Monthly Archives: November 2017

Guest Post: Preliminary Admissibility Rulings: An Additional Hurdle in the ICC’s Race to Justice

[By Santiago Vargas Niño, LLB & BA in Political Science, Universidad de los Andes, Colombia; LLM (Cum Laude), Universiteit Leiden, The Netherlands; Former Intern, Legal Assistant & Assistant Legal Officer of the OTP of the ICC]

Last Thursday, 9 November 2017, Pre-Trial Chamber (“PTC”) III of the International Criminal Court (“Court”) issued a public redacted version of its 25 October 2017 decision authorising the Office of the Prosecutor (“Prosecution”) to commence an investigation into the situation in Burundi. While this possibility had been anticipated by Sergey Vasiliev, it has received the kind of attention that is usually reserved for big surprises. And rightly so. Pursuant to Article 127 of the Rome Statute (“Statute”), the notice of withdrawal deposited by Burundi on 27 October 2016 would have become effective a mere two days after PTC-III decided to grant the  Prosecution’s request. The Court’s ability to exercise its jurisdiction over crimes allegedly committed in Burundi while it was a State Party was saved at the eleventh hour. Naturally, this has raised some eyebrows.

Of particular note is the interesting debate between Kevin Jon Heller and Dov Jacobs on the interpretation of Article 18 in the context of a proprio motu investigation, which I encourage the reader to consult in full. In a nutshell, professor Heller suggests that the Prosecution must notify a State Party of its decision to request authorisation to commence an investigation. This would afford the concerned State an opportunity to challenge the Prosecution’s finding with regard to the admissibility of a situation before a formal investigation is launched, while preventing duplicative considerations of the matter by the PTC. Professor Jacobs replies that such notification should be requested only after the PTC has granted the Prosecutions application under Article 15. In his view, Article 18 contains a limited procedure aimed at obtaining a preliminary ruling on admissibility which is independent from the authorisation to initiate an investigation. Naturally, this would allow the State to avail itself of a request for deferral of an already authorised investigation on constantly evolving complementarity grounds.

I wish to devote a few lines to my understanding of Article 18 before presenting three thoughts on the continuing discussion about its application: (i) the lack of foundation, in the Court’s core legal documents and its jurisprudence, for what may seem like a sound policy; (ii) the importance of maintaining the clear statutory distinction between preliminary examinations and investigations, and; (iii) the checks on the Prosecution’s discretion to initiate proprio motu investigations.

Under Article 18 the Prosecution shall notify a State Party or a State that would normally exercise jurisdiction over Article 5 crimes that: (i) it determined that there would be a reasonable basis to commence an investigation into a situation referred by the State, or; (ii) it initiated a proprio motu investigation. Within one month of this notification, the concerned State “may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to [relevant] criminal acts”. My emphasis shows the optional nature of this procedure. Faced with such request, the Prosecution shall defer to national proceedings unless the PTC, “on the application of the Prosecutor, decides to authorize the investigation.” In this scenario, which covers State referrals and proprio motu investigations alike, the PTC “shall consider the factors in article 17 in deciding whether to authorise an investigation” pursuant to Rule 55(2) of the Rules of Procedure and Evidence (“RPE”). It does not have to weigh other criteria enshrined in Article 53 of the Statute. In fact, neither Article 18 nor its attendant RPE make a single reference to articles 15 or 53. The PTC is only called to rule on the complementarity aspect of admissibility.

This is in line with the intentions drawn from the scarce legislative history of the provision. The US Delegation introduced it “to provide for a procedure, at the outset of a referral, which would recognize the ability of national judicial systems to investigate and prosecute the crimes concerned (…) when no particular suspects had been identified, and a State’s right to launch full-scale investigations” (A/CONF.183/C.1/SR.11; emphasis mine). Despite the lack of substantive debate on the provision (A/CONF.183/C.1/SR.29), it was ultimately approved as an additional safeguard of the principle of complementarity (A/CONF.183/C.1/SR.35) and in the spirit of compromise (A/CONF.183/C.1/SR.36). Being part of a “package” upon which the delegations gathered in Rome agreed at the last minute (A/CONF.183/C.1/SR.42), it is no surprise that Article 18 creates a redundancy in the admissibility assessment. Its interaction with other provisions of the constitutive instrument of the Court was never truly debated. Nevertheless, it is the law.

