Following the previous post<\/a> on the Majority\u2019s reasoning in finding that the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, let\u2019s look at Judge Marc Perrin de Brichambaut\u2019s Partially Dissenting Opinion<\/a>. It exclusively deals with the Majority\u2019s analysis of its legal basis for entertaining the Office of the Prosecutor\u2019s (OTP) Request<\/a>.<\/p>\n According to Judge de Brichambaut, the Majority issued a de facto <\/em>advisory opinion, which is not permitted under the ICC\u2019s statutory regime. My take is that the Majority\u2019s expansive, imaginative, statutory provision-shopping, and creative (if not tortuous) interpretation of the Rome Statute gives pause to many States Parties and non-States Parties (already suspicious of the ICC), who view such conduct as judicial adventurism and result-determinative bench-legislating.<\/p>\n The OTP based its Request<\/a> on Article 19(3) of the Rome Statute, which provides for the Prosecutor to seek a ruling from the Court on questions of jurisdiction or admissibility.<\/p>\n Specifically, the OTP argued:<\/p>\n Article 19(3) is not confined to any particular stage of proceedings\u2014in its own terms, it draws no distinction between a requested ruling on the Court\u2019s jurisdiction in a particular case or a situation as a whole. Nor does its context require such an interpretation. Although article 19(1) requires the Court to be satisfied that it has \u201cjurisdiction in any case<\/em> brought before it\u201d (emphasis added), judicial practice nonetheless exhibits the Court\u2019s power to address such questions even before a case is opened.((\u00a0\u00a0 Request<\/a>, para. 53.))<\/p>\n In support of its argument that \u201cjudicial practice \u2026 exhibits the Court\u2019s power to address\u201d jurisdiction before a case is opened, the OTP cites two decisions in footnote 120: Prosecutor v. Ahmad Harun and Ali Kushayb<\/em>, ICC-02\/05-01\/07-1-Corr<\/a>, Decision on the Prosecution Application under Article 58(7) of the Statute, 27 April 2007, para. 13; and Situation in the Democratic Republic of the Congo<\/em>, ICC-01\/04-169<\/a>, Judgment on the Prosecutor\u2019s appeal against the decision of the Pre-Trial Chamber I entitled \u201cDecision on the Prosecutor\u2019s Application for Warrants of Arrest, Article 58,\u201d 13 July 2006, paras. 42-53. Intriguingly, the OTP also represented in footnote 120 that \u201c[a] case at the Court is legally commenced when a Pre-Trial Chamber grants an application under article 58 of the Statute [issuance of the arrest warrant or summons by the PTC].\u201d<\/p>\n Neither of the decisions cited by the OTP support its claims that judicial practice exhibits the ICC\u2019s power to address questions of jurisdiction before a case is open. Both decisions deal with requests under Article 58 for issuing arrest warrants or summons to appear to hear the charges. Granted, there is one line in the decisions which says \u201can initial determination as to whether the case \u2026 falls within the jurisdiction of the Court is a prerequisite for the issuance of summons to appear or warrants of arrest\u201d (Prosecutor v. Ahman Harun and Ali Kushayb<\/em>, para. 13; see also<\/em> Situation in the Democratic Republic of the Congo<\/em>, paras. 42-43). But when considered in context, this pithy refrain does not support the OTP\u2019s claim that Article 19(3) envisages the seeking of a decision on a jurisdictional question at the preliminary examination stage, let alone at the pre-preliminary examination stage \u2013 or, to put it more accurately, at the naval-gazing musing<\/em> stage: we are thinking that we might conduct a preliminary examination, but even if it is decided that the ICC may have jurisdiction, we are not committing to conducting one, we are just exploring the possibility.<\/em>((\u00a0\u00a0 Request<\/a>, para. 3.))<\/p>\n The OTP further argued that its<\/em> interpretation of Article 19(3) \u201cis entirely logical, given the bedrock importance of jurisdiction \u2013 which is not only illustrated by article 19(1) itself but also reflected in the general principle known as \u2018comp\u00e9tence de la comp\u00e9tence.<\/em>\u2019\u201d According to the OTP, the very object and purpose of Article 19(3) supported its interpretation, promoting judicial economy in allowing judicial consideration of certain \u201cfundamental questions \u2026 before<\/em> embarking on a course of action which might be contentious.\u201d(( \u00a0\u00a0Request<\/a>, para. 53, italics in original.))<\/p>\n Seemingly, the Majority saw through the OTP\u2019s subterfuge. It did not affirm the OTP\u2019s reasoning based on the authority cited. Nor did it comment on the OTP\u2019s embellishment of cited authority (the decisions which dealt with the issuance of warrants of arrest and summons to appear) which, when carefully considered, did not support its claims. Perhaps, it chose not to highlight theses errors since it had already concluded that it could reach a desired result through other means.