On 14 November 2016, the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) issued its latest Report on Preliminary Examination Activities (Report). The Report sets out, in general, the OTP’s efforts in conducting preliminary examinations of communications and situations to determine whether under the Rome Statute investigations are warranted.(( Report on Preliminary Examination Activities, 14 November 2016, (Report), para. 1, citing Policy Paper on Preliminary Examinations, November 2013.)) The overarching goals of a preliminary examination are “the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes … potentially obviating the need for the Court’s intervention.”(( Report, para. 16.))
The Report is clear, concise, and informative. Rather than discuss all the details of the OTP’s activities, I will merely focus on the three preliminary examinations: the situation in Afghanistan, specifically the alleged crimes committed by the United States (US) armed forces and citizens acting on behalf of the US, the situation in Ukraine, and the OTP’s reconsideration of the situation related to Israel (registered vessels of Comoros, Greece, and Cambodia – the Mavi Marmara incident).
This is the first post of a three-post series. I hope to explore the pros and cons of pursuing examinations against non-signatory states that are also permanent members of the UN Security Council (and are unlikely to allow their nationals to be prosecuted at the ICC), and whether the Pre-Trial Chamber’s request to the OTP to reconsider the decision not to initiate an investigation into the Mavi Marmara incident is merited or based on dubious political considerations.(( In November 2014, the OTP completed its preliminary examination into the Mavi Marmara incident with a decision not to proceed with an investigation because the potential case(s) would be of insufficient gravity. See ICC-OTP, Article 53(1) Report, 6 November 2014, para. 150. In January 2015, the Comoros applied for review of this decision before the Pre-Trial Chamber. Based on this application, the Pre-Trial Chamber requested the OTP to reconsider its decision. See Situation in the Registered vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13, Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, 29 January 2015; Decision on the Request of the Union of the Comoros to review the Prosecutor’s Decision not to Initiate an Investigation, 16 July 2015.))
This post is primarily contextual; its purpose is to familiarize those not acquainted with the process established by the Rome Statute and the attendant modalities adopted by the OTP concerning preliminary examinations. The process is as impressive as it is taxing. This may also explain why some critics perceive the ICC as producing few deliverables – if the notion of a deliverable is a conviction that is upheld on appeal.
In the second post, I will discuss the situations in Afghanistan and Ukraine. In the third and final post, I will discuss the OTP’s reconsideration of the situation related to the Mavi Marmara incident.
Preliminary examination and evaluation criteria leading to a potential investigation
The OTP lists in the Report the breakdown of the communications it received during the reporting period.(( Four hundred and seventy seven communications (of which 356 were manifestly outside the ICC’s jurisdiction); 28 warranted further analysis; 72 linked to a situation already under analysis; and 21 linked to an investigation or prosecution. In total, the OTP has received 12,022 Article 15 communications since July 2002. See Report, para. 18.)) As I’ve mentioned, the OTP is obligated to examine “all communications and situations that come to its attention based on the statutory criteria and the information available.”(( Report, para. 1, citing Policy Paper on Preliminary Examinations, November 2013.)) Put differently, before the OTP will proceed with an investigation (actively gather evidence) into a case or situation, it will first conduct a preliminary examination of information that has come to its attention.(( Under Articles 13 and 14 of the Rome Statute of the ICC (“Rome Statute”), a referral can be made by a State Party or UN Security Council. Under Article 15, the OTP may initiate investigations proprio motu on the basis of information on crimes (communications) received from other sources such as individuals or NGOs.)) This is the first major screening for the OTP to separate the wheat from the chaff.
In conducting a preliminary examination, the OTP analyzes whether the ICC has jurisdiction (temporal,(( See Article 11 of the Rome Statute: “1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.”)) subject matter,(( Under Article 5 of the Rome Statute, the ICC has jurisdiction over the following crimes: “(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”)) territorial, and/or personal jurisdiction((See Article 12(1)-(2) of the Rome Statute: “1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.”)) ), and whether a situation meets admissibility requirements, such as whether a national court is already dealing with this situation (complementarity), or whether a crime is of sufficient gravity.(( Under Article 17(1)(a)-(d) of the Rome Statute, the case is inadmissible if: “(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.”))
A few words on the two criteria for admissibility; complementarity and gravity. In assessing complementarity, the OTP will examine whether relevant national proceedings (investigations and prosecutions) are being conducted and, if so, their genuineness.(( ICC-OTP Policy Paper on Preliminary Examinations, November 2013, paras. 7-8.)) In assessing the gravity of a situation, the OTP examines the scale, nature, and manner of commission of the crimes, and their impact, relevant to potential cases that may likely arise from the OTP’s investigation.(( Id., para. 9.))
The standard for admissibility is whether, based on the assessment of the available information (subject to the two admissibility criteria being met), there is a reasonable basis – “there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court ‘has been or is being committed’”(( Situation in Kenya, ICC-01/09-19-Corr, Pre-Trial Chamber II, Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic Kenya, 31 March 2010, para. 35.)) – to proceed with an official investigation.
