Maintaining the Independence of the International Criminal Court: The Legal and Procedural Implications of an Article 16 Deferral Request
| Autor | Sun Kim |
| Páginas | 175-212 |
Maintaining the Independence of the International
Criminal Court: The Legal and Procedural Implications
of an Article 16 Deferral Request
Sun Kim
Introduction
The International Criminal Court (ICC) and the United Nations (UN) are
independent international institutions with overlapping interests in the field of
international peace and security. The ICC and the UN have a mutually cooperative
yet independently functioning relationship, even though the ICC was originally
conceived as a judicial body closely related to the UN and working in association
with the UN Security Council.1 The interrelationship between the ICC and the
Security Council was an issue of rigorous debate in the negotiation processes and
preparatory commission of the ICC Statute. The travaux préparatoires of the ICC
Statute show that the drafters acknowledged the primary role of the Security Council
in determining threats or breaches of the peace and acts of aggression. This is reflected
in the ICC Statute where the Security Council maintains two distinct powers in the
functioning of the ICC. First, under Article 13(b) the Security Council may, acting
under Chapter VII of the UN Charter, refer a situation to the ICC. The referral
power of the Security Council is unique in that it allows the ICC to bypass the
territory and nationality bases for jurisdiction required for a State party referral or
the Prosecutor acting in proprio motu. Second, under Article 16 the Security Council
may, acting under Chapter VII, request the ICC to defer a situation or prosecution
for a period of twelve months, with the possibility of renewal.
1 CONDORELLI, Luigi & Santiago VILLALPANDO. “Referral and Deferral by the Security Council”.
In Antonio Cassese, Paola Gaeta & John R.W.D. Jones (eds.). The Rome Statute of the International Criminal
Court. Volume I. Oxford: Oxford University Press, 2002, p. 627; see also Article 24 and Article 39, UN
Charter, 1 U.N.T.S. XVI (1945).
Agenda Internacional
Año XVIII, N° 29, 2011, pp. 175-212
ISSN 1027-6750
176 Sun Kim
The potential deferral power granted to the Security Council via Article 16 of the
ICC Statute raises new and interesting questions about the legal and procedural
implications of such a deferral. Bearing in mind the relationship between the UN
and the ICC as laid out in the ICC Statute and the Relationship Agreement between
the UN, this thesis illuminates the critical conflict inherent in the interrelationship
between a political body, the Security Council, and an independent judicial body, the
ICC. Although the Security Council is granted two important functions in the ICC
— the powers of referral and deferral — the ICC must maintain its independence
from political influence in order to effective carry out its functions, namely to provide
international justice for perpetrators of core international crimes.
Section one of the thesis presents the requirements needed for a valid deferral of
a situation or prosecution under Article 16 in conformity with the underlying
rationale behind Article 16. Section two examines the relationship between the ICC
and the Security Council and reviews specific instances when Article 16 has been
invoked in prior Security Council resolutions. Through comparing and contrasting
the actual use of Article 16 in these Security Council resolutions with the original
intended purpose of Article 16, it shows that actual practice and intended purpose
are divergent. Section three analyzes the ICC power of judicial review over an
Article 16 request by examining the powers of the UN Security Council vis-àvis the
organs of the ICC. Section four presents the legal and procedural implications of
an Article 16 deferral including the legal basis for such a deferral and its impact on
the investigation and prosecution stage. Finally, Section five looks at the impact of a
deferral on a multiplicity of components in ICC proceedings.
By highlighting the legal and procedural implications arising out of an Article
16 deferral, this thesis takes the debate further by showing that the ICC needs to
maintain its independence by limiting the unique role of the Security Council in
deferring investigations or prosecutions. The power of deferral should only be applied
in special situations where the proceedings at the ICC interfere with or impede the
restoration of international peace and security. The Security Council, in making an
Article 16 deferral request, should identify the specific proceedings that must be
temporarily suspended in order to create peace in a situation. Further, the mandate
of the Prosecutor, the rights of the defense, and interests of victims and witnesses
affected by a deferral must be taken into account when reviewing the Article 16
request. The creation of the ICC was a highly lauded achievement. Nevertheless, in
order to continue the effective functioning of a permanent international criminal
court, the independence of the Court must be strengthened and supported.
Maintaining the Independence of the International Criminal Court 177
1. Security Council deferral under Article 16 of the ICC Statute
One of the most contentious issues in the negotiations of the ICC Statute was the
power of the Security Council to influence proceedings at the ICC. The ability of a
political organ of the UN tasked with the primary, but not exclusive, responsibility
of maintaining international peace and security to interfere with the procedures of
an independent judicial body was a point of contention among the States.2 This was
a new issue facing states as the previous international criminal tribunals, the ad hoc
tribunals of the International Criminal Tribunal for the Former Yugoslavia (ICTY)
and the International Criminal Tribunal for Rwanda (ICTR) were created by the
Security Council under Chapter VII. However, the ICC was a separate, permanent,
and independent judiciary created through the voluntary consent of State parties. Of
which, a positive result was the role of the Security Council in ICC proceedings was
limited but not completely excluded.
One of the unique powers of the Security Council to influence and direct proceedings
at the ICC includes the power to stop impending or ongoing investigations or
prosecutions under Article 16, which states,
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.
The proposal of a Security Council deferral was one of the most contentious issues
during the negotiation process of the ICC.3 As explained in the following section,
the final text of Article 16 was a compromise solution reached between various states
with differing ideas about the capacity of the Security Council to interfere with
proceedings at the ICC. The following sections present an analysis of the original
rationale for including Article 16 and then highlights how, in practice, the Security
Council resolutions invoking Article 16 have been inconsistent with the original
purpose of the Article.
2 See SCHABAS, William A. The International Criminal Court: A Commentary on the Rome Statute. Oxford:
Oxford University Press, 2010, p. 325 (“One of the most difficult political issues in the Rome Statute is the
relationship with the United Nations Security Council.”); see also YEE, Lionel. “The International Criminal
Court and the Security Council: Articles 13(b) and 16”. In Roy S. Lee (ed.). The International Criminal
Court: The Making of the Rome Statute. The Hague: Kluwer Law International, 1999, p. 150 (stating delegates
opposed the original ILC draft for reasons of political interference in the Court by the Security Council).
3 See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN
GAOR, 50th Session, Supplement No. 22, UN Doc. A/50/22 (1995) ¶¶ 124-125; see also Report of the
Preparatory Committee on the Establishment of an International Criminal Court, Volume I (Proceedings of
the Preparatory Committee during March-April and August 1996), UN GAOR, 51st Session, Supplement
No. 22, UN Doc. A/51/22 (1996) ¶¶ 140-144.
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