Vargas Niño’s Mistaken Critique of My Position on Burundi

Spreading the Jam has a guest post today from Santiago Vargas Niño criticising my argument that the OTP was required to notify Burundi as soon as it decided to ask the OTP to authorize the investigation. Here is what he says:

Professor Heller cites Article 15(6) to argue that, by receiving information under articles 15(1) and 15(2) of the Statute, the Prosecution has initiated an investigation. An equally plain reading of Article 18 would suggest that a parallel duty to notify concerned States would arise as soon as a situation caught the Prosecutor’s eye. Yet he acknowledges that “notification cannot be required every time the OTP decides to advance a preliminary examination (…) The better interpretation of Art. 18 is that notification is required once the OTP has decided to ask the PTC to authorize an investigation.”

Not only is that moment different to the “initiation” of an investigation, both under articles 15 and 18, thus rendering any claims of “natural” interpretation of the Statute inane, but professor Heller’s amalgamation of preliminary examination and investigation flies in the face of Article 15(3). This provision orders the Prosecution to submit a request for authorisation if it concludes that there is a reasonable basis to proceed with an investigation. Years of unchallenged practice have led to the understanding that such conclusion can only be reached through the preliminary examination, a stage that precedes the opening of an investigation and that is described by Article 15(2) – not by Article 15(1). Professor Heller’s argument also discounts the significance of Article 15(4), which squarely attributes the power to authorise the “commencement” (i.e. “initiation”) of an investigation to the PTC, and which conditions it upon the Prosecution’s demonstration that there is a reasonable basis to proceed under Article 53(1).

Furthermore, equating the launch of a preliminary examination with the artificial “initiation” of an investigation under Article 15(1) is extremely risky. If that were the case, the Prosecution should not have rushed to apply for authorisation to commence an investigation in Burundi before 25 October 2017 because its preliminary examination would have constituted a “criminal [investigation] (…) which [was] commenced prior to the date on which the withdrawal became effective” under Article 127. Such interpretation would also allow the Prosecution to exercise its powers under Article 54, as professor Jacobs puts it, since the moment: “an OTP investigator sitting in front of his computer in The Hague [starts] downloading HRW and Amnesty International reports.”

According to Vargas Niño, my argument “stems solely from [my] peculiar approach to Article 15.” Alas, it is his approach that is peculiar. And not just peculiar — wrong.

Let me start with the one point Vargas Niño makes that is not misplaced: that my reading of Art. 18 might suggest notification is required every time the OTP decides to advance a preliminary examination to Phase 2, “the formal commencement of a preliminary examination.” I avoided that nonsensical conclusion by analogizing “initiating an investigation” in Art. 15(1) to “determining that there would be a reasonable basis to commence an investigation,” which is when the notification requirement applies for state referrals. Although that analogy makes more sense than claiming “initiating” and “authorizing” mean the same thing in Art. 15 — Vargas Niño’s position — it is not the strongest argument standing alone. What I now realize is that I was overlooking one of the best pieces of evidence for my insistence that “initiating” and “authorizing” in Art. 15 refer to different temporal moments of the proprio motu process: namely, Art. 53(1). Here is what the provision says:

The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether…

Art. 53(1) applies to all investigations — state referrals, Security Council referrals, and investigations proprio motu. The language of paragraph 1 makes no sense, however, if “initiating” and “authorizing” mean the same thing for purposes of Art. 15. It is painfully obvious that the OTP evaluates information and determines whether there is a reasonable basis to “initiate an investigation” under Art. 53(1) before the PTC “authorize[s] the commencement of the investigation” under Art. 15(4) Yet Vargas Niño would have us believe that the OTP only initiates an investigation once the PTC has authorized it.

