Monthly Archives: April 2019

In my previous post on the decision by the Pre-Trial Chamber to not allow the opening of an investigation in the Afghanistan decision on the basis that it would not be in the “interests of justice”, I claimed:

First of all, and perhaps most importantly, the exercise that the Pre-Trial Chamber did is most likely ultra vires. Indeed, Article 53(1)(c) is very clear that it is the Prosecutor who can decide to not open an investigation in the “interests of justice”. It is only if the Prosecutor makes such a decision, that a Pre-Trial Chamber can review it (Article 53(3)(b)). The only job of the PTC when the Prosecutor requests the opening of an investigation is to determine jurisdiction and admissibility. And the “interests of justice” fall under neither of these categories.

Kevin Jon Heller, over at opinio juris, takes issue with my claim the the Pre-Trial Chamber acted ultra vires in discussing whether the interests of justice did in fact warrant not opening an investigation in the situation.

This is the heart of Kevin’s reasoning, after quoting Article 15(4) and 53(1):

To find that a reasonable basis exists, in short, the OTP must consider (1) jurisdiction, (2) admissibility, and — critically — (3) interests of justice. If there is no jurisdiction or no admissibility, there is no reasonable basis to open an investigation. And even if there is jurisdiction and admissibility, there is still no reasonable basis to open an investigation if the interests of justice counsel against it.

As noted, Art. 15(4) requires the PTC to agree with the OTP that there is a reasonable basis to open an investigation. If the OTP is wrong about any of the relevant considerations — jurisdiction, admissibility, or interests of justice — the requisite reasonable basis does not exist. So I fail to see how the PTC could fulfil its mandate under Art. 15(4) unless it reviews not only jurisdiction and admissibility, but also the interests of justice.

Kevin’s point seems unassailably logical: if there are 3 criteria listed in article 53(1) that the Prosecutor needs to look at in order to determine that there is a reasonable basis to proceed, then, it should follow that the Pre-Trial Chamber’s “control” over the Prosecutor must cover all 3 criteria. Which includes the interests of justice.

Of course, this argument makes sense. But I still stick to my interpretation for several reasons.

Before I explain these reasons, I’d like to indulge in a small (maybe demagogic) digression: Kevin and I rarely disagree on issues of interpretation of the Rome Statute. The few times it has happened in the past few years (like last year on the interpretation of Article 18 of the Rome Statute), it is often because the Statute is at places terribly drafted, with provisions not being very clear, and their articulation not always very obvious, therefore leading to conflicting interpretations, which can nonetheless all be very reasonable. I think this is clearly one of those cases… and as a result, the fact that I am most certainly right, does not actually mean that Kevin is wrong…

So, moving on to my explanation:

First of all, for me, the phrasing of Article 53(1) is key. As Megan Fairlie aptly pointed out to me, it is “oddly written”. It calls upon the Prosecutor to “consider” (interestingly, this seems to allow some discretion, as opposed to other terms which could have been used, such as “determine”, but that is a different discussion) whether:

(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b) The case is or would be admissible under article 17; and

(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

While (a) and (b) are phrased in positive terms (the Prosecutor considers whether the Court has jurisdiction and whether the case would be admissible), (c) is phrased negatively: that “an investigation would not serve the interests of justice” (as opposed to “an investigation would serve the interests of justice”). Kevin simply ignores this difference in phrasing, but the choice of words has to mean something!

Indeed, this clearly means for me that while jurisdiction and admissibility need to be positively established, the fact that (once determined in a first step that the Court has jurisdiction and that the situation would be admissible, as suggested by the term “nonetheless”) an investigation would be in the interests of justice is presumed, unless the Prosecutor finds “substantial reasons” to the contrary. This is turn would suggest that there is no positive obligation on the part of the Prosecutor to even consider the matter in a request, and therefore no autonomous power of the Pre-Trial Chamber to take up the issue proprio motu.

I do note in that respect that the Prosecutor does in fact devote a handful of pages to the matter in her request to open an investigation. But I would argue that her request would have been perfectly legally valid, even if she had not provided those few pages.

Second of all, it should be pointed out that, technically, if the Prosecutor were to decide to not open an investigation based on 53(1)(c), the issue would never come before the PTC as part of an Article 15(4) determination of a reasonable basis to proceed, because there would logically not be a request put to the Chamber. This is why I believe that, contrary to what Kevin says, Article 53(3)(b) is extremely relevant to the discussion. It states that:

the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

As an aside, this is yet another “oddly written” provision because I cannot think of a scenario where a decision not to open an investigation based on paragraph 1(c), will not “solely” be based on that paragraph. Indeed, should the Prosecutor find that there is no jurisdiction and/or that a situation would not be admissible under (a) and (b), it will never move on to (c). On the other hand, if there is jurisdiction and the situation is admissible, the decision not to proceed will necessarily have to be based “solely” on (c).

