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“Article 16 of the Rome Statute and its impact on the Independence and autonomy of the International Criminal Court.” - Antoine Kesia Mbe- Mindua

“Article 16 of the Rome Statute and its impact on the Independence and autonomy of the International Criminal Court.” - Antoine Kesia Mbe- Mindua

 

Introduction. 2

Section 1. Study of the legal provision. 3

A.     The legal provision. 3

B.     The legal history. 4

C.     Analysis and meaning. 4

D.     Requirements of Article 16. 6

1.      There must be an act of investigation or prosecution. 6

2.      The UNSC must make a request under Chapter VII. 7

Section 2. Impact of Article 16 on the ICC’s independence and autonomy. 8

A.     What is judicial independence?. 8

B.     Issues raised and challenges. 9

1.      The UNSC is the only judge of the “threat to the international peace and security”. 9

2.      Temporal scope and length of the deferral 10

3.      Selectivity issue and ICC credibility. 12

4.      Preservation of evidence and integrity of judicial proceedings. 14

5.      Disproportionate powers of the five permanent members of the UNSC and ICC’s autonomy   15

C.     African States and the independence of the ICC.. 16

1.      Loss of confidence by African States. 16

2.      The Al-Bashir and the Kenyatta cases. 17

3.      African proposal to amend Article 16. 17

D.     The way forward. 18

Conclusion. 20

 

By

H.E. Dr Antoine Kesia-Mbe MINDUA

Judge, ICC, The Hague

 

*The views expressed in this paper are the author’s own and do not necessarily represent those of the ICC.

Introduction

         Contrary to the ad hoc international criminal tribunals created by the United Nations Security Council (‘UNSC’) under Chapter VII of the United Nations (‘UN’) Charter, the International Criminal Court (‘ICC’) has been set up by a treaty, the Rome Statute, concluded under the auspices of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. As such, in accordance with the Vienna Convention on the Law of Treaties (1969), the jurisdiction of the ICC must apply only to the States Parties to the Rome Statute, since pacta tertiis nec prosunt nec nocent. Accordingly, and in line with Articles 13-14 of the Rome Statute, the Court can have jurisdiction over individuals who are wither national from a State Party or when the crime has been committed on the territory of a State Party. Additionally, a State that is not a party to the Statute can accept the jurisdiction of the Court. Finally, the UNSC, acting under Chapter VII, can refer a situation to the ICC Prosecutor.

         Amazingly and conversely, Article 16 of the Rome Statute allows the UNSC to defer an investigation or a prosecution before the ICC on the basis of maintenance or restoration of international peace and security. This intervention of the UNSC poses serious problems, the most obvious of them being the fact that some permanent members of the Council are not even parties to the Rome Statute.

         This situation is due to the fact that originally, the Rome Statute suffers from what I call “schizophrenia disease” characterized here by mutually contradictory or inconsistent elements, attitudes, requirements, etc. While the Rome Statute supposes that the ICC, as a multilateral treaty-based body, is a consent-based institution, at the same time it seems to be subject to injunctions of a superior, which is the UNSC, whose resolutions adopted under Chapter VII are binding on all UN member States, even non-Parties to the Rome Statute, like a Government ruling a nation.

         In this paper, we are going firstly to study this extraordinary provision that is Article 16 of the Rome Statute, its meaning, its legal history and the challenges it raises. Secondly, we will examine the impact of such provision with regard to the independence and the autonomy of the ICC as well as to the credibility of the Court. Furthermore, we will try to see what could be the way forward for better justice. Finally, in our conclusion, we will see that the ICC, which is this judicial institution highly needed internationally, is sufficiently independent and its situation is supposed to improve for a better world.

 

Section 1.  Study of the legal provision

  1. The legal provision

Under Part 2 of the Rome Statute of the ICC, dealing with issues of “jurisdiction, admissibility and applicable law”, Article 16 dedicated to “Deferral of investigation or prosecution” 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”.

