Njoku, Eni G., Wilson, William J., Yueh, Simon H., Dinardo, Steve J., Li, Fuk K., Jackson, Thomas J., Lakshmi, Venkataraman, and Bolten, J.
Data were acquired by the Passive and Active Land S-band airborne sensor (PALS) during the 1999 Southern Great Plains (SGP99) experiment in Oklahoma to study remote sensing of soil moisture in vegetated terrain using low-frequency microwave radiometer and radar measurements. The PALS instrument measures radiometric brightness temperature and radar backscatter at L- and S-band frequencies with multiple polarizations and approximately equal spatial resolutions. The data acquired during SGP99 provide (33) Many delegates opposed Article 23(3) of the ILC Draft on various grounds, including the possibility that the Council may disrupt the ICC's ability to function independently. (34) The ICC may be deprived of its jurisdiction in a particular situation if the situation remains under the Council's consideration for an indefinite period of time. (35) One veto by a permanent Council member can sufficiently thwart or block the ICC from action, which makes the ICC vulnerable to the Council's political motivations. (36) The search for a compromise between the ICC and the Council's powers coalesced around the 'Singapore Compromise.' (37) During PrepCom's August 1997 session, Singapore formally proposed an amendment revising the relationship structure between the ICC and the Council. (38) Singapore's proposal became the basis for the second option in Article 23(3) in the ILC Draft. (39) Singapore's proposal states, '[n]o investigation or prosecution may be commenced or proceeded with under this Statute where the Security Council has acting under Chapter VII of the Charter of the United Nations, given a direction to that effect.' (40) The Singapore Compromise proposes the opposite of what was required by Article 23(3) of the ILC Draft. (41) Thus, ICC proceedings may continue unless the Council formally decides to stop the process. (42) Since the adoption of a Security Council decision requires a minimum of nine affirmative votes in the Council, the ICC's proceedings may only be blocked by a 'concerted effort' of the Council members. (43) Theoretically, an ICC proceeding cannot be impeded even if all five permanent Council members joined to block the proceeding; nine positive votes are required to inhibit the block, including those from the five permanent members. (44) Based on Singapore's proposal, a 'negative veto' by the ILC text would be replaced by a positive vote. (45) Consequently, the ICC can exercise its jurisdiction unless it is directed not to do so by the Council. (46) In addition to the terms of the Singapore proposal, Canada recommended a 12-month renewable deferral period. (47) Costa Rica also suggested that deferral requests be made by a 'formal and specific decision' by the Security Council. (48) Furthermore, Singapore's proposal became the groundwork for Article 16 of the ICC Statute. The United Kingdom was the first permanent Security Council member to advocate changes in the relationship between the ICC and the Security Council. (49) A British draft for Article 10(2) (50) submitted during the March-April session of PrepCom in 1998 became the basis for the final draft of Article 16. (51) B. Legal Consequences Under Article 16, the Council may request that the ICC not investigate or proceed with a prosecution when the requisite majority of its members conclude that judicial action, or the threat of it, might harm the Council's efforts to maintain international peace and security pursuant to the U.N. Charter. (52) The ICC Statute does not define what it considers an 'investigation and prosecution.' (53) The statute indicates, however, that an 'investigation' involves an action that may be taken with respect to both a situation or an individual, while a 'prosecution' involves actions taken with respect only to a specific person. (54) The ICC prosecutor may initiate investigations upon receiving a referral about a particular situation by a State Party to the ICC Statute or the Security Council. (55) Upon commencement, an investigation must comprise the totality of investigative actions undertaken by the prosecutor under the ICC Statute in order to confirm the charges against a suspected individual or group. (56) After evaluating the available information, the ICC prosecutor can initiate an investigation if there is a reasonable basis to proceed. (57) Accordingly, one could conclude that still there are steps prior to the authorization of an investigation that the prosecutor is not precluded from taking, despite the fact that a Security Council's deferral under Article 16 took place. The Statute clearly permits the prosecutor to do the following: (1) conduct a preliminary examination as described in Article 15; (2) evaluate the information made available; (58) (3) seek 'information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate;' and (4) receive 'written or oral testimony at the seat of the Court.' (59) The language of Article 16 is unclear, which makes