One of the aspects of the stand-off between the African Union (AU) and the International Criminal Court (ICC) regarding the proceedings against Sudanese President Omar Al Bashir is the call by AU for the United Nations Security Council to invoke Article 16 of the ICC Statute and request a deferral of the ICC prosecution of Bashir. The organs of the AU have made this call several times in the past 18 months but the Security Council has not acceded to this request. This has led to a feeling on the part of some African States that African concerns are being marginalised and that the structure of the UN Security Council does not take sufficient account of their interests. At a Ministerial meeting of African parties to the ICC Statute, held last November, African States recommended that Article 16 of the ICC Statute be amended to allow the UN General Assembly to make requests for deferrals of ICC investigations and prosecutions. The obvious aim of the proposal was to dilute the power of the SC with regard to ICC prosecutions. The proposed amendment reads as follows:
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.
A State with jurisdiction over a situation before the Court may request the UN Security Council to defer a matter before the Court as provided for … 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 para 1 consistent with Resolution 377(v) of the UN General Assembly.
Although the proposal was made in the lead up to the Kampala review conference which considered some amendments to the ICC Statute, it was made too late to be on the agenda for that conference. The recommendation was made just days before the 8th session of the meeting of the Assembly of States Parties (ASP) to the ICC Statute. The proposal was put forward at that 8th session and again at the resumed 8th session of the ICC ASP in March 2010 but it was decided not to consider the proposal in Kampala in June 2010 but to defer it to the 9th ASP. The 9th ASP will take place in December this year and it is likely that the AU will be pushing its proposal at that meeting since it was reiterated by the AU Assembly of Heads of State earlier this year.
So what should the ASP do with the AU’s proposal? The proposal raises issues not only with regard to the ICC but also raises questions about the division of competence between the UN Security Council and the UN General Assembly. Is the proposed amendment not merely an amendment to the ICC Statute but also an indirect way of amending the UN Charter? For example, would the amendment be compatible with Article 12 of the UN Charter which states that the Gen. Assembly may not make recommendations with regard to situations or dispute in respect of which the SC is exercising its functions? What are the prospects for success for this amendment? Furthermore, quite apart from the specifics of Article 16, how should the concerns of some African States regarding the operation of the ICC be addressed? Are those concerns valid and can they be addressed without amendment to the ICC Statute?
In a recent paper produced for the South African based Institute for Security Studies, Max du Plessis (University of KwaZulu Natal), Charles Jalloh (University of Pittsburgh) and I address these issues concerning the AU concerns about the ICC.
This African expert study on the African Union’s (AU) concerns about article 16 of the Rome Statute of the International Criminal Court (ICC) seeks to articulate a clearer picture of the law and politics of article 16 deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC) to invoke article 16 to suspend the processes initiated by the ICC against President Omar al-Bashir of Sudan. The lack of a formal reply by the UNSC to the AU request has resulted in AU member states deciding to withhold cooperation from the ICC in respect of the arrest and surrender of Bashir. In light of the AU’s continued concerns, questions have arisen about the UNSC’s exercise of the controversial deferral power contained in article 16. This culminated in the AU proposing that article 16 be amended to empower the UN General Assembly to act should the UNSC fail to decide on a deferral request after six months.
Although states parties to the Rome Statute have shown little support for the AU’s proposed amendment to article 16, the merits of the AU proposal must be considered. A failure to engage with African government concerns about the deferral provision could further damage the ICC’s credibility in Africa. Constructive suggestions about the ‘article 16 problem’ must be developed in order to contribute towards resolving the negative stance that some African countries have taken towards the ICC. The challenge is to devise both legally sound and politically palatable options. For many Africans, the ICC’s involvement in Sudan has come to reflect the skewed nature of power distribution within the UNSC and global politics. The result is that the uneven political landscape of the post-World War II collective security regime has become a central problem of the ICC.
It is also important to pay attention to the AU’s concerns and its request for an article 16 deferral of the Bashir indictment because the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the UNSC in ICC business – are likely to arise in the future with respect to other situations. Solutions must be found to problems that may arise in working out the relationship between the UNSC and the ICC. The study therefore makes practical suggestions about how to resolve the concerns raised within certain African government circles and other developing nations about the relationship between the UN SC and the ICC, and the relationship between the ICC and peacemaking initiatives of governments and regional organisations.
The spirit underlying the study is that a strong, independent and successful ICC is ultimately in Africa’s best interest as the continent works to tackle impunity. By the same token, it is equally in the ICC’s long-term interest to show greater sensitivity towards the specific interests and views of African states. It is for this reason that the position paper includes proposals for possible amendment of article 16, despite agreement among the experts of the project’s working group that such an amendment is unlikely considering the amount of support that would be required from states parties to enable the passing of an amendment.
The paper was written by the three of us but in the process of writing we benefitted greatly from the views of an expert group put together by the Institute for Security Studies. That expert group was composed of African and international experts, including distinguished academics and persons from civil society and government. The members of the group provided written comments and participated in a two-day meeting in Addis Ababa in June 2010 to discuss the draft paper. Although the final position paper reflects the outcomes of the inputs and discussions among the expert group members, the contents of this paper must be attributed to the three authors rather than to members of the expert group.