  1. The legal history

The origin of the provision of Article 16 is to be found in Article 23 of the International Law Commission Draft Statute.[1]  For the International Law Commission (‘ILC’) indeed, any international criminal court would not have been able to proceed without prior authorization from the UNSC, if the situation falls under the auspices of Chapter VII of the UN Charter which deals with the maintenance of the international peace and security.

     During the discussions at the Rome Conference in 1998, many delegations were concerned about this provision. They raised inter alia the risk of political interference of the UNSC with the judicial independence.  Many States voiced that if a Court appeared to be at the disposal of the Security Council, the impartiality as well as the legitimacy of such a court would be at risk, and consequently the effective execution of its decisions would be in jeopardy. Finally, a proposal put forward by Singapore at the Preparatory Committee in August 1997 became the basis of Article 16 which is in fact a difficult compromise[2] ; since it was further completed with amendments brought by Canada (supported by the United Kingdom) and Costa Rica.

  1. Analysis and meaning

     Article 16 is not included in Part 5 of the Rome Statute dedicated to “investigation and prosecution”. It is located in Part 2 devoted to  “jurisdiction, admissibility and applicable law”. Prima facie, it seems that there is little relation between this provision of Article 16 and Part 2 to which it belongs. However, this provision is preceded by Articles 13-15. Articles 13 and 14 define how the jurisdiction of the Court can be triggered. Then, Articles 15 and 16 appear to be intended at setting limits to the powers of the ICC Prosecutor: (i) one limit being set by way of a judicial control of the Pre-Trail Chamber in Article 15; and (ii) the other limit being a political control by the UNSC by way of Article 16. Indeed, Article 15 limits these powers of the Prosecutor to initiate an investigation proprio motu, since the Prosecutor needs to get the authorization from the Judges of the Pre-Trial Chamber before proceeding. Article 16, as already mentioned above, gives the power to the UNSC to prevent the commencement or suspend an investigation or prosecution.

Both of these provisions can thus nip in the bud, ab ovo, any initiative by the Prosecutor. It should be noted that these two barriers reflect the idea which was present in the mind of the drafters of the Rome Statute, who were afraid of the extraordinary powers vested in the Prosecutor[3] .

     Article 16 naturally confers a radical role to the UNSC which can block for one year and even indefinitely, year after year, any investigations or prosecutions undertaken by the ICC Prosecutor. Of course, Article 16 refers to Chapter VII to the UN Charter. The latter gives power to the Security Council to take measures to “maintain or restore international peace and security” if it has determined “the existence of any threat to the peace, breach of peace or act of aggression”. It should be reminded that is entirely within the competency of the UNSC to determine whether a specific situation would constitute a threat to the peace or security. Accordingly, one could argue that the Court could only abide by such a request by the Security Council, as it would appears unlikely that the Court would engage into assessing the legitimacy of a deferral, which has to fulfil some requirements. That said, such judicial assessment is not impossible and the future will tell us whether Chambers of this Court will be willing to do so and how.

  1. Requirements of Article 16

     According to Article 16 of the Rome Statute two cumulative conditions are needed: there must be an act of investigation or prosecution, and the request shall emanate from the UNSC acting under Chapter VII.

  1. There must be an act of investigation or prosecution.

The UNSC cannot decide form nowhere. Thus, the initial point to note is the timing of when a deferral request can be activated. Normally, the UNSC can intervene only at the commencement or during an investigation or prosecution.[4] Does that mean potentially the preliminary stages of the ICC Prosecutor’s examinations? Article 16 remains silent on the matter.