<\/p>\n Perhaps the Majority avoided addressing Article 19(3) because it would have had to dismiss the Request, as rightly concluded by Judge de Brichambaut. Not that it would have made a difference, since the OTP could have pressed ahead with a preliminary examination, and as I argue below, deal with the jurisdiction matter through its formal request to investigate. And when you consider the manner in which preliminary examinations are conducted and information gathered (by scouring the web and reviewing open-source material), the OTP would have incurred no cost in completing a preliminary examination and asserting the ICC\u2019s jurisdiction (as it does in its Request) when seeking authorization to investigate (see <\/em>my posts here<\/a> and here<\/a>). Perhaps the optics of dismissing the Request in light of the Rohingya humanitarian tragedy that is ever-present in the media, coupled with a lack of intestinal fortitude to make tough decisions that may appear callous, was the reason for the Majority searching for a bypass, another statutory provision and\/or legal principal to justify a result which, in reading the tea leaves, seems to have been pre-ordained. Hence the Majority\u2019s reliance on Article 119(1) and the principle of la comp\u00e9tence de la comp\u00e9tence<\/em>.<\/p>\n The Majority invoked Article 119(1) found in Part 13 of the Rome Statute as one of the \u201cFinal Clauses.\u201d In part it reads that \u201c[a]ny dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.\u201d The Majority found that based on the various public statements by the Myanmar government, the issue before the Pre-Trial Chamber (PTC) \u2013 whether the ICC may exercise jurisdiction over the alleged deportation \u2013 was \u201cclearly subject to dispute with Myanmar.\u201d Citing, again, a number of academic commentaries, the Majority observed that Article 119(1) has been interpreted to include questions related to jurisdiction. The Majority went on to find that it had the power to rule on jurisdictional issues in accordance with the established principles of international law applicable under Article 21(1)(b) of the Rome Statute, such as the principle of la comp\u00e9tence de la comp\u00e9tence <\/em>(i.e. any international tribunal has the power to determine the extent of its own jurisdiction).((\u00a0\u00a0 Majority\u2019s Decision<\/a>, paras. 28-30.))<\/p>\n Judge de Brichambaut\u2019s dissent is illuminating, compelling, and persuasive. Had the Majority heeded his analysis, the OTP would most likely be at the stage of seeking authorization for investigation or perhaps in the middle of a full-blown investigation.<\/p>\n It is difficult to find fault with Judge de Brichambaut\u2019s reasoning for being unmoved by the OTP\u2019s reliance on Article 19(3), noting:((\u00a0\u00a0 Dissent<\/a>, paras. 10-13.))<\/p>\n As for the Majority\u2019s claim that there was a \u201cdispute\u201d that triggered Article 119(1), Judge de Brichambaut elegantly dispensed with this canard by showing otherwise: Myanmar simply noted on a public information website that it was disinclined to engage with the ICC, that it had no obligation to cooperate, Myanmar was not a State Party, there was no judicially authorized investigation ongoing, and that for all intents and purposes, at the time being, the OTP was the only interested party. Meticulously, Judge de Brichambaut showed that the jurisprudence relied on by the Majority from the Permanent Court of International Justice and the International Court of Justice did not define \u201cdispute\u201d in comparable context (before any judicially authorized proceedings commenced, or after the filing of complaints or assertions of a party\u2019s rights). But even if Myanmar\u2019s press releases gave rise to a dispute, Judge de Brichambaut rightfully noted that invoking Article 119 was equally premature since the OTP had not yet asked the ICC to assert its jurisdiction over the situation at hand. He observed that the Majority arguably embroidered in asserting that Article 119(1) includes issues of jurisdiction based on academic interpretations, which, upon closer scrutiny, were more nuanced than the Majority claimed; the authors merely made tentative suggestions as to what Article 119(1) may include.<\/p>\n Invoking the principle of la comp\u00e9tence de la comp\u00e9tence <\/em>\u2013 as if the issue before the PTC was whether the ICC has the authority to decide questions of its own jurisdiction \u2013 was a red herring. Judge de Brichambaut saw through the OTP\u2019s and Majority\u2019s specious reliance on la comp\u00e9tence de la comp\u00e9tence. <\/em>Noting that there was no lacuna warranting the application of this principle, when, in fact, Article 19(3) deals specifically with the challenges to jurisdiction, he reminded the Majority of the recent cautionary note struck by the Appeals Chamber in Bemba et. al<\/em>.,<\/em> that chambers \/ judges should only invoke their inherent judicial powers in a very restrictive way, and that the purpose of the principle is to \u201cserve as a mechanism to resolve conflicts of law and prevent unilateral obstruction by litigation or arbitration.