The Case for a Deferment Under Article 16
Something is definitely happening – and there may even be reasons to be faintly optimistic about it. Having presented a “˜worst case scenario’ earlier in this discussion, perhaps it is worth setting out a “˜best case scenario’, looking at the situation from this point on.
First, I do believe the worst case remains a serious possibility. It is just that the decisive moment is not the prosecutor’s announcement, but will be the decision of the judges to grant arrest warrants: the point where President Bashir’s legal status changes from “˜free’ to “˜fugitive’. Alternatively, another potentially decisive moment would be a clear signal from the Security Council that it is not going to intervene, or that it decides to invoke Article 16 of the Rome Statute and impose a 12 month deferment of the case.
Between now and those possible decisive moments, the government’s strategy is clear – it is mounting a charm-offensive, and showing itself to be an agent of peace. The first visible sign of the strategy has been the relatively muted demonstrations, and, on the very evening of the indictments, a large gathering at Friendship Hall to sign the new Electoral Law. Bashir, Taha and Kiir shared the stage and many ambassadors and UN officials looked on in support. It was a great show of unity and support for the CPA. The NCP, and its counterpart in the CPA, the SPLM, are making a display of their commitment to the peace process. Despite the force of the prosecutor’s case, the rhetoric has been mild, foreigners have been protected not expelled and Khartoum feels fairly safe.
At the same time, the NCP is gathering support from the AU, Arab League and its ally on the Security Council, China. This looks like a well-crafted campaign that is aiming to build a coalition to bring an “˜Article 16″² deferment to the Security Council. In the best case scenario, this campaign will succeed, but with the NCP making substantial concessions to win Security Council backing. The concessions are integral to the NCP’s case, because they will not convince the major players on the Security Council to back a deferment unless they can show hostile and sceptical public opinion that they have paid a high price.
The case for a deferment has four elements…
1. Avoiding a defensive-aggressive reaction by the NCP, which may jeopardise peace and stability in Sudan, with a high cost in lives and welfare
2. Allowing time for a wider assessment of the interests of the victims and rest of Sudan to be made and considered properly – a kind of counterweight to the power and speed of the prosecutor
3. The holding of the government on “˜probation’ – a constant pressure to co-operate with the UN/UNAMID, respect human rights, provide security in Darfur and stop all violence against civilians, with the means to not renew deferment as a the sanction. Bashir would never be truly free of the charges against him.
4. The extraction of substantive concessions by the NCP through a deal with the Security Council’s main players. The prospect of a deferral provides real leverage.
Though some will argue that this is justice denied, the potential concessions could even further the cause of justice, as well as peace – for example, by requiring Ahmad Harun to be handed over to the ICC. Bashir has said he will never do that, but if doing so deferred the case against him, maybe he would see it differently?
Other concessions might relate to repairing damage in Darfur – for example establishing a “˜Government of Western Sudan’ covering the three Darfur states, compensation (difficult) or wealth sharing (better), deployment of SAF forces to improve security and some sort process of justice and reconciliation in Darfur. I don’t know what the right concessions would be, but there is at least the possibility to make things better in Darfur and make some progress on justice by exploiting Bashir’s vulnerable position. I hope that the Security Council carefully examines the value of an Article 16 deferral and weighs up what it can get from the NCP in return – because there is potential to do good here, beyond the symbolic victories for justice and accountability.
A further possibility, is that the NCP or military will see President Bashir as damaged goods, and will depose him in a palace coup and possibly hand him over to the ICC – thus clearing Sudan’s obligation to the ICC, should arrest warrants be issued. Perhaps this is what the prosecutor intended by only indicting Bashir. But this is a high-risk assumption – other NCP officials may see themselves as vulnerable to indictments, the turmoil of a palace coup may embolden rebels for a bigger and more dangerous upheaval, and Bashir has been adept at hanging on to power and seeing off such threats. But it is a possibility – with or, more likely, without an Article 16 deferment.
There is some irony in the criticism of ICC Chief Prosecutor Luis Moreno Ocampo for issuing his request for a warrant of arrest for Sudanese President Omar Hassan Ahmad Al Bashir.
