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

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.