ICC Situations Concerning Ukraine and Nigeria: No Room in the ICC Statute for Prioritisation at the Preliminary Examination Stage

[Alessandro Pizzuti is co-founder of UpRights. Prior to forming UpRights, Alessandro worked as legal officer at the Special Tribunal for Lebanon as well as International Residual Mechanism for International Criminal Tribunals, International Tribunal for the former Yugoslavia and International Tribunal for Rwanda. The author would like to thank Valerie Gabard and Asa Solway for their help and suggestions for this post.]

This post considers the Prosecutor’s recent separate determinations concerning the proprio motu preliminary examinations of Ukraine and Nigeria. In both situations, the Prosecutor concluded that the criteria for opening an investigation under Article 53 of the ICC Statute were met. However, the Prosecutor stated that she will not immediately proceed with a request to initiate investigations in the respective situations due to budgetary constraints and considerations related to prioritisation of the OTP’s workload.

While no doubt grounded on legitimate practical concerns, such considerations do not seem to form part of the Prosecution’s discretion on whether and when to file a request to open an investigation pursuant to Articles 15 and 53 of the ICC Statute. This post contends that instead the proper stage to make an assessment concerning the prioritisation of the OTP workload is during the investigation phase rather than during the preliminary examination.

Articles 15 and 53 of the ICC Statute and Prioritisation of Preliminary Examinations

In her statements of 11 December 2020, the Prosecutor announced the conclusion of the preliminary examinations in the situations in Ukraine and Nigeria, respectively. In both situations, the requirements under Article 53 were found to have been met, namely that is there is a reasonable basis to believe that: (1) crimes within the jurisdiction of the Court have been committed; (2) these crimes are sufficiently grave; and (3) the potential cases stemming from an investigation would be admissible. Further, the OTP Report on Preliminary Examination Activities 2020 indicates that there is no reason to believe that investigations into both situations would not serve the interests of justice (paras. 264, 288).

In this context, the Prosecutor acknowledged that the ‘next step’ is for her office to request authorisation from the ICC Pre-Trial Chamber (‘PTC’) to open an investigation pursuant to Article 15(3) of the ICC Statute. However, the Prosecutor’s statements indicate that such a step will be postponed primarily due to the lack of resources and the operational capacity of her office, coupled with the fact that other preliminary examinations are reaching a similar final phase:

in the immediate period ahead, we will need to take several strategic and operational decisions on the prioritisation of the Office’s workload, which also duly take into account the legitimate expectations of victims and affected communities as well as other stakeholders. This is a matter that I will also discuss with the incoming Prosecutor, once elected, as part of the transition discussions I intend to have. 

It is difficult to interpret to what extent such considerations will have an impact on the potential decision to proceed or not with a request to the PTC for opening an investigation in both situations. The Prosecutor did not provide any timeline indication in this regard. Nonetheless, as discussed below, questions related to prioritisation, even when connected to lack of resources, do not comport with the exhaustive list of parameters set out in Article 53 of the ICC Statute (jurisdiction, admissibility, absence of interest of justice) and fall outside the Prosecutor’s discretion.

There is no debate that the Prosecutor is facing challenges in terms of operational capacity that other international courts and tribunals have never confronted. The Prosecutor is currently investigating 13 situations and engaged in 9 preliminary examinations. By contrast, the mandate of each of the other courts and tribunals has covered essentially only one main situation. The disproportionate workload and dispersion of investigative resources is evident and no doubt should be kept in mind when appraising the Prosecutor’s courses of action.

The question is, however, whether budgetary or operational constraints can indeed justify the Prosecutor in holding off on the initiation of an investigation or allow the possibility to select (or prioritise) which situation may reach that phase. Incorporating such forms of situation selection and prioritisation among the situations found to be ready for  an investigation may set a dangerous precedent. Especially where no clear parameters or timeline is provided for such determinations, this may risk of indefinitely stalling potential investigations with little possibility of judicial review over such decisions.

These considerations seem to be applicable regardless of whether the preliminary examinations are conducted: (1) on the basis of a State Party or UN Security Council referral under Article 53(1) of the ICC Statute; or (2) proprio motu under Article 15 of the ICC Statute (Afghanistan Appeal Judgment, para.33).  

Preliminary examinations in situations referred by a State Party or the Security Council

With respect to preliminary examinations triggered by referrals pursuant to Article 13(a) and (b) of the ICC Statute, the possibility of engaging in such type of selection seems to be inconsistent with the overall structure of Article 53. Under Article 53(1) of the ICC Statute the Prosecution’s assessment is confined to jurisdiction, admissibility, and interests of justice. No additional criteria are contemplated. Following a positive determination of the listed factors, the Prosecutor ‘shall’ initiate an investigation (Article 53(1) of the ICC Statute). The term ‘shall’ does not appear to allow for any room for additional discretion for the Prosecutor based on other possible factors, including those linked to budgetary constraints. The initiation of an investigation appears to be compulsory when the listed criteria are met.

The exhaustive nature of the list of criteria under Article 53(1) is further confirmed by Article 53(3)(a)-(b) of the ICC Statute, which outline the PTC’s scope of judicial review of the Prosecution’s decisions not to initiate an investigation. Under Article 53(3)(a)-(b) the PTC may review the Prosecution’s decisions not to initiate an investigation based on negative determinations related to jurisdiction, admissibility, and interests of justice in potential State Party and/or United Nations Security Council referrals. In this context, the scope of judicial review provided for under Article 53(3)(a)-(b) strictly corresponds to the criteria of Article 53(1). By contrast, the absence of any reference to the possibility of the PTC’s power to review decisions delaying or putting on hold the opening of an investigation suggests that such scenarios are not envisaged under the ICC Statute.

