The UN's referral of the situation in Libya to the ICC included a reference to Article 16 of the ICC's Rome Statute (Photo: unostamps.nl)

A lot has been said about the UN Security Council’s referral of the situation in Libya to the International Criminal Court (ICC). The referral has sparked a fascinating debate on a multitude of legal and political issues. With regards to the inclusion of a reference to Article 16 of the Rome Statute in the Council’s referral, however, very little analysis has been offered. With the exception of a few observers wondering why Article 16 was included (here, here and here), very little has been written about this important issue. Article 16 allows the UN Security Council to defer an ICC investigation or prosecution for one year, renewable every year, if it deems the investigation or prosecution to constitute a threat to international peace and security. This, inevitably brings up the question, could the pursuit of justice in Libya be traded off to ensure peace?

There was significant disagreement between states in the UN Security Council about whether Libya should be referred to the ICC. The primary source of ambivalence by some states, including India, Brazil, Gabon and Portugal, revolved around whether peace and justice should be sequenced. India argued for a “calibrated approach”. A compromise was reached through a preambular reference in the Security Council’s referral to Article 16 of the Rome Statute. Thus, the referral to the ICC reads that the Security Council:

“…Recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect…”

What remains unclear is the weight given to Article 16 by UN Security Council states. Was the inclusion of a reference to Article 16 a symbolic gesture to appease those states which sought a calibrated, sequenced approach to the question of peace and justice in Libya. Or, were there guarantees and serious discussions about the possibility of Article 16 being used as a negotiating carrot to ensure peace in Libya?

Given the amount of attention Article 16 has received in recent months, it seems unlikely that it was included as merely a gesture. Article 16 has received a tremendous amount of scrutiny. The African Union, the Arab League, China and others have all at one point or another requested that the arrest warrant against Sudanese President Omar al-Bashir be dropped. It was also rumoured that the US and other Western states were willing to defer the arrest warrant of Bashir in exchange for his ‘good behaviour’ in allowing the peaceful separation of Southern Sudan. It is no doubt an uncomfortable and inconvenient truth for many that key allies of the ICC including the US and Britain are privately willing to consider a deferral of the arrest warrant. Kenya has sought a deferral of prosecutions against key senior officials suspected of being responsible for post-election violence in 2007. Within the peace-justice debate, the question of invoking Article 16 in order to achieve some degree of political control over the ICC, in order to allow the use of amnesty laws in some contexts, as well as to sequence justice with peace have received significant attention.

Gaddafi speaks at the UN. The leader of Libya is now being investigated by the ICC (Photo: The Telegraph)

Not long ago, the general consensus – at least within academic circles – was that Article 16 would be irrelevant in practice. Yet the level of attention paid to Article 16 may have calibrated the expectations that states have of the ICC. The momentum carrying debates about the possible deferral of investigations and arrest warrants has now translated to a position for Article 16 within a UN Security Council Resolution. It’s moved from being spoken about to being invoked in the practice of international law and politics. Some may disagree, but this could mark an important shift in the discourse of the politics of international law and the peace-justice landscape.

Who would accept the deferral of justice in the name of peace? Can both peace and justice be achieved simultaneously? These are difficult questions to answer and they have long coloured the so-called “peace versus justice” debate. Of course, the most ardent supporters of international justice won’t think twice before waving the flag of “no peace without justice” nor take much responsibility for their rhetoric. Many of the ICC’s more predictable critics will play their one-string fiddle arguing that the ICC takes away all incentives for peace and it is the Court’s fault if peace is not immediately achieved.

The truth is far more complicated than this artificial debate about the trade-off between peace and justice. The peace-justice debate is a topic for future posts but a few elements are essential when considering the inclusion of Article 16 in the Council’s referral.

Could the investigation of Gaddafi be deferred by the UN Security Council? (Photo: Mark Kersten)

By intervening in ongoing conflicts the ICC becomes a key and consequential actor in conflict resolution. Importantly, this does not mean that it necessarily makes peace less likely. It may, in some circumstances, provide incentives to negotiate peace. This is precisely where Article 16 could come in. Deferring an investigation or prosecution for a year or more can, in theory, be used as a carrot in negotiations in order to ensure and maintain peace.

There is an obvious clash between those who would consider the use of Article 16 as a good thing and those who would find it a denial of justice. Somewhat ironically, the most fervent legal purists are wont to endorse Article 16, despite it being “the letter of the law”. This is likely because it is an explicit reference to the possibility of politics trumping justice. Others may wonder why perpetrators should ever be rewarded with impunity – whether it is temporary or not.

On the other hand, given the political nature of peace, political actors and negotiators are almost certainly going to consider Article 16 a welcome addition to their peace-building toolbox. The growth of international criminal law and its application in violent political conflicts has restrained the flexibility that actors in conflict resolution once had. Importantly, Article 16 also signals that the question of justice can move from the grips of a legal institution to the realm of politics – something that proponents of an independent ICC have long attempted to resist.

It remains uncertain whether Article 16 will be invoked or if its inclusion in the Security Council’s referral will set any precedent. It is certainly unlikely to happen in the case of Bashir but it could feasibly occur in the case of Gaddafi. It isn’t entirely clear – although generally assumed – that a perpetrator would accept a deferral-for-peace deal. Given it’s very temporary nature (the deferral must be renewed every year), Gaddafi would seemingly have the incentive to half-comply with demands for peace in order to leverage future progress against renewals. Nevertheless, deferring ICC investigations and prosecutions is much more probable today than it was just weeks ago.

What the referral suggests is that a deeper conversation has to be had about both the moral and political nature and implications of employing Article 16. Of course, the ICC has long relied on political actors, perhaps more than it would like to, for the enforcement of its warrants and for jurisdiction in non-member states. The ICC may remain an institution negotiated between the ideals of justice and the realities of international politics. We’ve come a long way since scholars and observers described it as “irrelevant in practice.”