Tag Archives: jurisdiction

ICC PTC authorises investigation in Bangladesh/Myanmar: some thoughts

Big news, came out of the ICC yesterday, a mere few days after the proceedings initiated by Gambia at the ICJ against Myanmar: Pre-Trial Chamber III has authorised the opening of an investigation in the situation of Bangladesh/Myanmar. This decision follows a decision in September 2018 where PTC I found that the Court could theoretically exercise jurisdiction in such a situation, despite Myanmar not being a State Party (I commented on that decision here) and the Prosecutor’s request last summer (which I reflected upon here).

There are a number of interesting takeaways from the decision which I want to briefly address here.

1) Assessment of evidence

Back in July, I raised the point that the OTP request did not contain an explanation of how it assessed available information. I found that problematic, especially given the challenges that exist when using open source material, such as NGO and UN reports.

Apparently, this is not a problem for the PTC, which provides no indication of its understanding of the standard of proof during a preliminary examination, nor does it provide any methodological explanation of how it independently assessed available information. Essentially, the PTC seems to have taken any “finding” in a human rights report at face-value, which, even at such an early stage of the proceedings, cannot be an adequate approach for a criminal court. 

2) The territorial exercise of jurisdiction question

In order to deal with the central issue here (the fact that the alleged incidents all took place on the territory of a non-State party, with the involvement of nationals of a non-State party), the PTC had to discuss several matters. I found this part of the decision actually quite pleasant and intellectually stimulating to read, but I must confess, I did not always get how its different parts fit one with another. It is as if several really interesting preparatory memos were copied and pasted together in the final decision without the final polishing work on making sure that it all fit in a coherent argumentation.

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ICC OTP requests authorisation to open an investigation into the Myanmar situation: three comments

Last Friday, 5 July 2019, the Prosecutor if the International Criminal Court filed a request under article 15 to be able to open an investigation into the situation of Myanmar. This is no surprise, as she had notified her intention to do so on the 12 June 2019, which led to the constitution of a Pre-Trial Chamber to that effect.

I don’t necessarily have too many comprehensive comments on the substance of the request at this points, but having read through the request, I wanted to put forward three initial thoughts I had, which mostly relate to choices in terms of drafting.

  • The jurisdictional issue

As those following these proceedings will know, the current request was preceded by a decision last September, following a request from the Prosecutor under Article 19(3) of the Rome Statute, whereby a majority of PTC I considered, in a nutshell, that even though Myanmar was not a State party, the ICC could exercise jurisdiction in relation to the crime of deportation to the extent that one element of the crime (the crossing of an international border) did take place on the territory of a State party, here Bangladesh. The PTC also found that the ICC could possibly exercise jurisdiction over other Rome Statute crimes if it could also be established that one element of the crime took place on the territory of a State party.

Putting aside my doubts about whether it was appropriate to use article 19(3) like this in the first place (see here), I note that in the current request, the Prosecutor essentially takes the September 2018 jurisdictional decision as a given and does not explain this newly composed Pre-Trial Chamber what exactly what the reasoning of the other PTC was in relation to 1) considering deportation as a discrete crime under the Rome Statute and 2) its understanding of « conduct » in article 12(2)(b).

Given the discussions surrounding the use of 19(3) and the substance of the September 2018 decision, I would have expected the Prosecutor to do a little more explaining (convincing) in this respect, because it cannot be assumed that the new Pre-Trial Chamber will simply follow the prior decision in this respect.

Three additional small points in respect to jurisdiction:

– It is interesting to note how the OTP brings in other « crimes » (such as killings and rape) as evidence of the coercive nature of the displacement. This is quite smart I would say, but it does questions. Indeed, these « crimes » were entirely committed on the territory of a non-State Party and the Court cannot directly exercise jurisdiction over them, which means that any potential Accused cannot be charged for them. However, concretely they would be part and parcel of the discussion of deportation and any pronouncement of the Court on such questions would necessarily involve discussion of individual responsibility. In other words, any potential Accused would in effect be charged and convicted for these acts under the guise of deportation, which could reasonably be construed as an impermissible circumvention of the jurisdictional limitations of Article 12(2).

