Curiouser and Curiouser? How the International Criminal Court Views the Legislative Role of the Assembly of States Parties: The ICC’s Decision on the Applicability of Rule 165

[Kritika Sharma is a Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and is writing her PhD in International Criminal Law and International Institutional Law at Leiden University.]

Decisions taken by the International Criminal Court (ICC) as well as its international judicial governance institution or ‘injugovin’ the Assembly of States Parties (ASP), have been the subject of fervent debate this year. Examples of the latter include the long-overdue election of the Prosecutor, on the 12^th of February, 2021. Perhaps this explains the silence on a different decision taken by the Court, namely its decision on the applicability of provisional rule 165. This decision provides a vivid description of how the Court views its injugovin, arguably with repercussions on not only the work of the Court, but on that of the ASP as well. The aim of this blogpost is to draw attention to what appears to be prima facie an unusual acquiescence of judicial (review) power by an international court to its injugovin. 

Over five years ago, the judges exercised the power allotted to them under Article 51(3), for the first, and only time since and provisionally amended Rule 165 of the Rules of Procedure and Evidence (RPE).  As per the Statute, such provisionally amended rules or ‘provisional rules’ are to be adopted, amended or rejected by the ASP at its next session. In this instance, the ASP decided not to act on this matter and neither adopted, amended nor rejected this provisional rule. 

Very little space has been dedicated to discussing the nature and status of this rule, either by the ICC or ASP, until December last year. On the 10^th of December 2020, a Single Judge exercising the powers of Pre-Trial Chamber A, rendered the ‘Decision on the Applicability of Provisional Rule 165 of the Rules of Procedure and Evidence’ in the case of The Prosecutor v. Paul Gicheru and Philip Kipkoech Bett (or ‘the decision’). The decision was prompted by a request submitted by the OPCD on behalf of Mr. Bett the co-accused in this case, who is currently unrepresented and not in the custody of the Court. The OPCD had asked that provisional rule 165 be declared inapplicable and consequently, the constitution of the Pre-Trial Chamber be declared as lacking legal basis. The Pre-Trial Chamber dismissed the OPCD’s submissions and found that provisional rule 165 was applicable to the proceedings in this case. As a consequence, the Chamber found that it was competent as a Chamber composed of a single judge to exercise all the powers and functions of a Pre-Trial Chamber in this case.

The decision of the Court is interesting for two reasons. First, is its methodology. While the Court clarifies what it considers applicable law in this case, along with the Statute of the Court, it also takes into consideration reports of the Working Group on Amendments of the ASP (‘WGA’) and the response of the ASP thereto. In its analysis of the WGA’s Report, the Court notes, that ‘[t]he Working Group on Amendments also did not manage to agree on recommendations regarding provisional rule 165 of the Rules, in preparation for the subsequent sessions of the ASP’, and then adds specifically, ‘including on the question of whether this rule was still applicable pending a decision by the ASP’ (para. 30 of the decision).  Without any objection by the Court, to a possible usurpation of judicial power or a digression by the ASP into the judicial domain of the Court, this sentence creates the impression that the Court sees no problem with the ASP considering the applicability of this rule in Court, pending a final decision by the ASP. On the other hand, within the ASP itself, the consideration of this matter was fraught with resistance, to say the very least. States were of the view that this was not for the ASP to deliberate on and was for the Court to decide. It is unclear as to why the Court appears at such ease with having its injugovin waltz into what can only be described as quasi-judicial activity, if not judicial review per se. While I have previously discussed the possibility of a judicial review by the ASP and the problems that this would raise, the key issue here is that the Court’s decision depicts its acquiescence to the ASP’s authority to interpret the Rome Statute. Such deference may have its reasons based in law or even practice, however for advocates of a clear separation of power between the Court and its injugovin, this creates a reasonable basis for unease. 

The second reason why this decision is particularly interesting, is the actual ruling of the Court.  The Court dealt with five issues that were raised in the submissions. These were: (1) whether the Chamber was entitled to rule on its own constitution; (2) whether the two criteria listed under Article 51(3) of the Statute allowing the Court to issue provisional rules had been met; (3) whether provisional rule 165 is applicable in the proceedings of the present case; (4) whether provisional rule 165 was applied retroactively and to the detriment of  the accused in contravention of Article 51(4) of the Statute; and last, (5) whether provisional rule 165 is incompatible with the Statute. 

The Court’s affirmative answer to the first question, through which it stated that the Chamber was ‘entitled to rule on the question of the legality of its own constitution’ was predictable. What is surprising though, is the Court’s answer to the second issue, pertaining to whether the two criteria under Article 51(3) had been met. Article 51(3) provides that the Court can adopt provisional rules only ‘in urgent cases where the Rules do not provide for a specific situation before the Court’. The Court notes that ‘[c]ontrary to what is argued by the OPCD and the defence, the Chamber does not consider that in its assessment of the applicability of Provisional Rule 165 to the present proceedings, it is required or even allowed to also determine whether the judges erred in finding that the two criteria of article 51(3) of the Statute were met’ (para. 36 of the decision). The Court thus, found unambiguously, that it could not review decisions taken by judges sitting in plenary sessions catered for under Rule 4, RPE. The Court’s finding was based first on the fact that such a review, would require judges to rule on the legality of a decision they were a part of (para. 37 of the decision). However, after stating that the Court cannot review the decision and assess if the two criteria under Article 51(3) were met, the Court goes further and states that this review power lies ‘solely in the hands of the ASP.’ (para. 37 of the decision). This section of the decision is particularly problematic. 