But the main point here is that, clearly there is a specific procedural framework to deal with 53(1)(c) decisions, which is 53(3)(b), which flows from the actual “negative” formulation of Article 53(1)(c), and which therefore exclusively envisions the possibility for the PTC to review decisions not to proceed founded on the fact that an investigation would not be in the interests of justice. This of course makes sense, because that is how Article 53(1)(c) is actually framed.

Considering all these points, I therefore still believe that the procedural framework around “interests of justice” evaluations is constructed around the fact that it requires an actual negative assessment by the Prosecutor, which would then lead to the only procedural route available under the Statute: 53(4)(b) (because again, in such a case, there would, by definition, never be a request under Article 15).

Finally, I note that there is case law supporting my view. Indeed, as rightly pointed out by Nabil Orena on twitter the Pre-Trial Chamber that authorised the opening of an investigation in the Kenya situation stated that (par. 63):

Unlike sub-paragraphs (a) and (b), which require an affirmative finding, sub-paragraph (c) does not require the Prosecutor to establish that an investigation is actually in the interests of justice. Indeed, the Prosecutor does not have to present reasons or supporting material in this respect. Thus, the Chamber considers that a review of this requirement is unwarranted in the present decision, taking into consideration that the Prosecutor has not determined that an investigation “would not serve the interests of justice”, which would prevent him from proceeding with a request for authorization of an investigation. Instead, such a review may take place in accordance with article 53(3)(b) of the Statute if the Prosecutor decided not to proceed with such a request on the basis of this sole factor. It is only when the Prosecutor decides that an investigation would not be in the interests of justice that he or she is under the obligation to notify the Chamber of the reasons for such a decision, thereby triggering the review power of the Chamber.

Obviously it doesn’t necessarily mean I’m right, but it’s interesting to acknowledge this position nonetheless, something that the Afghanistan PTC did not even bother doing.

In sum, I think Kevin asked the wrong question as the title of his post (“Can the PTC Review the Interests of Justice?”) because my point was never that the PTC could not do so. Indeed, my point was questioning when this can be done. And in my humble understanding of the phrasing of the Rome Statute, this can logically only be done after a decision not to open an investigation on the basis of Article 53(1)(c) (because that is the actual phrasing of that provision), and therefore, as an inevitable procedural consequence, never in the context of an Article 15(4) decision because no request to be authorised to open an investigation filed by the OTP would be before a PTC in such a case.

Normally, I wouldn’t post on a Friday evening, but, in the interests of justice, I feel compelled to do so for once.

Indeed, earlier today, Pre-Trial Chamber II rejected the Prosecutor’s request to open an investigation in Afghanistan. This was a much awaited decision which will undoubtedly create a lot of controversy.

The timing of the decision itself is interesting. Compared to other such decisions, it took an incredible amount of time to be issues: nearly 17 months. Reading through the decision, it is difficult to understand why this took so long. Indeed, most of the decision in relation to jurisdiction and admissibility is quite uncontroversial and there does not seem to be any particular practical difficult in dealing with the various issues rapidly. This timing, mere weeks after the ramping up of US hostility towards any investigation which might relate to US nationals, will inevitably raise suspicions as to whether the Judges gave in to outside pressure. Whether this is true or not, the impression that this sends out is bound to be negative in this respect.

Moving on to the decision itself, there are a few noteworthy points I’d like to briefly raise.

1. the scope of the “situation”.

The Pre-Trial Chamber found that:

More specifically, the precise width and breadth of the Prosecutor’s power to investigate are to be determined on the basis of the scope of the Chamber’s authorisation: the Prosecutor can only investigate the incidents that are specifically mentioned in the Request and are authorised by the Chamber, as well as those comprised within the authorisation’s geographical, temporal, and contextual scope, or closely linked to it.