Therefore, I agree with professor Jacobs’ characterisation of Article 18 as comprising “a limited procedure to be followed for a preliminary ruling on admissibility which (…) is self-contained.”

But there is something appealing about professor Heller’s position. If the Prosecution had to notify the concerned State of its intention to request a formal investigation before filing an Article 15 application, the State would have a month to decide whether it raised any objections based on the existence of national proceedings, and the PTC would be able to assess admissibility on the basis of more comprehensive submissions from both sides of the aisle. Unfortunately, this position lacks a solid foundation in the law of the Court. Nothing in articles 15 or 53 of the Statute, rules 48 or 50 the RPE, regulations 31, 44 or 49 of the Regulations of the Court or Regulation 29 of the Regulations of the Office of the Prosecutor imposes a duty to notify the States about a decision to request permission to open an investigation. Furthermore, the Prosecution did not consider itself bound to notify the governments of Kenya, Côte d’Ivoire or Georgia of the applications filed before various PTCs to commence investigations in their territories.  Lastly, none of the Chambers seized of the Prosecution’s requests chastised it for failing to notify the States of its intention to initiate investigations. All I found when I looked at the practice of the Court were empty spaces on the notification pages.

Actually, professor Heller’s interpretation of Article 18 stems solely from his peculiar approach to Article 15.

Professor Heller cites Article 15(6) to argue that, by receiving information under articles 15(1) and 15(2) of the Statute, the Prosecution has initiated an investigation. An equally plain reading of Article 18 would suggest that a parallel duty to notify concerned States would arise as soon as a situation caught the Prosecutor’s eye. Yet he acknowledges that “notification cannot be required every time the OTP decides to advance a preliminary examination (…) The better interpretation of Art. 18 is that notification is required once the OTP has decided to ask the PTC to authorize an investigation.”

Not only is that moment different to the “initiation” of an investigation, both under articles 15 and 18, thus rendering any claims of “natural” interpretation of the Statute inane, but professor Heller’s amalgamation of preliminary examination and investigation flies in the face of Article 15(3). This provision orders the Prosecution to submit a request for authorisation if it concludes that there is a reasonable basis to proceed with an investigation. Years of unchallenged practice have led to the understanding that such conclusion can only be reached through the preliminary examination, a stage that precedes the opening of an investigation and that is described by Article 15(2) – not by Article 15(1). Professor Heller’s argument also discounts the significance of Article 15(4), which squarely attributes the power to authorise the “commencement” (i.e. “initiation”) of an investigation to the PTC, and which conditions it upon the Prosecution’s demonstration that there is a reasonable basis to proceed under Article 53(1).

Furthermore, equating the launch of a preliminary examination with the artificial “initiation” of an investigation under Article 15(1) is extremely risky. If that were the case, the Prosecution should not have rushed to apply for authorisation to commence an investigation in Burundi before 25 October 2017 because its preliminary examination would have constituted a “criminal [investigation] (…) which [was] commenced prior to the date on which the withdrawal became effective” under Article 127. Such interpretation would also allow the Prosecution to exercise its powers under Article 54, as professor Jacobs puts it, since the moment: “an OTP investigator sitting in front of his computer in The Hague [starts] downloading HRW and Amnesty International reports.”

There is no reason to consider that PTC-III erred in concluding that “as soon as a [PTC] has authorized the commencement of an investigation, the Prosecutor must notify States (…) in order to enable it to assert its primary jurisdiction.” That is, in fact, the moment in which a proprio motu investigation initiates under Article 15 and, consequently, the time of activation of the Prosecution’s duty pursuant to Article 18(1). Once again, I agree with professor Jacobs: “all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in.”

