The Security Council's Struggle over Darfur and International Justice

JURIST Guest Columnist David Scheffer, who formerly led the US delegation in UN talks creating the International Criminal Court (ICC) and is now at Northwestern University School of Law, recalls the original intent behind Article 16 of the Rome Statute of the ICC as the UN Security Council deliberates what to do about the ICC Prosecutor's application for an arrest warrant against Sudan President Omar Hassan al-Bashir for genocide and other atrocity crimes in Darfur… ...



photo by Jim Ziv
The United Nations Security Council is struggling with how to manage the political, military, and judicial complexities of the situation in Darfur. But the debate within the Council appears to be overlooking a central reality that this essay seeks to explain.

At the center of the Security Council's deliberations on Darfur since mid-July has been the application by Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court (ICC), for an arrest warrant on charges of genocide, crimes against humanity, and war crimes against President Omar Hassan al-Bashir of Sudan. ICC judges are reviewing the evidence presented by Mr. Moreno-Ocampo and their decision whether to issue an arrest warrant is pending, with September or October as possible dates for the much-anticipated reckoning.

In the meantime, the Security Council has split between those members willing to permit justice to run its course against President Bashir and those members seeking to derail Mr. Moreno-Ocampo's move against the Sudanese leader. The effort to thwart prosecution is for the ostensible purposes of advancing peace objectives in Darfur and protecting the safety of U.N. and African Union peacekeeping forces (UNAMID) and international humanitarian aid workers with a presumably more compliant President Bashir who would be liberated from judicial accountability.

The United States sought vainly to exclude from Security Council Resolution 1828, which finally was adopted over a U.S. abstention on July 31, 2008, language suggesting a link between the ICC's investigation of President Bashir and the renewal of the peacekeeping mandate in Darfur for another year. In the end, UNSC Resolution 1828 included preambular language, which the United States objected to, that reads, "Taking note of the African Union (AU) communiqué of the 142nd Peace and Security Council (PSC) Meeting dated 21 July (S/2008/481, annex), having in mind concerns raised by members of the Council regarding potential developments subsequent to the application by the Prosecutor of the International Criminal Court of 14 July 2008, and taking note of their intention to consider these matters further...". This is code language to suggest, rather strongly, that the Security Council will consider acting consistent with Article 16 of the Rome Statute of the International Criminal Court to suspend the ICC's investigation or prosecution of President Bashir (and perhaps other Sudanese government officials and Janjaweed tribal leaders) for at least one year in the belief that such a decision will improve the chances for peace initiatives and full and safe deployment of UNAMID and humanitarian workers in Darfur. That is a fair concern but it is also rolling the dice with an individual whose track record is deplorable.

Article 16 of the Rome Statute immediately follows several provisions in that treaty (Articles 13-15) establishing how situations can be referred to the ICC for investigation. Titled, "Deferral of investigation or prosecution," Article 16 reads, "No investigation or prosecution can 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." The negotiating history of Article 16 should be instructive to how the Council currently examines the Darfur situation.

When I led the United States delegation in the U.N. talks during the 1990's which culminated in the Rome Statute and its Rules of Procedure and Evidence and Elements of Crimes, negotiators were acutely aware of how Article 16 originated and why the Republic of Singapore introduced it as a compromise provision during the negotiations. The Singapore delegation acted when it became clear that the U.S. position on referrals to the ICC would not be acceptable to a large number of governments. Our position was that referrals could only be made by the Security Council or by a State Party to the Rome Statute provided, in the latter instance, that if the Security Council already was seized with the referred situation, the Council would have to consent before the Court could commence investigation of it.

The U.S. position did not attract sufficient support, as many governments wanted, in addition to the Security Council referral option, an unfettered right of State Party referral and a right for the prosecutor independently to refer situations to the Court (the final text of Article 15 requires the Prosecutor to obtain the approval of the Pre-Trial Chamber before any investigation could commence). Many of the current members of the Security Council advocated this broader referral procedure.

Singapore's compromise was grounded in how to address the problem of initial referral of situations to the Court (in other words, the sticky U.S. position), and Article 16 was negotiated and drafted with that issue paramount in the minds of the negotiators. The original intent underpinning Article 16 was to grant the Security Council power to suspend investigation or prosecution of situations before either is launched if priorities of peace and security compelled a delay of international justice. This conformed with the spirit of the compromise, namely that if the Security Council cannot fully control the referral of situations to the ICC, then at least the Council can block the ICC from marching down the investigatory path at the request of a State Party or the Prosecutor provided sufficient votes can be obtained, absent a veto, under a Chapter VII resolution.

