Bill Schabas on the African Union’s Proposal to Amend Article 16

Professor Bill Schabas has written on his blog  (see his post here) about the recent paper co-authored by Charles Jalloh, Max du Plessis and me on the African Union’s (AU) proposal to amend Article 16 of the ICC Statute (see earlier post on this paper here). Prof. Schabas was a member of the expert group convened by the Institute for Security Studies to provide advice and reflection on the paper and it was a pleasure to engage with him on the issue. As readers will see from his post, he is concerned about the tension that has arisen between African States and the ICC. He is also concerned that this tension arises out of what he would consider to be the misguided view that decisions regarding ICC prosecutions should be taken without reference to broader political considerations and in particular without reference to the effect of those prosecutions on stability and peace. He says:

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.

In our discussions with the expert group one of the most contentious issues was the proper meaning to be given to Article 53 of the Rome Statute, which speaks of “interests of justice” as a factor to be taken into account in decision-making about ICC prosecutions. The question was (is) whether that provision ought to be interpreted as allowing or indeed requiring the  ICC prosecutor not to investigate or prosecute because of considerations relating to peace in the affected country to regions. The current prosecutor has answered this question largely in the negative in a paper written in 2007. In our recent paper, we take a different approach and argue that:

However, a state or a particular suspect may argue that the prosecutor should consider alternative justice approaches where they exist (other than traditional criminal prosecutions) when reaching a decision to prosecute under article 53. So, although this is unlikely to occur in relation to the Sudan situation until the current impasse is broken, one could imagine the prosecutor declining to prosecute if the suspect was subject to alternative accountability  mechanisms (like the South African amnesty process which provided some level of accountability or an alternative dispute resolution mechanism like the gacaca process in Rwanda). As the very name ‘truth and reconciliation’  commission suggests, such mechanisms are often directed at achieving the twin goals of restorative justice and the goal of peaceful reconciliation.

A decision by the prosecutor not to initiate or continue ICC proceedings in deference to such restorative mechanisms which are legitimately constituted may be one way in which the goals of peace and justice can reconciled. While such an interpretation seems highly plausible, these are still early years for the ICC. Without a track record, it is not  possible to predict with any accuracy whether such an interpretation would be adopted by the current or future prosecutors and approved by the ICC. In any case, central to such a determination would be whether the alternative mechanism adopted by the country provides some measure of justice and accountability. In sum, one appropriate process for (African) states to claim that investigations or prosecutions are not in the interests of justice could be convincing the ICC prosecutor to apply article 53 of the Rome Statute on the basis of the existence of legitimate alternative justice mechanisms.