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cross-posted on Justice in Conflict.

Kip Hale has written a blog post on Justice in Conflict entitled “time to look into the mirror: ICC community in Need of Perspective”. For Kip, “this article’s goal is to hopefully spur a larger discussion – and maybe even some progress – concerning the lack of self-awareness and self-examination in our community”.

Kip levels a certain number of critiques against the community of ICC commentators, which would require a more thorough discussion than the next few paragraphs. But hopefully the following comments can begin to contribute to the larger discussion that Kip invites us to have.

Let me start, uncharacteristically maybe, with a point of agreement, and to put it in simpler terms than Kip did in his post : there are indeed, out there, a number of commentators who simply do not know what they are talking about. More specifically, it is not uncommon for some outside observers to ignore or not be aware of the internal dynamics of the institution, its history or even, sometimes, its applicable law.  As a consequence, they might provide inaccurate portrayals of the work of the Court.

This applies to lawyers but also to experts from other fields that take an interest in the ICC. For example, I’ve argued elsewhere, in a Leiden Journal of international law editorial, that a number of critical scholars run the risk of missing the mark in their analysis because they will ignore key aspects of the ICC’s work by refusing to peek inside the box of its legal and institutional intricacies.

If Kip had stopped there, essentially lamenting the lack of competence of some commentators, I could have more or less supported his position (although one could then wonder if making such an obvious point – “I wish people were competent at their jobs” –   would really have deserved a blog post at all), with a couple of caveats.

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THIS HASTILY DRAFTED DOCUMENT IS NOT PART OF THE COMMENTARY TO THE APPEALS JUDGMENT. IT IS ISSUED PURELY FOR PURPOSES OF PUBLIC INFORMATION. THE AUTHORITATIVE PRONOUNCEMENTS OF THE AUTHOR CAN BE FOUND HERE.

Q: On 6 May 2019, the Appeals Chamber of the International Criminal Court issued its Judgement in the Jordan Referral Re Al-Bashir Appeal. On 16 May 2019, the Court issued an anonymous Q&A in relation to that Judgment which discussed not only the Judgment, but public reactions to it on twitter and on blogs. What are your thoughts on this?

A: This is quite an extraordinary practice which I have personally never witnessed before. If one must take a positive take on it, one could say that it is a nice example of openness and dialogue on the part of the Court when confronted to criticism.

However, this might be a too optimistic spin. Given the defensive tone of the Q&A and some of the pronouncements contained therein, it sounds more like a petty attempt at stifling criticism of ICC decisions, by attacking those who issued such criticism. Moreover, given these attacks, it is very surprising that they appear in an anonymous document. We should at least know from what organ of the Court this comes from, given that the Q&A format formally suggests some distance between the person asking the questions and the person answering them. At least, all those who expressed vigorous criticism of the Judgment did so in their own name and accept any public scrutiny of their views.

Q: You mention “attacks” against those having expressed criticism of the Judgment, what do you mean by that?

A: Well, to be fair, the anonymous author of the responses does indicate that “There is nothing new, extra-ordinary or wrong about judgments of courts of law generating discussion among those who have a view”. This seal of approval by the Court (or one of its organs?) telling me and others that it is not “wrong” to comment on ICC decisions, as we have done for years now, is a relief because we have collectively been asking ourselves the existential question of whether we should always approve of ICC Judgments, as the earthly embodiment of the will of the international community as a whole and the progressive betterment of mankind.

That being said, some of the comments made in the Q&A do seem to be unnecessary attacks on the professionalism of the commentators of the Judgment. Indeed, the anonymous author of the responses claims that:

In the era of social media, it is hoped that observers would properly study the Court’s judgments and decisions before rushing to comment on them. Hastily made comments, particularly when made before the commentator has even read the judgment in question, will fail to appreciate the totality and nuances of the Court’s reasoning, and may wholly misrepresent the decision or judgment. At the same time, those first comments appearing on social media frequently tend to dominate the ensuing discussion as they are tweeted and retweeted, regardless of their accuracy.