– At this point in time, the OTP reasoning on the link between these coercive acts and the deportation is quite embryonic. Indeed, logically, you would expect the Prosecutor to demonstrate a link between specific groups of refugees in Bangladesh and the alleged crimes constituting the coercive acts. However, the Prosecutor simply states that: « The coincidence in time between the peak of the violence and large numbers of Rohingya crossing into Bangladesh may, of itself, show a causal link between the coercive acts and the victims’ displacement to Bangladesh » (par. 113). While this might be sufficient at this stage of the proceedings, this should not be sufficient moving forward if an actual investigation takes place because conflating correlation and causation is not an acceptable investigatory methodology.

– Given the Prosecutor’s flexible inclusion of other « crimes » as underlying acts of coercion, I’m genuinely curious why genocide was not discussed. Now, I’m not familiar enough with the current debate going on about this, but there are a lot of claims of genocide being made. It would therefore interesting to know whether the non-inclusion of genocide is due to 1) lack of jurisdictional territorial link given the particular circumstances of this situation, 2) lack of actual evidence of genocide in the evidence provided to the OTP (as opposed to ethnic cleansing for example) and/or 3) a strategic choice to stay away from the issue.

  • The evaluation of the « interests of justice »

The request includes the usual (based on recent practice of the OTP) couple of pages indicating that “The Prosecution has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice” (par. 290).

I have no strong views on this either way, but I do wonder whether this question might not have deserved a change of approach, given that this request in the first one to be filed since the Afghanistan decision. This latter decision and the fact that the OTP appealed is only mentioned in passing in a footnote (fn 774).

However, one could have imagined that the Prosecutor would present in more detail than it does here at least its understanding of the legal framework applicable to « interests of justice » determination, especially when it comes to the margin of discretion (if any) afforded to a PTC in reviewing an OTP request, rather than just referring the Judges to its appeals brief.

More discussion would appear all the more justified that this situation seems to fall squarely in the Afghanistan logic, given that it involves alleged conduct that took place entirely (putting the legal nicety of the « crossing of the border » criteria) on the territory of a non-State party by non-State party nationals, with virtually zero chance of cooperation. If there was ever a time to explicitly challenge the Afghanistan understanding of the « interests of justice » in a request, it was now.

Maybe there is a strategic choice here to not insist too much on this, on the double assumption that 1) the current PTC will know what the debate is about and 2) possibly that the Afghanistan decision is and will remain an isolated decision. Time will tell whether it was a good choice.

Of course, logically if I were the current PTC, I would not issue any decision until the Afghanistan appeal has been resolved one way or another.

  • The OTP’s approach to the assessment of available information.

As is well known, during the preliminary examination, the Prosecutor does not have autonomous investigation powers and must rely on publicly available information or information voluntarily shared by various sources (States, NGOs, etc.). This investigatory dependence on outside sources raises the question of what methodology needs to be followed by the OTP in assessing the seriousness of such information.

I recently submitted a communication to the OTP on this issue, specifically addressing methodological difficulties arising from relying extensively on human rights reports during a Preliminary Examination, such as the over-use of anonymous hearsay, the unverifiability of sources, the impossibility of assessing the credibility of alleged witnesses or the sometimes less ideal legal analysis put forward.

What is particularly relevant for the current discussion is that in that report I support my claim that the OTP should rigorously assess third-party material partly on the fact that the OTP itself has in the past, both in policy documents and in requests, clearly highlighted its autonomous obligation to assess the credibility and reliability of third-party reports.

For example, in the Afghanistan request, the Prosecutor indicated (par. 29):

The Prosecution has evaluated sources and their information following a consistent methodology based on criteria such as relevance (usefulness of the information to determine the commission of crimes within the jurisdiction of the Court), reliability (trustworthiness of the provider of the information as such), credibility (quality of the information in itself, to be evaluated by criteria of immediacy, internal consistency and external verification), and completeness (the extent of the source’s knowledge or coverage vis-à-vis the whole scope of relevant facts). It has endeavoured to corroborate the information provided with information available from reliable open and other sources.

