The Sudanese government is not very happy with the Prosecutor’s decision to indict Bashir. Indeed, Sudan’s ambassador to the UN has said that the government intends to ask the Security Council to block the prosecution, describing any attempt to arrest Bashir as "an act of war."
Such belligerent rhetoric is expected from such a belligerent regime. Many opponents of the Sudanese government, however, have expressed a similar desire for the Security Council to intervene in the situation. It is thus useful, I think, to remind everyone that the Security Council’s authority over the ICC is actually quite limited.
First, although the Security Council referred the situation in Darfur to the ICC, no provision in the Rome Statute allows the Council to "unrefer" the situation. And rightfully so: if the Security Council could take a situation away from the ICC whenever it disagreed with the Prosecutor’s investigative strategy or a decision by the Pre-Trial Chamber, the Court would be little more than an arm of the UN, fatally undermining the Court’s independence.
Second, although Article 16 of the Rome Statute permits the Security Council to defer a prosecution, perhaps indefinitely, the Article was designed to make it very difficult for the Council to do so. Here is the text of the Article:
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.
The genius of Article 16 is that deferring an investigation or prosecution requires positive action by the Security Council. In other words, the Council cannot pass a deferral resolution unless there are nine votes in favor of the deferral and none of the permanent members of the Council veto it. Any member of P-5, therefore, can intervene to prevent the Council from ending an ICC investigation or prosecution.
This limitation on the Security Council’s authority over the ICC was deliberately included in the Rome Statute. The ILC’s draft Articles would have eliminated the Court’s jurisdiction over any matter that was being considered by the Security Council unless the Council agreed otherwise. That formulation would have given the P-5 — including ICC opponents like the US, Russia, and China — effective control over the Court’s jurisdiction: to take a situation away from the Court, they would have needed only to add it to the Council’s agenda and then veto any resolution to permit the Court’s investigation to continue.
The Security Council, in short, can prevent the ICC from prosecuting Bashir. But it will only be able to do so if nine of its non-permanent members and all of its permanent members think such a drastic step is warranted. Such (near) unanimity is unlikely, given that seven of the Council’s 10 non-permanent members (Belgium, Burkina Faso, Costa Rica, Croatia, Italy, Panama, South Africa) and two of the permanent members (France and the UK) are also members of the Court. It is particularly difficult to imagine France permitting the Security Council to so dramatically undermine the ICC’s independence.