Equally importantly, Art. 53(1) indicates why my “inane” reading of Art. 15 is actually the correct one. As the provision makes clear, the OTP initiates an investigation — of any kind — only once it has determined that there is a reasonable basis to proceed. For state referrals, nothing more is required. For proprio motu investigations, by contrast, there is still an additional step: PTC authorization. The duty to notify, however, kicks in at the same point for both types of investigation: when the OTP finds the necessary reasonable basis “to proceed under this Statute.” That is why Art. 18(1) contains a unitary notification requirement:

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.

Vargas Niño reaches his interpretation of “initiates” by simply pretending Art. 15(6) does not exist. Here — again — is what the provision says (emphasis mine):

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. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.

The term “initiates” appears only once in Art. 15 — in paragraph 1. “Authorization” does not appear in either paragraph 1 or paragraph 2 — it appears in paragraph 3 as part of the OTP’s request for authorization, in paragraph 4 in terms of the PTC decision to authorize, and in paragraph 5 with regard to the consequences of the PTC declining authorization. Yet Vargas Niño asks us to believe that the OTP doesn’t initiate an investigation for purposes of paragraph 1 until the PTC has authorized it under paragraph 4. That argument is specifically foreclosed by the plain language of Art 15(6), which limits the preliminary-examination process to paragraphs 1 and 2 — an inconvenient fact that almost certainly explains why Vargas Niño simply ignores the provision.

Similar arguments rebut Vargas Niño’s claim regarding my supposed “amalgamation of preliminary examination and investigation.” I am doing no such thing. On the contrary, I am simply taking Art. 15(6) seriously, distinguishing the acts it specifically allocates to the preliminary examination (the OTP initiating the investigation and considering the seriousness of the information it receives) from the acts it does not allocate to it (the OTP submitting a request for authorization and the PTC authorizing the investigation). By contrast, unless he simply rejects Art. 15(6), Vargas Niño necessarily views all of those acts as part of the preliminary examination, because he insists that the OTP does not initiate an investigation for purposes of Art. 15(1) until the PTC authorizes it under Art. 15(4).

There is, of course, nothing remotely strange about my view of the preliminary-examination process — because it is not my view. It is Art. 15(6)’s. Vargas Niño might not like Art. 15(6), because it is irreconcilable with his preferred understanding of when notification is required in proprio motu investigations, but it’s right there in the Rome Statute. And let us not forget one exceptionally critical point: Art. 15(6) is the only provision in the entire Rome Statute that specifically mentions the preliminary examination. At a minimum, then, it behooves those who find Art. 15(6) inconvenient to explain why the provision means something completely different than what it actually says.

Finally, it is necessary to address Vargas Niño’s argument concerning Art. 127, the withdrawal provision:

Furthermore, equating the launch of a preliminary examination with the artificial “initiation” of an investigation under Article 15(1) is extremely risky. If that were the case, the Prosecution should not have rushed to apply for authorisation to commence an investigation in Burundi before 25 October 2017 because its preliminary examination would have constituted a “criminal [investigation] (…) which [was] commenced prior to the date on which the withdrawal became effective” under Article 127.

This is mistaken, which is easy to see once we quote Art. 127(2)’s cooperation provision in full, not partially as Vargas Niño does. Here it is (emphasis mine):

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective.

The problem with Vargas Niño’s argument is that a state has a duty to cooperate with the Court only once it is being formally investigated. During the preliminary-examination process, it has no such duty — as the OTP openly acknowledges in its policy paper on preliminary examinations:

85. At the preliminary examination stage, the Office does not enjoy investigative powers, other than for the purpose of receiving testimony at the seat of the Court, and cannot invoke the forms of cooperation specified in Part 9 of the Statute from States.

Contrary to what Vargas Niño says, therefore, the OTP would not have been able to preserve its ability to formally investigate Burundi merely by initiating a preliminary examination. The Burundi situation only became a “criminal investigation… in relation to which the withdrawing State had a duty to cooperate” when the PTC authorized the investigation. Once again, Vargas Niño’s error is evident: the OTP “initiating” an investigation as part of the preliminary-examination process is not the same as the PTC “authorizing” the investigation after that process is complete.

As Art. 15(6) makes clear.