The Growing Rift between Africa and the International Criminal Court: The Curious (Im)possibility of a Security Council deferral

Abstract

Article 16 of the Rome Statute authorizes the United Nations Security Council to defer investigations and prosecutions of the International Criminal Court (ICC) for a renewable period of twelve months. In its decision of 12 October 2013, the Assembly of the African Union called upon the Security Council to invoke this provision and suspend the (approaching) trials of the Kenyan President and Deputy President, Uhuru Kenyatta and William Ruto. To the frustration of the African Heads of State and Government, this deferral request was rejected by the Council. What does this tell us about the curious (im)possibility of a deferral? This paper analyses the legal and political threshold of Article 16 against the background of the once so promising, but now troubled relationship between African States and the Court. Furthermore, the paper explains how the ICC’s Assembly of States Parties (ASP) has responded to the Council’s rejection. During its annual meeting in November, the ASP decided to amend the Court’s Rules of Procedure and Evidence in such a way that the Kenyan leaders should be able to exercise their constitutional responsibilities throughout their trials before the ICC. The paper concludes that while these amendments may have prevented further escalation for now, they have not resolved the ‘legitimacy crisis’ of the ICC in Africa.