This paragraph is directly copied from the Burundi request (par. 26) a few months prior.

In a similar fashion, in the Georgia request, the Prosecutor indicated par. 48):

Notwithstanding the low threshold that is applicable at this stage, neither theProsecution nor the Chamber should rely on information that is not credible or reliable. This is clear from the statutory requirement of determining whether the information available establishes a reasonable basis to believe that one or more crimes within the jurisdiction of the Court have been committed. Similarly, the Prosecutor, and the Chamber, must analyse and evaluate the seriousness of the information and the reliability of the source. To hold otherwise would require the Court to take any allegation made by any source at face value.

Given these systematic methodological clarifications in the most recent OTP requests, I was surprised that they have disappeared altogether from the Myanmar request, which simply states that: « The sources relied upon in this Request are amongst those considered by the Prosecution to be sufficiently reliable and credible for the proposition for which they are relied on » (par. 29).

Of course, you might consider that this is just a cosmetic difference and that this does not mean that the OTP did not concretely seriously assess available information. Maybe (although I note that the terms reliable, reliability, reliable, credible, credibility, authenticity, corroborate, corroboration and corroborated appears, taken all together, 13 times in a 146-page request). But I am still young and naive and believe that there is a reason why a party makes certain claims or not. As a result, I wonder why the OTP felt it necessary to explicitly lay down some methodological points in all recent requests, but not in the Myanmar request.

As an aside, I don’t understand why the annex listing information used is not publicly available (at least in redacted form), given that arguably a large number of sources will be public sources.

In conclusion, and generally, this request is a perfect case study in the ongoing debate about the balance that needs to be struck between the aspirational vocation of the ICC and its need to be realistic about what it can achieve (see recently Mark Kersten on this), and the related discussion about managing expectations created by ICC activities among affected communities.

I would think those who consider that the ICC cannot give up on being aspirational will likely think that the balance has been struck adequately here, within the jurisdictional limitations of the Court (although the genocide issue will obviously be a sticking point, given the weight of this issue in public discourse on the situation of the Rohingya).

I’m personally not too sure. The fact remains that both legally (the jurisdictional argument is not as solid as it should be) and practically (irrespective of the legal argument on deportation, this is essentially a situation relating to a non-State party), the ICC could be seen to be straying here on the very periphery, at best, of what it can deal with and the chances of anything concrete coming out of this are very slim.

This does not necessarily mean that the OTP should not have moved forward, but, at the very least, those reporting on this (NGOs and journalists alike) should be careful on how they present this move and its possible outcome, so as not to create unrealistic expectations that,  if they should  not be met, will contribute to plague the Court’s legacy in years to come.

Some thoughts on the legal consequences of the Philippines leaving the Rome Statute

On Sunday 17 march 2019, the Philippines’ withdrawal from the Rome Statute became effective, without the country’s Supreme Court having ruled on the domestic legality of the withdrawal (see Priya Pillai here and here).

As noted by Kevin Jon Heller last week, we were all waiting to see if the Court would pull another Burundi-type decision on the Philippines, with a Pre-Trial Chamber authorising the opening of a formal investigation before the withdrawal came into effect.

Yesterday, 18 march 2019, the ICC Prosecutor, through the ICC twitter account, issued the following statement:

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First of all, as noted by others, this statement seems to suggest that the OTP has not requested the opening of a formal investigation. It might be interesting to know why this choice was made, but the OTP is unlikely to communicate on this matter.

More importantly, this makes the discussions we were having last year before the Burundi decision on how the withdrawal would affect the Court’s jurisdiction for crimes allegedly committed while the State was still a party to the Statute far less theoretical. Alex Whiting, Kevin Jon Heller, Sergey Vassiliev and myself had all weighted in on the issue.

In relation to that, the Prosecutor claims in her statement that: “Pursuant to article 127.2 of the Statute, and based on prior ICC judicial ruling in the situation in Burundi, the Court retains its jurisdiction over crimes committed during the time in which the State was party to the Statute and may exercise this jurisdiction even after the withdrawal becomes effective.”.

