How the PTC Botched the Ex Parte Request to Investigate Burundi

by Kevin Jon Heller

Last week I argued that the OTP’s failure to ask the Pre-Trial Chamber to authorize an investigation prior to Burundi’s withdrawal from the ICC becoming effective — 28 October 2017 — meant that the Court no longer had jurisdiction over crimes committed on Burundi’s territory prior to that date. I still think my legal analysis is correct, but my factual assumption was clearly not. As it turns out, the OTP filed an authorization request with the PTC on September 15, but did so ex parte and under seal — a possibility the ever-brilliant Sergey Vasiliev discussed a few days ago here at Opinio Juris. The PTC authorized the investigation on October 25, three days before Burundi’s withdrawal became effective, but only released a public redacted version of its decision yesterday, November 9. As it stands now, therefore, the ICC retains jurisdiction over crimes committed in Burundi prior to 28 October 2017.

Unfortunately, the PTC’s decision contains a critical legal flaw — one whose importance cannot be overstated. Because the OTP filed its request to open an investigation ex parte and under seal, Burundi was not informed that the request existed until after the PTC had already decided to grant the request and authorize the investigation. The PTC makes this clear in paragraph 11 of its decision:

11. In sum, the Chamber finds that, on the basis of a combined reading of articles 15(3), 18 and 68(1) of the Statute and rule 50(1) of the Rules, a procedure pertaining to a request for authorization of an investigation may, under certain circumstances, be conducted under seal, ex parte, with the Prosecutor only.

In fact, the OTP did not even inform Burundi about the investigation immediately after the PTC authorized it, because the PTC accepted the OTP’s argument that it needed 10 additional days to ensure that victims and witnesses were protected. (See paragraphs 16-19.)

Here is the problem: Art. 18 of the Rome Statute required the OTP to notify Burundi when it initiated the investigation into the situation there, not when the PTC authorized the investigation. Here is what the PTC says in paragraph 17 (emphasis mine):

17. The Chamber notes that article 18(1) of the Statute provides in the relevant part that, “[w]hen […] the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned”. The words “shall notify” signify the Prosecutor’s duty to proceed with such a notification. The only limitation envisaged is the possibility to limit the scope of the information “where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons”. Accordingly, the Chamber considers that article 18(1) of the Statute, read in conjunction with article 15(1), (3) and (4) of the Statute, establishes in principle that, as soon as a Pre-Trial Chamber has authorized the commencement of an investigation, the Prosecutor must notify States and especially the State which would normally exercise jurisdiction, in order to enable it to assert its primary jurisdiction under article 18(2) of the Statute.

The PTC believes, in short, that Art. 18 does not require the OTP to notify a state about a proprio motu investigation until the Chamber has authorized the investigation. But that is an incorrect interpretation of Art. 18’s notification requirement. Here is the requirement itself — Art. 18(1):

1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.

The question, of course, is precisely when under the Rome Statute the OTP “initiates an investigation.” As paragraph 17 of the PTC’s decision indicates, the PTC believes that “the Prosecutor initiates an investigation” is synonymous with the Chamber “authoriz[ing] the commencement of an investigation.” But those are two separate acts, as Art. 18(2) indicates (emphasis mine):

2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.

Notice the logical and temporal structure of Art. 18(2). The provision is triggered whenever a notified state asks the OTP to defer its investigation on complementarity grounds. When the OTP receives such a request, the default position is that the OTP “shall defer” to the state’s request. The only way the OTP can avoid deferring is to ask the PTC to authorize the investigation. If the PTC grants the OTP’s request, the investigation can proceed.

Art. 18(2) thus specifically distinguishes between the OTP initiating an investigation and the PTC authorizing it. Which is not surprising, because Art. 15 itself does so, as well. Here are the relevant paragraphs of Art. 15 (emphasis mine):

1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

There are four temporal steps here: (1) the OTP receives information about a situation and “initiate[s]” an investigation; (2) the OTP analyzes the seriousness of the information; (3) if the information is serious enough, the OTP files a request with the PTC to authorize the investigation; and (4) the PTC decides whether to authorize “the commencement of the investigation.” The PTC’s decision in the Burundi situation assumes that Step 1 and Step 4 are the same thing — if they are separate, Art. 18’s notification requirement applies before the PTC authorizes an investigation. But that assumption is not only inconsistent with the most natural reading of Art. 15, it is specifically foreclosed by Art. 15(6):

6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information.