This does not mean, however, that States are deprived of checks on the Prosecution’s discretion in the context of proprio motu investigations. In the first place, the preliminary examination process is designed to encourage the provision of concrete and specific information on the progressive steps taken by the State to ensure domestic accountability for international crimes. States should use this opportunity to prove the action, willingness, and capacity of their courts to act in the face of atrocities. In the second place, the Prosecution must hold itself to the requisite burden of proof before lodging an Article 15(3) application. In practice, this is done through the adoption and consideration of Article 17 and Article 53(1) reports at the conclusion of phases 3 and 4 of the preliminary examination respectively. The evaluation of the work of the Jurisdiction, Complementarity and Cooperation Division by the Chief Prosecutor constitutes an internal control mechanism that should not be overlooked. Thirdly, the PTC conducts its examination of the Prosecution’s request as an impartial and independent arbiter of the rule of law under the Statute, representing not only itself but also the community of States Parties. It is entitled to stop the Prosecution dead on its tracks if it fails to show that the situation is or would be admissible.

Some States gathered in Rome intended to further restrain the action of the Prosecution. Others wanted to protect the fragile consensus reached on 17 July 1998. They agreed on a compromise imposing a fourth check on the Prosecution’s discretion, which follows the authorisation decision but precedes any admissibility challenges raised under Article 19: the capacity to request the Prosecution to defer an investigation upon being notified of its commencement pursuant to Article 18. While I recognise that this may invite a duplicative, albeit more focussed, exercise of the PTC’s supervisory powers over the Prosecution, that is no excuse to do away with the law. PTC-III did not deprive Burundi of its right to control the Prosecution’s discretion. That was a self-inflicted wound that resulted from the State’s sovereign decision to withdraw from the Statute.

On a final note: had Burundi wanted to save itself “the indignity of a formal investigation”, it should have brought to justice the people responsible for the grave crimes that the Prosecution will now have to investigate against all odds of success.

A short rejoinder to Kevin Jon Heller on Burundi and the ICC [UPDATED]

Following my post yesterday where I raised doubt about Kevin’s interpretation of Article 18 of the Rome Statute as requiring the OTP to inform Burundi that it intended to file a request to open a formal investigation prior to the filing of such request, Kevin has kindly taken the time to respond (disagree).

This seems like one of those rare times where I’m sure we’ll have to agree to disagree, but I just want to make three short points.

First of all, in relation to this point raised by Kevin:

As I pointed out in my previous post, Art. 15 not only specifically distinguishes between the OTP initiating an investigation proprio motu (paragraph 1) and the PTC authorizing the commencement of that investigation (paragraph 4), it specifically deems the former but not the latter part of the preliminary-examination process (paragraph 6). Paragraph 6 makes no sense if “initiates” in paragraph 1 refers to all of the steps in Art. 15, including authorization.

I agree with Kevin that, textually, Article 15(6) seems to suggest that the “initiation of an investigation” seems to be part of the PE, while the authorisation is something else. But I think that if that is really what the drafters had in mind, then I have two follow up questions :

1) Let’s assume I’m wrong that 15(1) does not apply to the whole procedure of Article 15. In that case, what does “initiation of an investigation” actually mean if it does not mean a formal investigation into a situation? This is never defined in the Statute, in the case law, or in Kevin’s original post. I think it is too vague a concept, with no particular timeframe or delineations to be able to trigger any legal obligation to notify.

2) The consequence of Kevin’s interpretation is that while the OTP can wait, before notifying under 18(1), to open a formal investigation into a situation after a State referral, it must do so while it is still doing the analysis under Article 53 in case of proprio motu. This seems an unjustified difference. Especially as, technically, PEs and trigger mechanisms are two different things. PEs exist in all situations and are done in application of Article 53, not Article 15. So during a PE, there is always a possibility that a State referral takes place. So if Kevin is right, then if during a PE there is no referral, then there is a moment when the OTP will have to notify a State at some point under Article 18(1), but if suddenly there is a State referral, the obligation would evaporate. This all seems very complicated in my view, for a solution presented as simple by Kevin.

