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…]