Abstract:
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.
