The Judicial Economy Paradox: The Prosecutor’s Reliance on Article 19(3) of the Rome Statute

[Uzay Yasar Aysev is a legal consultant for Global Rights Compliance, specialising in international humanitarian law, criminal and refugee law.] 

On 22 January 2020, the Prosecutor of the International Criminal Court (ICC) submitted a request to Pre-Trial Chamber I (PTC I) for a ruling on the scope of the Court’s territorial jurisdiction in Palestine under article 19(3) of the Rome Statute. In her request, the Prosecutor asked PTC I to “to confirm that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank, including East Jerusalem, and Gaza (para. 220). The Prosecutor’s request came in parallel with her announcement that she had concluded her five year-long preliminary examination into the situation in Palestine and decided to initiate an investigation.

This is the Prosecutor’s second request for a ruling under article 19(3) submitted by the Prosecutor since the Court became operational in 2002. The first one was submitted in February 2018 in relation to the Myanmar/Bangladesh situation. There, the Prosecutor requested a ruling that would allow her to investigate the deportation of the Rohingya Muslims from non-State Party territory (i.e. Myanmar) to State Party territory (i.e. Bangladesh). Ultimately, the Prosecutor’s novel argument claiming that the Court can exercise jurisdiction when a crime is partially committed on State Party territory pursuant to the objective territoriality principle was accepted by the same PTC I. In doing so, PTC I reached one of the most momentous findings in the ICC’s history: the Court may exercise territorial jurisdiction “if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party” (para. 64). Indeed, this precedent is already being relied upon by victims to urge the Court to step in.

The overarching rationale behind the Prosecutor’s reliance on the article 19(3) procedure seems to be one of “judicial economy.” In the Myanmar/Bangladesh situation, the Prosecutor argued that the request promoted “judicial economy – and, particularly, the apt use of the limited resources allocated to the Prosecutor – by allowing judicial consideration of certain fundamental questions… before embarking on a course of action which might be contentious.” (para. 54) In the Palestine situation, the Prosecutor explained that a jurisdictional clarification under article 19(3) was necessary to, inter alia, (i) ensure judicial certainty on issues that are likely to arise later in the proceedings, and (ii) promote judicial economy and efficiency by avoiding the investigation of crimes that fall outside the Court’s territorial jurisdiction and, thereby, ensuring the most productive use of the Court’s limited resources (paras. 36-38).

It is understandable for the Prosecutor to require some level of judicial certainty before allocating her limited resources into conducting costly preliminary examinations and investigations which may ultimately fail due to a want of jurisdiction. It is not entirely clear, however, whether such certainty can be attained through the procedure under article 19(3), especially at the embryonic stages of any proceedings. As highlighted by Judge Brichambaut, whether a “ruling” under article 19(3) is binding or advisory in nature is open to question (para. 39). Arguably, nothing prevents the Prosecutor from relitigating the matter before a different Chamber at the later stages of the proceedings in case of an unfavourable article 19(3) decision. Indeed, a decision rendered by a PTC under article 19(3) is not final and, therefore, may be challenged and ultimately overruled through further litigation by the parties to the proceedings in question.

This ambiguity may cause a myriad of problems along the way for the Court, which are readily observable in the Myanmar/Bangladesh situation. For instance, in her request for authorisation to carry out a full investigation before PTC III (constituted of three different judges), the Prosecutor seems to have relied on  did not relitigate the issue of objective territoriality (para. 20), conceivably due to her reliance on PTC I’s finding on the matter in the article 19(3) decision. This was a risky move on the Prosecutor’s part. Expectedly, in its authorisation decision, PTC III assessed, in a somewhat detailed manner, whether the Court’s could exercise territorial jurisdiction under article 12(2)(a) regardless of the absence of arguments from the Prosecutor on the matter (paras. 42-62). While ultimately this was not the case, PTC III could have easily disagreed with the findings of the PTC I on this crucial legal question and either refuse to authorise an investigation or request further arguments from the Prosecutor. This, in turn, would have completely nullified the usefulness of the article 19(3) exercise, in fact, rendering it contrary to judicial economy.

Potential problems may arise even in circumstances where different PTCs largely agree in principle but nevertheless modify each other’s findings. As indicated by Judge Brichambaut “[t]o attempt to rule on jurisdiction pre-emptively [before a case is brought before the Court] would hazard an inconsistent result with subsequent determinations at a later (and more appropriate) phase of proceedings (para. 32).” For instance, in confirming PTC I’s finding on the matter, PTC III held that the Court may exercise territorial jurisdiction over a crime “provided that part of the actus reus takes place within the territory of a State Party…” (para. 61). It is not entirely clear whether this finding reiterates PTC I’s position on the Court’s territorial jurisdiction or somewhat alters it. The language used by the PTC III indicates that the Court may exercise territorial jurisdiction if “part of the actus reus of a crime” to takes place on State Party territory rather than “at least one legal element of a crime… or part of such a crime.” Arguably, the former is a narrower interpretation since it only focuses on the partial commission of only the actus reus of the crime rather than the crime as a whole. This discrepancy may create less, not more, judicial certainty for the Prosecutor and other potential participants in their engagement with the ICC in the days to come.

