An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC

This 2010 position paper by the Institute for Security Studies examines the legal and political tensions between the African Union (AU), the United Nations Security Council (UNSC), and the International Criminal Court (ICC), specifically regarding the use of Article 16 of the Rome Statute to defer prosecutions of Sudanese President Omar al-Bashir.

• Article 16 of the Rome Statute allows the UN Security Council (UNSC) to request that the ICC refrain from commencing or proceeding with an investigation or prosecution for a renewable period of 12 months, provided the request is made via a resolution adopted under Chapter VII of the UN Charter.
• The African Union (AU) expressed frustration after the UNSC failed to act on its request to invoke Article 16 to suspend proceedings against President Omar al-Bashir of Sudan, leading the AU Assembly to direct member states to withhold cooperation in his arrest and surrender.
• The AU proposed an amendment to Article 16 that would empower the UN General Assembly to act if the UNSC fails to decide on a deferral request within six months, citing the 'Uniting for Peace Resolution'.
• The authors argue that the AU's proposed amendment faces significant legal and political hurdles, including a high ratification threshold of seven-eighths of states parties and potential conflicts with Article 12 of the UN Charter regarding the UNSC's primary responsibility for peace and security.
• The document highlights a perceived double standard in the use of Article 16, noting that the United States successfully influenced the UNSC to invoke the provision in 2002 to protect its personnel from ICC jurisdiction through Resolutions 1422 and 1487.
• The study suggests that the principle of complementarity under Article 17 allows states to avoid ICC jurisdiction if they demonstrate a genuine willingness and ability to prosecute crimes domestically, though it notes Sudan has failed to provide evidence of such domestic proceedings.
• The expert working group recommends that ICC states parties, particularly from Africa, seek deeper engagement between the AU, UNSC, and ICC, including the establishment of a formal liaison office in Addis Ababa.
• The report recommends that states seeking deferrals under Article 16 provide a reasoned case demonstrating how the prosecution would impede peace and security, and that they utilize all relevant UN procedures.
• The authors suggest that Article 53 of the Rome Statute could be used to decline prosecutions in the 'interests of justice' if credible alternative justice mechanisms, such as truth and reconciliation commissions, are in place.

APA

Akande, D., du Plessis, M., & Jalloh, C. C. (2010). An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC. Institute for Security Studies. https://issafrica.s3.amazonaws.com/site/uploads/PositionPaper_ICC.pdf

Chicago

Akande, Dapo, Max du Plessis, and Charles Chernor Jalloh. An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC. Institute for Security Studies, 2010. https://issafrica.s3.amazonaws.com/site/uploads/PositionPaper_ICC.pdf.

Wikipedia

{{cite report |last1=Akande |first1=Dapo |last2=du Plessis |first2=Max |last3=Jalloh |first3=Charles Chernor |title=An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC |publisher=Institute for Security Studies |date=2010 |url=https://issafrica.s3.amazonaws.com/site/uploads/PositionPaper_ICC.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{akande2010african, author = {Akande, Dapo and du Plessis, Max and Jalloh, Charles Chernor}, title = {{An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC}}, institution = {Institute for Security Studies}, year = {2010}, url = {https://issafrica.s3.amazonaws.com/site/uploads/PositionPaper_ICC.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }