A Response to Dov Jacobs on the Burundi Investigation

At Spreading the Jam, Dov Jacobs defends the Pre-Trial Chamber’s conclusion in the Burundi situation that the OTP is not required to notify a state until after the PTC has authorized an investigation. Here are the critical paragraphs from his post:

Note the different language used [in Art. 18] depending on whether there is a referral under 13(a) (state referral) or 13(b) (proprio motu): in the former case, the notification must come when “the Prosecutor has determined that there would be a reasonable basis to commence an investigation”, in the latter the notification must come when “the Prosecutor initiates an investigation” pursuant to Article 15. This seems to mean that the initiation of an investigation is something different, in a proprio motu context, that the fact that the OTP considers that there is a reasonable basis to proceed with an investigation. For me, this means that all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in. The determination by the Prosecutor that “there is a reasonable basis to proceed with an investigation” (Article 15(3)), which is sufficient to initiate an investigation under 13(a) is only one step of the procedure under article 15. Kevin seems to equate the authorisation under 15(4) and authorisation under 18(2). But I think these are two different “authorisations”. Under 15(4), a PTC authorises the initiation of a proprio motu investigation, while under 18(2), it is an authorisation to investigate despite the request for deferral by a State, irrespective of whether the investigation was initiated initially under 13(a) or 13(c).

I think the confusion comes from a possible misunderstanding on the scope of Article 18. Article 18 provides for a limited procedure to be followed for a preliminary ruling on admissibility which I think is self-contained within Article 18. Which means that in my view the notification requirement under Article 18 cannot be read in as a condition for the validity of the Article 15 procedure. I should add also that Article 18 does not lead to a formal challenge to admissibility, which will fall under Article 19. In this sense, I do not think Kevin is right (whether one agrees with his interpretation of Article 18 or not) in saying that Burundi will not be able to challenge admissibility before a case is brought. They will be able to do so at any time (especially given the ICC’s case law that “case” in the Rome Statute does not really mean “case” in the context of admissibility questions, which is why everybody assesses admissibility as early as the PE phase. I think that doesn’t make sense, but that is a different debate…).

In my view, though clever, Dov’s argument is problematic. The first problem concerns his claim that “all procedural steps of Article 15 need to have been followed (including the formal authorisation) before the notification obligation of Article 18 kicks in.” That position is irreconcilable with Art. 15. As I pointed out in my previous post, Art. 15 not only specifically distinguishes between the OTP initiating an investigation proprio motu (paragraph 1) and the PTC authorizing the commencement of that investigation (paragraph 4), it specifically deems the former but not the latter part of the preliminary-examination process (paragraph 6). Paragraph 6 makes no sense if “initiates” in paragraph 1 refers to all of the steps in Art. 15, including authorization.

The only way Dov can avoid that critique is to assert that “initiates” in Art. 15(1) does not mean the same thing as “initiates” in Art. 18(1). If they mean the same thing, Art. 18(1)’s notification requirement necessarily kicks in — as I previously argued — prior to the PTC authorizing the proprio motu investigation (because Art. 15(6) says initiating is part of the preliminary-examination process and authorization is not). Dov provides no evidence that “initiates” means different things in Art. 18(1) and Art. 15(1), and any such argument is difficult to reconcile with the fact that Art. 18(1) specifically refers to “the Prosecutor initiat[ing] an investigation pursuant to articles 13 (c) and 15,” thereby using “initiates” in Art. 15(1) to give meaning to Art. 18(1)’s notification requirement. Moreover, if the drafters of Art. 18 wanted the proprio motu notification requirement to kick in only after all of the steps in Art. 15 had been completed, why would they not simply have written “or the Court authorizes the commencement of the investigation” instead of “or the Prosecutor initiates an investigation”?

Equally problematic is Dov’s insistence that Burundi will be able to challenge the validity of the proprio motu investigation even though the PTC has already formally authorized it. Dov’s argument to that effect is strangely devoid of any reference to the actual language of Art. 19; he simply says that “’case’ in the Rome Statute does not really mean ‘case’ in the context of admissibility questions.” If Dov believes that Art. 19 allows a state to shut down an already-authorized proprio motu investigation by invoking complementarity, he should make the argument. In my view, nothing in Art. 19 permits such a challenge, given that the Article is limited — both in name and in terms of its specific provisions — to cases. Art. 19(2) is particularly revealing in that regard, as it specifically limits jurisdiction and admissibility challenges to “[a]n accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58” (subparagraph a) or “[a] State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted” (subparagraph b).

Dov’s reading also makes a mishmash of the relationship between Art. 19 and Art. 15. If Dov is right, a state can use a complementarity challenge under Art. 19 to shut down a proprio motu investigation that has already been authorized by the PTC under Art. 15. Yet the PTC has to consider issues of complementarity in order to authorize a proprio motu investigation in the first place, because it has to find the OTP’s contemplated cases admissible in order to conclude that there is a “reasonable basis to proceed with [the[ investigation.” Dov’s position thus requires the PTC to consider complementarity twice in Burundi-like situations: once when the OTP asks it to authorize a proprio motu investigation ex parte (under Art. 15), and again when the affected state asks it  to defer the investigation (under Art. 18). When deciding to authorize the investigation, the PTC will hear only from the OTP; when deciding to defer the investigation, the PTC will hear from both the OTP and the PTC. Why would the drafters of the Rome Statute adopted such a duplicative and cumbersome process? My (textually sound) interpretation of Art. 18’s notification process makes much more sense, because it means that the PTC will only address complementarity once, before it authorizes a proprio motu investigation.

My interpretation is also superior to Dov’s in terms of the politics of proprio motu investigations. If Dov’s interpretation of the Rome Statute is correct, a state facing referral by another state can use Art. 18 to prevent the PTC from ever formally approving the OTP’s belief that an investigation is warranted, while a state facing proprio motu investigation cannot invoke Art. 18 until after the PTC has formally approved a similar belief. States are thus better off being referred by another state than being investigated proprio motu whenever the OTP can convince the PTC to grant the latter ex parte. It goes without saying, however, that states at the Rome Conference were far more concerned by proprio motu investigations than state referrals.

Dov’s defense of the PTC’s interpretation of Art. 18’s notification requirement is very clever. But I think it’s also clearly incorrect.