Monday, 4 January 2010

Amending Article 16 of the Rome Statute

The Rome Statute of the International Criminal Court allows the United Nations Security Council to postpone prosecution under certain circumstances (according to article 16). When Africans claimed last year that the threatened prosecution of Sudanese President El Bashir should be suspended, many told them to invoke article 16. Even the Prosecutor has referred to article 16 in his statements on the relationship between peace and justice, suggesting that the Court should leave 'the interests of peace' to the Security Council.
This is a trap for the Court, and its defenders, however. Telling countries in Africa that their problems can be solved by the Security Council doesn't really sell very well. Sometimes Europeans and Americans forget that not everybody thinks that the Security Council is the place to which to turn for a solution to a problem. And so South Africa has answered this with a proposed amendment to article 16 that would let the General Assembly, and not just the Security Council, suspend a prosecution. It doesn't stand a chance of adoption, but it makes a good point. For a nice discussion of this, see a recent article by South African academic Chris Gevers:


Rosette Morrison said...

Was the proposal to Amend Article 16 an African proposal...May be an African Politicians' Lybia.
I was at the session of the ASP where this proposal was tabled. What was apparent was that the Africans present were not enthusiastic about the proposal themeselves and they neither supported it, nor opposed it but remained silent. Much of the discussion revolved around DRC's insistance on including the wording to the effect that "only two African States Parties ( Namibia and I think Kenya, am not sure about this)were supportive of the proposal. The proposal was also challenged on grounds that the AU which is comprised of non-States Parties as well lacked the locus standi to make proposals to Amend the Rome Statute. The report of the early November 2009 Addis meeting is very revealing, just as is the Mbeki Committee report on whether or not Bashir should be indicted by the ICC. Rosette Muzigo-Morrison

OZ said...

Article 16 is an instruction to the Court to suspend proceedings during 12 months upon a request issued by the UN Security Council under Chapter VII of the UN Charter. Article 13(b), on the other hand, enables the Court to exercise its jurisdiction upon a request issued by the UN Security Council under Chapter VII of the UN Charter.

In both cases the power of the UNSC vis-à-vis the ICC derives from the Rome Statute (if articles 13(b) and 16 did not exist, I believe, the UNSC could not refer and/or defer ICC cases). Further, in both cases the UNSC is required to act under Chapter VII of the Charter; this, in my view, has different reasons for each case. In the case of Article 13(b) a decision under Chapter VII is needed in order for the resolution to be legally binding upon UN member states; without this, the Court’s exercise of jurisdiction following a UNSC resolution to do so would be futile if a given UN member state not party to Rome Statute had no legal obligation to cooperate with the ICC. In the case of Article 16, on the other hand, the purpose of the reference to Chapter VII of the UN Charter is to raise the bar for deferring proceedings and basically to require a finding from the UNSC that such a deferral is needed for restoring or maintaining international peace and security.

In principle, in order to produce a legal effect on the ICC, an amendment to Article 16 enabling the UNGA to defer ICC proceeding would suffice. For that matter, if the Rome Statute said that Prof. Schabas can defer proceedings before the ICC, then that would be applicable law to the Court. However, the agreed threshold required for such a resolution (Chapter VII) would be compromised if the power was given to the UNGA. Arguably, the reference to the Uniting for Peace resolution in the South African proposal would in a way remedy the threshold matter by only enabling the UNGA to consider the issue upon failure of the UNSC to act on a matter related to the maintenance of international peace and security. But let’s be clear, by “failure to act” the Uniting for Peace resolution expressly refers to the “lack of unanimity of the permanent members”; which basically means: “when a resolution is not adopted because of the use of the veto power” (which is not the case in the Al-Bashir matter).

It is important also to note that the way in which the South African proposal was drafted basically attempts to legislate on the procedural relationship between UN member states and both the UNSC and the UNGA.

The proposed additional paragraphs read as follows:

"A State with jurisdiction over a situation before the Court may request the UN Security Council to defer the matter before the Court as provided for in (1) above.

Where the UN Security Council fails to decide on the request by the state concerned within six (6) months of receipt of the request, the requesting Party may request the UN General Assembly to assume the Security Council’s responsibility under paragraph 1 consistent with Resolution 377 (v) of the UN General Assembly."

The first additional paragraph grants a given UN member state standing before the UNSC to make a request, a matter that should definitely be regulated by the UN Charter or the UNSC procedural rules, and not by the Rome Statute.

The second additional paragraph creates procedures and timelines with regards to UNSC resolutions and at the same time “authorizes” a given UN member states to make a request to the UNGA and further instructs the UNGA to act in accordance with one of its resolution. Again, it doesn’t seem to me that the Rome Statute is the best place for that.

Funnily enough, what the draft proposal fails to do is to create a legal relationship between the Court and the UNGA. Nowhere in the draft proposal the Court is instructed to not commence or not proceed with a proceeding when requested by the UNGA.