Second of all, in relation to Kevin’s point that:

Equally problematic is Dov’s insistence that Burundi will be able to challenge the validity of the proprio motu investigation even though the PTC has already formally authorized it. Dov’s argument to that effect is strangely devoid of any reference to the actual language of Art. 19; he simply says that “’case’ in the Rome Statute does not really mean ‘case’ in the context of admissibility questions.” If Dov believes that Art. 19 allows a state to shut down an already-authorized proprio motu investigation by invoking complementarity, he should make the argument. In my view, nothing in Art. 19 permits such a challenge, given that the Article is limited — both in name and in terms of its specific provisions — to cases. Art. 19(2) is particularly revealing in that regard, as it specifically limits jurisdiction and admissibility challenges to “[a]n accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58” (subparagraph a) or “[a] State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted” (subparagraph b).

One, I never said that a State can “challenged the validity of a proprio motu investigation” or “shut down an already authorised proprio motu investigation” by invoking complementarity. That is not the function of admissibility challenges.

Two, it would be cumbersome and too long here to enter into a long discussion on admissibility challenges here, but I do believe that the current case law of the Court would allow a State to challenge admissibility before a formal case is brought, because “case” is interpreted broadly in that context. The simple fact that admissibility is evaluated in a Article 15(4) decision, despite no formal cases exist at this point in time, proves that (see Kenya decision for how the PTC at the time justified this approach). As I said in my post, I disagree with this, but that is the current framework at the ICC.

Third of all, when Kevin says that:

My (textually sound) interpretation of Art. 18’s notification process makes much more sense, because it means that the PTC will only address complementarity once, before it authorizes a proprio motu investigation.

1) This might be true, but common sense is not necessarily a good guiding principle to interpret the Rome Statute unfortunately and 2) I think Kevin’s approach ignores the fact that complementarity is a dynamic process and does not lend itself easily to a once and for all decision. So even if Kevin is right, this does not mean that the PTC will not have to entertain additional admissibility challenges later on in the procedure.

To be continued…

[UPDATE: an additional argument in favour of my interpretation of Articles 15 and 18 is the following.

Article 18(2) says that the Prosecutor shall notify the State when “the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15“. Now, we’ve already seen the ambiguity in Article 15(6). However, I just realised that there is no ambiguity in Article 13(c): ” The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: […] c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.”

Note that here “initiated an investigation” refers to the entirety of Article 15, not just 15(1), which should be the case if Kevin is right that the initiation of an investigation is not the whole process (including the PTC decision), but one step of the PE. This therefore seems to support my interpretation that the initiation of an investigation proprio motu mentioned in Article 15(1), is what comes out of the whole process of Article 15 being followed.

All in all, I think that Kevin, while having accurately noted the language of Article 15(6), which is the basis of his interpretation, is doomed to have to ignore the rest of the statute, in order to avoid the conclusion that, as he puts it, “Paragraph 6 makes no sense if “initiates” in paragraph 1 refers to all of the steps in Art. 15, including authorization”. I think that this might well be the case, but it might make more sense to accept that, than to consider that the rest of the Statute makes no sense…]

Peek-A-Boo: ICC authorises investigation in Burundi, some thoughts on legality and cooperation

jack in the box

On 27 October 2017, Burundi’s withdrawal from the International Criminal Court became effective, making it the first State to leave the Court. This led to a flurry of commentaries on whether the OTP would be able to open an investigation into the situation after the withdrawal (see here for my own post, here for Kevin Jon Heller at opinio juris and here and here for Sergey Vassiliev also at opinio juris).

I was quietly preparing to engage in a debate with Sergey about his arguments, when the ICC decided to make all our posts irrelevant, or at least mostly theoretical in one dramatic peek-a-boo moment: on 9 november 2017, PTC III of the ICC made public a decision that was rendered on 25 octobre 2017 (so 2 days before the withdrawal) authorising the OTP to open a formal investigation in the situation of Burundi, based on a request filed ex parte by the OTP on 5 september 2017.

This of course radically changes the situation, because we all assumed that there was little likelihood that such an ex parte request did exist, let alone did we expect that a decision had already been rendered.