Fatou Bensouda is probably relying on paragraph 24 of the decision to open an investigation in the Burundi situation:

The Chamber finds that the jurisdiction of the Court prior to the entry into effect of a withdrawal must be determined in light of article 127(1), second sentence, of the Statute. This provision stipulates that a withdrawal takes “effect one year after the date of receipt of the notification”. On this basis, a withdrawing State remains, for all intents and purposes, a State Party in the period between the communication of the notification of withdrawal and the end of the ensuing one-year interval. Therefore, by ratifying the Statute, a State Party accepts, in accordance with article 12(1) and (2) of the Statute, the jurisdiction of the Court over all article 5 crimes committed either by its nationals or on its territory for a period starting at the moment of the entry into force of the Statute for that State and running up to at least one year after a possible withdrawal, in accordance with article 127(1) of the Statute.32 This acceptance of the jurisdiction of the Court remains unaffected by a withdrawal of the State Party from the Statute. Therefore, the Court retains jurisdiction over any crimes falling within its jurisdiction that may have been committed in Burundi or by nationals of Burundi up to and including 26 October 2017. As a consequence, the exercise of the Court’s jurisdiction, i.e. the investigation and prosecution of crimes committed up to and including 26 October 2017, is, as such, not subject to any time limit.

There is however a basic problem with this reasoning, which I had already started explaining here: it conflates what are in fact three separate concepts in the Rome Statute:  jurisdiction, preconditions to the exercise of jurisdiction and exercise of jurisdiction. And this distinction, in my view, has consequences on how we interpret the Statute, in particular when it comes to the effect of withdrawal.

  • jurisdiction: this term can be technically applied to three articles in the Rome Statute: Article 5 (material jurisdiction), Article 11 (temporal jurisdiction) and Article 25(1) (personal jurisdiction).
  •  Preconditions to the exercise of jurisdiction: This is Article 12, which relates to two such preconditions: territory and nationality. I know this is somewhat controversial, but technically, territory and nationality are not framed in the Rome Statute as jurisdictional criteria, but as preconditions to the exercise of jurisdiction. In that respect, one can note the difference in language between Article 12(1), which states that a State Party “accepts the jurisdiction of the Court with respect to the crimes referred to in article 5” and Article 12(2), which simply States that to exercise its jurisdiction, the Court must verify that the conduct occurred on the territory of a State party or that the alleged perpetrator was a national of a State party (except in the case of a UNSC referral). There is no question here of a State party accepting any sort of territorial or nationality jurisdiction, contrary to the material jurisdiction of the Court.
  • Exercise of jurisdiction: this is Article 13 and relates to the trigger mechanisms, i.e, referral of a situation by a State, the Security Council or request to open an investigation proprio motu by the Prosecutor.

The consequence of this distinction is the following: while I’m willing to accept that possibly a State which becomes a party to the Rome Statute accepts the jurisdiction of the Court for crimes committed while it was a State party, I do not believe this extends to acceptance that the Court can exercise jurisdiction indefinitely for these crimes, even after a withdrawal. Because the criteria of Article 12(2) (nationality and territory) are preconditions to the exercise of jurisdiction, they need to be assessed at the moment when the Court is considering whether to to exercise jurisdiction. This comes out clearly from the language of the chapeau of Article 12(2): there must first be one of the three trigger mechanism of Article 13, before checking whether territory and/or nationality is an issue. As a result, I would say that verification of whether the conduct was committed on the territory of a State party or was that of a national of a State party happens at the time of the decision, not a the time of the commission of the crime.

One can note that Article 12(2) indicates that the Court can exercise jurisdiction “if one or more of the following States are Parties to this Statute”. The use of the present tense (“are”) seems to suggest contemporaneity with the assessment.

One final argument: the interpretation suggested by the Pre-Trial Chamber, if followed, would have as a consequence to strip of any meaning the last line of Article 127(2) which famously provides that a withdrawal shall not ” prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective”. Whatever the interpretation one adopts of a “matter which was already under consideration by the Court”, what would be the point of such a provision in the first place, if at any time after the withdrawal, the Court could initiate an investigation into crimes allegedly committed prior to the withdrawal?

