Uniting for Justice: Group Referrals to the International Criminal Court

[Giorgi Nakashidze is a Ph.D. candidate in international law at the Tbilisi State University and is currently serving as a Senior Counsellor at the Embassy of Georgia to the Kingdom of the Netherlands. The views expressed herein are solely the author’s own in his personal capacity and do not in any way intend to represent the official views of any organization the author may be affiliated with.]

Introduction

On 2 March 2022, the Prosecutor of the International Criminal Court (“ICC” or the “Court”) received the unprecedented multi-party referral – 39 ICC States Parties referred the Situation in Ukraine to the ICC Prosecutor, who decided to immediately proceed with active investigations. Lithuania also made a separate referral. On 11 March, Japan and North Macedonia joined the collective referral, bringing the total number of referring States to 41. Referrals from the 41 ICC States Parties is the second occasion in the Court’s practice when the situation has been referred to the ICC by a group of states. The first such referral took place in 2018 when six ICC States Parties referred the situation in Venezuela. 

This post intends to contribute to wider understanding of group referrals in the Court’s practice. To this end, it explains the legal effects and legal basis of the group referral of Situation in Ukraine, puts group referral into context of different “types” referrals and discusses the added value of such referrals.

Legal Effects of the Group Referral of the Situation in Ukraine

On 28 February 2022, in response to the naked act of aggression launched by Russia against Ukraine, the ICC Prosecutor decided to proceed with opening an investigation. Situation in Ukraine is not new for the Prosecutor. It has been under preliminary examination since 2014. In 2020, Prosecutor concluded that criteria for opening investigations were met. Since then no more further steps were taken to open investigation. 

Ukraine is not a State Party to the Statute. It was barred from ratifying the Statute by the Constitutional Court in 2001. As of today, Ukraine can ratify the Statute as necessary constitutional amendment entered into force 2019. That being the case, it has lodged two ad hoc declarations in 2014 and 2015 under Article 12(3) of the Rome Statute, recognizing the Court’s jurisdiction. The second declaration has unlimited territorial and temporal parameters.

Yet, the Prosecutor was obliged to proceed in a manner analogous to proprio motu proceedings as lodging an ad hoc declaration is not equated with a State Party referral. Thus, an authorization by the Court was needed to open an investigation. In the statement of 28 February, the Prosecutor signalled that “[A]n alternative route set out in the Statute that could further expedite matters would be for an ICC State Party to refer the situation”. This alternative route was swiftly availed of by the group of 41 States Parties. Apart from bypassing the need of the Court’s authorisation, third State Party referrals grants a Declaring State indirect standing under Article 53: through referring states, it would be able to contest a decision by the Prosecutor not to proceed with an investigation. This does not seem to be a case for Ukraine, but may be useful in other scenarios.

Referral of a Situation in a Non-Party State

Articles 13(a) and 14(1) of the Rome Statute authorizes a State Party to refer to the Prosecutor a “situation in which one or more crimes within the jurisdiction of the Court appear to have been committed”. The first impression of reading those articles is that States Parties can refer the situation not only in other States Parties, but also in Non-Party States. It is observable that the Rome Statute does not explicitly require that a situation, which may be referred by a State Party, shall exist in respect of another State Party. But this is a false impression.

Activation of the Court’s jurisdictional regime is based on two cumulative pillars: preconditions to the Court’s jurisdiction (Article 12) and trigger mechanisms for exercise of the Court’s jurisdiction (Article 13). The preconditions for existence of the Court’s jurisdiction is either being a party to the Rome Statute (through its ratification), or being a Declaring State (through submission of an ad hoc declaration under Article 12(3) when a state is not in a position to ratify the Rome Statute). The latter does not become a State Party as such to the Rome Statute, but the Court may exercise jurisdiction in relation to crimes committed on its territory or by its citizens, except for the crime of aggression (unless the UN Security Council refers the situation). Thus, 41 States Parties would not be able to make the referral had Ukraine not submitted ad hoc declarations.