There is a lot to say about the decision and I just want to share a few first thoughts.

  • On the timing of the decision

It is difficult not to comment on the fact that the decision was handed down a mere 24 hours before the withdrawal of Burundi became effective. This seems sneaky, to say the least and there is of course no doubt that this was the intent of of the Court (OTP and Judges alike). The fact that the decision provides a discussion of Article 127, in a pure moment of “he dost protest too much”, is proof of that. I would personally not have included those pages in the decision at this point, because 1) there was no doubt that the ICC could exercise jurisdiction before the effective withdrawal and 2) it is not for a decision authorising the opening of an investigation to discuss whether a State might have an obligation to cooperate or not.

It is interesting to note that the decision was issued seven weeks after the OTP’s request (less than a month after the Prosecutor submitted additional information on 25 september 2017). In comparison, the delay between the request and the authorisation was 18 weeks in the Kenya situation, 14 weeks in the Côte d’Ivoire situation, and 10 weeks in the Georgia situation. So the speed at which the PTC rendered its decision, while faster than in any other situation, is not scandalously faster.

  • On the ex parte nature of the discussion

The ex parte proceedings are justified, according to the Court, by the need to protect victims and witnesses. While it is difficult to determine factually the solidity of the evidence put forward by the Prosecution on this point given that the information is obviously redacted from the decision, I’m not entirely convinced on principle. It was perfectly possible for the OTP to file a redacted public version of its request, as it did in every other request it filed to date, and for the Chamber to issue immediately an equally public redacted version of its own decision.

The consequence of the ex parte nature of the discussion is that there was no notification of Burundi that a request was being made. A question that arises is whether the Chamber was justified in allowing the Prosecutor not to notify Burundi that it intended to file a request in the first place?

On this point, I refer to Kevin Jon Heller’s post here, where he argues that the PTC erred by interpreting Article 18 of the Rome Statute as only requiring the OTP to inform States after the decision authorising the formal opening of an investigation. For Kevin, a combined reading of Article 18(1) and Article 15 should be better interpreted as requiring the OTP to inform Burundi before going before the PTC. My initial reaction was to agree with Kevin, however I’m not so sure anymore.

Article 18(1) of the Rome Statute reads as follows:

When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned.

Note the different language used depending on whether there is a referral under 13(a) (state referral) or 13(b) (proprio motu): in the former case, the notification must come when “the Prosecutor has determined that there would be a reasonable basis to commence an investigation”, in the latter the notification must come when “the Prosecutor initiates an investigation” pursuant to Article 15. This seems to mean that the initiation of an investigation is something different, in a proprio motu context, that the fact that the OTP considers that there is a reasonable basis to proceed with an investigation. For me, this means that all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in. The determination by the Prosecutor that “there is a reasonable basis to proceed with an investigation” (Article 15(3)), which is sufficient to initiate an investigation under 13(a) is only one step of the procedure under article 15.

Kevin seems to equate the authorisation under 15(4) and authorisation under 18(2). But I think these are two different “authorisations”. Under 15(4), a PTC authorises the initiation of a proprio motu investigation, while under 18(2), it is an authorisation to investigate despite the request for deferral by a State, irrespective of whether the investigation was initiated initially under 13(a) or 13(c).

I think the confusion comes from a possible misunderstanding on the scope of Article 18. Article 18 provides for a limited procedure to be followed for a preliminary ruling on admissibility which I think is self-contained within Article 18. Which means that in my view the notification requirement under Article 18 cannot be read in as a condition for the validity of the Article 15 procedure. I should add also that Article 18 does not lead to a formal challenge to admissibility, which will fall under Article 19. In this sense, I do not think Kevin is right (whether one agrees with his interpretation of Article 18 or not) in saying that Burundi will not be able to challenge admissibility before a case is brought. They will be able to do so at any time (especially given the ICC’s case law that “case” in the Rome Statute does not really mean “case” in the context of admissibility questions, which is why everybody assesses admissibility as early as the PE phase. I think that doesn’t make sense, but that is a different debate…).

