Article 16: Peace, Justice and Political Interference in the Court

By Asad Kiyani

The Review Conference will debate a number of proposed amendments to the Rome Statute.  One that will not be discussed – at least as a formal amendment – is the proposal tabled by South Africa to alter the provisions of Article 16 of the Statute.  As noted in a previous post, this proposal is rooted in the African Union’s response to the indictment of Sudanese President Omar al-Bashir.

What is Article 16?

Article 16 is the deferral provision of the Rome Statute. It permits the UN Security Council to suspend any investigations or proceedings for a period of 12 months by passing a resolution under Chapter VII of the UN Charter.  After the one-year has passed, the deferral may be renewed (and renewed repeatedly) for a further 12 months.

This is the current text of Article 16:

Article 16

Deferral of Investigation or Prosecution

1) 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 the 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.

In effect, this provision permits the Security Council a degree of control over ICC proceedings.  The Security Council does not (and could not) have the sort of control that directs the ICC in its investigations or prosecutions, but Article 16 provides a blunt mechanism for suspending proceedings if doing so would be in the interests of international peace and security.  It is an implicit acknowledgment of the potentially contradictory relationship between peace and justice, and a recognition that sometimes justice processes can undermine peace processes.

What is the proposed amendment?

The amendment put forward by South Africa is reproduced in its entirety below.  Essentially, it does two things.  First, it presents a formal mechanism for states to request the Security Council issue a deferral.  Second, and more controversially, it permits the General Assembly a secondary right to exercise the power of deferral.  This secondary power could only be exercised in situations where the Security Council has failed to vote on any request for a deferral.   The AU proposal would add the following paragraphs to the existing Article:

2) 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.

3) 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.  [See page 70 of this document]

In this sense, the amendment parallels the existing UN structure that grants the Security Council primary responsibility for the maintenance of international peace and security (and the General Assembly a secondary or backup role).  This secondary authority of the General Assembly is one that has been used in the past when the Security Council has failed to act.  During the Cold War, the opposing veto powers of the United States and the Soviet Union meant that the Security Council was unable to act on a number of issues.  The General Assembly, unaffected by the paralysis of the veto, stepped in instead.

Why was the amendment proposed?

South Africa did not table the amendment on its own initiative.  Rather, it did so on behalf of the AU and its members.  In a previous post discussing the relationship between Africa and the ICC, it was noted that the AU had expressed frustration at the failure of the Security Council to act on its repeated requests for deferral of the ICC investigation into Sudan.  Recall as well that one of the main reasons the AU gave for requesting those deferrals was that the ICC investigation was threatening the Darfur peace process.  Granting the General Assembly a secondary deferral power would force the issue and compel some sort of decision to be made – either at the Security Council or at the General Assembly.

What will happen with Article 16 at the Review Conference?

Formally, nothing will happen.  The amendment was presented to the Working Group on the Review Conference, but was not put forward for debate at the Review Conference.  One reason for this was because not enough notice was given to the Working Group and the Assembly of States Parties.  Substantive objections were also made on the basis that the amendment might be incompatible with the UN Charter, and undermine the exceptional nature of the provision, which is highlighted by its connection to the Security Council. [See paragraphs 59 – 62 here].  Ultimately, it was agreed that the Article 16 issue would be discussed after Kampala.

Informally, however, the issue may well arise at the ‘Stocktaking’ sessions of the conference.  The debate over Article 16 is on the one hand a debate over political influence of the ICC, but on the other hand, the substance of the provision concerns the debate about the complex relationship between peace and justice.  It will surely be an issue at the Stocktaking session on ‘Peace and Justice’, where African states will likely raise the point in order to build and maintain momentum for future, more formal discussions on the issue.

Whether the AU is ultimately successful in this initiative may depend on its ability to rebut a third substantive objection to the proposal.  That objection is that the inclusion of the General Assembly power would increase the potential for political interference in the Court’s mandate.  On the one hand, this is true, as it would mean an additional international body was able to exercise some influence over the Court.  On the other hand, the General Assembly’s power would be strictly subordinate to that of the Security Council, and easily negated by a simple vote by the Council.  While the revised Article 16 would eliminate some of the autonomy of the Security Council by requiring it to act, it therefore permits a degree of interference in the work of the Security Council.  Yet it does not compel the Security Council to act in any particular fashion, and it’s not clear that placing this additional obligation on the Security Council amounts to political interference in the working of the Court.  If anything, the debate over Article 16 is a debate about who has the right to interfere with the Court, and whether that right is exclusive or not.  From this perspective, the Court acts as another forum for playing out international power politics.