Prosecuting International Crimes in Africa - PULP - University of ...

Implementation of the Rome Statute in South Africa 329
peace of security, requests the ICC to suspend the investigation or
prosecution of a government or armed group leader or other high-standing
official involved in peace negotiations. It is worth noting that, in its present
form, article 16 reflects a compromise 83 reached during the drafting
process whereby the role of the Security Council has been severely
curtailed. Consequently, what article 16 entails is that the Security Council
(in its capacity as the guardian of international peace and security) should
take preventive action through a resolution under Chapter VII of the UN
Charter requesting that no investigation or prosecution is commenced for
a renewable period of twelve months rather than having the power to
authorise an investigation or prosecution. In order to take effect a deferral
will require the approval of nine of the members of the Council and the
lack of a contrary vote by any of the five permanent members. 84
In the recent past South Africa has made every effort to exert political
pressure on the Security Council in order to ‘persuade’ it to exercise its
power of deferral to halt proceedings against Sudanese President Al Bashir
for a year. When these attempts proved fruitless, South Africa proposed an
amendment to article 16 by relying on the controversial Uniting for Peace
Resolution, adopted by the UN General Assembly in 1950 to break a
deadlock over the Korean War. 85 Due to an inability on the part of African
states to agree on a common strategy concerning the submission of the
proposed amendment to article 16, South Africa agreed to introduce the
proposals in Plenary and it was left to the remaining African states to
decide on whether or not to support them. In the end very few African
states took the floor to support the recommendations. 86 Nevertheless, this
recommendation was endorsed by the Assembly of the AU in January
2010 87 and as such, it remains on the agenda for the Assembly of States
Parties to be held in New York in 2010.
South Africa’s argument in favour of an amendment to article 16 is
premised on the fact that the current set-up of the ICC is flawed, and
83 It is pertinent to state that the content of art 16 was opposed by a number of African
states, including South Africa, at the Rome Conference in 1998 but for purposes of
ensuring that the Rome Statute would become operative, many states sacrificed their
ideals and voted in favour of the Statute.
84 See L Conderelli & S Villalpando ‘Referral and deferral by the Security Council’ in
Cassese et al (eds) The Rome Statute of the International Criminal Court: A commentary Vol I
(2002) 646.
85 It was the Uniting for Peace Resolution (GA Res 377 (1950)) wherein the General
Assembly declared that it had residual authority to take steps to maintain or restore
peace and security when the Council failed to exercise its primary responsibility in this
regard ‘because of a lack of unanimity of the permanent members’. See the case of
Certain Expenses of the United Nations (Advisory Opinion) 1962 ICJ Rep 151 where the
legality of this resolution was confirmed by the ICJ.
86 See ‘Report of the Commission on the Outcome and Deliberations of the 8 th Session of
the Assembly of States Parties to the Rome Statute of the ICC held at The Hague,
Netherlands from 16 to 26 November 2009’ in ‘Report on the Ministerial Meeting on
87
the Rome Statute of the ICC (Annex II)’ Assembly/AU/Dec 245 (XIII) January 2010.
‘Decision on the Report of the Second Meeting of States Parties to the Rome Statute of
the International Criminal Court (ICC)’ Doc Assembly/AU/8(XIV).