Putting Article 16 of the Rome Statute to Good Use?

The Siege of the International Criminal Court, in The Hague

I had a “discussion” this morning on Twitter with Jon Hutson, of the Enough! Project I wrote about a few days ago, concerning peace in Sudan and Darfur following an article he posted. Although the discussion was necessarily limited by the format of Twitter (no more than a 140 characters per message), I thought it raised interesting questions especially relating to how to use article 16 of the Rome Statute efficiently in peace negotiations.

The conversation started off when Mr. Hutson posted this op-ed article published in the New York Times. The article, ‘In Sudan, War is Around the Corner’, is written by Dave Eggers – the author of the novel What Is the What – and John Prendergast – the co-founder of the Enough Project.

The article is an interesting call for vigilance from the international community and the United States in particular at the outcome and consequences of the future referendum in 2011 concerning South Sudan’s eventual secession. As the authors of the article point out, should this referendum be cancelled or manipulated by Khartoum, fighting will break out once more in the South and in Darfur. They call for “developing a more robust package of carrots and sticks” which would “strengthen America’s diplomatic hand.

So far, no problem. But then something caught my eye (emphasized). And I quote:

“For this diplomatic effort to be effective, real incentives should be on the table as well: If — and only if — true peace comes to Sudan, we could offer conditional, one-year suspensions of the International Criminal Court warrants and normalization of relations between Khartoum and Washington. And experienced American negotiating teams should be deployed immediately to support African Union and United Nations efforts already under way to end the war in Darfur and prevent one between the north and south, just as we did with the 2005 deal.”

This, I thought, is particularly interesting. Offering one-year suspensions of the International Criminal Court warrants as a carrot for peace. Well, why not?

Let’s go back to law for a moment. The 1998 Rome Statute that created the International Criminal Court includes a provision that states:

Article 16: 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 provision is self-explanatory: the UN Security Council has the power to defer any investigation or prosecution by the ICC for one year, with the possibility of renewing the deferral. However, it only takes one veto, or a 8 out of 15 majority (it is little-known rule, but for a Security Council resolution to pass, a 9 out of 15 majority is required), for the deferral to be blocked, limiting the Security Council’s power over the Court.

To give a little background information on the importance of this article, it is interesting to note that it had been the subject of much debate during the negotiations, and is probably the most important reason why the Americans have refused to this day to ratify the Statute. I will not get too much into the details, but basically the Americans wanted a much larger control of the UN Security Council over the ICC’s actions, and in particular the Prosecutor’s. They wanted the Prosecutor to require authorization from the Security Council to being an investigation, which would, of course, be subject to American veto. For more info, see William A. Schabas, “United States Hostility to the International Criminal Court: It’s All About the Security Council” (2004) 15 EJIL 701-720.

In any case, under the Rome Statute, the Security Council can only suspend one year (renewable) the procedure against – in this case – Sudanese President Omar al-Bashir.

The question is: what can the Security Council do with this in order to secure peace?

I’m going to put on the side my own belief that justice is not an impediment to peace but a requirement. In the words of Mark Kersten, I fit more in the “moral imperative camp,” coupled with the idea that for people to find peace they “psychologically” need a form of justice and recognition. However, I am not an ideologue, and if an article 16 deferral can save lives, I certainly will not complain.

But can it? Dave Eggers and John Prendergast write that it should be considered as an incentive, a “carrot,” for al-Bashir to negotiate peace. My skepticism is aimed at the one-year limit. Is the UN Security Council going to renew the deferral every single year until al-Bashir dies (genocide and crimes against humanity are imprescriptible)? If not, then is al-Bashir really going to be interested by a single year suspension? Sooner or later, the ICC will catch up.

On the Enough! Project blog, John Prendergast writes about how he sees article 16 being used:

Article 16 was specifically included in the ICC charter to give countries leverage where there might appear to be none, and only in support of peace. The Article 16 deferral only lasts a year, and is conditioned on fulfilling the terms of the original deferral. So if the condition for deferment is a peace deal in Darfur, full implementation of the CPA, no support for violence or conflict in the South, respect for the referendum process and its results, and respect for human/civil rights in Sudan – certainly monumental hurdles when we consider the past 21 years of NCP rule – that bar has to be met and re-met every year. This means that the leverage inherent in an Article 16 deferral isn’t a one-off instrument, but rather an ongoing point of influence, which, if we utilize it, actually lends further credence to the ICC.

