As I’ve mentioned before — and as others have articulated in much greater depth — ICC jurisdiction in Darfur can, if the Security Council authorizes it, be suspended for up to a year. The legal rationale cited to justify this option — which is supported by countries like China and Russia that contend that pursuing justice through the ICC will impede efforts at peace — is found in a section of the Rome Statute (the document that established the ICC) called Article 16. However, according to someone who helped negotiate the Rome Statute, this assumption may actually rest on shaky legal ground. Writing in Jurist, the University of Pittsburgh School of Law blog, David Scheffer, who led the U.S. delegation at the Rome Statute talks, explains that those designing the ICC ten years ago had a pretty clear idea of when Article 16 should and should not be invoked.
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.
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.
The situation in Darfur, of course, was referred to the ICC by the Security Council — on March 31, 2005, to be precise — so calls to suspend ICC jurisdiction are most definitely not coming before the investigation was launched. This would seem to indicate that the type of scenario in Darfur today is not one for which Article 16 was intended to be used, and, indeed, Scheffer, looking back at the process of negotiation, says as much:
I do not recall any discussion whatsoever among my colleagues, anticipating the kind of scenario that confronts us today with President Bashir…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…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.
The implications of Scheffer’s testimony here leads to two possible conclusions. One is that it is simply not appropriate to invoke Article 16 to suspend ICC action against Bashir. The other is that, while the framers of the Rome Statute would never have envisioned using Article 16 in this manner, we are in a novel situation that they could not have anticipated and that, essentially, we are treading on new ground. This is undeniably true, but Article 16 was not meant to be bandied about lightly, and the intentions and insight of those who wrote the document should not be overlooked.