The Security Council and the International Criminal Court: The Unsolved Puzzle of Article 16

Abstract

Article 16 is one of the most contested provisions of the Rome Statute of the International Criminal Court. It authorizes the Security Council to suspend the Court's investigations and prosecutions for a renewable period of twelve months, but does not define the circumstances under which the Council should issue a deferral. In 2013, Kenya and the African Union requested the Council to postpone the trials of President Kenyatta and Vice-President Ruto, but without success. Like with previous deferral requests, such as for President Al-Bashir, the international community turned out to have very different ideas about when Article 16 should be invoked. In light of the unsuccessful deferral requests of African states as well as the ongoing debate about the Court's complicated relationship with the Council, this paper examines the legal and political threshold of Article 16. The first part of the paper provides an overview of the conditions and consequences of a valid deferral, and discusses the four references that the Council has made to Article 16. The second part deconstructs the existing disagreement within the international community on when the Council should use its deferral powers.