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.