For instance, the ample latitude provided by Article 53(3)(a) to the referring entity to seek review of a decision not to initiate an investigation into a referred situation (jurisdiction, admissibility, and interests of justice) cannot be reconciled with the possibility of the Prosecutor to freeze a potential investigation based on a different criterion without any judicial oversight. Accordingly, the Prosecutor’s ability to engage in such type of early stage situation selection would create, at a minimum, an unreasonable gap in the Chambers’ power of judicial review with respect to preliminary examinations initiated on the basis of referrals.

Proprio motu preliminary examinations

Likewise, the relevant ICC legal framework does not seem to provide a broader Prosecutorial discretion with respect to the initiation of investigations under Article 15 of the ICC Statute (as in the situations in Nigeria and Ukraine). Rule 48 of the ICC Rules confines the Prosecutor’s determination of whether to proceed with an investigation to the very same criteria articulated in Article 53(1). If such criteria are considered to be met, according Article 15(3), the Prosecutor “shall submit to the Pre-Trial Chamber a request for authorization of an investigation.” In this regard, the same language (‘shall’) used in Articles 15(3) and 53(1) indicates that the Prosecutor’s obligation to start an investigation is identical whether the preliminary examination originated from a referral or on the basis of her proprio motu powers. No further elements of discretion appear to exist, besides a positive determination related to jurisdiction, admissibility and interest of justice. In line with this reasoning PTC I in the 2018 Myanmar Decision held that “a prolongation of a preliminary examination beyond that point is, in principle, unwarranted.” (para. 84).

Moreover, the prioritisation among situations, whether referred or propio motu, before the initiation of an investigation also appears to be at odds with the different set of investigative prerogatives that the Prosecutor can exercise during preliminary examinations and investigations, respectively. Indeed, the Prosecutor’s full investigative powers are triggered only once an investigation is initiated. Under Article 54 of the ICC Statute the Prosecutor can, inter alia: (1) conduct investigations in the territory of the State; (2) request the presence of persons being investigated, victims, and witnesses; and (3) seek cooperation of States, etc. More importantly, at this stage, the Prosecutor may properly secure evidence that may not be available subsequently at trial, pursuant to Article 56 of the ICC Statute. To the contrary, these prerogatives cannot be exercised during preliminary examinations. During this phase, the Prosecutor’s investigative reach is confined to seeking (the voluntary provision of) information from States, international and non-governmental organisations, or receiving testimony at the seat of the Court (see Article 15(2) of the Statute). The Prosecutor cannot compel a person to testify or resort to Article 56 of the ICC Statute to secure evidence for the purpose of the trial.

Against this background, rather than at the preliminary examination phase, considerations related to prioritisation of different situations seem to be better suited to being applied at the investigation phase where investigative efforts can be put on hold, if circumstances so warrant, without risking losing critical evidence. During preliminary examinations, especially those initiated proprio motu like Ukraine and Nigeria, this would not be possible. Before securing the evidence pursuant to Article 56 of the ICC Statute for instance, the Prosecutor would have first to request the PTC to authorise the investigation, wait for a decision, and only then open an investigation (in the Situation in the Islamic Republic of Afghanistan this process took around two and a half years). In addition, without the possibility to conduct an investigation in the relevant situations, any decision concerning prioritisation between different situations may be premature, limited and incomplete given, inter alia, the nature of information available at such an early stage.

Prioritising situations before the investigation phase appears not only to be ineffective and unnecessarily cumbersome but also inconsistent with the right of the victims to have an effective investigation for the crimes suffered. As emphasised by PTC I in the 2018 Myanmar Decision, “an investigation should in general be initiated without delay and be conducted efficiently in order for it to be effective, since ‘[w]ith the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and thus the prospects that any effective investigation can be undertaken will increasingly diminish’.” (para. 86).

Conclusions

Without any clear, set parameters, decisions prioritising between different potential investigations to be initiated following the preliminary examination phase can lead to a precarious path whereby situations ready for investigation are put indefinitely on hold (essentially left in limbo) without the possibility for such a course of action to be challenged or otherwise subject to external oversight. This seems to be inconsistent with the overall structure of the Statute and in particular of Articles 15 and 53 of the ICC Statute. If necessary, such selection (with clear and transparent prioritisation criteria) should instead be conducted at the investigation phase where the Prosecutor is in a better position to secure evidence for trial as well as reach a more informed determination regarding which situations (or cases) warrant prioritising over others.

At the same time, States Parties have a specific duty to match the budget requests (and needs) of the Prosecutor in light of the current and expanding workload, as in any domestic judicial system. The operational hurdles faced by the Prosecutor due to her office’s capacity are concrete and undeniable. To manage the challenges faced, the Prosecutor requires the support of States and other relevant actors. The ICC Chambers have frequently cited or referred to the decisions from human rights treaty bodies to emphasise the Prosecutor’s obligation to carry out an effective investigation. We should not forget that such decisions were directed at the States as a whole and not only the relevant Prosecutor that conducted the investigations.