Article 18 and the Iraq Declination

In my previous post, which was quite critical of the OTP’s decision not to seek authorization to investigate British war crimes in Iraq, I made two central points. The first was that, pursuant to the Afghanistan appeals judgment, the OTP would not have needed to present the Pre-Trial Chamber (PTC) with information concerning complementarity and the PTC would not have been able to reject the request on complementarity grounds. The second was that, although the OTP did have to consider complementarity internally, it did not need to conclude that its evidence satisfied a “high threshold” for finding the UK unwilling to genuinely investigate. A “reasonable basis” for that conclusion was all that was required.

I stand behind my analysis, but it is only fair to note that Art. 18 of the Rome Statute makes the OTP’s position on complementarity somewhat less problematic than it might first appear — even if we still disagree, as I do, with the OTP’s decision not to seek authorization to investigate. In this post I will explain why.

In the proprio motu context, Art. 18 applies once the PTC has authorized the OTP to formally investigate a situation. After the OTP receives authorization, it is obligated to “notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned” about the investigation. That’s Art. 18(1). A notified state can then request — and effectively demand — that the OTP defer the investigation on complementarity grounds. Here are the relevant paragraphs of Art. 18:

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.

3. The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.

The judiciary has yet to interpret Art. 18, which is not the picture of clarity. It may have that opportunity soon, however, because Afghanistan invoked Art. 18 earlier this year — one week after the Appeals Chamber (AC) authorized the OTP to investigate the situation there.

The OTP’s decision not to seek authorization of the Iraq investigation has to be considered in light of Art. 18. Given that the UK obviously believes its domestic proceedings satisfy complementarity, there is little question it would have invoked Art. 18 if the PTC had opened the Iraq investigation. At that point, the OTP would have needed to convince the PTC that the UK was, in fact, unwilling to genuinely investigate — precisely what it would not have to needed to do at the authorization stage.

The practical inevitability of litigating complementarity likely explains the nine words in the OTP’s Final Report that I found so objectionable: “with evidence that it could rely upon in court.” The OTP was probably referring to the near-certainty that the UK would invoke Art. 18 immediately after the PTC authorized the Iraq investigation. As Owiso Owiso points out on Twitter, the OTP references the need to anticipate potential deferral requests a few times in the Final Report. If the OTP really believed that it could not prevail on an Art. 18(2) application, its refusal to seek authorization to investigate makes more sense.

To be clear: I am trying to contextualize the OTP’s decision, not defend it. Even taking Art. 18 into account, I still think the OTP should not have closed the preliminary examination. As I said in my previous post, the OTP’s own investigative efforts make clear there is a reasonable basis to believe that the UK has been shielding British soldiers from accountability. That’s all requesting authorization to investigate requires. If the UK wanted to invoke Art. 18, fine. The PTC might still have authorized the investigation. And if the PTC refused, the OTP would have been able to plausibly claim that it did everything it could to investigate British war crimes, including actually opening a formal investigation. In fact, given the practical obstacles a formal investigation would obviously face, opening the investigation only to have the UK shut it down via Art. 18 might have been the ideal outcome: the OTP wouldn’t have needed to waste precious resources on the investigation, but it would have received widespread acclaim for its willingness to openly take on a member of the P5. As it stands now, with the OTP unilaterally disarming, everyone is mad at the OTP, while the UK and the PTC skate by.

Two other points are worth making. The first is that Art. 18(3) is maddeningly unclear about the applicable standard of proof. It simply says “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.” A strong argument can be made that the Art. 15/Art. 53 “reasonable basis” standard applies, given that a state invokes Art. 18 precisely to challenge the OTP’s conclusion that a reasonable basis exists concerning complementarity. It would be strange if the OTP faced a higher standard of proof simply because the state being investigated declared that domestic proceedings made investigation unnecessary. And that is particularly true given that the OTP does not have to defend its reasonable-basis conclusion until a state invokes Art. 18. When a state refers a situation to the OTP, the OTP needs no permission to investigate. And when the OTP acts proprio motu, it does not — following the Afghanistan appeals judgment — have to present the PTC with information regarding complementarity. So it makes sense that when a state uses Art. 18 to challenge either a referred investigation or a proprio motu investigation, the OTP must prove to the PTC that, in fact, it does have a reasonable basis for its belief that the state is either unwilling or unable to genuinely investigate.

It is possible, of course, that a higher standard of proof applies to Art. 18 authorization requests. The chapter on Art. 18 in Triffterer & Ambos’s Commentary on the Rome Statute, for example, suggests that the OTP must prove inability or unwillingness by a preponderance of the evidence:

I don’t know which standard of proof is correct, and I imagine the PTC will weigh in on this issue when it deals with Afghanistan’s Art. 18(2) letter. I think it is highly unlikely, though, that the judges will endorse the “high threshold” standard for finding inability or unwillingness that the OTP’s Final Report borrows from the Al-Senussi admissibility challenge. As I noted in my previous post, the rationales for holding the OTP to a high standard of proof when a defendant challenges complementarity in a specific case (or a state, for that matter) simply do not apply at the situation level.

Second, and relatedly, I think I owe an apology to the Appeals Chamber. In my previous post, I questioned the wisdom of its insistence that the OTP does not have to submit evidence to the PTC concerning complementarity when it wants to open a proprio motu investigation. In fact, as the AC itself notes in the Afghanistan judgment (para. 42), the right of any affected state to require the OTP to defend its complementarity assessment by invoking Art. 18 obviates the need for the PTC to review complementarity when it considers an authorization request. Otherwise it would have to review complementarity twice. It makes more sense for the PTC to wait until a state invokes Art. 18, at which point — pursuant to Rule 55 of the Rules of Procedure and Evidence — the judges will have the benefit of written submissions on complementarity from both the OTP and the state seeking deferral of the investigation.

In short, although I understand the problems Art. 18 creates for an OTP unsure of the strength of its complementarity analysis, I still believe the OTP should have opened the Iraq investigation. The OTP needs to force states to invoke Art. 18, as it did with Afghanistan. Indeed, in my view, there is something unseemly about the different outcomes in the Afghanistan and Iraq preliminary examinations: Afghanistan has to invoke Art. 18 to avoid the stigma of a formal investigation, while the UK avoids that stigma without having to lift a (public) finger. The UK should not have been let off the hook so easily — especially as the OTP has now provided powerful states like Israel and Colombia with a roadmap for how to avoid the public shaming that formal investigation entails.