CYIL Vol. 6, 2015

CAROLLANN BRAUM

CYIL 6 ȍ2015Ȏ

4.1 Article 15 bis: Three Scenarios 4.1.1 Proprio motu conditions in paragraphs 6 through 8

With respect to the Prosecutor’s decision to move forward with an investigation and prosecution on his own, or proprio motu , under Article 15 bis , there are two key potential provisions in the Kampala Amendment that give the Security Council three potential scenarios as a filter mechanism: Article 15 bis , paragraphs 6 through 8, and the Article 16 deferral. To begin with, Article 15 bis , paragraphs 6 through 8 essentially have the potential to slow down the Prosecutor’s investigation by forcing him or her to wait on a Security Council analysis of the situation. These provisions dictate that if the Prosecutor decides to move forward with an investigation, he or she must “first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned.” 40 This is in reference to the Council’s Article 39 power to determine acts of aggression and then act accordingly under Articles 41 and 42. These provisions create two possible scenarios: 1) if such a determination has been made, the Prosecutor can move forward; 41 and 2) if such a determination has not been made by the Council, then the Prosecutor must wait six months. 42 After six months, the Prosecutor may move forward only if “the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in Article 15, and the Security Council has not decided otherwise in accordance with Article 16.” 43 4.1.2 Article 16 Deferral At this point, we have just covered two out of the three possible scenarios in the event that the Prosecutor begins to investigate a case of the crime of aggression under Article 15 bis of the Kampala Amendment. This leads us to the third possible scenario, and that which is the most contentious: the Prosecutor attempts to move forward with an investigation, but the Council defers the investigation 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. 44 There is of course great concern over this power given to the Council. Many fear that the Council will use Article 16 to politically insulate certain people. During the negotiations of the Rome Statute, the American negotiator David Scheffer claimed that Article 16 “was never intended to serve as a generic impunity carve-out for

40 Kampala Resolution, art. 15 bis , para. 6. 41 Id . at para. 7. 42 Id . at para. 8. 43 Id . 44 Rome Statute, art. 16.

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