CYIL 2015

THE POLITICAL REALITIES AND LEGAL POSSIBILITIES CONCERNING … vast categories of participants in unknown future military operations and atrocity situations.” 45 While this provision is part of the original Rome Statute and not unique to the crime of aggression alone, considering the potential overlap between the Council’s role in determining acts of aggression as part of its mandate to maintain peace and security, the insistence by several states that the Council be given a stronger role with regard to the crime of aggression, and the high political cost of a criminal accusation of aggression against a high level official, there is concern that the Council might overstep its bounds and use the Article 16 deferral for political rather than legal reasons. 46 Moreover, the Council can renew the deferral for unlimited 12 month periods, which would effectively prevent the Prosecutor from pursuing a case against certain people who may have committed aggression. This would grant high power government or military officials effective immunity from prosecution, particularly if they were nationals of a Permanent Member State or their allies. 4.2 Article 15 ter While much of the contention surrounds Article 15 bis rather than 15 ter , since there is not as much of an obvious issue when the Council refers a case to the Court, there have been situations of interest with regard to referrals for the other crimes, and so it will be discussed as well. In the situation of a referral, the Prosecutor has discretion as to whether or not he will move forward under Article 53 of the Rome Statute, and there seems to be no real point of contention. Yet, the actions of the Council after a referral can lead to trouble, even effecting a de facto deferral, an example of which will be discussed further. The most interesting point about a Council referral under Article 15 ter is that the Council can refer a case regardless of whether the state concerned has accepted the Court’s jurisdiction. This has already happened when the Council referred the situations in the Sudan (2005) 47 and Libya (2011) 48 . Therefore, in similar vein, if the Council refers a situation involving the crime of aggression in the future, the Court may investigate and prosecute the crime with respect to both Non-States Parties and States Parties, alike. 49 Of course, because the five Permanent Members have veto power, it is highly unlikely that the Council would ever refer a situation involving one of their nationals to the Court. 50 Therefore, the U.S., the U.K., Russia, France and China, and many of their allies, are still effectively insulated from prosecution. More about the Council’s referral power will be explored in the next section. While the situations to be discussed do not obviously involve the crime of aggression,

45 MOSS, cited above. 46 CLARK, cited above.

47 Security Council Resolution 1593, S/RES/1593 (2005). 48 Security Council Resolution 1970, S/RES/1970 (2011). 49 MOSS, cited above, at 4. 50 MOSS, cited above.

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