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.