There is much to be said about this.

First of all, this remark suggests that it is inappropriate to comment on the Judgment as it is being delivered in open Court. However, why would that be a problem? One would imagine that the summary of the Judgment, while obviously not authoritative, does reflect what the Judgment says. If the public (which includes the observers) cannot understand the summary without the full Judgment,  or if the summary creates a risk of misrepresenting the Judgment, then why bother with a summary at all?

Second of all, and more fundamentally, it is not for the Court to decide what legitimate commentary should look like. If a person misrepresents a Judgment, it is that person’s problem, not the Court’s. Plus, it is obvious that, under the guise of criticising hastiness, the anonymous author of the response does not have in mind those who immediately defended the Judgment.

Third of all, the anonymous author of the responses seems to have a poor understanding of the dynamics of twitter. Tweets create a unique opportunity for a rich debate about issues. And the exchanges that took place immediately after the Judgment followed exactly this pattern, with numerous discussions ensuing between critics and defenders of the Judgment, and even between critics of the Judgment. The idea that our followers are uncritical sheep is somewhat offensive.

Fourth of all, I would be curious for the anonymous author of the responses to point to even one observer of the Court who retracted their initial views about the Judgment after having read the full text and the separate opinion. If anything, a number of the hasty observers expressed the view that these documents, when considered together, actually created more confusion about the actual Judgment. In fact, if you read the reactions on social media since the Q&A was released, it is very clear that some experts are still confused with the scope and reasoning of the Judgment, several weeks now after it was issued. So clearly, our initial reaction was well-informed enough and our criticism had nothing to do with hastiness or rushing in.

Finally, there is a fundamental lack of self-reflection on the part of the anonymous author of the responses, coupled with a disdain for those who disagreed with the decision. The implication is that we disagreed simply because we did not understand the details (the “nuances”) of the reasoning of the Chamber. Behind the empty claim that disagreement is fine, there is therefore the suggestion that we are, to put it simply, incompetent. Which means that the Prosecutor (who it should be recalled did not even argue for the customary law route), most of the amicus who appeared before the Court, the representatives of Jordan, the AU, the Arab League, the numerous experienced academics and practictioners who criticised the Judgment afterwards are all incompetent.

The anonymous author of the responses goes even further by specifically targetting “lawyers” in a generic way and invoking their professional obligations:

Lawyers engaging in public commentary should exercise particular caution and remain mindful of the cardinal principles that guide the conduct of lawyers, including that of honesty, integrity and fairness. This principle adequately covers the need to be fair when criticising courts and judges. Notably, the rules of professional ethics in most legal systems impose special caution on criticism of judges and courts, not because it is wrong to criticise them, but because they are generally not in a position to respond to specific criticisms. It does not mean that judges and courts may not be criticised. It only means that they be criticised fairly. There is an ethical obligation to reflect facts and circumstances accurately and fairly.

Setting aside the irony of claiming that Judges “are generally not in a position to respond to specific criticisms” in a document where it is exactly what is being done, this passage confuses a commentator who happens to be a lawyer and and a lawyer acting in that capacity before a particular Judge, which shows a misunderstanding of the judicial process. Lawyers are as free as any other observer to comment on judicial decisions and the reference to “professional ethics” can only be interpreted as an inadmissible veiled threat of sanctions in case of criticism of a Judgement that might not be considered as “fair” (whatever that means). It is nothing less than a threat to freedom of expression.

Q: But doesn’t the remainder of the Q&A demonstrate how some observers misrepresented the Judgment, by responding to some of the criticism?

A: Indeed, the anonymous author of the responses engages in a weird dialogue with the critics in relation to the substance of their disagreement with the Judgment. However, on these points, the answers given are far from satisfactory.

