This chapter explores the ways that the concept of a “disharmonic constitution” provides a useful analytic lens for the comparative study of constitution making in religiously divided societies. We consider constitutional design strategies that enable and allow for disharmonies – including choices to include ambiguity and even contradiction within a constitutional text, as well as to defer certain questions for incremental resolution through ordinary politics rather than textual entrenchment. These strategies demonstrate the utility and even centrality of dissonances in interpreting the “unfinished symphony” that is constitutional identity. In the chapter, we explore these themes by considering constitutional design in the Turkish and Israeli cases. We highlight the ways in which the concept of “disharmonic constitutionalism” and the significance of dissonance in constitutional design point towards a toolkit of options for religiously divided societies that seek to draft constitutions that manage rather than resolve underlying tensions over questions of constitutional identity. We share with Jacobsohn an appreciation for constitutionalism as an expression of contingent and local identities, negotiated across historical processes of contestation and meaning-making with more of an evolutionary than a revolutionary character, even in countries that may undergo moments of sharp political rupture, reversal or transformation.

One answer to the questions posed at the end of the last chapter is to recognize that Christianity gives new and powerful and transformative impetus to the question, ‘What are you waiting for?’. That is this chapter’s subject.

Chapter 5 focuses on the ICC’s relationship with the UN Security Council. Under the Rome Statute, the Council has several important roles: Article 13(b) provides that the Security Council may trigger the jurisdiction of the Court (the ‘referral power’), and under Article 16 the Council may halt any ICC investigation for twelve months at a time (the ‘deferral power’). In the 2010 Kampala Amendments, the Security Council was given a third role with respect to the Court’s jurisdiction over the crime of aggression. The first part of Chapter 5 critically examines the ways in which the Council has used Article 16 in an attempt to limit the jurisdiction of the Court. It then discusses the Article 13(b) referral power by using the Darfur and Libya situations as case studies. It argues that the legal basis for the ICC’s authority in those situations is grounded in the implied consent of Sudan and Libya to the jurisdiction of the Court by virtue of their membership of the UN. The final part of Chapter 5 considers the role of the Security Council with respect to the crime of aggression and the consequences of this for States not party to the Rome Statute.

Before investigations may begin, the jurisdiction of the Court with respect to a ‘situation’ must be triggered in one of three ways: a resolution of the United Nations Security Council, referral by a State Party and decision of the Pre-Trial Chamber authorizing the Prosecutor to proceed proprio motu. When the Security Council or a State Party refers a situation, the Prosecutor conducts a preliminary examination before deciding to proceed with an investigation. Should the Prosecutor decline to investigate, the Security Council or the State Party may apply for judicial review of the decision by the Pre-Trial Chamber. Special rules apply for triggering of jurisdiction over the crime of genocide by a State Party or by the Prosecutor. Pursuant to Article 16, the Security Council may temporarily block prosecution of a situation.