     Be that as it may, reading Article 16 together with Article 15(4), it could be understood that the UNSC has the power to trigger the referral only after a concrete investigation or prosecution has been initiated and not before. Therefore, preliminary examinations would fall outside the scope of Article 16. Also, this provision could be viewed in such a manner as to refer to investigations conducted by the ICC Prosecutor only after the Pre-Trial Chamber’s authorization under article 15(4), but it is not applicable to the activities of the Court prior to that stage.[5]

However, it is worth noting that the first use of Article 16 deferrals were “pre-emptive” and abstract as no investigation was open or even close to be opened. Indeed, in its Resolution 1422 of 12 July 2002 - 12 days after the entry into force of the Rome Statute - the UNSC, in relation to UN peacekeeping operations in general and in Bosnia and Herzegovina in particular, invoked Article 16 to prevent the ICC to “commence or proceed with investigation or prosecution of any case involving current or former officials or personnel from a contributing State not a party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation for a period of 12 months. A year later, on 12 June 2003, Resolution 1487 reiterated the same in the absence of any investigation or prosecution.     

  1. The UNSC must make a request under Chapter VII

         According to Article 16, the request to the ICC shall emanate from the UNSC acting under Chapter VII by way of a resolution. Naturally, the request must be based on the necessity to maintain or restore international peace and security, and the UNSC is the only Judge of such a determination.[6] Thus, it is a requirement that the UNSC determines first that a particular situation constitutes a “threat to peace, breach of the peace or an act of aggression” under Article 39 of the Charter.[7] Of course, in accordance with Article 27 of the Charter, a resolution making an Article 16 request requires nine affirmative votes from members of the UNSC and the absence of a veto from any of the five permanent members. It is obvious that such extraordinary powers vested in the UNSC towards the ICC in the exercise of its judicial functions impact heavily on the judicial independence of the Court.

 

Section 2. Impact of Article 16 on the ICC’s independence and autonomy

  1. What is judicial independence?

At the outset, let us say that the independence of the judiciary at the international level follows the same principles than that of the judiciary at the domestic level. In a given country, judicial or juridical independence is the idea that the judiciary needs to be kept away from the other branches of the State power. That means that in the exercise of their juridical functions, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests, in accordance with the principle of the separation of powers.

         Generally, it is admitted that the concept of judicial independence can be traced back to the 18th century in England. The development of this concept has been argued to involve a cycle of national law having an impact on international law, and international law subsequently impacts national law.[8] Indeed, originally the concept of judicial independence was recognized in England in the Act of Settlement in 1701. Later on, this idea spread internationally and was adopted into the domestic law of other countries: for instance, England served as the model for Montesquieu’s separation of powers doctrine,[9]  and the Founding Fathers of the US Constitution used England as their dominant model in formatting the Constitution’s Article III, which is the foundation of American judicial independence. Finally, especially in recent decades the concept of judicial independence in different domestic jurisdictions, including in UK, has been significantly influenced by juridical independence principles developed by international human rights constitutional documents or treaties.[10]

Different countries deal with the idea of judiciary’s independence through different means: in the way of judicial selection or choosing Judges, in granting life tenure or long tenure for Judges and or in ensuring their financial autonomy. Thus, Judges can be free and rule according to the rule of law and judicial discretion. In some countries, the principle of independence of the judiciary is reinforced by the latter’s power to check the legislature. Thus, through the judicial review, the judiciary may mandate certain action when it perceives that a branch of government is refusing to perform a constitutional duty or by declaring laws passed by the legislature unconstitutional.

Does the ICC fulfil the requirements of the judicial independence as explained above? What are the issues or the challenges raised in this regard by Article 16? For the purpose of this paper “independence” means equally “autonomy”.

  1. Issues raised and challenges
  1. The UNSC is the only judge of the “threat to the international peace and security”

As already said above, it is the exclusive prerogative of the UNSC to determine whether a particular situation satisfies the threshold of Article 39 of the UN Charter. This raises the following question: could the ICC undertake a separate assessment of the validity of a deferral resolution under Chapter VII, given the requirements of Article 16? If theoretically the issue seems open, in reality international courts have been reluctant to second-guess the UNSC’s determinations. They do not claim such a judicial review power like in domestic jurisdictions.[11]

Moreover if we consider the rational or the ratio legis of Article 16, it is difficult to contemplate the possibility of the ICC having the power to challenge the UNSC determinations. Such a power would amount to the possibility offered to the ICC to nullify the whole essence of the provision of Article 16 because it would allow the Court to examine whether or not the conditions set up in Article 16 are met.

