A Comment on Kevin Jon Heller’s Piece by Darryl Robinson

[Darryl Robinson, Assistant Professor, Faculty of Law, Queen’s University, responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

In Defence of the “Same Conduct” Test for Admissibility

Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion on complementarity (regarding when the ICC should defer to national proceedings over a case). The article has two main features. The first is a convincing critique of approaches to admissibility that would focus on the charges brought at the national level (for example, whether the state charged using international definitions or ‘ordinary’ offences). The second is a proposal to replace such approaches with one focused on the sentence.

I examine Kevin’s main arguments in more detail elsewhere (Three Theories of Complementarity). I agree with Kevin’s critiques of approaches to admissibility that focus only on the charges. However, I argue that that an exclusively sentence-based approach also raises some quite serious difficulties, including inter alia that comparing a particular sentence to international ‘averages’ is not sufficiently subtle to evaluate national proceedings. I therefore suggest a third option, a process-based approach. A process-based approach can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process. I think that Kevin’s work offers some very important insights about the limited role of charges and the potentially significant role of sentences, which should be incorporated into any theory of complementarity.

In this posting, I want to focus on one narrow issue raised in A Sentence-Based Theory and in other recent thoughtful scholarship. Kevin and others have raised important concerns about the “same conduct” test, which is the test employed by ICC chambers to determine if a state is proceeding with the same “case”. Because this question is very current in scholarship and in the blogosphere, it is timely and valuable to examine it here. While I partially agree with the concern, I will try to demonstrate that the problem is actually much narrower than it is widely perceived.

By way of background, the first step in the admissibility test in Article 17 of the ICC Statute requires the Court to determine whether “the case” is being investigated or prosecuted (Article 17(1)(a)) or has been investigated (Article 17(1)(b)). To determine whether a national proceeding concerns the same “case”, ICC jurisprudence asks whether it concerns the same person and “substantially the same conduct”.

Kevin, like other scholars in recent literature, argues that the same-conduct test is too stringent. The concern is that same-conduct test “privileges the ICC instead of states” because it requires national authorities to investigate the specific conduct that the ICC is investigating. It is argued that the test requires governments to be “mindreaders” because they have to anticipate ICC case. If the state selects a different case, then the Court would be “required to preempt national proceedings” and “would be powerless to refuse to admit the case”. Thus, “because of the same-conduct requirement, [states] cannot charge crimes—including serious ones—that involve conduct the ICC is not investigating, even if prosecuting different conduct would be far more likely to result in a conviction.” Kevin argues that it is arbitrary and without justification for a case to be admissible just because national proceeding is based on different conduct.

While I agree that a margin of flexibility is indeed needed in identifying the “case”, I want to show that the scope of the problem is considerably narrower than it is generally perceived. In particular, I want to show that the scenario where a state wishes to prosecute the same person for a different case is not an admissibility issue. Nor is it a lacuna of the Statute: I will show that the scenario is addressed by other provisions of the Statute, and they address it better than Article 17 could. I would like to contribute four points to this discussion.

First, Article 17 does not exhaust the principle of complementarity. Article 17 is an important but technical admissibility rule, which renders cases inadmissible before the ICC if they are genuinely addressed by states. Article 17 is certainly a centerpiece of complementarity, and it is understandable that it is often the focus of complementarity discussion. However, insofar as ‘complementarity’ refers to the broader interplay and division of labour between national jurisdictions and the ICC, it is woven through many articles of the Statute, and in many more profound respects remains to be fleshed out by policies of the Court.

In this vein, we find that the “different case” scenario is already expressly contemplated and addressed in Part 9 of the Statute. Articles 89(4) and 94(1) provide for consultation between the state and the Court where the Court’s request (for assistance in general or for surrender specifically) would interfere with the state’s investigation or prosecution of a different case. Both provisions are linked to the general consultation provision. Kevin’s article is an advance on many other works, because it acknowledges Articles 89/94. However, it does so only briefly, without fully assimilating the profound implications of Articles 89/94 for the critique of the same-conduct test and the scope of admissibility. My aim here is to press a little further in exploring those implications.

Second, there is not a lacuna in the Statute requiring repair. It is simply not true that the Court would be powerless to refuse to admit the case or required to preempt the national proceedings. The Statute provides the Court with two distinct ways to defer its case. One, as was just mentioned, the consultation mechanism expressly allows the Court to defer in this exact scenario. Furthermore, there is also a second mechanism, the “interests of justice” test (Article 53(2)(c)). The ICC could decide it is no longer in the interests of justice to invest resources prosecuting an aged defendant who has already been punished for different but related crimes.

Third, to address the “different case” scenario through admissibility is not only unnecessary (for the reasons just given) and legally unavailable (since Article 17 inquires about the “case”): it is also normatively undesirable. Under the existing Statute regime, wherein competing claims are resolved through the consultation mechanism, the issue is one of sequencing, ie. which jurisdiction does its case first. If however we stretch the admissibility regime, we encounter a problem, because a genuine national proceeding renders a case forever inadmissible. Assume that we follow the suggestion of scholars, so that case X can be rendered inadmissible because case Y is being investigated and prosecuted. The case would be rendered inadmissible not only during ongoing genuine national proceedings (Article 17(1)(a)), it also remains inadmissible once the state brings the proceedings to a genuine conclusion (Articles 17(1)(b) and (c)). It makes sense that the successful handling of case Y renders case Y inadmissible; it does not make sense for it to render cases X or Z inadmissible. A conviction for one crime (eg. large-scale embezzlement) does not and should not legally insulate a person from future proceedings for a completely different crime (eg. orchestrating mass murders).

Which brings me to my fourth and final point: admissibility is quite rightly about the case, not just as a matter of positive law or a happenstance of drafting, but as matter of fundamental structure. The case remains admissible before the ICC because no jurisdiction on earth has dealt with the case. There may be reasons other than admissibility for the Court not to deal with the case. The Court may defer to a national prosecution of a different case as a cooperation matter (Part 9), or the Court may conclude it is not in the ‘interests of justice’ to pursue further a person who has already been extensively punished. However, the limit on how much we might pass one person around to face justice for his or her diverse crimes is the ‘interests of justice’, not admissibility.

A strong counterpoint can be made to my argument. One could argue that reliance on the consultation regime is unsatisfying, because it leaves too much discretion to the Court. One could argue, in the name of precision and certainty, that there should be a juridified process in which the state is entitled to bring a formal legal challenge based on its pursuit of a different but important case. The argument has merits, but also encounters some complexities (as I discuss in Three Theories). Moreover, at this early stage, it is not clear that there is a problem requiring us to codify the factors for the consultation system, as the Court has so far never rejected a request for deferral. It may be preferable to let the Court develop its practice on the issue in light of experience.

My aim in this posting was to show that the problems, if any, with the same-conduct test are much narrower than is widely perceived. Importantly, the admissibility test is not and should not be the solution to all questions about national versus international prosecution. It is simply a legal bar resolving specific conflicts over a particular case. The ‘different case’ scenario is quite elegantly addressed in Part 9, and stretching the admissibility regime to cover the scenario would produce incoherencies. Accordingly, I do agree with Kevin and others about the need for flexibility, but I would confine that flexibility to situations of overlap between the national inquiry and the ICC inquiry.