Questions and Answers
August 15, 2008

On July 14, 2008, the prosecutor of the International Criminal Court (ICC) requested an arrest warrant for Sudan President Omar al-Bashir on charges of genocide, crimes against humanity, and war crimes for orchestrating the abusive counterinsurgency campaign in Sudan's Darfur region. The government of Sudan has sought to block the issuance of an arrest warrant against al-Bashir by convincing African states on the United Nations Security Council to seek a delay at the International Criminal Court. The African Union and the Organization of the Islamic Conference have asked the Security Council to defer ICC proceedings for twelve months.

  1. Can the United Nations Security Council delay the International Criminal Court investigation of Sudanese President Omar al-Bashir?
  2. The Rome Statute establishing the ICC contains a provision, article 16, that allows the UN Security Council to pass a resolution (under its Chapter VII authority) to defer an ICC investigation or prosecution for a renewable period of 12 months. Article 16 states in full:

    "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."

    Chapter VII of the UN Charter empowers the Security Council to take measures to "maintain or restore international peace and security" if it has determined "the existence of any threat to the peace, breach of peace or act of aggression." Article 16 was never intended for use in other than exceptional circumstances.

  3. Has the Security Council ever invoked article 16 of the Rome Statute?
  4. No. The Security Council has not previously deferred an ICC investigation or prosecution in the court's five-year history.

  5. Does a deferral under article 16 require unanimous agreement at the Security Council?
  6. No. According to article 27 of the UN Charter, a decision to defer an ICC investigation or prosecution under article 16 requires an affirmative vote of nine members of the 15-member Security Council, including the concurring votes or abstention of permanent members of the Council. A negative vote by a permanent member of the Council would prevent the resolution from being adopted.

    The Security Council is composed of five permanent members and ten non-permanent members.

  7. Following the 12-month period, is a Security Council suspension automatically renewed?
  8. At the conclusion of the 12-month deferral period, the suspension expires. To trigger any further suspension, the Security Council must once more consider whether or not to invoke article 16 of the Rome Statute. The affirmative vote of nine members, including the concurring votes or abstentions of permanent members of the Council on the basis of a continued threat to peace and security, is again required.

    There is no limitation on the number of times a deferral may be renewed. Human Rights Watch is concerned that once a deferral is invoked, the Council will be more likely to renew the suspension, thus potentially putting the prospect of justice on hold indefinitely.

  9. Can the Security Council suspend the ICC's work for fewer than 12 months?
  10. Although the Rome Statute does not directly address a period of fewer than 12 months for a deferral, the Council has the authority to defer prosecutions or investigations for a shorter period in order to monitor ongoing developments in the situation.

  11. Can a Security Council resolution suspend all of the ICC prosecutor's work or can it limit its suspensive effect to a single case?
  12. The language of article 16 allows the Security Council to suspend an "investigation or prosecution," which implies that the Council could decide to suspend an individual case if it finds that it represents a "threat to the peace" or otherwise fits into the Council's Chapter VII authority. In this regard, the Security Council may focus its deferral on Omar al-Bashir's case while preserving the remainder of the ICC's investigation in Darfur.

  13. What would be the legal consequences of a deferral of the ICC investigation of Omar al-Bashir?
  14. Upon a Security Council deferral, the ICC investigation of Sudanese President al-Bashir would be suspended for a maximum renewable period of 12 months. Any outstanding ICC arrest warrant issued in his case would also presumably be held in suspension.

  15. Does the current situation in Sudan merit a deferral by the Security Council under article 16?
  16. There is no indication that the ICC investigations are detrimental to the maintenance of international peace and security or that suspending the court's activities would contribute to peace in Sudan. The peace process in Darfur has been stalled for more than nine months on grounds wholly unrelated to the ICC investigations or to the requested warrant for President al-Bashir.

    A deferral of an ICC investigation risks legitimizing political interference with the work of a judicial institution and could set a dangerous precedent for accused in other situations. Any exception must be extremely rare.

    Human Rights Watch believes that the situation in Sudan does not meet the threshold set out under Chapter VII to warrant a deferral.

    When the Security Council referred the situation in Darfur to the ICC prosecutor in 2005, it recognized that the situation in Sudan constituted a threat to international peace and security. On June 16, 2008, the Security Council reaffirmed its commitment to this referral in a unanimous presidential statement calling on the government of Sudan and other parties to the conflict to cooperate with the ICC.

  17. Do threats of retaliatory action against civilians or danger to peacekeepers warrant a Security Council deferral of the ICC investigation of President al-Bashir?
  18. The implicit threats of retaliatory action against civilians and peacekeepers made by the government of Sudan should not be the basis of a Security Council deferral of the ICC's investigation in Darfur. Yielding to intimidation of this kind would set a dangerous precedent and would make the international community susceptible to blackmail.

    A deferral by the Security Council on this basis would only work to reinforce the current climate of impunity in Sudan and to embolden those responsible for the crimes in Darfur. Indeed, in the three years since the Security Council referred the situation in Darfur to the ICC, the Sudanese government has continued to violate international humanitarian law as well as numerous Security Council resolutions with impunity.

    The government of Sudan is obliged by international law and Security Council resolutions to allow the deployment of the United Nations - African Union Mission in Darfur (UNAMID) to provide full, safe, and unhindered access of relief personnel to all those in need in Darfur and to protect civilians. The actions of the ICC have no impact on those obligations. Threats by the Sudanese government that it cannot guarantee the safety of peacekeepers, humanitarian workers, and civilians should not be rewarded by suspending the ICC's efforts towards accountability.

    Instead, the Security Council should send the message that such acts constitute criminal behavior and that the Sudanese government will only ensure its own political isolation if it permits retaliatory attacks. In addition, those responsible could also become the target of criminal investigation.

  19. Can the Security Council defer the International Criminal Court investigation if Sudan establishes domestic courts to try cases related to crimes committed in Darfur?
  20. Sudan can challenge the International Criminal Court's jurisdiction under article 19 of the Rome Statute on grounds that it is genuinely willing and able to prosecute cases domestically. However, an admissibility challenge under article 19 is distinct from deferral under article 16 and is made to the court, not to the Security Council.

    Under article 19, the ICC judges may decide that a case is inadmissible because of national prosecutions. It is difficult to win an admissibility challenge, however. For a case to be found inadmissible, national proceedings must encompass both the person and the conduct that is the subject of the case before the ICC. Thus, even if proceedings were initiated in Sudan against ICC suspects Janjaweed leader Ali Kosheib and state minister of the interior Ahmed Haroun and others, it would not make the case against President al-Bashir inadmissible before the ICC. Indeed, even if a case were initiated against Haroun or Kosheib on charges different from those before the ICC or on the basis of attacks in different villages, the court would likely still find the cases against Haroun and Kosheib admissible before the ICC.

    In addition, serious flaws remain in Sudan's national justice system that would further frustrate an admissibility challenge. These include broad immunity provisions for members of the armed forces, including popular defense forces and Janjaweed militia, police, and national intelligence forces; shortcomings in domestic legislation that make it difficult to prosecute international crimes; and serious obstacles to prosecuting sexual violence. See Human Rights Watch's reports Five Years On: No Justice for Sexual Violence in Darfur and Lack of Conviction: The Special Criminal Court on the Events in Darfur.