[…]

The filtering and restrictive function of the proceedings under article 15 further implies that the Chamber’s authorisation does not cover the situation as a whole, but rather only those events or categories of events that have been identified by the Prosecution. To conclude otherwise would be tantamount to equating the authorisation to a blank cheque, which would run against the very rationale of article 15 and thus defeat its underlying purpose. The authorisation sets the framework of the probe; investigation on incidents not closely related to those authorised would only be possible on the basis of a new request for authorisation under article 15, with a view to allowing the Chamber to conduct anew its judicial scrutiny on all relevant requirements, including jurisdiction, complementarity, gravity and interests of justice.

This approach by the Pre-Trial Chamber seems extraordinarily restrictive of the powers of the Prosecutor during a formal investigation: if she hasn’t mentioned particular incidents in her request to open an investigation, then she cannot deal with them, even if new evidence comes to light once the formal investigation has started. This is problematic for many reasons.

First, the whole point of a formal investigation is that the OTP will finally have concrete investigative powers (which include obligations for State parties to investigate), which will allow it to seriously collect solid evidence. It is not until the investigation is conducted that the Prosecutor can know what crimes can be proven or not.

Second, it transforms “situations” into a series of investigations in incidents and collapses it into “mini-cases”, which I don’t think is the nature of a situation. I do believe that the Prosecutor should have discretion to select the cases it feels it has the strongest evidence for, within the situation, in order to move forward to the next phase.

Third, this decision creates an unjustified practical distinction between an investigation in a situation following a proprio motu request from the OTP (which is subject to a PTC decision) and an investigation following a referral from a State or the UNSC (which is not subject to a PTC decision). The trigger mechanism should only affect how an investigation is opened, not how it is subsequently conducted, which should be the same for all situations. If the PTC were to be followed, this would not be the case.

2. The relevance of Article 98(2) agreements.

The PTC found that:

Furthermore, as to the Agreement of 30 September 2014 between the United States and Afghanistan pursuant to article 98, requiring the consent of a sending State to surrender a national of that State to the Court, the Chamber concurs with the Prosecution that agreements entered into pursuant to article 98(2) of the Statute do not deprive the Court of its jurisdiction over persons covered by such agreements. Quite to the contrary, article 98(2) operates precisely in cases where the Court’s jurisdiction is already established under articles 11 and 12 and provides for an exception to the obligation of States Parties to arrest and surrender individuals.

I would tend to agree with this point. For me, Article 98(2) agreements are not relevant for the determination of the existence of jurisdiction of the Court, and only become relevant later on in the proceedings, as a possible obstacle to the arrest and surrender of individuals.

I do know that there is a counter-argument out there, to the effect that these agreements are relevant to jurisdiction in the following way: even if Afghanistan is a State party, it cannot be deemed to have transferred to the ICC the capacity to exercise criminal jurisdiction over persons when it could not itself, due to that Article 98(2) agreement, exercise such criminal jurisdiction. I think this argument, while interesting, takes too rigid a view of the nature of the delegation of powers from State parties to the ICC, which is a general delegation, not a specific one in my view.

3. The territorial scope of a situation.

One interesting aspect of the request to open the investigation was that the Prosecutor brought in the question of torture of Afghan nationals at CIA “black sites” in various European countries, all State parties to the Rome Statute. The PTC does not deal with this in a very adequate way (par. 51-55), by claiming that 1) the person must be captured on the territory of Afghanistan and 2) that some of the torture must take place on the territory of Afghanistan. Not only does this seem to be a very restrictive view of the application of IHL rules, but it seems to exclude the possibility of a “multi-territorial” situation. Indeed, even putting the territorial scope of the non-international armed conflict aside, one could make an argument for crimes against humanity having been committed, with a policy implemented over several territories. I don’t see what legal obstacle there would be in doing that.

4. The “interest of justice” argument.

And now we come to the obvious main point of the decision: the fact that the PTC, despite finding that the Court has jurisdiction and that the situation would be admissible, decides to reject the OTP request based on the “interests of justice”. Several remarks on this need to be made.

First of all, and perhaps most importantly, the exercise that the Pre-Trial Chamber did is most likely ultra vires. Indeed, Article 53(1)(c) is very clear that it is the Prosecutor who can decide to not open an investigation in the “interests of justice”. It is only if the Prosecutor makes such a decision, that a Pre-Trial Chamber can review it (Article 53(3)(b)). The only job of the PTC when the Prosecutor requests the opening of an investigation is to determine jurisdiction and admissibility. And the “interests of justice” fall under neither of these categories.

This is extraordinary to say the least, and is one more step in the slow erosion of Prosecutorial discretion that the judges are slowly implementing in the past few years, as in the Comoros and the Bangladesh decisions.