 

  1. Temporal scope and length of the deferral

Another issue which makes the UNSC’s deferral highly controversial is its temporal scope.

Indeed, the wording of the provision  “no investigation or prosecution may be commenced or proceeded” seems to indicate that when the other conditions are met, the UNSC has a broad discretion as to the moment of triggering Article 16. The Statute does not provide a clear definition of “investigation” and “prosecution”. However, read together Articles 15(3) and 53 (1) indicate that an investigation is considered to commence when the Prosecutor considers that there is a “reasonable basis to do so”. Accordingly, it appears fairly clear that steps taken during a preliminary examination, i.e. prior to the opening of an investigation cannot be prevented by the UNSC.

In this regard, it is also worth recalling that the first uses of Article 16 deferral were “pre-emptive” and abstract as no investigation was open or even close to be opened. Indeed, this happened with Resolutions 1422 (2002) and 1487 (2003). Such a use of Article 16 was heavily criticised and questions the appropriateness of the use of this Article in this context.[12]

         Further, Article 16 can also be used to suspend an investigation or a prosecution. This clearly shows that the UNSC has the power to interfere with the judicial proceedings even when they are well advanced, showing again the risks of Article 16 for the independence of the Court. Thus, it could be contemplated that when the UNSC considers that a specific ongoing case does constitute a threat to international peace and security, it may decide to suspend it. Indeed, sometimes necessity of peace could prevail on the quest of justice.

Moreover, the duration of the suspension of the Court’s investigations or prosecutions allowed by Article 16 raises further issues in relation to the Court’s independence. Indeed, according to Article 16, the deferral can be adopted for a period of 12 months or less. However, it can be extended “under the same conditions” without any limitation. Hence, this Article 16 could potentially be used indefinitely.[13] Therefore, an investigation or a prosecution could de facto be permanently blocked in a given case, allowing consequently a permanent immunity for certain persons or categories of persons, in contravention with Article 27 of the same Statute.

In order to avoid this indefinite suspension, certain members of the UNSC refused to renew Resolution 1487 (2003) when the request was put forward by the US Government in 2004. The refusal was due especially to the scandal of the abuses allegedly committed by the US and British troops in Abu Ghraib Camp in Iraq. That is why the use of deferrals became increasingly unpopular. As we know, Resolutions 1422 (2002) and 1487 (2003) actually gave immunity from ICC jurisdiction in favour of certain officials and personnel involved in the UN peacekeeping operations, including those coming from the United States.

The adoption of these two resolutions was heavily criticised not only because they were adopted outside the framework of the conditions set up by the Rome Statute, but also because of this possibility of political manipulations against the judicial independence.

However, if we consider the travaux préparatoires of Article 16, it would seem that a renewal of a deferral request may continue to help the UNSC in its mission of maintaining and restoring international peace and security, where the proceedings of the ICC could be detrimental to the work of the UNSC.[14]

 

  1. Selectivity issue and ICC credibility

It is worth noting that apart from the above-mentioned resolutions, the UNSC adopted subsequently two other important resolutions, which are referrals decided under Article 13(b), and which are not deferrals per se. However, they made reference to Article 16 in their content. These are Resolutions 1593 (2005) and 1970 (2011).

In resolution 1593 (2005) adopted on 31 March 2005, and referring the situation of Darfur to the Court,  the UNSC recalls first in the preamble its power of deferral under Article 16 of the Rome Statute, and then in the operative paragraph 6, it excludes the jurisdiction of the ICC over “[n]ational, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute” participating in UN or African Union peacekeeping operations in Sudan unless “[ex]xclusive jurisdiction has been expressly waived by that contributing State”.