Approximately two years ago, responding to the request of the Pre-Trial Chamber (PTC I), amicus filings from two distinguished commentators â€“ Judge Antonio Cassese (who had chaired the International Commission of Inquiry into the Sudan that reported to the Secretary-General and UN Security Council (UNSC) in early 2005, leading to the UNSCâ€™s March 31 referral of the situation to the ICC), and Judge Louise Arbour (former Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia and by 2005 the UN High Commissioner for Human Rights) â€“ indicated that the Office of the Prosecutor (OTP) should move more quickly and against high levels of the Sudanese government in order to pressurize it to protect the citizens of Darfur and to be more visibly pursuing justice in the situation.
Within the wider non-governmental organization human rights community, the OTP was criticized for moving too slowly and cautiously. Moreno Ocampoâ€™s explanation was that he was carrying out his investigations in as responsible a way as possible, seeking evidence that would stand up in court.
Now that heâ€™s determined that he has the requisite evidence, while human rights NGOs have generally applauded the action, he is being criticized by others on the grounds that especially given likely Sudanese reaction, his move might be politically counterproductive. Peace and humanitarian-oriented activists argue that his actions at best may be irrelevant to conditions on the ground or that they can be used for constructive pressure on the Sudanese government, at worst that they will impair peace efforts and increase Sudanese attacks against peacekeepers.
Much of the debate can be explained by the extremely broad, and somewhat indeterminate mandate that the Court serves. It is to pursue both retributive and restorative justice goals, promote deterrence, and serve the interests of victims. From the standpoint of the Courtâ€™s operations, however, has the Prosecutor behaved as he should, given his job definition?
Article 42 of the Statute says, â€œThe Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the court, for examining them and for conducting investigations and prosecutions before the Court. A member of the office shall not seek or act on instructions from any external source.â€
Once the prosecutorial machinery was put into gear â€“ as it was by the UNSC referral â€“ how sensitive to a politics of consequence should the Prosecutor be?
As a first step, the OTP as currently structured (through its Jurisdiction, Complementarity, and Cooperation Division, JCCD) carries out analyses of referrals to determine whether further investigation appears to be warranted, evaluating the degree to which involved countries â€“ including the situation country â€“ that should genuinely investigate and if appropriate prosecute are doing so â€“ and determining whether and how the situation and other countries can and will cooperate with the operations of the Court.
In the Sudan case, the UNSC referral triggered the OTP to carry out an initial investigation from which it concluded that, indeed, crimes under the jurisdiction of the Court appeared to be taking place in Darfur, warranting further, formal investigation. The OTP then collected evidence both of crimes (largely through interviews of victims outside of the Sudan, given the authoritiesâ€™ refusal to cooperate) and of Sudanese efforts (which it found wanting) to prosecute alleged perpetrators. In essence, although the mechanism may have worked too slowly, cautiously, or otherwise less than optimally, the OTP concluded this stage of its investigation with both the initial summons and then warrant requests of spring, 2007 (for Ahmad Haroun and Ali Kushayb) and now with the request regarding President Bashir.
The Prosecutor has apparently operated according to book. From the standpoint of the ICC as an international judicial organization, the current warrant request is the appropriate move (assuming that the evidence supports the charges). To defer the request due to the implied blackmail of government threats against humanitarian and peacekeeping organizations operating in Sudan would have been to take on exactly the political activities that Court officials have argued from the start would undermine its legitimacy and destroy its unique role as the judicial component of an international institutional network that includes organizations that pursue those other, humanitarian and political, objectives.
The OTP was under pressure from the Pre-Trial Chamber to act on Sudan. Sensitivity to the politics of consequence is not part of the Prosecutorâ€™s duties. He may in fact be inevitably (and perhaps even overly) concerned about such consequences; but for the OTP as an operational unit of a judicial organization, the political consequences on the ground should not be a guiding constraint.
It will be up to the rest of the institutional and international community to work out the political consequences, possibly entailing renewed peace negotiation efforts, a UNSC suspension of the warrant under Statute Article 16, or, more unlikely (if the warrant is issued), efforts to apprehend President Bashir in the event that he leaves Sudan.
Genocide is an extremely challenging charge to substantiate. Moreno Ocampo has aimed very high. His accusations will appear to have been more political the less they can be substantiated by the case he has assembled. Should the evidence fall short in the eyes of the PTC, the Chamber can alter the charges; however, the credibility of the process now depends on the expertise and thoroughness of the OTP that remains to be demonstrated.
