Piecing the Withdrawal Puzzle: May the ICC still open an investigation in Burundi? (Part 1)

[Sergey Vasiliev is an Assistant Professor of International Law, Grotius Centre for International Legal Studies, Leiden University. This is the first part of a two-part contribution.]

Questions raised by the ICC’s reaction to Burundi’s withdrawal

On 27 October 2017, one year after Burundi notified the UN Secretary-General of its intention to withdraw from the Rome Statute, the withdrawal became effective in accordance with Article 127(1). The preliminary examination of the situation in Burundi has been ongoing since 25 April 2016, as announced by the Prosecutor. The expiry of the ‘cooling off period’—and the first effective withdrawal in the ICC’s 15-year history—was an event of some significance; more so perhaps than those covered in its press releases on or around the same date. The observers expected an official acknowledgement from the Court that the Article 127(1) term had ended. The Court could have also taken the opportunity to provide clarity on the status of the situation to the public and, above all, to the withdrawing State whose representatives (like some Bijumbura residents), yearned for a sense of closure and had already bade the Court a festive farewell.

Disappointingly, no planned ICC statement followed. The ICC spokesperson’s curt and enigmatic response to the journalists’ queries (see BBC, AP, Al Jazeera and communications to Benjamin Dürr and Anna Holligan) only thickened the plot. The spokesperson intimated that an announcement regarding the results of the Burundi preliminary examination would be made in due course in accordance with the OTP’s practice. More controversially, he asserted that ‘the Burundi withdrawal does not affect the jurisdiction of the Court with respect to the crimes alleged to have been committed during the time it was a State Party, namely up until 27 October 2017’.

The latter point raises questions about the legal consequences of withdrawal: in particular, whether the Court retains jurisdiction over the crimes committed in Burundi while it was a State Party, and whether an investigation could still be opened in the aftermath of the withdrawal. The OTP’s 2016 Report on Preliminary Examination Activities neither unequivocally asserted nor ruled out the possibility of initiating an investigation after the withdrawal becomes effective: ‘According to its legal assessment, the Office could also initiate investigations at least during this one-year period.’ (para. 60). Notably, the Report said nothing about the impact of the withdrawal on jurisdiction. The position that jurisdiction remains unaffected is far-reaching and not as straightforward as presented in the statement; the issue of jurisdiction is not squarely addressed in Article 127. This led some observers (this writer included) to wonder whose legal opinion the spokesman expressed and what the legal basis for it was.

The—so far the only available—ICC’s official reaction to the Burundi’s effective withdrawal is in line with the view expressed by the authors of the Amnesty HRIJ blog post and other commentators (see Alex Whiting’s 2016 post), who consider that the consummation of withdrawal does not (necessarily) extinguish the ICC’s jurisdiction. The authors of the Amnesty HRIJ post further argue that, therefore, an investigation into the Situation in Burundi could still be opened, even after 27 October 2017. Somewhat differently, Alex Whiting found Article 127(2) of the Statute to be unclear on this point—which it certainly is—and, therefore, considered it safer for the Prosecutor to request judicial authorization under Article 15(3) before the withdrawal became effective. By contrast, Dov Jacobs and Kevin Jon Heller took the position in their recent posts that the ICC had missed the train and that no formal investigation could be launched as of 27 October 2017. I agree with this conclusion but take a different route in arriving at it. 

Confidential request scenario

Before explaining why opening an investigation is in my view no longer an option, absent any material change in circumstances (such as Burundi re-acceding to the Statute or filing an Article 12(3) declaration), I should clarify that this argument, which I set out in Part II of this post, is limited to the scenario under which the Prosecutor had not filed a confidential request for an authorization to launch an investigation before the withdrawal became effective.

I will briefly consider here the alternative scenario, namely that the Article 15(3) was filed confidentially. There is nothing in Article 15(3), Rule 50, or Regulations 45 and 49 RoC to preclude a confidential request, and I do not rule out the possibility that the Prosecutor did file one prior to 27 October. This is still a missing piece of the factual puzzle at present and it will be dispositive of the possibility to open an investigation in the aftermath of the withdrawal.

On the one hand, one would think of a confidential request as an unusual and unlikely move for the Prosecutor. Firstly, as Dov has noted, this would depart from previous practice: past requests under Article 15(3) were filed as public documents (with confidential annexes). Second, going confidential seems peculiar in the situation complicated by the impending withdrawal—which is a factor arguably calling for transparency rather than confidentiality—absent any (self-evident) situation-specific reasons for keeping both the Regulation 45 notice and the Article 15(3) application under seal. On the other hand, I admit that the OTP possibly had good grounds for preferring to proceed confidentially, which are not (yet) in the public domain relating, for example, to the serious security risks for information providers.

If the Prosecutor did make a confidential Article 15(3) request, I believe it could be decided upon by the PTC even after 27 October 2017, with the possibility of giving the green light to the investigation. The second part of the second sentence of Article 127(2) allows for a ‘continued consideration of [the] matter which was already under consideration by the Court prior to the date on which the withdrawal became effective’. The ‘matter’ here would be the OTP request under Article 15(3) (as opposed to the preliminary examination as such, which, as I explain below, is a different ‘matter’); the question before the judges being whether there is ‘a reasonable basis to proceed with an investigation, and [whether] the case appears to fall within the jurisdiction of the Court’ (Article 15(4)). The notion of ‘matter’ is sufficiently broad (and vague) to cover an OTP request to open investigation. Since it would be the PTC judges who would be seized of it at the time when the withdrawal became effective, it is not an issue whether ‘the Court’ in the second sentence of Article 127(2) refers to the judiciary alone or also includes other organs (such as the OTP).

If the (hypothetical) confidential request to open an investigation was indeed filed before the expiry of the Article 127(1) term and is going to be authorized by the PTC after that deadline, the investigation cannot be considered as having been ‘commenced prior to the date on which the withdrawal became effective’. In that case, Article 127(2) exempts Burundi from an obligation to cooperate with the Court in connection with the investigation. It is questionable whether opening the investigation within one year since the withdrawal notice rather than later would have made any difference in terms of the availability of cooperation. As others note, Burundi would likely be unwilling to cooperate with the Court even if it were under an obligation to do so. But it does matter, both legally and symbolically. If the investigation had been commenced before 27 October 2017, the Court would have been legally entitled to demand cooperation from the former State Party in connection with the investigation, possibly also giving it a stronger leverage with actors capable of inducing cooperation politically. Burundi would have also had a more difficult time justifying any failures to perform its cooperation duties.

In Part II of this post, I will look at the scenario under which no confidential Article 15(3) request had been filed before the withdrawal became effective (while accepting the possibility that the future will prove me wrong). It is important to consider, as a matter of law, whether a proprio motu investigation may be initiated in respect of a situation in a State that has effectively withdrawn from the Statute.