Art. 15(6) makes clear that Step 1 and Step 4 are different temporal moments, the former being part of the preliminary examination and the latter being the procedural hurdle once the OTP decides that the preliminary examination justifies opening a formal investigation. If that is not the case — if the OTP “initiates an investigation” only once the PTC “authorizes the commencement of the investigation” — Art. 15(6) would not specifically deem initiating an investigation part of a preliminary examination process that does not include the PTC authorizing a formal investigation.

In short, the Rome Statute distinguishes between the OTP initiating an investigation and the PTC authorizing that investigation. Art. 18(1) requires notification after the first step — not after the second. (“When the Prosecutor initiates an investigation…”) And that makes perfect sense, because the point of Art. 18 is to give a state the opportunity to avoid a formal investigation by arguing to the OTP and (if necessary) the PTC that none of the cases being contemplated by the OTP would be admissible, as Arts. 17 and 53 require.

The PTC’s decision stands Art. 18 on its head. Because of the PTC’s interpretation of Art. 18, the OTP did not have to notify Burundi that it intended to open a formal investigation until after the Chamber had already authorized the investigation. Burundi thus had no opportunity to ask the OTP to defer the investigation, much less formally challenge admissibility before the PTC. So Burundi must now wait until the OTP brings a specific case to challenge admissibility — suffering the indignity of a formal investigation all the while. So much for Burundi’s “primary jurisdiction” under Art. 18(2)!

To be sure, Art. 18 does not specify precisely when the OTP should have notified Burundi of its intent to open an investigation — just that it had to do so in time for Burundi to ask for deferral and challenge admissibility. Despite what Art. 15 seems to suggest, notification cannot be required every time the OTP decides to advance a preliminary examination to Phase 2, “the formal commencement of a preliminary examination,” because at that point the OTP will not have decided whether to pursue a formal investigation and the Presidency will not have constituted and assigned a PTC to the situation. The better interpretation of Art. 18 is that notification is required once the OTP has decided to ask the PTC to authorize an investigation. After all, with regard to state referrals, Art. 18 requires the OTP to notify states when it “has determined that there would be a reasonable basis to commence an investigation.” A decision to request PTC authorization would seem to be the proprio motu equivalent of that.

In the Burundi situation, then, the OTP should have notified Burundi that it intended to open a formal investigation no later than 23 August 2017 — the date that the Presidency constituted PTC III and assigned it to the Burundi situation. (See paragraph 1 of the PTC’s decision.) The Presidency would not have taken that procedural step if the OTP had not indicated its intent to file a formal request for authorization under Art. 15. Indeed, the same day that PTC III elected a presiding judge — August 31 — the OTP filed a request to file a longer authorization request than the rules permitted. (See paragraph 2.)

I have little sympathy for Burundi’s decision to withdraw from the ICC, and I find it exceptionally unlikely that Burundi could have convinced either the OTP or the PTC that a formal investigation was unwarranted because of domestic efforts at accountability. But that does not justify the PTC fundamentally undermining the notification system in Art. 18. That system is of great importance to the states that drafted the Rome Statute, particularly in the context of proprio motu investigations, where their ability to present information to the PTC concerning domestic efforts at accountability is essentially their only effective check on the OTP’s discretion.

Art. 18(4) of the Rome Statute permits Burundi to appeal the PTC’s decision directly to the Appeals Chamber on an expedited basis. It will be interesting to see if it does, given that it now no longer a member of the ICC. I hope that it will, because the PTC’s interpretation of Art. 18’s notification requirement cannot be permitted to stand.

NOTE: I have no problem with the OTP asking for extra time to protect victims and witnesses, as long as notification give the state enough time to ask for deferral. The 10 days the OTP asked for post-notification seems reasonable to me. The 10 days should just have begun to run earlier — from August 23. Thanks to Barrie Sander for calling the issue to my attention.

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