A very fine and detailed study on the African Union proposal to amend article 16 of the Rome Statute has been published by the South African Institute for Security Studies. It is authored by three distinguished scholars: Dapo Akande, Max du Plessis and Charles Chernor Jalloh. The authors explain that their work was informed by an expert group (to which I belong), although it does not suggest that the experts agree with everything in the report. I certainly agree with most of it.
Following the Prosecutor's announcement that he was seeking an arrest warrant against the President of Sudan, Omar Al Bashir, the AU sought to halt this proceeding using the only mechanism available under the Rome Statute: article 16. The provision allows the Security Council to suspend prosecutions for one year, although this is renewable. The AU request did not find sufficient support in the Security Council. In particular, the United States, which has now become the Court's greatest friend, indicated that it was opposed and that if things came to a vote it could exercise its veto.
Subsequently, the AU proposed to amend article 16 in order to allow the General Assembly, as well as the Security Council, to request that Court proceedings be suspended. The amendment was tabled last year before the Assembly of States Parties but had insufficient support to make it onto the agenda of the Kampala Review Conference.
Some think that the warming of the United States towards the Court is due to the election of President Obama. Actually it began much earlier. The real starting point for the change in the United States position was about when the Court began to go after Sudan, in March 2005. Support for the Court has become a 'zero sum game'. The more the United States likes the Court, the cooler Africa gets. Africa's declining enthusiasm for the Court has been manifested in a number of ways, including the refusal of certain ICC member states to comply with the Al Bashir arrest warrant. Africa's tension with the Court is profoundly troubling.
This report, written by three Africans, addresses the African concerns with great understanding and sympathy. It concludes that the legal obstacles to the proposed amendment to article 16 are actually not so serious. The real problem is political. The report suggests there will not be sufficient support among members of the Court. I think that getting general support within the United Nations, or within the States Parties to the Court, is probably not such an obstacle. After all, article 16 was not exactly a careful, balanced attempt to address the relationship between peace and justice. Rather, it was a nasty compromise with the five permanent members of the Security Council, who thought (and probably still think) that in any case the Security Council has the power to stop the Court at any time, even permanently. The real problem with amending article 16 is the permanent five.
It is often said that involving the General Assembly in deferral of prosecution would only 'further politicise' the Court. But it is already politicised. I don't see why making the politicisation of the Court more democratic, by involving the General Assembly, aggravates a problem. In that sense, the African Union proposal makes fine sense. The heart of the matter, I think, is that there is indeed a role for political considerations in the identification of situations for prosecution before the Court, and in decisions to defer prosecution. It is problematic that these decisions are essentially the remit of a single individual, the Prosecutor of the Court. Leaving the Security Council as the only body able to bring such political considerations to bear is also unacceptable, for obvious reasons.
The African Union has probably not found the answer to this conundrum, but its amendment helps in the discussion about how to relate political considerations to choices about prosecution. The current mantra that suggests the Prosecutor is 'independent' and indifferent to political matters doesn't make sense and doesn't correspond to reality. Like all of us, he has his own views about the world and they are reflected in the determinations that he makes. But many continue to promote the fiction that the Prosecutor is guided only by judicial criteria, such as the mysterious, enigmatic concept of 'gravity'.
There is a section in the report about impunity in Sudan. It seems accurate enough, except I tend to think it is beside the point. We can all agree that impunity in Sudan needs to be addressed, yet we must also bear in mind the importance of ending existing conflicts and preventing new ones in that unhappy country. African political leaders seem in broad agreement that prosecuting Al Bashir at this sensitive point, with a referendum on the breakup of the country only weeks away, will do more harm than good. Their views are largely dismissed by what I will call the 'international justice community'. Personally, I am inclined to think that the views of African political leaders are extremely important. I would trade a prosecution of Al Bashir for the promise of peace in Sudan in a heartbeat.