The same applies in Resolution 1970 (2011) adopted on 26 February 2011, and referring the situation of Libya to the Court. The UNSC recalls first in the preamble its power of deferral under Article 16 and then after referring the situation in the Libyan Arab Jamahiriya to the ICC Prosecutor decides in operative paragraph 6 that  “[n]ational, current or former officials or personnel from a contributing State outside Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established  or authorised by the Council, unless such exclusive jurisdiction has been expressly waived by the State”.

It is clear that these resolutions provide blanket immunity from ICC jurisdiction to a selective group of individuals, namely nationals of non-state parties. As already said, selectivity policy applied by the UNSC is highly detrimental to the judicial credibility of the ICC.[15]

That is why, in order to prevent such a blanket immunity or at least to warn against such a practice, on 12 June 2003, during the 4772 meeting of the UNSC regarding Resolution 1487 (2003), the UNSG and many delegations emphasised that Article 16 “was not intended to cover such a sweeping request, but only a more specific request relating to a particular situation”.[16]

Finally, one could ask why the reference has been made to Article 16 in Resolutions 1593 (2005) and 1970 (2011) dealing with referrals. Taking into account the purpose of Article 16, it could be understood that States as well as the UNSC are mindful of the interest of peace and the political consequences of judicial intervention by the ICC. In any case, all these resolutions show that the UNSC may act in a manner that could risk compromising the independence and legitimacy of the ICC.[17] After all, the UNSC is part of the executive power at the international level.

  1. Preservation of evidence and integrity of judicial proceedings

Another related issue which may arise in case of a deferral, and especially if it is observed for a long period or if it is triggered at a critical moment, is that of the preservation of evidence such as viva voce witnesses, forensic evidence, sexual offences evidence, etc… Indeed, if not collected on time because of a long suspension of investigations or prosecutions, evidence may disappear.  Further, the consequence of a deferral of prosecution of an ongoing case may have other wide-ranging consequences that would need to be dealt with by the Chamber seised of the case. For example, should an accused in detention be set free because of the deferral? If so, this poses the risk that he absconds and is not willing to appear when the proceedings resume.

Further, in respect of the preservation of evidence, a released accused because of a deferral could interfere with the witnesses and the evidence. When the case will resume after the end of the deferral, the integrity of the proceedings would have been already destroyed or heavily flawed. That demonstrates once again how Article 16 poses enormous risks for the independence or the autonomy and the credibility of the judicial process.

  1. Disproportionate powers of the five permanent members of the UNSC and ICC’s autonomy

The intervention of the UNSC in the life of the ICC poses already a serious problem since three permanent members of that Council are not States Parties to the Rome Statute, namely China, Russia and the United States of America. In spite of that situation, those non-Parties States are vested with the power of not only to refer situations regarding all States (Parties and non-Parties) to the ICC Prosecutor, but also, they may defer cases as seen above.[18] Of course, that raises the question of the legitimacy of such proceedings in which the Court is not fully autonomous.

Apart from that, the voting mechanism of the UNSC also poses an issue in respect of Article 16. Indeed, according to Article 27 of the UN Charter, a resolution on Article 16 of the Rome Statute would require an affirmative vote of nine members of the 15-member Security Council including the concurring votes or abstention of the permanent members. A negative vote by a permanent member of the UNSC would prevent the resolution on deferral from being adopted. Naturally, this raises the eternal issue of the disproportionate powers of the permanent members of the UNSC, that are put in position of blocking, with a veto, a deferral even though they are not States Parties to the Rome Statute of the ICC.

Since the UNSC is a political body, its decision regarding the maintenance and restoration of international peace and security are affected by political considerations. The fact that deferral requests are linked with peace and security makes deferrals also political. This also explains why many African countries have lost confidence in the ICC.