In many ways, that is an interesting view on article 16, and it could work. I have two reservations to make, however: first of all, as I have already said, even if the Security Council renews it every year under the condition that the Sudanese regime respects the peace process established since 2005, I don’t see it renewing it until al-Bashir’s death (in the hypothesis that al-Bashir all of the sudden gets the message and accepts the peace process, with all the carrots involved), and the Sudanese President is bound to know that. Secondly, and this relates more to principle and a form of idealism, I am uncomfortable in seeing the ICC, and Justice in general, used as a simple political tool of pressure. It is rather frequent in common law systems, but much less so in civil law systems.

That being said, if it works, I won’t let my idealism stand in the way of peace and of saving lives.

Sudan is an interesting case for international lawyers, as it seems to be the first of several things: first time the UN Security Council refers a situation to the ICC, and the first time the ICC indicts a sitting head of State. Could it also become the first time the Security Council uses article 16 of the Statute to defer a procedure?

It’s going to be interesting to watch.

What are your thoughts on this? Feel free to comment.

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  1. #1 by Mark Kersten on 13 July 2010 - 12:23

    Great post Xavier.

    I have two points to note.

    First, the deferral of the indictments, whatever their justification, are likely to be politically unfeasible for at least 3 members of the UN Security Council’s Permanent 5 – the UK, France and US. Take the US. The government has declared that what has occurred in Darfur is a genocide. Should the US support a Resolution or even abstain from voting on one which allowed al-Bashir to escape charges, the current administration would be lambasted, heavily criticized and ridiculed for its commitment to justice not just internationally but domestically. This points to something somewhat ironic about Egger and Predergast’s support of a deferral – the Enough! Project, as well as other groups such as Save Darfur, have spent an incredible amount of capital on advocating the action in Darfur and the indictment of al-Bashir. Their efforts have resulted in what appears to be such widespread, even celebrity-status, condemnation of the tragedy in Darfur and of al-Bashir himself that trying (again, it should be noted) to defer the indictment would be impossible.

    Secondly, a deferral would set an awkward precedent for international criminal justice. You allude to this when you say “I am uncomfortable in seeing the ICC, and Justice in general, used as a simple political tool of pressure.” One of the most contentious debates surrounding the ICC is its political status. Is it a political body acting in a judicial capacity or a judicial body acting in a political world? If indictments were to be ‘leveraged’ in peace negotiations, would not the ICC lean towards being a diplomatic tool rather than an independent judicial institution.

  2. #2 by Xavier Rauscher on 13 July 2010 - 12:59

    Excellent comment! I agree on both counts, and have little to add.

    I’m hoping I’ll be able to bring at least one Enough! Project person to join the discussion here so that he or she could explain in further details how an article 16-deferral carrot would work as per Mr. Prendergast’s suggestion.

    But I’m not sure I’ll manage to.

  3. #3 by Jonathan Hutson on 15 July 2010 - 14:53

    For additional reflection on the idea of a 12-month suspension of an ICC arrest warrant, see Eric Reeves’s March 21, 2009 op-ed, “Darfur, an ICC Arrest Warrant, and the Humanitarian Imperative,” which ran in The International Tribune, The Boston Globe, and The Sudan Tribune. http://www.sudanreeves.org/Article238.html

    Also in March 2009, Newsweek stated:

    “[D]eferring the warrant would be contingent upon concessions from Bashir and his party—namely, agreements to work to hasten the implementation of the CPA, hold elections this year and work with the UN and international mediators toward peace in Darfur, starting immediately with a ceasefire. Backed by strong U.S. leadership, a conditional deferral must also be accompanied by a reinvigorated peace effort in Sudan, refocusing the international community on the CPA and pressing all parties for a negotiated settlement in Darfur.

    “There are valid concerns that Bashir would renege on his agreements. As the Bush administration discovered with Sudan, matching words with deeds can be a constant source of frustration and disappointment. But if this happens, the United States could always push to reinstate the indictment and use the warrant as leverage to compel Khartoum to act and honor its commitments.

    “This is not the perfect solution—foreign policy rarely offers them. But clear priorities and tough compromises will be necessary to prevent the worst from happening in Sudan. A conditional suspension of the ICC’s warrant for Bashir is the best way to prevent a collapse of the CPA, protect those still in need and force Khartoum to act toward ending the conflict in Darfur.”

    Op-ed. “Think Twice on Bashir: Throwing Sudan’s president in jail would bring a measure of justice. It would also be a disaster for Darfur.” Newsweek. March 4, 2009. URL: http://www.newsweek.com/2009/03/04/think-twice-on-bashir.html

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