Second of all, the criteria used by the PTC to determine why the opening of an investigation would not be in the “interests of justice” are equally extraordinary. I cannot quote the full 3 pages that the Judges devote to this, but here is just a taste:

subsequent changes within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future, whether in respect of investigations or of surrender of suspects; suffice it to say that nothing in the present conjuncture gives any reason to believe such cooperation can be taken for granted.

[…]

Furthermore, the Chamber notes that, in light of the nature of the crimes and the context where they are alleged to have occurred, pursuing an investigation would inevitably require a significant amount of resources. In the foreseeable absence of additional resources for the coming years in the Court’s budget, authorising the investigation would therefore result in the Prosecution having to reallocate its financial and human resources; in light of the limited amount of such resources, this will go to the detriment of other scenarios (be it preliminary examinations, investigations or cases) which appear to have more realistic prospects to lead to trials and thus effectively foster the interests of justice, possibly compromising their chances for success.

Three conclusions can be drawn from the Court’s reasoning :

a) States should be as vocal as possible about their opposition to the Court and their absence of will to ever cooperate with it in order to make sure no investigation is opened in a situation. I usually leave the realist political analysis on the broader impact of the ICC to more competent people, but this is an absolutely terrible message to send, in the context of the opening of an investigation!

b) The PTC have transformed themselves into the financial comptrollers of the budget of the OTP and how it is spent, which is definitely not their role. The Budget of the Court, and more particularly the budget of the OTP, while of course a major issue generally, should not have any concrete impact on actual judicial proceedings. Indeed, it leads to the balancing of legal considerations, which should be the only relevant considerations inside the courtroom, with extra-legal management considerations. This decision is a very visible example of such a balancing exercise, but it has not been absent of the case law in the past on other issues (for example in relation to ordering video-link testimony in lieu of live testimony or in relation to the translation of documents in the proceedings). The Judges seem to confuse their role as managers of the legal proceedings with a role of managers of the funds of the Court.

c) This reasoning transforms the Judges at the PE phase into fortune-tellers about what cases have a more likely chance of going to trial in the future. But of course, they give us absolutely no indication of what criteria they have in mind for that! Of course, the implication of the decision is that only situations where the suspects are easy to catch and the evidence is dumped, gift-wrapped, on the Prosecutor’s lap should be investigated. But this cannot be acceptable legal criteria because, as noted before, it would reward uncooperative States and this would exclude all the difficult cases where the ICC, arguably, is expected to be present.

One final point on this. The Chamber concludes with the following thoughts on the victims:

It is worth recalling that only victims of specific cases brought before the Court could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings; in the absence of any such cases, this meaningful role will never materialise in spite of the investigation having been authorised; victims’ expectations will not go beyond little more than aspirations. This, far from honouring the victims’ wishes and aspiration that justice be done would result in creating frustration and possibly hostility vis-a-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.

I actually agree with that statement, in terms of creating unrealistic expectations for victims of a situation, as I’ve said countless times on this blog. However, what the Judges fail to see, is that this argument, if accepted, could arguably lead to never opening an investigation in any situation, ever. Indeed, the ICC is structurally incapable of satisfying the expectations among affected communities, in relation to the recognition of their individual suffering and even less so in terms of actual reparations. This is an extraordinary moment of lucidity by the Judges of the limitations of the ICC, which could logically have led them to drop the mic and leave the stage.

All in all, this is probably one of the most dramatic case of “sawing the branch we’re sitting on” anyone has ever seen in an international tribunal decision…

I would expect the OTP to try and appeal this decision. However (and thank you to my friend and colleague Joe Powderly for pointing it out), because the basis of the decision is arguably neither an issue of jurisdiction nor an issue of admissibility, there is no automatic right to appeal and the Prosecutor will need to seek leave to do so under Article 82(1)(d). I wonder what the odds of the Judges having issued the decision granting leave to appeal it….

[UPDATE: Kevin Jon Heller has a post up already on this question of appeal here. We share the same skepticism on this issue, but I think Kevin is wrong to say that Article 82(1)(d) does not apply because it applies “to specific cases and proceedings, not to situations”. 82(1)(d) applies to all decisions that do not fall under the other three categories, whatever the phase of the proceedings. This has been a consistent practice of the Court to date. For example, quite relevantly, the current appeal procedure in the Comoros situation was triggered following a 82(1)(d) request for leave to appeal (see here and here). This is clearly a comparable situation (no pun intended…) and I don’t see why 82(1)(d) would not apply.].