On balance, I therefore believe that the reasoning given in the Burundi decision and on which the Prosecutor relies on here is based on an unconvincing reading of the Rome Statute and is once again an ill-conceived attempt by the Court to extend its jurisdiction to situations which are beyond its reach.

As a side note, given the complexity of the manner, I would expect more professionalism from the CICC which simply claims that “According to the ICC’s treaty, the withdrawal will not impact any on-going consideration of alleged crimes committed before the withdrawal entered into force.” This is neither the language of the Rome Statute, nor the language of the Burundi decision. This is a situation where advocacy slides dangerously into the realm of misinformation in my view.



ICC PTC issues advisory opinion (yes, yes) on ICC jurisdiction over Rohingya deportation

Today, 6 september 2018, PTC I issued a decision finding that the ICC can have jurisdiction over the deportation of Rohingya from Myanmar to Bangladesh, despite the fact that Myanmar is not a State party, because at least one element of the crime of deportation (the crossing of a border) took place on the territory of a State party (Bangladesh).

While I would tend to disagree with the “you put a toe on a border” theory of territorial jurisdiction, I will leave my more knowledgeable colleagues on the definition of the crime of deportation to debate whether the PTC is really convincing on this point. I wanted to briefly address a few other issues that arise from the decision and which I find interesting.

  • The procedural framework

I have been skeptical from the start on the use of Article 19(3) to allow the OTP to address a Chamber at such an early stage with a question of jurisdiction and the decision just issued does not convince me.

Article 19(3) is situated in Article 19 entitled “Challenges to the jurisdiction of the Court or the admissibility of a case” and it should be read in this context. This clearly suggests that there needs to be a “case” (or at least a “situation”, if we accept the expansive definition of “case” in the practice of the Court). Moreover, we find similar language in the second sentence of Article 19(3) itself, which refers to a State which has refered the situation.

We have neither here. If the drafters had wanted to create a possibility for the OTP to obtain a ruling on jurisdiction as early as the PE phase, it would have more likely created a distinct provision on this. As things stand, I find it unlikely that Article 19(3) can be interpreted in this way.

I am equally unconvinced by the Compétence de la Compétence argument, which seems entirely beside the point. The question here was not whether the Court can determine its own competence (which does not seem an issue) but when. In that respect, I don’t see how invoking the principle helps in any way in determining at what stage of the proceedings the Judges come into play (see the very interesting dissent of Judge Brichambaut on this point).

As for Article 119, it should not be able to create a new procedure out of thin air…

[UPDATE: I hadn’t taken the time to analyse in detail the dissent of Judge Perrin de Brichambaut earlier, but I must say that I fully agree with him on these issues.

The contextual interpretation of Article 19(3) is clearly contrary to what the Prosecutor has argued and this is clearly demonstrated by the dissenting Judge.

As for Article 119(1), the Judge is equally convincing. The Majority’s definition of a “dispute”, based on a press release by a Myanmar governement official is laughable. By that token, the Prosecutor could use Article 119(1) whenever anyone (why just a State?) expresses disagreement with a position held by the OTP. I am regularly in “dispute” with the OTP when I comment on this blog. Let’s merrily go before the Chambers to resolve it !

Moreover, Article 119(3) is in a totally different part of the Statute, the “final clauses”, which in no way relate to the powers of the Prosecutor or create a specific procedure. In this sense, while the dissenting Judge is cautious in saying that “uncertainty remains as to knowing whether the “dispute” must arise between States or from a disagreement among the parties to judicial proceedings or even third parties”, I would not show such restraint: I think it is pretty obvious Article 119(3) relates to inter-State disputes only]

I believe that the decision is merely an advisory opinion at this stage. It is only when a PTC considers jurisdiction as part of a formal request to open an investigation will the Judges truly be in a position to issue a binding decision on such matters. As an aside, if such request where filed, I would suggest that the two Judges who ruled on the issue be disqualified from sitting on a PTC constituted to deal with the matter.