The negotiators' focus was on situations referred by a State Party or the Prosecutor, not by the Security Council. It would have been very odd to argue we need Article 16 as a check on Security Council referrals. Recognizing, as did other governments, the utility of Article 16's brake on premature State Party or Prosecutor referrals, the U.S. delegation supported incorporation of Article 16 in the Rome Statute.

I seriously doubt one would find anywhere in the travaux preparatoires of Article 16 of the Rome Statute, and as a key negotiator of it I do not recall any discussion whatsoever among my colleagues, anticipating the kind of scenario that confronts us today with President Bashir. First, the Security Council, acting consistent with Article 13(b) of the Rome Statute, referred Darfur under Chapter VII authority to the ICC several years ago. That is precisely the referral procedure originally favored by the United States and by Russia and China for all referrals to the Court. It would have astonished my colleagues and me in 1997 and 1998 to be told that Article 16, which was conceived as a compromise procedure to use at the infancy of a situation before the ICC, would be applied some day to short-circuit a Security Council referral lodged more than three years ago and years after the Prosecutor has initiated his investigation pursuant to such referral (March 31, 2005) and obtained arrest warrants 16 months earlier against high-level alleged perpetrators who remain at large (Ahmed Harun and Ali Kushayb in April 2007), as well as completed a multi-year investigation of perhaps the leading alleged perpetrator and applied for an arrest warrant (against President Bashir in July 2008). If that scenario had been presented to the negotiators more than a decade ago, Article 16 never would have been approved by the vast majority of governments attending the U.N. talks on the Rome Statute for it would have been viewed as creating rights for the Security Council far beyond the original intent of the Singapore compromise.

Furthermore, if we had contemplated this novel scenario, there would have been exhaustive discussions over many months to determine how to handle well-developed cases and investigatory matters during the suspension period. What happens to outstanding arrest warrants? How is evidence preserved? How would tracking and protection of witnesses be handled? How does the Court handle the due process rights of individuals already in custody and those standing trial? What funds can the Prosecutor expend on the referred situation during the suspension period? How do the ICC judges handle motions by defense counsel during this period? What happens to on-going trials which, even if not technically suspended by the Council's resolution, could be seriously impaired by suspension of investigatory work in other areas of the atrocity situation? None of these critical questions were even raised, much less considered by the negotiators. The reason is that the original intent behind Article 16 was for the Security Council to act pre-emptively to delay the application of international justice for atrocity crimes in a particular situation in order to focus exclusively on performing the Council's mandated responsibilities for international peace and security objectives.

Nonetheless, one plausibly may argue that the language of Article 16 of the Rome Statute technically empowers the Security Council to intervene at this late date and block approval of an arrest warrant against President Bashir or even suspend its execution following any approval of it by the judges. Such technically manipulative reading of Article 16 facilitated the American initiative early in the Bush Administration to insist on operative language in Security Council Resolutions 1422 (2002) and 1487 (2003) immunizing peacekeeping personnel drawn from non-party States to the Rome Statute from investigation or prosecution before the ICC for at least 12 months. At the time, many, including myself, regarded this as a distorted reading of Article 16, which was never intended to serve as a generic impunity carve-out for vast categories of participants in unknown future military operations and atrocity situations. I recall vividly the outrage of many European governments and others at how the United States bulldozed through the Security Council in the summers of 2002 and 2003 an arguably correct but deeply distorted reading of Article 16. One wonders where that outrage is today for Darfur, where atrocity crimes continue to devastate its population and villages while President Bashir uses every trick in the book to intimidate the Security Council into crippling the vital work of the ICC, a mission which the Council itself mandated in 2005.

Security Council members should neither reverse their own commitment to international justice in Darfur nor defy the original intent behind the Article 16 power that is available to the Council under the Rome Statute.



David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law in Chicago, Illinois. He is a former U.S. Ambassador at Large for War Crimes Issues (1997-2001) and senior adviser and counsel to the U.S. Permanent Representative to the United Nations (1993-1996).


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