In a recent post, on Ejil Talk!, Solomon Dersso provides his take on the recent AU summit outcome in relation to the ICC. While I shared my own views on the issue here a few days ago, his post raised a couple of interesting issues which I think deserve further attention: on the scope of the use of Article 16 in the Kenya cases and on the general question of the “sour” relationship between the ICC and the AU.
1) On the use of Article 16 in the Kenya cases
As recalled by Dersso, a deferral of the cases would require that the UNSC act under Chapter VII of the UN Charter. Article 16 of the Rome Statute specifically provides that:
No investigation or prosecution may 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.
Dersso deals with this Article in the following way:
Second, the UNSC can exercise its authority under Article 16 only after determining that continuing with the prosecution constitutes a threat to international peace and security within the framework of Chapter VII of the UN Charter. Looking at the cases against Kenyatta and Ruto, there is little evidence to suggest that their trial would lead to such a threat – unless UNSC members determine politically that the threat of terrorism facing Kenya (following the Westgate attacks) is reason enough to warrant the deferral.
This reasoning raises some new questions. Indeed, Article 16 does not require that the prosecution itself constitute a threat to international peace and security. As long as there is a resolution adopted under Chapter VII, then the case is deferred. Moreover, I don’t understand the emphasis on the word “politically” in the second part of the sentence. As opposed to what? I understand that there are political considerations in Chapter VII decisions, but it would not be more political to decide that Kenya is facing a threat of terrorism than to decide that prosecutions would constitute a threat to peace and security. Determinations under Chapter VII are always political.
In any case, as I said before, if the ICC Prosecutor herself considers Westgate to possibly be an international crime, then it’s not a far cry to think that allowing Ruto and Kenyatta to deal with it is necessary for international peace and security. Another argument, if a little twisted, could be that deferral is necessary to avoid the continued acrimony between the AU and the ICC, which is a setback for international justice, and therefore a possible threat to international peace and security.
A related question that is not dealt with by Dersso is what the ICC could do if it disagreed with the UNSC evaluation of the situation under Chapter VII. The issue of the judicial control of the use of Chapter VII is a long standing debate in international law. More particularly, it has come up a number of times in relation to international criminal tribunals. In the famous Tadic interlocutory appeal, the ICTY Appeals Chamber had engaged in a cursory discussion of whether the UNSC had validly used Chapter VII to create the tribunal. More recently, however, the Trial Chamber of the Special Tribunal for Lebanon, confirmed by the Appeals Chamber, refused to engage in such discussion. I personally agree with the STL case law and believe that a Chapter VII resolution would automatically trigger Article 16 of the Rome Statute with no discretion for the judges to exercise any judicial control over it.
2) The general question of the relationship between the AU and the ICC
The tone of Dersso’s post seems to suggest that the current tension between the ICC and the AU is necessarily a bad thing. However, beyond appearances, I am not sure that this is the case. Indeed, it highlights the real tensions in international law today between competing cosmogonies that are not easily reconcilable: criminal justice vs. political realism, human rights vs. sovereignty, universalism vs. regionalism…
Nobody is actually to blame for this situation. The ICC has a mandate that it is perfectly legitimate in trying to accomplish, but African states are also legitimate in voicing their concerns. As far as I know, the opinion of states is still an important aspect of international law and if these states decide to withdraw from the Rome Statute, it is not a defeat for international law, but a consequence of how international law works.
It is ultimately healthy for the system that these tensions come out in the open, rather than be swept under the carpet to create an illusion that everything is running smoothly. Whatever one’s own view of how international law should be, ignorance of reality is a recipe for irrelevance. In the current situation, blind defense of the ICC and dismissal of AU concerns might just end up being an example of that.
Spreading the Jam 
Dear Dr. Jacobs,
Thank you for the very interesting post, which inspired me to comment on some of the issues that you raise with regard to Article 16.
