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Position Paper: An African Expert Study on the African Union Concerns about Article 16
of the Rome State of the ICC


Dapo Akande


University of Oxford - Faculty of Law

Max Du Plessis


Institute for Security Studies (ISS); University of KwaZulu-Natal - Faculty of Law

Charles Chernor Jalloh


Florida International University College of Law

October 28, 2010

Institute for Security Studies, 2010

Abstract:     
This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU’s continued concerns, and the current impasse, fundamental questions have arisen about the Council’s authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU’s proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability efforts in the Sudan, and further damage the ICC’s credibility in Africa. This unresolved issue also has wider significance given that the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business – will likely arise in future situations from around the world.

Number of Pages in PDF File: 71

Keywords: African Union, AU, International Criminal Court, ICC, Security Council power to defer ICC situations and investigations, Article 16 Rome Statute, AU concerns about ICC, AU proposal to amend Art. 16, peace versus justice in Sudan, Article 53 Rome Statute, President Omar Al Bashir, Darfur conflict

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Date posted: December 19, 2011  

Suggested Citation

Akande, Dapo and du Plessis, Max and Jalloh, Charles Chernor, Position Paper: An African Expert Study on the African Union Concerns about Article 16 of the Rome State of the ICC (October 28, 2010). Institute for Security Studies, 2010. Available at SSRN: http://ssrn.com/abstract=1969124

Contact Information

Dapo Akande
University of Oxford - Faculty of Law ( email )
St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom
Max Du Plessis
Institute for Security Studies (ISS) ( email )
Ki-Ab Building 1st Floor
Addis Ababa, Addis Ababa
Ethiopia
University of KwaZulu-Natal - Faculty of Law ( email )
Durban 4041
South Africa
Charles Chernor Jalloh (Contact Author)
Florida International University College of Law ( email )
11200 SW 8th Street
RDB 2035
Miami, FL 33199
United States
HOME PAGE: http://www.law.fiu.edu
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