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…]

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

  1. Pingback: Peek-A-Boo: ICC authorises investigation in Burundi, some thoughts on legality and cooperation | Spreading the Jam

  2. Dear Dov,
    thank You and Kevin for offering some interesting insights to the situation regarding Burundi, as it is a challenging presentation of legal interpretation and a worthwhile discussion.

    Lets assume for the sake of my point that the Prosecutor had the obligation to notify Burundi before she requested the PTC. The central question then seems to be: What is the procedural step of the Prosecutor which might be called ‘initiation of the investigation’ under Article 18 (1) upon which she is obliged to notify the concerned state?

    After reading Article 18 (1), we are referred to Articles 13 (c) and 15 with regards to how to understand the term initiation of investigation. Here comes the confusing part. Article 15 (6) describes both paragraphs 1 and 2 as a preliminary examination. Article 15 (1) reads: “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” Accordingly then, does ‘initiate investigations’ under Article 15 (1) include the preliminary examination? If yes, does the Prosecutor have to notify the concerned state upon opening preliminary examination, as would be the result of my interpretation ? It would then mean that initiation of investigations is a wider term than preliminary examination and that preliminary examinaton is contained in initiation of investigation.

    On the other hand, if If we try to find out what is the content of a preliminary examination for the OTP, the OTP provided the following: “The OTP firstly submits that the preliminary examination by the Prosecutor of available information in respect of a situation under Article 53 (1) must be performed in a comprehensive and thorough manner. The Prosecutor must make an informed and well-reasoned decision on whether the requirements of Article 53 (1) have been satisfied. Consequently it must be for him to determine the breadth and scope of this preliminary assessment.” (https://www.icc-cpi.int/CourtRecords/CR2007_03777.PDF). I sense here a clear inconsistency of what Article 15 (6) understands as preliminary examination and what the OTP describes as preliminary examination, as the OTP identifies Article 53 (1) with preliminary examination. This, however, does not lead to the conclusion that preliminary examination forms a part of initiating investigation, which is suggested by Article 15 (6).

    I would be grateful if you could enlighten me upon this issue or correct me, if I am getting something terribly wrong.

    Best wishes,

    • Dear Luboslav,

      Thanks for sharing these thoughts. I must say that I’m faced with the same doubts as you, should Kevin be right about his interpretation of Article 18. Particularly, as I noted in my post, I’m not too sure when exactly the Article 18(1) obligation would kick in during the PE.

      I’m sorry not to be more precise, but I still need to think about this.

  3. It is interesting by the way, that if you search for how has the OTP dealt with its obligation to notify under article 18 in the other 2 situations initiated proprio motu (Kenya and Cote d‘Ivoire), no such Notification document can be publicly found in the records, at least I did not find anything.

  4. Pingback: Guest Post: Preliminary Admissibility Rulings: An Additional Hurdle in the ICC’s Race to Justice | Spreading the Jam

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