interpreting the law problematic and difficult. Article 16 provides that '[n]o investigation or prosecution may be commenced or proceeded' after the Security Council issues a request. (60) Hence, that provision begs the question: 'When does an investigation or prosecution `commence?'' The commencement of an investigation may not necessarily depend on how the ICC's jurisdiction is triggered. The investigation commences when the ICC prosecutor determines that there is a 'reasonable basis to proceed' and renders a decision to that effect. (61) This is obviously a further or subsequent step to the preliminary examination and is probably based upon the decision of the Pre-Trial Chamber if the prosecutor is acting proprio motu. (62) Article 16 suggests that it may not only prevent the start of an investigation or prosecution, but it also may stop an investigation or a prosecution that is already underway. (63) Thus, one might wonder how problems arising from the Council's issuance of a deferral may be solved, especially once proceedings have begun. The deferral request raises a number of interesting questions. First, does a person arrested by a custodial state have to be set free? Second, what happens to a person who appeared before the ICC pursuant to a surrender request in accordance with Article 89(1)? Must that person stay in custody until the 12-month period lapses, or remain in custody as long as the Council decides? Third, what are the legal consequences of this decision with regard to that person's human rights? Fourth, what are the precautions required for the preservation of evidence? Neither the Statute nor the Rules of Procedure and Evidence appear to have definite answers to the above questions. From an analytical standpoint, however, one could draw a conclusion to the first question, beginning with an examination of the deferral decision. Although all states are bound by the Security Council's decisions, could the effects of that decision go beyond suspending the proceedings? In other words, a literal reading of Article 16 suggests that its power is limited by blocking the commencement of an investigation or prosecution, or stopping an on-going proceeding. (64) Hence, under a strict interpretation, a deferral decision does not mean that the defendant is no longer incriminated; rather, because the decision is procedural and based on political reasons, the proceedings are merely suspended for a specified period. A different interpretation would imply that the Council would be acting as a judicial body, which is obviously incorrect. The prosecutor can proceed with the investigation or prosecution once the deferral period has lapsed and the Council has not renewed the deferral. (65) Because releasing the person is not a legal consequence from that decision, it seems to be discretionary and not dependent on the decision. (66) A person should not be set free, however, when a case deals with the most heinous crimes. If a deferral continues for several years, then a person's right to 'be tried without undue delay' might be violated regardless of whether the person is under custody. (67) Although the prosecutor may conduct preliminary examinations after a deferral request is made, the prosecutor's efforts may be entirely futile or inadequate when destruction of evidence is imminent. (68) Absent the Security Council's guidance, the prosecutor may, under Article 54(3)(f), 'take necessary measures, or request the necessary measuresinformation on the sensitivities of multichannel low-frequency passive and active measurements to soil moisture for vegetation conditions including bare, pasture, and crop surface cover with field-averaged vegetation water contents mainly in the 0-2.5 kg [m.sup.-2] range. Precipitation occurring during the experiment provided an opportunity to observe wetting and drying surface conditions. Good correlations with soil moisture were observed in the radiometric channels. The 1.41-GHz horizontal-polarization channel showed the greatest sensitivity to soil moisture over the range of vegetation observed. For the fields sampled, a radiometric soil moisture retrieval accuracy of 2.3% volumetric was obtained. The radar channels showed significant correlation with soil moisture for some individual fields, with greatest sensitivity at 1.26-GHz vertical copolarized channel. However, variability in vegetation cover degraded the radar correlations for the combined field data. Images generated from data collected on a sequence of flight lines over the watershed region showed similar patterns of soil moisture change in the radiometer and radar responses. This indicates that under vegetated conditions for which soil moisture estimates may not be feasible using current radar algorithms, the radar measurements nevertheless show a response to soil moisture change, and they can provide useful information on the spatial and temporal variability of soil moisture. An illustration of the change detection approach is given. Index Terms--Microwave, radar, radiometer, remote sensing, soil moisture.