State Party Referrals: A Typology

The Rome Statute does not differentiate between different types of State Party referrals. Yet, in practice, State Party referrals, based on the identity of author(s) of a referral, can be grouped in three categories: 1) State Party self-referral; 2) single State Party referral and 3) group/collective State Party referral. The last two of them can be termed as “third State Party referrals”.

Self-referral takes place when a State Party itself refers alleged crimes committed on its territory or by its nationals to the Prosecutor. Self-referrals has emerged as the major way to seize the Court. Interestingly, drafters of the Rome Statute shared an assumption that self-referrals would be an exception (for an opposite view, see Robinson, 2011). But the subsequent practice of States Parties has changed the underlying meaning of “referral” in the Rome Statute. After entry into force of the Statute, vast majority of situations before the Court has been brought by self-referrals.

The second type – single State Party referral – corresponds to the original idea of “referral” as inserted in the Rome Statute by its drafters. This is the situation when one State Party refers the situation of another State Party. It was calculated to be the main mechanism for situations to appear before the Court. This presumption was so overwhelming and deep-rooted that first self-referrals even raised questions on their legal basis. Single State Party referrals have not been used so far in the Court’s practice. However, from the technical point of view, Lithuania’s stand-alone referral of the situation in Ukraine can be labeled as the precedent when one State Party decided to refer the situation in another state.

Group or collective referrals emphasize that several States Parties refer a situation of third State Party or Declaring State. It should be stressed that both single and collective third State Party referrals, as well as self-referrals, fall within the same procedural framework of the Rome Statute. Higher number of referring states does not generate any privileged regime of legal treatment of a referral.

Added Value of Group Referrals

The significance of group referral of the Situation in Venezuela was political rather than legal. In case of Ukraine, group referral’s primary objective was the legal one: in a broader sense, group referral granted the Court the full jurisdictional basis which a State Party enjoys (save for the crime of aggression); in a narrower sense, group referral removed the Situation from the procedural regime of proprio motu investigations (subject to Court’s authorisation) and placed it under the procedural framework applicable to a State Party referral, which enabled the Prosecutor to immediately proceed with active investigations. Otherwise, obtaining the permission from the Court is supposed to take around 120 days. Hence, unlike the group referral of Situation in Venezuela, impact of group referral in the Situation in Ukraine is predominantly legal and practical rather than political. At the same time, it is fair to say that Lithuania’s stand-alone referral would also be sufficient for the same legal effects as group referral did, but the immense political support would be hard to detect. 

Group referrals may have a legitimising effect. At the Rome Conference it was suggested that some States Parties might be tempted to abuse referral powers “by trying to send frivolous or politically motivated referrals with regard to situations in the territory of a political adversary.” Thus, one option was to entitle only group of States Parties to refer a situation in other state (Arsanjani and Reisman, 2005, p. 387, fn. 9). Group referral may indicate that there exists urgent and genuine need for the Court to be seized of a situation. Group referral also sends an alarming signal to the Prosecutor that the referred situation should be prioritised. High number of referring states may also demonstrate that the referral is not solely based on political considerations. This point is strengthened when referring states represents different regions of the world. For instance, ICC Prosecutor noted that action by Japan as it represented an expansion of the regional groups. Thus, group referral increases of legitimacy of a decision to refer a specific situation in another state.

Group referrals may also imply that several States Parties express their readiness and willingness to provide the Court with relevant materials or information which may be of probative value. Indeed, Human Rights Watch tagged the Ukraine’s group referral as “a significant step toward ensuring documentation of potential war crimes”. Article 14(2) of the Rome Statute stipulates that “[A]s far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation” (emphasis added). Failing to do so is not basis for finding a situation inadmissible or out of jurisdiction. Although neither Venezuela (see here) nor Ukraine (see here) group referrals are accompanied by such supporting documentation (at least, not publicly), referring states may agree to coordinate joint efforts to provide the Court with valuable material. 

Conclusion

Group Referral is not a distinct type of referral under the Rome Statute. From the legal perspective, a self-referral, a single State Party referral or a group referral produce the same legal results. However, group referrals may be of added value: they raise an alarm that a specific situation warrants intervention by the Court, legitimise a referral, deliver a strong message of political or practical support for the ICC and strengthens the ICC’s role as the only permanent international criminal court.