Dear Benjamin – I thoroughly agree with your view. The prosecutor has done nothing wrong at all. He cannot and should not assess the wider implications of what he does – otherwise he would be paralysed with doubt and contradictions and would need to spend his time working through the complex political ramifications. And, as you put it, the prosecutor would be easily blackmailed. If the signal to present-day and future tyrants is to be strong, then the prosecutor has to be single-minded and relentless in pursuit of major criminals.
But justice is not the only objective of the international community in Sudan – and some external checks on the OTP are needed. More clarity in the principal-agent relationship between the Security Council and prosecutor would help. The principal (SC) authorises the agent (OTP) to investigate the situation and independently to pursue one aspect only of the international agenda in Sudan (justice). The principal also pursues other objectives (peace, relief, development) and authorises other agents (UNMIS, UNAMID) to deliver those. In a different configuration, the principals have backed the CPA and initiated a 6-year process of peace-building and democratic renewal. Experience the world over shows that peace processes often require a muted approach to justice.
All of this points to the principals, primarily the Security Council and the P-5 governments, having unambiguous responsibility for resolving conflicts in the objectives they have established, and using the various powers they have (such as the Article 16 deferral) to achieve a measure of coherence and consistency between the actions of its various agents.
If anything, it would be better if the prosecutor’s obligation to consider the interest of the victims was narrowly defined or removed altogether. That would remove an existing ambiguity in the principal-agent relationship about who should consider wider interests.
A couple of people have asked, and to save others looking it up, here is some further information on the Security Council…
UN Security Council voting rules are set out in Article 27 of UN Charter. A decision of the Security Council needs nine affirmative (ie. ‘yes’) votes from the total of 15 members and no vetoing vote (ie. ‘no’) from any of the permanent five members. Abstentions do not count towards the total of nine, and nor do they count as vetoes.
B. Current Security Council composition
(* denotes non-party to the ICC):
Permanent five members
Elected members 2008
2. Burkina Faso
3. Costa Rica
9. South Africa
The Security Council presidency is currently with Vietnam, and goes to Belgium in August, Burkina Faso in September, and China in October.
D. Views of SC members
Nuances in the views of Security Council members can be divined in part from the responses to prosecutor Ocampo’s statement on June 5th, which are summarised at the end of the UN press release following his statement. These should be interpreted with some caution as they were made before it had fully been understood that Ocampo would indict the head of state of Sudan.
E. Parts of original SC resolution relevant to Article 16 deferral
There are some parts of the original resolution that launched the ICC investigation into the situation in Darfur SC resolution 1593 that recognise the importance of domestic developments. The Security Council…
4. Also encourages the Court, as appropriate and in accordance with the Rome Statute, to support international cooperation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur;
5.Also emphasizes the need to promote healing and reconciliation and encourages in this respect the creation of institutions, involving all sectors of Sudanese society, such as truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace, with African Union and international support as necessary;
The development of a credible peace & reconciliation process for Darfur would go some way to providing a justification for invoking Article 16, drawing on this language from 1593.
F. Upcoming Security Council business on Sudan
The Security Council has Sudan business coming up:
24 July – a report from UNMIS
30 July – UNAMID resolution (renewing its mandate)
I don’t know what is scheduled beyond July.
The African Union has resolved to press for an Article 16 deferral [AFP report 21 July]. How could Article 16 deferral be placed on the Security Council agenda? Under the Security Council rules of procedure and the articles of the UN Charter there are five ways:
1. By the President of the SC calling a meeting (Rule 1)
2. By any member of the SC asking the President to call a meeting (Rule 2)
3. By any country bringing the dispute to the attention of the SC (Rule 3 / Article 35)
4. By a referral from the General Assembly (Rule 3 / Article 11)
5. By the Secretary General bringing matters that affect international peace and security to the attention of the SC (Rule 3 / Article 99)
South Africa and Burkina Faso are members of both the AU and Security Council at this time. The Presidency of the SC determines the timing – it is currently with Vietnam. Belgium assumes the presidency in August and Burkina Faso in September.