Regardless of jurisdiction and admissibility, the OTP must also assess whether there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.(( ICC-OTP Policy Paper on Preliminary Examinations, November 2013, para. 10.)) The OTP explains its independent discretionary authority and the extent to which it will not pursue investigations when they are not in the interests of justice in its Policy Paper on the Interests of Justice. In this Policy Paper the OTP describes some of the specific factors and circumstances related to the interests of justice concept (gravity, interests of victims, particular circumstances of the accused (such as age), and peace and reconciliation processes), clarifying that there is no exhaustive list of all possible factors since each situation is different.
If the OTP decides to proceed with an investigation, it must first seek authorization from the ICC Pre-Trial Chamber by filing a request together with any supporting material collected.(( Rome Statute, Art. 15(3). )) If the Pre-Trial Chamber concludes that there is a reasonable basis to proceed and that the case appears to fall within the jurisdiction of the ICC, it will authorize the investigation.(( Id., Art. 15(4). )) If the Pre-Trial Chamber concludes otherwise and does not authorize an investigation, the OTP can make subsequent requests based on new facts or evidence.(( Id., Art. 15(5). )) Similarly, if the OTP decides that there is not sufficient basis to proceed, the Pre-Trial Chamber may review and request the OTP to reconsider that decision.(( See id., Art. 53(3): “At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision. (b) In addition, 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.”))
Finally, it is worth noting that the OTP, very transparently, “has established a filtering process comprising four phases,” with each phase focusing “on a distinct statutory factor for analytical purposes”, though it “applies a holistic approach throughout the preliminary examinations process.”(( Report, para. 15.)) Briefly, the four phases are:
Phase 1: Analyzing and verifying the seriousness of information received, filtering information on crimes that are outside the jurisdiction of the Court and identifying those that appear to fall within the jurisdiction of the Court.
Phase 2: Determining whether the alleged crimes fall within the subject-matter jurisdiction of the Court.
Phase 3: Assessing the admissibility of the potential situation in terms of complementarity and gravity.
Phase 4: Examining the interests of justice, resulting in a preliminary Article 53(1) Report, indicating: a. an initial legal characterization of the alleged crimes, b. a statement of facts in relation to the places of the alleged commission of the crimes, c. the time or time period, and d. the persons involved (if identified). This report is non-binding and subject to changes depending on future investigations.(( Id.))
Concluding remarks
Recently I posted on the crisis (my characterization) the ICC is facing with the exodus of certain African States because, as they see it, the ICC is biased – targeting only Africans (see here, here, and here). Russia’s symbolic gesture of withdrawing its signature to the Rome Statute, which it never ratified, is reminiscent of the US’s “unsigning” of the Rome Statute. And now Rodrigo Duterte, President of the Philippines, is threatening to withdraw from the ICC in response to comments made by ICC Prosecutor Fatou Bensouda((“Extra-judicial killings may fall under the jurisdiction of the International Criminal Court … if they are committed as part of a widespread or systematic attack against a civilian population pursuant to a State policy to commit such an attack. The Republic of the Philippines is a State Party to the ICC…. [A]ny person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.” See Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, concerning the situation in the Republic of the Philippines, 13 October 2016.)) about potential crimes against humanity in the form of extrajudicial killings by law enforcement, sanctioned by the government. Hard for the ICC Prosecutor to ignore such conduct, especially since one of the ICC’s judges is from the Philippines. More calls to leave the ICC are likely to come from other leaders who may feel the threat of being hauled off to The Hague.
I also posted on the OTP’s Policy Paper on Case Selection and Prioritisation, in which the OTP staked out its vision for expanding the scope of cases it intends to focus on, while still reaffirming, rightly so, that gravity is “the predominant case selection criteria adopted by the Office and is embedded also into considerations of both the degree of responsibility of alleged perpetrators and charging.”(( ICC-OTP Policy Paper on Case Selection and Prioritisation, 15 September 2016, para. 6.)) Pragmatic, doable, and welcoming.
And as we can see, the OTP has a well-conceived process for meeting its responsibility to determine whether a situation meets the criteria under the Rome Statute to warrant an investigation. But, how wise is it to expend resources in pursuing investigations that, on their face, are likely to yield no actionable prosecutions? A robust conversation on the ICC’s activities and efforts to meet its obligations (and how to remain relevant) is essential. My take (here) is that the ICC needs to pick its battles carefully lest it becomes an albatross to the international community.(( The allegory of an “albatross” refers to Samuel Taylor Coleridge’s poem “The Rime of the Ancient Mariner,” in which a sailor who shoots a friendly albatross is forced to wear its carcass around his neck as punishment.)) In some very small measure, I hope this series of posts provokes thought.
Next, the situations in Afghanistan and Ukraine.
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