  1. African States and the independence of the ICC
  1. Loss of confidence by African States

At the creation of the ICC, the vast majority of African States were very supportive of this court. Today, the African continent or its regional group of States at the Assembly of the States Parties to the Rome Statute is the largest group in terms of ratifications.[19] African leaders and people genuinely thought that the ICC would prosecute and try without discrimination, all perpetrators around the world, responsible of international crimes covered by the Rome Statute.

Unfortunately, according to African political leaders, especially according to the African Union (‘AU’), the ICC is no longer credible because the practice has shown that the selective interference of the UNSC, through both its deferrals and referrals, is mainly in favour of the US or other great powers and against African leaders.[20] Complains are even more vigorous because a UNSC permanent member which is not part to the Rome Statute may participate actively in referring to the ICC a situation within an African country which is neither party to the said Statute. That is why, in turn, some African States, together with the AU, have tried unsuccessfully at least until now, to obtain from the UNSC the deferral of two cases involving two African Heads of State. This appears to be clear examples of the politisation of Article 16.

 

  1. The Al-Bashir and the Kenyatta cases

Thus, further to the ICC arrest warrant against the President of the Sudan, Mr Omar Al-Bashir,[21] the AU, the Arab League, the Non-Aligned Movement, and the Organisation of Islamic Conference called on the UNSC to make a deferral under Article 16. The AU especially in several resolutions, requested the UNSC to invoke that provision when it came to extend the UNAMID mandate in 2008; but the UNSC took no action on this matter and Resolution 1828 (2008) is silent.[22]

Because of the lack of any Article 16 deferral of Al Bashir Case by the UNSC, the AU decided to invite all African States not to cooperate with the ICC in this case, in order to manifest its disapproval.[23]

In the same vein, Kenya and the AU wanted also to obtain the deferral of the Kenyatta case.[24] In January 2011, an assembly of Heads of State and Government of the AU adopted a decision to support Kenya’s request for a deferral of the ICC investigations and prosecutions in Kenya on the basis of Article 16. Several other attempts by both the AU and Kenya have been unsuccessful as it was the case with President Al-Bashir.

  1. African proposal to amend Article 16

The anger of the AU culminated in November 2009, when the AU put forward a proposal for an amendment to the Rome Statute to empower the UN General Assembly to act under Article 16 should the UNSC fail to do so on a deferral request after six months. [25] Needless to say that this proposal has received limited public support from the ICC States Parties because it could only bring more confusion and more politisation to the issue, with the result of undermining the integrity of the ICC proceedings. In any case, this unresolved issue has necessarily wider significance because the matters underlying the tension will likely arise in other situations from around the world. It is therefore imperative to reconcile the interests of international peace and security and the interests of justice before the ICC.

How the ICC prosecutions may be reconciled with peace-making initiatives and what should be exactly the role of the UNSC in the ICC proceedings? Indeed, a continuous failure to reflect seriously on and to engage the “ Article 16 Problem” could impact international accountability efforts, and further damage the ICC’s credibility in Africa and in the world. 

 

  1. The way forward

         As the situation stands now, the independence or the autonomy of the ICC seems to be in jeopardy because of the alleged selective practice put in place by the UNSC, through both its referrals and deferrals. That is why an appropriate study must be undertaken in order to seriously engage the Article 16 issue, and to propose solutions which should go in the sense of less interference in the ICC proceedings, shorter periods of deferrals to avoid de facto impunity or immunity, etc. One proposal could be to limit the temporal scope of article 16 so as to not allow the UNSC interferences once the trial has started. Because, even in domestic jurisdictions where the executive power may intervene in the course of justice, by ordering the Prosecution to commence an investigation, once the matter is before the Judges, the executive power can no longer interfere. Further, it is hardly conceivable that a specific case could be considered a threat to peace and security, bearing in mind that, as “recognized” in the preamble of the Rome Statute, the Court is also operating in furtherance of “peace, security and well-being of the world”.[26]

          Another way of ensuring consensus of all States Parties, and consequently the credibility of the ICC, is to achieve urgently a real universality of the Court. Therefore, a great effort must be done in order to obtain the ratifications to the Rome Statute of the other State members of the UN, especially those of the five permanent members of the UNSC. As a result, it will be possible to avoid this perception of double standards principle.

