If the United Nations Security Council ever refers the situation in Syria to the International Criminal Court, you can be certain that the referral will include a reference to the Security Council’s ability, under Article 16 of the Rome Statute, to halt any ICC investigation or prosecution for up to 12 months. This will undoubtedly be met by incredulity and protests from the human rights community. The most strident of advocates will declare that “trading peace for justice” is blasphemous to the dignity and impartiality of international justice.
The volume and validity of such an outcry will do little to deter the Security Council from including references to Article 16. The reason is simple: for those states concerned that judicial interventions by the ICC complicate efforts at conflict resolution (and there’s a lot of them), Article 16 deferrals represents a possible ‘carrot’, an offer to freeze the ICC’s investigations or prosecutions in exchange for good behaviour (ie. an end to bloodshed).
But the human rights and international justice industry may have less to worry about than they think. While Article 16 could theoretically be invoked by the Security Council (it is, after all, part of the Rome Statute), it is unlikely that it ever will be.
Article 16 – Trading Peace for Justice?
The possibility of invoking Article 16 in order to defer an ICC investigation or prosecution has been raised on a number occasions. Numerous individuals, organizations and states, including the African Union, the Arab League, China have periodically requested that any prosecution of Sudanese President Omar al-Bashir be deferred. It was even rumoured that the US and other Western states were willing to defer the arrest warrant of Bashir in exchange for allowing the peaceful separation of Southern Sudan. Kenya has unsuccessfully sought a deferral of prosecutions against key government officials suspected of being responsible for post-election violence in 2007-2008; it would not be surprising if it did so again. In Uganda, the Museveni government toyed with the idea of requesting that the Security Council defer the prosecution of Joseph Kony and other indicted LRA officials in exchange for Kony’s endorsement of a negotiated settlement.
Most recently, a reference to Article 16 was included in the Security Council’s referral of Libya to the ICC:
“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”
The reference to Article 16 in Resolution 1970 was evidently included in order to assuage the concerns of states that the ICC could complicate attempts to negotiate a political settlement to the conflict in Libya. In other words, the prospect of an Article 16 deferral of an investigation or prosecution was seen as a potential carrot in efforts to negotiate peace.
In July 2011, the African Union, which had taken a leading mediation role in Libya, explicitly requested the “Security Council to activate the provisions of Article 16 of the Rome Statute with a view to deferring the ICC process on Libya, in the interest of Justice as well as peace in the country”. Their request fell on deaf ears.
In the Libya case, as with the others, there is no evidence that the Security Council considered invoking Article 16. It isn’t hard to imagine why. Take the Libyan conflict as an example.
Even if the Security Council had offered a deferral to Gaddafi, it seems unlikely that it would have had any significant impact on the Libyan leader’s decision-making. An Article 16 guarantee requires that the Security Council renew its pledge to defer an investigation or prosecution every twelve months. As a result, it is an inherently temporary and unstable solution and is unlikely to persuade leaders such as Gaddafi that it will be renewed years down the line.
The temporary nature of Article 16 referrals also gives leaders such as Gaddafi terrible – and terrifying – incentives. In order to guarantee that the deferral is consistently renewed every year, it would be in the interest of leaders like Gaddafi to retain a degree of authority and the capacity to destabilize the country. This ability to commit violence would be the leverage required to receive prolonged impunity. Article 16 deferrals could thus prolong violence, rather than help resolve it. Once that leverage evaporates, indicted leaders would likely go the way of Charles Taylor.
Not just a Bad Idea but an Unlikely Tool?
In short, Article 16 deferrals provide warped incentives to indicted individuals who are unlikely to be convinced that a deferral is anything more than a temporary solution. As a result, it seems unlikely that, for the Security Council, Article 16 will amount to anything more than an obligatory reference in referrals, included to appease concerns of some states.
Importantly, this could change if the rules behind invoking Article 16 are made more democratic by taking the power to invoke it away from the Security Council and giving it to the General Assembly. However, this isn’t likely to happen and efforts by the African Union in this direction have gained little-to-no traction. Moreover, we should not expect references to Article 16 to disappear. Offering the possibility of deferring an investigation or prosecution may still be useful to states, negotiators and diplomats.
Nevertheless, human rights groups and advocates of international justice probably don’t have all that much to worry about. Article 16 deferrals may not just be a bad idea. They may not be a particularly useful tool either.