Jekyll or Hyde: Curtailed justice at the ICC?

The Security Council’s ability to suspend ICC investigations destabilizes the necessary independence of the court. Through Article 16 of the Rome Statute, the SC moves the ICC beyond a legal ideal into a political reality where diplomatic peace and justice can sometimes conflict. For reasons laid out below, this legal/political tension suggests that Article 16 is a Jekyll and Hyde provision. To consider Article 16 as a positive aspect of the Rome Statute, its dual character must be monitored through a continuous case-by-case assessment. This article will consider the implications of Article 16 and the possible consequences arising from Resolution 1422.

Article 16 – On Compromise and Politics

Article 16 represents a compromise between the SC and the ICC.  In its earlier form, Article 16 prevented the ICC from commencing a prosecution on any situation being dealt with by the SC unless the SC decided otherwise [here at 1509].  This broad provision would have jeopardized independence of the ICC and left it susceptible to the political motivations of the SC.  Viewed through a lens of compromise, the current version of Article 16 is a more palatable alternative. It arguably strikes an essential balance between recognition of the Security Council’s primacy over international peace and security and the Court’s independence. While the article still alters the independence of the ICC, it allows for investigations to continue unless the Council formally decides to stop the process. As such, one veto by a permanent Council member cannot halt ICC proceedings as was previously the case. Instead, only a “concerned effort” requiring a minimum of nine affirmative SC votes every 12 months can block the process [here at 1510]. Although Article 16 is a constructive result that limits the weakness of the ICC, the ICC’s continued dependency on the SC leaves the door open to a politicized judicial process.

Article 16’s ambiguity also engages key procedural questions. Ostensibly, the provision fails to consider what happens to an individual already in custody. What procedure should the ICC adopt if the SC were to suspend such an investigation? Is the individual de-criminated and set free thus negating justice for political ends? Certainly this would defeat the object of the ICC – to ensure that the most serious crimes do not go unpunished – and subsequently weaken the institution.  On the other hand, is the individual to be kept in custody indefinitely thus violating his human right to a trial without undue delay? The absence of a clear scope with regard to the SC capacity to suspend ICC investigations thus imperils the ICC’s objectives.

Some critics argue that Article 16 could interfere with a state’s right to exercise their treaty obligation as well as their erga omnes obligations. SC members that are party to the Rome Statute must negotiate between their Council political objectives and their treaty obligations. The ICC’s jurisdiction is arguably limited to jus cogens offences. As Judge Lauterpacht highlights, when a SC Resolution indirectly forces Members of the UN to become accessories to genocide, the Resolution ceases to be valid and binding in its operation [here at 1536]. The concern that Article 16 may therefore free genocidiares is compelling. However, I suggest that the SC’s power is not unlimited and it must therefore act within the purposes and principles of the UN Charter – including its requirement not to derogate from jus cogens norms [Tadic at 28].  While, instances may arise that arouse jus cogens fears, it is fair to say that the SC is limited in its exercise of power. A peripheral argument could also be made that, as in Lockerbie, states cannot invoke their customary-based rights to impede the Security Council in discharging this responsibility. Further, if a state violates the art. 53 VCLT, avenues of compromise exist through arbitration and referral to the ICJ [see VCLT 66]. The treaty and erga omnes critiques are however valid and subsequently endorse my proposition of a case-by-case assessment.

Resolution 1422: New Interpretation of Article 16?

The generality of the resolution broadens the scope of Article 16 thus threatening the credibility of the Court. The US’s intent to curtain off a segment of individuals and protect them indefinitely, limits the ICC’s capacity to carry out a case-by-case assessment. The SC is thus denying the ICC an opportunity to investigate heinous crimes. Of course, national courts can still prosecute these individuals/potential criminals. But what happens when national proceedings are ineffective or unavailable? [Rome Statute 17 & 20b] In the absence of recourse to the ICC, does this reversal in the ICC mandate not weaken the institution?

Ostensibly, the US indirectly lowered the nine affirmative votes threshold. The US secured the nine votes requirement by threatening to veto the renewal of peacekeeping operations in Bosnia and Herzegovina and potentially all other peacekeeping operations. Thus with one veto, the US overcame and lowered Article 16’s threshold. Admittedly the SC is an overtly political body so negotiations like this are not unusual. However, it does point to an instrumentalization of justice. A failure to reserve Article 16 for fragile situations where peace and justice are really in tension would transform the ICC into a mere tool of international governance as opposed to an arbiter of justice. As Prosecutor Moreno-Ocampo rightly underscores, a “business as usual” attitude will help perpetuate crimes. Further, this blanket resolution delays the project of international justice from becoming more systematic, predictable, and enforceable.  This arguably leads to a minimal interaction between rule of law and international criminal law.

Conclusion: Jekyll and Hyde

Article 16 is a sensitive provision with a capacity to be either Jekyll or Hyde. Subsequently, it requires constant monitoring. The ambiguities surrounding the SC’s ability to suspend ICC investigations mean that it is not ideal. However, in the interests of compromise, the article reflects a workable balance. The ICC’s unique mandate over crimes committed in ongoing conflicts requires sensitivity to the project of international justice. It is therefore important that both the SC and ICC avoid the instrumentalization of justice by recognizing the role of justice as end rather than a (useful) tool. In so doing, Article 16 will be valued as a positive aspect of the Rome Statute.

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