From a policy perspective, I’m not entirely sure the OTP made a smart move here. I’ve often argued that there is an underlying power struggle between Judges and the OTP to take control of the procedure at the Court. The OTP has essentially let the Judges in to what was arguably the last remaining bastion of discretion it has under the Statute, allowing them to dictate the OTP’s conduct during PEs. This is apparent from the decision itself, where the Judges take the opportunity to lecture the OTP on the way it defines a PE and warn her on the fact that she should proceed swiftly (based on the Comoros decision). You would have expected the OTP to learn the lessons of the Comoros litigation, but they took the shortsighted view here in my opinion, and I believe that Judges will continue to eat into the OTP’s discretion at the PE phase…

  • The objective legal personality of the Court

In the decision, the PTC engages in a lengthy discussion on whether the ICC has an objective legal personality (while admitting that such finding is irrelevant to determine the question of jurisdiction, which begs the question of why they delved into this issue as well).

I will not bore the readers with a detailed explanation of why every example the PTC gives to justify their position is unconvincing. Ultimately, the PTC relies on the ICJ Reparations case (where the ICJ proclaimed that the UN had an objective personality solely on the fact that it had a lot of member states…) and, paraphrasing unashamedly the ICJ Judgment, declares (par. 48):

In the light of the foregoing, it is the view of the Chamber that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court”, possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions. Thus, the existence of the ICC is an objective fact. In other words, it is a legal-judicial-institutional entity which has engaged and cooperated not only with States Parties, but with a large number of States not Party to the Statute as well, whether signatories or not.

This could be called the “Bully theory” of the objective personality international organizations: “there’s a lot of us, and we think we’re Morally Superior, so you have to objectively recognise us. Sorry? the Relative effect of what? treaties? No, not important. Haven’t you been listening? we’re morally superior, and that trumps everything else” (This, for some, applies mutadis mutandis to immunities, but that will be for another time). Needless to say this is far removed from serious legal argumentation.

  • Concluding thought

Whether the PTC is correct in finding that the ICC might have jurisdiction over the deportation of Rohingya or not, I’m not sure how helpful this whole procedure is, either for the OTP (see above) or even “victims”. Even if the Judges go out of the way to try and argue that such jurisdiction over deportation would open the door for the ICC to have jurisdiction over other related crimes (persecution for example), the decision is bound to create unreasonable expectations on the part of victims in relation to the relief that the ICC can effectively bring as regards what is going on more generally in Myanmar, and over which, for the most part, the ICC will not have jurisdiction. Here, as often,  the ICC and its defenders will be quick to challenge those who criticise them, without realising that they are setting themselves up to fail…




Burundi withdraws from the ICC: what next for a possible investigation?

On the 26 october 2017, Burundi’s withdrawal from the Rome statute became effective, making it the first State ever to leave the Court. Strangely, there has been no official declaration from either the Court or the OTP at this point.

Al Jazeera reports that : “Burundi’s withdrawal doesn’t affect the preliminary examination of the country’s situation already under way by the court’s prosecutor, ICC spokesman Fadi El Abdallah told The Associated Press.”.

Moreover, Benjamin Durr got the following email from the Public Affairs unit of the ICC:

ICC reaction to burundi

Despite what some have called the defeaning silence coming from the OTP, the withdrawal is widely commented upon by ICL observers and stakeholders who, for the most part, regret that Burundi has chosen the path of impunity. The withdrawal raises a certain number of legal questions that have been at the heart of discussions on the social media in the past few days and which I want to address briefly here.

  • What happens to the existing preliminary examination?

As is well known, Burundi has been under a preliminary examination by the OTP since April 2015. From a legal perspective, the withdrawal does not affect the preliminary examination. It does not put an end to it automatically, nor does it force the OTP to end it.

The real question is whether the withdrawal affects the possibility for the OTP to actually open a formal investigation at a later stage, which is my next point.

  • Does the withdrawal affect the capacity of the OTP to request the opening of a formal investigation?

The answer to this question depends on the interpretation one adopts of Article 127(2) of the Rome Statute, which provides that:

Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

I should note at this point that I’m assuming that no steps have indeed been taken by the OTP to obtain a decision from a Pre-Trial Chamber to be able to open a formal investigation. There has been some speculation on whether the OTP might have made such a request confidentially. However, this has not been done in the past to my knowledge (Kenya, Georgia, Côte d’Ivoire), and I wonder what would be the justification for that.