You will have noted that the anonymous author of the responses clearly misrepresents the Judgment in the first page of the Q&A. Indeed, it is claimed that:

The Appeals Chamber decided that the Pre-Trial Chamber’s finding that Jordan had failed to comply with its obligation to cooperate with the Court was correct: Jordan should have arrested Mr Al-Bashir when he was on Jordanian territory and surrendered him to the ICC. The Appeals Chamber essentially confirmed the Pre-Trial Chamber’s interpretation of articles 27(2) of the Rome Statute as well as of the effect of UN Security Council resolution 1593 (2005) on Sudan’s position vis-à-vis the Court, which had led the Pre-Trial Chamber to this conclusion.

However, the Appeals Chamber made an important addition: it clarified that, in any event, Mr Al-Bashir did not enjoy immunity as a Head of State vis-à-vis the ICC under customary international law, including in respect of an arrest by a State Party to the Rome Statute at the request of the ICC. Thus, the Appeals Chamber added an additional pillar on which the conclusion that Jordan should have arrested Mr Al-Bashir rested. The Appeals Chamber’s decision in this regard was unanimous.

When you read this, you have the impression that the main point of the Judgment was the discussion of the UNSC justification for the removal of immunities and that the customary law discussion was a mere, albeit important, addition. An afterthought so to speak.

But that is not what the Judgment does. It deals with the customary law issue first, claiming that is it the central and most important question raised in the appeal. It is even the first key finding of the Judgment. The Appeals Chamber went out of their way to make put this issue at the heart of the appeal, despite the fact that it was not even on appeal in the first place, but now, faced with the criticism, is trying to minimise that aspect. If that is not misrepresentation, I don’t know what is.

Q: Ok, but what about the other answers given in the Q&A? 

A: Well let’s take as an example, the anonymous author’s discussion of the distinction between jurisdiction and immunity. I feel compelled to reproduce it in full (sorry for your readers, anonymous interviewer), in order to avoid being accused of misrepresenting it:

This is an erroneous understanding of the Appeals Chamber’s judgment. It was specifically recognised in the Joint Concurring Opinion of four out of the five judges (incorporated by reference in the main judgment) that immunity and jurisdiction are not the same thing. The judges wrote that there is no immunity before an international criminal court in its exercise of ‘proper jurisdiction’ does not mean the court in question has that ‘proper jurisdiction’ to begin with. The existence of jurisdiction depends on its own source. Since customary international law is not known to confer jurisdiction on international courts, it means that the jurisdiction of an international court is prescribed in a written instrument. If that instrument is a treaty, then that treaty binds only those that are party to it. The Rome Statute is a treaty that binds the parties to it. But the written instrument that prescribes the jurisdiction of an international court can also be a Security Council resolution adopted under Chapter VII of the UN Charter, such as was the case here. In conclusion, it was made clear that in the absence of applicability of the Rome Statute or the presence of Security Council resolution, the ICC would have no jurisdiction. All this was actually made very plain in the Joint Concurring Opinion.So, if there is no jurisdiction to begin with, the question of immunity from that jurisdiction does not engage. But, when there is jurisdiction -as in this case, through a combination of Security Council resolution and the Rome Statute -and there is claim of immunity from it, then it becomes necessary to examine the basis or source of that claim of immunity.

First of all, you will note the apparent contradiction in the first two lines: how can it be an erroneous understanding of the Appeals Judgment when the explanation for the Appeals Chamber’s position (the distinction between jurisdiction and immunity) was not even in the Judgment, but in the separate opinion? If it was key to the understanding of the Judgment, why was it not in it?

Second of all, the Q&A claims that this separate opinion is incorporated by reference into the main Judgment. But how can a separate opinion signed by only four of the five Judges be incorporated in a unanimous Judgment? the fact that the fifth Judge refused to sign the separate opinion must mean that she did not agree with it. If she had, it would not be a separate opinion, it would be the Judgment itself. So there is a logical flaw in claiming that the whole of the separate opinion should be considered to be part of the Judgment.