\u201d((\u00a0\u00a0 Dissent<\/a>, para. 26.)) Suffice it to say, no one was challenging the ICC\u2019s authority to entertain its own jurisdiction. At stake was whether at that point in time, when no investigation or even a preliminary examination was ongoing, the issue was ripe for the PTC to entertain.<\/p>\n Judge de Brichambaut got it right.<\/p>\n The OTP\u2019s Policy Paper on Preliminary Examinations<\/a><\/em> provides for a four-step process in determining whether there is a \u201creasonable basis\u201d for the OTP to request judicial authorization to commence an investigation into a situation: (1) assessing the seriousness of allegations based on communications filed according to Article 15 and other information available, such as third parties\u2019 reports; (2) determining whether the ICC has jurisdiction (temporal, subject matter, territorial, and\/or personal jurisdiction) over the alleged crimes; (3) determining admissibility: whether a national court is already dealing with this situation (complementarity), and whether a crime is of sufficient gravity; and (4) whether, regardless of jurisdiction and admissibility, there are nonetheless reasons to believe that an investigation would not serve the interests of justice. (For more, see <\/em>my posts on OTP\u2019s preliminary examinations here<\/a> and here<\/a>.)<\/p>\n When you consider this four-step process set out by the OTP, the factual matrix in its Request, and the OTP\u2019s compelling argument asserting the ICC\u2019s jurisdiction over the crime of deportation, one can conclude with a modicum of intellectual honesty that at the time when the Request was submitted, the OTP already had a sufficient basis for making a request for an investigation. So why the charade?<\/p>\n There was no need to request a jurisdictional ruling other than to perhaps obtain some political cover or a \u201cgreen light\u201d from the PTC before venturing into an investigation. In the event the PTC found no jurisdiction, the OTP could have conveniently declined any communications or the need to act on its own, leaving it up to the UN Security Council to call for an investigation under Article 13(b).<\/p>\n Judge de Brichambaut\u2019s observation that the Majority acted proprio motu<\/em> in looking for an alternative legal basis to entertain the Request, while interesting, is not inappropriate as such. Judges at the ICC (and elsewhere), in seeking the truth and applying the law faithfully, have the inherent power to raise issues or examine alternative statutory provisions or legal authority on their own. Where it does come into question, as Judge de Brichambaut noted, is when the Majority latches on to statutory provisions, which, however sliced and diced, are irrelevant or inapplicable, and uses them as a pretext to achieve what would appear to be a desired result.<\/p>\n The better approach for the Majority would have been to adopt Judge de Brichambaut\u2019s position. The Request should have been denied as premature. Guidance could have been provided to the OTP to conduct (or complete) a preliminary examination and then, where it to have found a reasonable basis to proceed with an investigation, make an appropriate request, as it has done in the past, at which point the OTP would make its argument as to why the ICC has jurisdiction.<\/p>\n In the end, one may say that it all came out in the wash. That inevitably, the PTC would have confirmed that the ICC has jurisdiction over the alleged crime of deportation in the present situation. So, you may ask, what\u2019s the fuss?<\/p>\n Well, the answer depends on whether we want judges at the ICC interpreting statutory provisions expansively and going out of their way to circumvent the procedure in a hunt for ways to reach a desired result, or whether we want them to strictly apply statutory provisions as the drafters intended and let the rulings fall where they may.![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2018\/10\/Image-2.png?resize=194%2C259&ssl=1\")
<\/a>Finding no need \u201cto enter a definite ruling on whether article 19(3) of the Statute is applicable at this stage of the proceedings,\u201d the Majority punted by claiming that that there are different and \u201cquite controversial\u201d academic interpretations of Article 19(3) \u2013 citing, of course, academic commentaries. As I noted in my previous post<\/a>, echoed by Judge de Brichambaut, academic commentaries are not a substitute for legal authority, irrespective of the added value they may provide in support of legal authority. But more scandalously, when judges, whether sitting individually or in a chamber, are called upon to interpret statutory provisions and decline to do so without legal reasoning (especially because academics, who have no stake in the process, disagree), this amounts to an abdication of their responsibilities. It turns the well-recognized maxim Da mihi factum, dabo tibi ius<\/em> (give me the facts, I\u2019ll give you the law) on its head.<\/p>\n\n
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