If the OTP has indeed proceeding confidentially, then one might very well consider that the pending decision could indeed be a matter under consideration by the Court for the purposes of Article 127(2).

If no steps have been taken, I refer you, for the interpretation of Article 127(2), to the excellent post done by Alex Whiting last year and my own thought on the matter which I published here at the time.

I noted in that respect that:

The key issue is what is covered by the expression “any matter already under consideration by the Court”. Alex Whiting makes the argument that this expression is broad enough to cover preliminary examinations by the OTP. Possibly, he is right from a linguistic point of view. However, I have a difficulty with the idea that such an informal phase as a preliminary examination (which might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports) might have such massive consequences as trumping the decision of a State to withdraw from the Rome Statute.

I also noted that:

One last point that could favour a more limited, rather than broad interpretation of Article 127(2), is the formulation used in other versions of the Rome Statute. For example, the French version of the Statute says that: “le retrait n’affecte en rien la poursuite de l’examen des affaires que la Cour avait déjà commencé à examiner avant la date à laquelle il a pris effet”. The word “affaires” (cases) seems narrower that “any matter”. This is obviously not decisive and a comparison in the other official language could be interesting.

I continue to believe that one year later. I don’t believe a PE initiated unilaterally by the OTP, with no particular applicable legal framework and no direct legal consequences can decently be considered as a “matter already under consideration by the Court”. The OTP is not the Court, it is one organ of the Court

[UPDATE: Over at opinio juris, Kevin Jon Heller provides a very useful detailed analysis of whether the “Court” in Article 127(2) refers to the judiciary, or includes the OTP as well. I think he convincingly shows that one cannot assume that Article 127(2) applies to matters under consideration by the OTP, rather than more strictly by the Judges by listing a number of provisions of the Rome Statute where the “Court” refers to the judiciary in a more narrow sense when it comes to procedural matters.]

The OTP is simply doing its basic job of looking at various events going on worldwide to see if actual formal action under the Rome Statute is required. That cannot possibly have as a consequence to negate the effect of Article 127(2). If such a broad interpretation of Article 127(2) were to be adopted, nothing would prevent the OTP from announcing that it is conducting preliminary examinations into all State parties, thus making sure that there would be no legal consequences of a withdrawal whatsoever. That seems a little far fetched.

It should also be noted that nothing prevents the OTP from technically opening an PE into a situation involving a none State party, or even only none State parties. This would arguably be a waste of time, but there is no legal impediment with that. And the reason is that PE don’t have a formal legal existence and, more importantly, do not create obligations on anyone, States included.

Delphine Carlens, of FIDH, with whom I discussed the matter briefly on twitter suggested the following supporting argument:

Article 70 of the Vienna Convention provides that:

Consequences of the termination of a treaty

1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a) releases the parties from any obligation further to perform the treaty;

(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

On principle, I very much like the idea of bringing the VCLT into play, because one tends to forget that the Rome Statute is after all a treaty, and does not exist, particularly when it comes to the relationship between States and the international organisation, in a legal vacuum.

My initial reaction here is to consider that the reference to the VCLT might not be very useful. Indeed, it does not help interpret Article 127 per se, because if one agrees with me that the OTP declaring that it is conducting a preliminary examination does not create any “right, obligation or legal situation” under the Rome Statute, then Article 70(1)(b) simply does not apply.

However, on second thought I wonder if I might not be framing the question in wrong terms. Indeed, if one forgets the issue of the existence of a PE for one second, one could wonder if the “legal situation” that was created through the execution of the treaty is not simply the fact that, under Article 12, the ICC would have jurisdiction over crimes committed in the territory of Burundi or by nationals of that State because Burundi was a State party at the time of the commission of the alleged crimes. As a consequence, of this approach the ICC would still have jurisdiction even after withdrawal, irrespective of the existence of a PE or not.