A sidenote on the issue of the ex parte proceedings: While Burundi was kept in the dark about what was going on, I note from the decision that the Prosecutor seems to have relied heavily on civil society information and that the PTC itself consulted extensively with victims and witnesses. Given the fact that the OTP is unlikely to have received much information from official sources, one can wonder how balanced the PE was, and how this impacts on the decision. But of course, because we have no indication of the evidence, this common sense point might be totally unfair and maybe when the OTP deems us worthy of publishing a public redacted version of her request, we might have a better idea of the type of evidence she put forward.

[UPDATE: Kevin Jon Heller wrote a response to my points here and I posted a rejoinder here]

  • The delayed notification of the decision

A different issue is the delayed notification of the decision itself, until it was made public on 9 novembre 2017. According to the decision, this would be justified by the fact that the OTP needed ten days to put in place protective measures for victims and witnesses.

On this point, I would like to suggest a particular important consequence which would need further elaboration: can’t one consider that any obligation arising from the decision only arises from the moment of its notification?

Indeed, publicity of a decision can be the trigger for specific legal consequences. For example, there are specific rules about notification in the Regulations of the Court, which have certain legal consequences (for example, for calculating the delay to file an appeal or respond).

More generally, all legal systems I know (for example in France) provide for rules whereby lack of notification of a judicial decision can imply the nullity of the decision itself, and where the execution of a decision cannot take place without notification.

If one transposes this general rule of law to the current situation, this means that the decision of the Pre-Trial Chamber cannot be deemed to have created any legal obligation until its notification to the Parties or the participants on which there would be an obligation arising from the decision.

Now you obviously see where I’m going with this: while the decision was issued before Burundi’s withdrawal from the Rome Statute became effective, notification of the decision took place after. I would therefore argue that the existence of any obligations arising from the decision on Burundi, i.e to cooperate, should be evaluated at the time of notification, when Burundi was no longer a State party… In that case, Burundi might in fact not have an obligation to cooperate with the ICC, even if the decision was rendered before its formal withdrawal.

  • What next?

First of all, if I’m wrong about the notification issue, then I would agree that technically, the investigation having been opened prior to the effective withdrawal, Burundi could be considered to have an obligation to cooperate under Article 127(2), because it would be “in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective”.

I however don’t think that things are that clear-cut. It would be too cumbersome to go into details here about the complex cooperation framework of the Rome Statute here (Part IX), but generally, I think that one could argue that the “general obligation to cooperate” under Article 86, is only make effective following the actual triggering of particular procedures laid out in the following Articles in relation to particular aspects of cooperation. I do not believe that a State can legally be deemed to have an actual realised duty to cooperate prior to a formal request from the Court on a particular point being formally put to that State. For example, Article 86 does not require of a State, in the absence of any other procedure, to hand over all evidence it might have in a given situation.

In any case, this is a very theoretical point, given the fact that Burundi is never going to cooperate with the Court, as announced by its ambassador to The Hague. This will probably not change… unless there is a change of regime in Burundi…

[UPDATE: on the importance of cooperation of the host State for the quality of investigations, you can read Michael Karnavas’ excellent post here]

Second of all, I have the feeling that the Prosecutor has, in this situation, already secured what she considers to be solid testimony evidence, contrary to what happened in other situations, where PE’s were mostly based on open-source evidence (NGO reports, UN investigations, etc…). I have no particular information on this, but the discussion on protective measures seems much more specific here than in the past and suggests that the OTP already has a list of witnesses it would intend to call if a case were to move forward. This is an interesting development, because the Prosecutor has been criticised in the past for not completing her investigations soon enough before the trial.

Third of all, whatever one thinks of the legal quality of the decision, it is interesting to observe the reactions to it. Unsurprisingly, the ONGs see this as a strong message in the fight against impunity and Burundi is more than unhappy. What we won’t be able to see publicly is the reaction of diplomats to what could be perceived as an obvious use of the procedure to trump the sovereign decision of a State. While it is a difficult decision to fault in such a case, I’m not sure the precedent will be welcome for the future.