         To achieve universality of the ICC, by means of having the ratifications of all those States, maybe it will be necessary to offer something in exchange. For example, the United States of America are reluctant to have their officials and personnel exclusively in the hands of foreign Judges sitting at the ICC in The Hague. Maybe the way out is to allow ad hoc Judges of the nationality of the defendants as it is the case at the International Court of Justice (ICJ). This requires naturally an amendment to the Rome Statute. Thus, with the participation of the five permanent members of the UNSC in the Rome Statute, the hostility provoked by their intervention in the ICC business will seriously diminish and consequently the Court will recover its credibility.

 

Conclusion

         To sum up, the question can be asked: does the ICC still enjoy its judicial independence? For sure, the answer is positive in spite of the so far few UNSC deferrals.

         Actually, if we compare with domestic jurisdiction and in accordance with international standards, the ICC judiciary is sufficiently independent on multiple grounds, for example the judicial selection[27] and the conditions of service of Judges.  However, as we have seen above, the ICC proceedings may be under the influence of the executive power of the UN represented by the UNSC. That is due to the “schizophrenia” of the Rome Statute. But, we should not worry more than necessary. Because, following the first controversial deferral requests, it seems that both the UN Secretary General and the UNSC are now aware of this high risk of political manipulations of the judicial activities of the ICC.  That is why the use of deferrals has become very rare if not inexistent, even though the possibility of their use is still present in the Rome Statute.[28]

                   Finally, there are reasons to be optimistic since even the five permanent members of the UNSC seem to choose regularly to abstain during votes on ICC matters. In so doing, they contribute to increase the perception of the independence of the ICC. But, definitely, the Article 16 problem must be addressed in a better manner by the Assembly of the States Parties to the Rome Statute for the best administration of justice, and therefore for the global peace.

 


[1] See Draft Statute for an International Criminal Court with commentaries, International Law Commission Report (1994) UN Doc A/49/10; Report of the ILC on the Work of its Forty-sixth session, 1 September 1994, UN Doc A/49/355, 21 February 1997.

[2] See Proposals by Singapore on Article 23, Non-Paper/WG.3/No.16, 8 August 1997. See also BRUNGER Yassin M., “Article 16” in Commentary on the Law of the International Criminal Court: Part 2, Articles 11-21: Case Matrix Network.

[3] See KOLB, Robert, “Droit institutionnel: les juridictions compétentes pour les poursuites pénales”, KOLB, Robert (dir.), Droit international pénal, Bruxelles, Bruylant, 2008, 488 pp, p.254. See also CÔTÉ, Luc, « International Criminal Justice : Tightening up the Rules of the Game”, International Review of the Red Cross, Vol 88, n° 861, March 2006, pp. 133-144, at p. 136.

[4] BRUNGER, Yassin M. op. cit. See also STAHN, Carsten, “The ambiguities of Security Council Resolution 1422 (2002), European Journal of International Law, Vol 14, 2003, pp. 85-104, p. 90.

[5] See TASOKI MANZELE, José-Marie et ASCENCIO, Hervé, L’enquête des juridictions pénales internationales, Université Panthéon-Sorbonne, Paris 2011, p. 190.

[6] See CONDORELLI, Luigi and VILLALPANDA, Santiago, “Les Nations Unies et les juridictions pénales internationales”, in COT, Jean-Pierre et PELLET, Alain, dir., La Charte des Nations Unies : Commentaire article par article, Paris, Economica, 2005, p. 230.

[7] See BERGSMO, Morten and PEJIĆ,Jelena, “Article 16” in TRIFTERRER (ed), Commentary on the Rome Statute of the International Criminal Court: Observes’ notes, (Nomos, Baden Baden, 1999), pp 373-382, p. 373. See also CASSESE, Antonio et al. (eds), The Rome Statute of the International Criminal Court: A commentary, Oxford University Press, Oxford, 2002, pp 644-646.