I don’t know if this argument would be persuasive in front of Judges, or would have the support of other State parties. Indeed, Article 127 is a lex specialis on the consequences of withdrawal, a situation which, it could be argued, removes completely the applicability of Article 70 of the VCLT. And because Article 127 makes no mention of surviving jurisdiction, then it might be a little far-fetched to read it back into it.

[UPDATE: Another difficulty that would need to be addressed is the time when jurisdiction is to be determined. Is it determined at the time of the commission of the crimes or at the time of the judicial decision to exercise jurisdiction? This is important to establish, because if it is the latter, then the Burundi withdrawal would in fact remove the capacity for the Court to exercise jurisdiction. Despite the basic nature of the question, I’m not aware of any judicial pronouncements on the matter at the ICC (readers, feel free to point me in the right direction).

Does the wording of the Statute help in any way? To some extent.

Indeed, it should be recalled that through a weird semantic trick, Article 12 turns out to be not strictly a jurisdictional provision: it is titled “preconditions to the exercise of jurisdiction”, which makes it out to be more of a procedural provision that a jurisdictional one. As a result, Article 12 does not actually say that the Court has jurisdiction over crimes committed on the territory of a State party or by a national of a State party, which is what you would expect from a jurisdictional provision. Article 12 says that the Court can only exercise jurisdiction if the State of nationality or the territorial State is a Party to the Statute. This would logically suggest that the adequate time to determine whether the pre-conditions of Article 12 are met, is when the Court is considering exercising jurisdiction, not when the crimes were actually allegedly committed.

I also want to point out that I’m in no way advocating a teleological interpretation of Article 12, or jurisdiction more generally, along the lines that not interpreting it in a certain way would lead to impunity, and therefore would not be acceptable. Whatever some people may think of sovereignty as an archaic concept in international law, it is still a fundamental right of States to decide whether they want to be bound by a treaty or not and I don’t believe that the “fight against impunity” can trump that.]

Despite these difficulties, the jurisdictional approach might be worth a try, as it is somewhat more convincing that the “PE = matter under consideration” approach. Moreover, everybody I know, academics and Judges alike, does consider Article 12 as a jurisdictional clause, despite its clear wording to the contrary. So, even if I’m right, nobody might actually care. Therefore this approach might actually provide the “progressive approach” of the interpretation of the Statute that HRW is calling for.

I should note that I’m not sure this is the argument actually put forward by the FIDH, because it seems to rely, in its press release, on the existence of a PE: “Since proceedings (a preliminary examination in this case) were initiated prior to the date of Burundi’s effective withdrawal, the Prosecutor could request the opening of an investigation into international crimes committed before 27 October 2017 ( Article 127(2) of the ICC Statute)”. So FIDH is welcome to use this new argument from now on!

[UPDATE: i’ve just come accross this analysis from Amnesty International which puts forward the same idea, but still seems to link jurisdiction and the existence of a PE, which I think in fact possibly weakens the argument. And I strongly disagree with the suggestion that a PE creates an obligation to cooperate on the part of States.]

One last note on this: if the Public Affairs email reproduced above is to be believed, it seems that someone at the Court thinks this is a viable interpretation of Article 127(2), when it is said that: ” In accordance with Article 127.2 of the Rome Statute, Burundi’s withdrawal does not affect the jurisdiction of the Court with respect to crimes alleged to have been committed during the time it was a State Party, namely up until 27 October 2017″.

This is a strong position to put forward, and I’m surprised it is not shared officially by someone more “senior” at the Court. Right now, it remains unclear whether this is a shared court-wide position, more particularly if it is the official position of the OTP. Some formal declaration would be welcome in that respect.

  • What about other cooperation obligations which Burundi might have?

It should be noted as an aside that Burundi still has an obligation to cooperate in relation to criminal investigations and proceedings which were commenced prior to the date on which the withdrawal became effective.

Which means that if a matter of cooperation arises in any current case or situation at the Court, Burundi would have to cooperate with the ICC, for example in assisting a current investigation.

Arguably, this would also apply in relation to the execution of an arrest warrant, for example of Omar Al Bashir of Sudan. This is of course particularly ironic, given the fact that the withdrawal was surely in part justified on the basis of opposition to that specific arrest warrant…