Additionally, in both Myanmar/Bangladesh and Palestine situations, article 19(3) proceedings have taken place without the participation of the defence. While it is true that amicus curiae, OPCD or States who opposed the Prosecutor’s submissions were allowed to submit observations, these cannot prejudice the future defendants’ right to challenge the jurisdiction of the Court. Once arrest warrants are issued against specific accused, the jurisdictional issues purportedly clarified via article 19(3) rulings will almost certainly be challenged by the accused or States which may exercise jurisdiction over the case at the confirmation of charges stage. Considering the often-prolonged nature of the Prosecutor’s investigations and arrest procedures, these challenges will likely be considered by a different PTC. Furthermore, even if the findings of PTC I are confirmed by another PTC, these jurisdictional questions will eventually make their way to the Appeals Chamber for a final decision on the matter.

What if the Appeals Chamber decides to reverse the findings of PTC I, particularly where it has particularly significant reverberations for the operation of the Court? For instance, a reversal by the Appeals Chamber of PTC I’s findings on objective territoriality would effectively obliterate any future preliminary examinations, investigations and cases (including those that will arise out of Myanmar/Bangladesh situation) initiated and carried out by the Prosecutor pursuant to this principle, sending years of work and vast resources down the drain. Similarly, the Prosecutor’s investigations carried out in line with the finding of the PTC I on the scope of the Court’s territorial jurisdiction in Palestine may be invalidated by a future reversal or modification by the Appeals Chamber. What will come of judicial economy then?

The foregoing seems to indicate that reliance on article 19(3) at the early stages of the proceedings have little, if any, prospect of promoting judicial certainty and economy. Arguably, the sounder approach would have been for the Prosecutor to stick to the usual procedural pathway and litigate these issues in the ordinary course of the proceedings set out in the Statute. For instance, the Prosecutor could have litigated the issue of territorial jurisdiction in requesting authorisation to initiate an investigation under article 15. As highlighted by PTC I, the Prosecutor have already analysed a great deal of information on the crimes committed against the Rohingya while putting together the article 19(3) request, most notably on the issue of jurisdiction. Indeed, it took the Prosecutor merely another 10 months to submit her request for authorisation upon PTC I’s favourable article 19(3) decision. Would it not have been more judicially economic for the Court as a whole for the Prosecutor to simply complete her preliminary examination into the situation and proceeded with a request for authorisation directly, saving the time and resources spent on the article 19(3) proceedings in the process? In case the request for authorisation is denied, the Prosecutor could have taken the issue to the Appeals Chamber to get a definite finding on the matter, which would provide much more judicial certainty on the validity of this hugely significant finding in relation to the Court’s territorial jurisdiction.

None of this is to say that the procedure under article 19(3) is unnecessary or frivolous. Of course, knowing whether the Court can exercise territorial jurisdiction over the crimes allegedly committed against the Rohingya before requesting authorisation for an investigation may promote judicial economy. Of course, knowing on which territories exactly the Court may exercise territorial jurisdiction would allow the Prosecutor to better focus her investigations and, thus, save the Court’s resources and time. It is always useful to have judicial certainty on contentious matters as early as possible in the proceedings. The problem is not with the logic of article 19(3), but with the procedure behind it. A PTC decision under article 19(3) does not produce res judicata meaning that it cannot provide judicial certainty. Only a confirmation by the Appeals Chamber would provide such certainty. This is the missing step in the article 19(3) procedure in its current state.

One possible step to take in bridging this gap is to amend the ICC Rules of Procedure and Evidence (RPE) and provide the Appeals Chamber with a role in the article 19(3) procedure. The RPE of the Special Tribunal for Lebanon (STL) can be taken as a model for this. Pursuant to Rule 68(G) of the STL RPE, the Pre-Trial Judge may “submit to the Appeals Chamber any preliminary question, on the interpretation of the Statute and Rules regarding the applicable law that he deems necessary in order to examine and rule on the indictment.” Under Rule 176bis, the Appeals Chamber issues an interlocutory decision on any questions raised by the Pre-Trial Judge after hearing from the Prosecutor and the Head of the Defence Office. Any future accused is provided with a right to request the reconsideration of the interlocutory decision in light of the particular facts of their case (see here, para. 10). As explained by the STL Appeals Chamber, the purpose of this procedure is to “clarify in advance the law to be applied by the Pre-Trial Judge and the Trial Chamber, thereby, expediting the justice process in a manner supported by both the Prosecutor and the Head of the Defence Office… without encroaching on the right of future defendants to seek reconsideration of these matters in light of the particular facts of a case”(paras. 7-8). Allowing the Appeals Chamber to pronounce the applicable law in the abstract minimises the “risk that the Pre-Trial Judge or the Trial Chamber might adopt an interpretation of the law with which [the] Appeals Chamber ultimately disagrees, unnecessarily delaying the resolution of cases and thereby causing an injustice to the parties…” (para. 9).

A similar rule could be incorporated into the ICC RPE, allowing a PTC or the Prosecutor to refer the matters raised under article 19(3) to the Appeals Chamber, if necessary. This would be within the scope of article 19(3) since it allows the Prosecutor to “seek a ruling from the Court…”, and not necessarily only the PTC. Additionally, the OPCD could be appointed as a party to these proceedings for the defence perspective to be heard. Reserving the right of any future defendants to ask for a reconsideration would safeguard the fair trial rights of the accused while allowing for any future challenges to be only relitigated before the Appeals Chamber rather than multiple differently constituted PTCs. This, in turn, would provide the Prosecutor with the judicial certainty that she has been seeking at the early stages of proceedings via article 19(3) and, thus, allow for the promotion of judicial economy.