could not use its Article 16 powers in the case against al-Bashir because it was not engaged in an investigation into the situation in Darfur. The proposed amendment of the ICC Statute is in total conflict with the true meaning of Article 16 as reflected in the history and purpose of its creation.