A Dissenting Opinion on the ICC and Burundi

As has been widely reported, Burundi has just become the first state to formally withdraw from the ICC. The OTP has been examining the situation in Burundi since April 2016, but it did not formally ask the Pre-Trial Chamber (PTC) to authorize an investigation prior to Burundi’s withdrawal becoming effective. So what does Burundi’s withdrawal mean for the OTP’s preliminary examination (PE)? Can the OTP still ask the PTC to authorize an investigation into crimes committed in Burundi prior to withdrawal? Or does Burundi’s withdrawal divest the Court of jurisdiction over the situation?

The relevant provision is Art. 127(2) of the Rome Statute (my emphasis):

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, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

The ICC is taking the position that Art. 127(2)’s bolded language means Burundi’s withdrawal does not affect the Court’s jurisdiction over crimes committed prior to the date the withdrawal became effective — 28 October 2017. It does not explain why, but the argument is relatively straightforward: (1) the PE in Burundi began prior to 28 October 2017; (2) a PE qualifies as a “matter”; (3) the OTP is part of the Court. Hence (4) the Burundi PE “was already under consideration by the Court prior to the date on which the withdrawal became effective” and the Court continues to have jurisdiction over (“consider”) the situation.

A number of commentators agree with the ICC’s position, including Amnesty International and Beitel van der Merwe. The only dissenting voice is Dov Jacobs, who is skeptical about point (2) — whether a PE really qualifies as a “matter” for purposes of Art. 127(2). Here is what he says:

The key issue is what is covered by the expression “any matter already under consideration by the Court”. Alex Whiting makes the argument that this expression is broad enough to cover preliminary examinations by the OTP. Possibly, he is right from a linguistic point of view. However, I have a difficulty with the idea that such an informal phase as a preliminary examination (which might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports) might have such massive consequences as trumping the decision of a State to withdraw from the Rome Statute.

I agree with Dov. As is well known, the OTP divides the preliminary-examination process into four phases: (1) determining whether a situation falls “manifestly outside” of the ICC’s jurisdiction; (2) determining whether there is a reasonable basis to believe an international crime was committed in the situation; (3) assessing admissibility; (4) assessing the interests of justice. According to the OTP, a “formal” PE begins with Phase 2 (emphasis mine):

80. Phase 2, which represents the formal commencement of a preliminary examination of a given situation, focuses on whether the preconditions to the exercise of jurisdiction under article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. Phase 2 analysis is conducted in respect of all article 15 communications that were not rejected in Phase 1, as well as of information arising from referrals by a State Party or the Security Council, declarations lodged pursuant to article 12(3), open source information, and testimony received at the seat of the Court.

Dov’s example of the OTP investigator downloading HRW or AI reports about a situation is thus spot on. Because such reports are “open source information,” the very act of looking at it means that a PE is at Phase 2 and a “formal” PE has commenced. Which means in turn that — according to the ICC’s interpretation of Art. 127(2) — the Court retains jurisdiction over the situation in the report. (And retains it in perpetuity, because there is no time limit on an OTP decision to advance a PE to a full investigation, as the 13 year-old Colombia PE indicates.)

Like Dov, I am not sure “matter” can or should be interpreted to include any formal PE, even one triggered by an OTP investigator (or even an intern?) downloading an NGO report (or even just reading it on the screen?). But I think there is a more important question about the ICC’s interpretation of Art. 127(2): whether a situation is under “consideration by the Court” simply by virtue of the OTP preliminarily examining it. Alex Whiting believes that it is (emphasis mine):

There is a decent but far from certain argument that jurisdiction should survive at least for any crimes that are the subject of a preliminary examination by the Office of the Prosecutor before the date of a State Party’s effective withdrawal. Following the broad first sentence of Article 127(2), the provision addresses two specific situations: (1) when an investigation or proceeding is underway before effective withdrawal, the departing State Party continues to have a legal duty to cooperate with the Court’s inquiry even after the State Party has left the Court, and (2) the State Party’s departure cannot prejudice the Court’s “consideration of any matter” that was already underway before departure. The “Court” in the Rome Statute refers to the entire ICC, including the Prosecutor, and not just the judges.

I disagree. There is no question that “the Court” sometimes refers to “the entire ICC,” such as when the Rome Statute is referring generically to the ICC’s location or international legal personality. Indeed, Art. 34 says that “the Court” is composed of the Presidency, the judiciary, the OTP, and the Registry.

But the Rome Statute also uses “the Court” in a more restrictive fashion — to refer specifically to the judiciary, excluding the OTP. Here are some examples:

[1] Art. 19(3) provides that “[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility.”

[2] Art. 19(7) provides that “[i]f a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17.”

[3] Art. 19(10) provides that “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision.”

[4] Art. 21(2) provides that “[t]he Court may apply principles and rules of law as interpreted in its previous decisions.” The OTP doesn’t issue decisions.

[5] Art. 65(5) provides that “[a]ny discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.”

[6] Art. 66(3) provides that, “[i]n order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.”

[7] Art. 67(2) provides that, with regard to the rights of the defendant, “[i]n case of doubt as to the application of this paragraph, the Court shall decide.”

I could go on. The point is that, contra Alex, we cannot simply assume that Art. 127(2)’s reference to “the Court” includes both the judiciary and the OTP. It may well be that Art. 127(2) refers only to the judiciary. The distinction, of course, is critical in the context of Burundi’s withdrawal: if a matter must be “under consideration by” the judiciary for Art. 127(2) to apply, then the OTP’s failure to open an investigation into the situation means that the Court (writ large) no longer has jurisdiction over any crimes committed in Burundi — not even over those committed prior to the date Burundi’s withdrawal became effective.

I cannot claim with absolute certainty that the more restrictive reading of Art. 127(2) is correct, especially as Amnesty International says that the travaux preparatoires do not shed any light on the issue. But it seems like the much stronger position. Most importantly, the precise expression “under consideration by the Court” also appears in Art. 95, which deals with the postponement of requests in connection with admissibility challenges (emphasis mine):

Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.

“Under consideration by the Court” in Art. 95 clearly means “under consideration by the judiciary.” Normal rules of treaty interpretation thus suggest that the same expression in Art. 127(2) is similarly restrictive.

This interpretation of Art. 127(2) is also supported by the problem Dov identifies — that deeming any PE a “matter” gives the OTP so much power that the withdrawal provision is a virtual nullity. A PE does indeed seem like a “matter,” but that does not mean a PE is a matter “under consideration by the Court.” The better view is that a situation is only “under consideration by the Court” once the OTP asks the PTC to authorize an investigation into that situation.

The upshot of all of this is that, in my view, the Court no longer has jurisdiction over crimes committed on the territory of Burundi prior to the state’s withdrawal from the ICC. If the OTP had wanted to keep alive the situation, it needed to ask the PTC before 28 October 2017 for permission to open an investigation. And it failed to do so.