Of course, you could argue that the specific paragraphs of the separate opinion which are referenced in the Judgment can be considered to have been approved by the five Judges. But this presents a problem on this particular issue: the paragraphs of the separate opinion where the jurisdiction/immunity distinction is discussed (par. 447-449), which are essentially the paragraphs summarized in the Q&A, are actually never referred to in the main Judgment, so can they be deemed to have been incorporated by reference in the Judgment?

Third of all, putting this minor incorporation problem aside and looking at the substance of the argument, it seems to state the obvious while not responding to some observer’s concerns at all. Our concern was that the Appeals Chamber’s reasoning would allow two States who individually could not arrest a sitting head of State because of his immunity (even for international crimes, even under universal jurisdiction principles) could confer jurisdiction on an international court for international crimes (by a bilateral treaty for example) and this would magically remove head of State immunity, the joint venture between the two States being able to do what the States separately could not do. In our scenario, the international tribunal in question would have jurisdiction, conferred by treaty. So responding to that by saying that the issue of immunity does not arise if the international tribunal has no jurisdiction in the first place is completely beside the point.

As an aside, one could even question whether the author of the Q&A/the authors of the separate opinion are not confusing jurisdiction and the exercise of jurisdiction. Indeed, it could be argued a UNSC referral is a trigger mechanism allowing the Court to exercise jurisdiction, but does not as such grant the ICC jurisdiction. Of course, to accept this, you would have to follow my oft-repeated analysis that Article 12 is not a jurisdictional provision, but if you look at the title of the Article you can see that…

Q: Sorry to interrupt, but you’re starting to confuse everyone now… let’s get back on track. You just mentioned the ambiguous status of the separate opinion in relation to the Judgment. In the Q&A, it is said that this is not unusual. How do you respond to that?

A: Most of those who raised this issue  have been following, studying, practicing ICL for years even decades. Some of us are even experts specifically in the analysis of separate and dissenting opinions. So to be given a lecture on the nature and function of separate/dissenting opinions is somewhat insulting.

Of course, over the years, there have been a number of quirky separate opinions in ICL (in Katanga for example, the two Judges from the majority wrote a joint concurring opinion (so concurring with themselves) which was in fact a response to the dissenting opinion to the Judgment). But these practices remain rare and difficult to justify.

In the present case, it is perfectly legitimate for an observer to wonder exactly why a large chunk of the separate opinion (for example relating to the nature of UNSC referrals, the nature of international tribunals or the case law relating to the customary law status on immunities) is not in the main Judgment and what to do with a 190-page separate opinion written by 4 of the 5 Judges of the Chamber in a unanimous decision.

Q: Thank you for taking the time to answer our questions on such short notice. Do you have any final thoughts on the Q&A?

A: Clearly, this Q&A has taken everyone by surprise. Reactions I’ve seen on the maligned twitter network suggest quasi-unanimous lack of understanding at what exactly the authors of the Q&A were trying to achieve. The Q&A leaves this uneasy impression of being both condescending (using a tone you might reserve for a small child) and childish (it’s not fair…).

I also wonder why now, about this particular decision. Because honestly, on the scale of criticism, the reaction to the Immunities Judgment pales in comparison to the reaction to the decision not to open a decision in the situation of Afghanistan, which was shredded immediately after it came out. Yet the Q&A document for the Afghanistan decision is very basic, just one page simply presenting the findings of the PTC. Where is the positive defence of that decision, which constitutes a decision by the Court? Where is the explanation of why the Afghanistan decision is fantastic and simply misunderstood? Where is the chastising of all those nasty commentators who criticised it hastily? Could it be that this time, it involves the Appeals Chamber, rather than a mere Pre-Trial Chamber? If true, this would mean that the “Court” is more willing to go out on a limb to defend certain Judges rather than others, which should not be the case.

Overall, I don’t see how this is a good communications strategy on the part of the Court. This defensiveness and aggressivity gives out an impression of weakness and nobody will change their mind based on the Q&A. As someone wise told me today, silence in such cases should always be the default option. I’m of course incapable of taking this advice, against my better judgment, but maybe the ICC should consider it seriously.

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.].