(1) The conditions of a valid deferral
Article 16 demands that a deferral is requested “in a resolution under Chapter VII of the Charter”, which implies that the Council has to determine the existence of a threat to the peace in the sense of Article 39 of the UN Charter. You point out that “Article 16 does not require that the prosecution itself constitutes a threat to international peace and security”. Remarkably, the late judge Antonio Cassese took a different position and argued that the Security Council may only request a deferral, if it “explicitly decides that continuation of [the] investigation or prosecution may amount to a threat to the peace” (EJIL 1999, at 163-4). In my opinion, your interpretation is more plausible. Cassese ignored that the drafters of the Rome Statute left the substantive scope of the Council’s deferral powers under Article 16 to the Council’s wide authority under Chapter VII of the UN Charter. The exercise of this authority is of course not unbound by law. However, there is not an obligation for the Council to explicitly invoke Article 39 under Chapter VII and it is very hard to identify legal limitations to the kind of circumstances that could motivate the Council to request a deferral under Article 16. In effect, if the Security Council finds it appropriate to request a deferral in response to the larger factual background of the prosecution of President Kenyatta and Vice-President – including the mounting tension between the AU and the ICC or the fight against terrorism in the aftermath of the Westgate attacks – there is no reason to question the validity of such a deferral under the Rome Statute.
(2) The possibility of judicial review
On the scope of judicial review, you contend that a “Chapter VII resolution would automatically trigger Article 16 of the Rome Statute with no discretion for the judges to exercise any judicial control over it”. The difficulty with the question of judicial review is that the wording and the drafting history of Article 16 do not address the role of the Court in determining the legal effects of deferral decisions. Accordingly, it seems that an Article 16 deferral, different from a referral under Article 13(b), which is subject to prosecutorial discretion and judicial supervision, obliges the Court not to commence or proceed with an investigation or prosecution.
Yet, this does not imply that there will not be “any judicial control” at all if the Council issues a deferral request. Arguably, the Court has the inherent authority (in line with article 19.1 of the Rome Statute) to examine the validity of a deferral request under the Rome Statute. I believe that this would not allow the judges of the Trial Chamber, in the cases of Kenyatta and Ruto, to evaluate the appropriateness of the deferral or the content of an Article 39 determination, but the judges may have to establish whether the Council has actually adopted a resolution under Chapter VII and has not violated any other conditions that are inherent to a valid deferral under the Rome Statute (in addition to the temporal limitation of twelve months, it might be argued that Article 16 does not allow deferrals for abstract and hypothetical scenario’s such as those that motivated the adoption of resolutions 1422 and 1487). Furthermore, the Trial Chamber may have to address the practical consequences of the deferral.
(3) The undefined consequences of a valid deferral
This last remark requires further consideration. One of the most peculiar aspects of Article 16 is that it does not explain what will happen when the Security Council actually issues a valid deferral request. According to David Scheffer, the head of the US delegation during the Rome Conference, Article 16 was never supposed to be invoked with regard to formal investigations or prosecutions. He has argued (see here) that if the drafters would have wanted the Security Council to have such far-reaching powers that “there would have been exhaustive discussions over many months to determine how to handle well-developed cases and investigatory matters during the suspension period”. Of course, this interpretation discords the text of Article 16, which speaks of a request not to commence or proceed with an investigation or prosecution. The real reason why the drafters failed to define the precise legal effects of deferrals seems to be that Article 16 was adopted during the final hours of the Rome Conference and that there simply was no time to address all the implications of this vaguely formulated provision.
The Relationship Agreement between the UN and the Court also does not specify what should happen with deferred investigations or prosecutions. It is clear that after a deferral the Prosecutor could still take actions that precede the initiation of a formal investigation or prosecution (i.e. analysing available information, seeking additional information and receiving testimonies at the seat of the Court), but it remains uncertain, for example, what will happen with collected evidence, which might be perishable and extremely sensitive. Furthermore, should suspected perpetrators that are detained by the Court be released after a deferral? And what should be done, which is particularly relevant in the cases of Kenyatta and Ruto, with witnesses that are placed under protection of the Court while waiting to testify during trial. In the absence of “a detailed regulation of the consequences of the application of Article 16”, as proposed many years ago by Luigi Condorelli and Santiago Villalpando (in Cassese, Gaeta and Jones 2002, at 653-4), all those involved will look to the Trial Chamber to answer these questions.
That being said, I am curious what your take is on the legal effects of a valid deferral under Article 16?
Thank you for your thoughtful comments. I mostly agree with you points in relation the conditions of a deferral, although I’m not even sure that there are in fact other conditions of validity of an Article 16 deferral other than it being adopted under Chapter VII.
As for the consequences of a valid deferral, I don’t really have a strong opinion and agree that it is definitely a problem that should have been resolved in the Statute or at least the RPE. For sure, I think it means release of the accused, if in detention. As for protective measures, it would probably have to be discussed and decided on a case by case basis.