Abstract

BORJAS M, Alma C.. The Power of the Security Council to Request the International Criminal Court the Deferral of Investigation or Prosecution. Rev. Derecho Estado [online]. 2011, n.27, pp.123-152. ISSN 0122-9893.

This article analyzes the power that has been gave to the Security Council by the Rome Statute, established in its article 16, refered to the possibility to request the Court the deferral of an investigation or prosecution. In practice, this power has been exercised but in circumstances which could be considered questionable. That is why will be analyzed Security Council resolutions 1422 (2002) and 1483 (2003) as a sign of the abuse of this power. For that purpose will be taken as a point of reference the requirements of the statute for exercise of this power becoming evident the failure to comply with those. In this sense, has been ascertained the lack of determination of the existence of any threat to international peace and security, what is an essential requisite for the exercising of this power under chapter VII of the UN Charter; the lack of a specific case and the fact of wanting to use this power as a form of blanket immunity as can be clearly seen in the exclusion of peacekeepers from Court's jurisdiction, inter alia. For what said before, it is put forward the possibility of judicial revision for the Court of Security Council deferral requests. The Court is not bound by the UN Charter, therefore its article 25 is not applicable, in consequence there would not be a legal limit for the Court of reviewing the conformity of Security Council requests with the Statute and even with the UN Charter.

Keywords : International Criminal Court; Security Council; Rome Statute; power of deferral.

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