[8] See SHETREET, Shimon, “The Normative Cycle of Shaping Judicial Independence in Domestic and International Law. The Mutual Impact of National and International Jurisprudence and Contemporary Practical Conceptual Challenges”, Chicago Journal of International Law, Vol. 10, n°1, 2009, pp 275-332.

[9] See Baron de MONTESQUIEU, The Spirit of the Laws, Hafner Library of Classics, Thomas Nugent, Trans., published by Free Press, 1970.

[10] See for example the influence of the European Convention on Human Rights on different domestic laws. European Convention on Human Rights

[11] See Prosecutor v. Tadić (Case IT-94-1-AR72). ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.

[12] For some scholars, Resolution 1422 is not only controversial and politically motivated, but it is also invalid and “illegal” because it violates the UN Charter, many UN treaties as well as the international customary law including jus cogens. See MOKHTAR, Aly, “The fine art of arm-twisting: the US, Resolution 1422 and Security Council deferral power under the Rome Statue”, International Criminal Law Review, Vol. 3, 2003, pp 298-344, at p. 343.

[13] See LATTANZI, Flavia, “The Rome Statue and the State Sovereignty, ICC Competence, Jurisdictional links, Trigger Mechanism”, in LATTANZI, Flavia and SCHABAS, William (eds), Essays on the Rome Statute of the International Criminal Court, Volume 11, pp. 51-67, Editrice Il sirente, Italy, 2004.

[14] See BRUNGER, Yassin M., op.cit.

[15] See TRAHAN, Jennifer, “The Relationship between the International Criminal Court and the UN Security Council: Parameters and best practices”, Criminal Law Forum, (2013), 24, pp 417-473, page 433.

[16] UN Doc S/PV. 4772, 12 June 2003, p. 2.

[17] See BRUNGER, Yassin M., op.cit.

[18] They can do so thanks to their permanent membership in the UNSC. See TRAHAN, Jennifer, op. cit. p.455.

[19] The African regional group is the largest with 34 States Parties to the Rome Statute.

[20] See MILLS, Kurt, “’Bashir is Dividing us’: Africa and the International Criminal Court”, Human Rights Quarterly, Vol. 34, n°2, 2012, pp. 404-447.

[21] See Prosecutor v. Omar Al Bashir, ICC PTC I, Warrant of Arrest for Omar Hassad Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009.

[22] See Resolution 1828 (2008) of 31 July 2008, UNC Doc. S/RES/1828 (2008).

[23] See AU, Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc. Assembly/AU/13 (XIII), 3 July 2009, Assembly/AU/Doc.245 (xiii) Rev. 1, paras 8-10.   See also CESONI, Maria Luisa et SCALIA, Damien, “ Juridictions pénales internationales et Conseil de sécurité : une justice politisée”, Revue québécoise de droint international, 25.2 (2012), pp. 37-71, p. 58.

[24] See Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11.

[25] See CHERNOR JALLOW, Charles , AKANDE, Dapo and DU PLESSIS, Max, “Assessing the African Union concerns about Article 16 of the Rome Statute of the International Criminal Court”, African Journal of Legal Studies, Vol. 4, pages 5-50, 2011. This eventual power of the UN General Assembly would refer to Resolution 377(v) of the UN general Assembly “Uniting for peace” adopted on 3 November 1950.

[26] Rome Statute, Preamble, para. 3.

[27] See Article 36 of the Rome Statute regarding qualifications, nomination and election of Judges. Moreover before the commencement of their office, Judges are sworn in.

[28] See JAIN, Neha, “A separate Law for Peacekeepers: The clash between the Security  Council and the International Criminal Court”, The European Journal of International Law, Vol. 16, n° 2, 2005, pp. 239-257, p. 254