Given that the relationship between the Court and the ASP has been termed as one, coloured with suspicion and mutual distrust (paras. 948-950), the Court’s view that its injugovin provides a more appropriate forum for a review of the Court’s decision under Article 51(3), appears noteworthy, in the least, for two reasons. First, this is different from the view that some members of the ASP have themselves shared on the matter. And second, this is significant in light of the ASP not having been given any powers of judicial review under the Rome Statute. Any argument that such review power could be exercised through the ASP’s residual power under Article 112(2)(g), falls short on several grounds. First, this residual power would have to be similar to other functions of the ASP listed under Article 112, all of which are governance related, unlike judicial review which is a judicial determination. Second, the ASP established as an injugovin, does not comprise an appropriate forum for such a review to be carried out. Neither the ASP in plenary, nor its subsidiary bodies have been established in a manner conducive to exercising judicial or quasi-judicial functions. Accordingly, there are no safeguards in place within the ASP as would be essential for a judicial body. Similarly, the membership of the ASP is not attuned to the exercise of such functions. Nonetheless, the Court’s decision goes further. Not only does it empower the ASP with ‘review power’ vis-à-vis decisions under Article 51(3), it also envisages a situation where the ASP could declare that the judges ‘abused their power’ by exercising their power under Article 51(3) in the absence of the two criteria listed thereunder being fulfilled. Accordingly, the Court decided not to assess whether the two criteria; of urgency and legal lacunae had been met. 

Subsequently, the Court focused on whether the provisional rule remained applicable even though contrary to what was foreseen under the Rome Statute, the ASP did not take a decision to adopt, amend or reject it at its next session which was in 2017. The Court rejected the OPCD’s argument that this provisional amendment had been tacitly rejected in light of the ASP’s decision to effectively postpone any decision to adopt, amend or reject. Instead, the Court found that the provisional rule was to apply until the ASP took a decision.  

The basis for the Court’s determination in this regard is particularly interesting for the following reason. The Court states clearly that in its view Article 51(3) requires ‘positive action’ by the ASP vis-à-vis adoption, amendment or rejection. However, after establishing this requirement of ‘positive action’, the Court continued to declare the amendment applicable, in the absence of any such positive action, thus contradicting its own interpretation. 

Additionally, and in agreement with the Prosecutor, the Court found that a decision to the contrary, i.e. finding that a provisional rule lapses in the absence of a decision by the ASP at its next session ‘would make recourse to article 51(3) of the Statute very problematic and its application almost impossible, because of the basic functioning of the ASP itself’ (para. 42 of the decision). To support this slightly consequentialist approach, the Court cites the difficulties involved in 123 States reaching consensus (para. 42 of the decision). Instantly, this finding of the Court allows for the possibility for such a rule to apply indefinitely, clearly in blatant contradiction to the nature of a provisional rule. Interestingly, the Court acknowledges this. It states, that ‘the Chamber is however mindful that its interpretation of article 51(3) of the Statute could potentially lead to an indefinite application of a provisional rule that never received any legislative validation, while this power undisputedly rests solely in the hands of the ASP’ (para. 43 of the decision). Notwithstanding this, the Court then stresses that ‘[t]he option of “no decision from the ASP” is simply not foreseen by the legal texts.’ (para. 43 of the decision). Thus, the Court’s finding highlights the ASP’s failure to decide and implies, that while the Court’s decision could allow for the indefinite application of this provisional rule, this is something that the ASP ought to prevent through a decision. 

On the issue raised by the OPCD in arguendo, of whether provisional rule 165 had been applied retroactively to the detriment of the accused, contravening Article 51(4), the Court responded that it had not. This was because according to the Court, the date that ought to be taken into consideration here, was the date the Pre-Trial Chamber was constituted and not the date the arrest warrants were issued. Having found that the provisional rule was not applied retroactively, the Court found it unnecessary to enter into a discussion of whether this was applied retroactively to the detriment of the accused (para. 49 of the decision). 

Finally, on the question of whether provisional rule 165 was in contravention of Article 51(4) on the ground that it was incompatible with the Statute, the Court decided that this was not the case. The Court’s decision was on the basis that the Statute allows for a distinct regime being applied to Article 70 proceedings. Accordingly, the Court held that provisional rule 165 did not affect any of the rights enshrined under Article 67 (paras. 51-53 of the decision).

Thus, the Court’s decision is significant for two reasons. First, it provides insight into, various aspects of the relationship between the ICC and the ASP. Particularly on how the Court views its relationship towards its injugovin, and perhaps even more pertinently here, its legislative body. This is relevant, since few would disagree that this relationship is fraught with varying degrees of uncertainty. The second reason for its significance is, that this decision depicts an unusual acquiescence of decision-making power. Particularly, since the Court’s decision implies that the ASP is empowered to question the validity of a decision that all the judges were a part of.The OPCD asked for and was granted leave to appeal this decision before the Appeals Chamber. The Appeals Chamber confirmed the Pre-Trial Chamber’s decision on the applicability of provisional rule 165 of the RPE (or ‘Appeals Decision’). Accordingly, the Appeals Chamber held that the ‘Statute’s reference to the “next ordinary or special session” must be interpreted as the next session at which the provisional rule is adopted, amended or rejected, rather than the next session following the adoption of the provisional rule’ (para. 75 of the Appeals Decision). An important aspect of the Appeals Chamber’s confirmation of this decision is its finding that ‘the Assembly of States Parties has implicitly rejected the view that “the next ordinary or special session of the Assembly of States Parties” creates a time limitation for the adoption, rejection or amendment of provisional rules (para. 74 of the Appeals Decision). This decision was taken by the Appeals Chamber by majority, with two judges appending a joint partly dissenting opinion. Thus, at least in the view of the Court, the failure of the ASP to take a decision on the provisional rule at its next session after this adoption, has had consequences on how this legal provision is interpreted. At the very least, the decision might provide the Study Group on Governance an added impetus to address the ASP’s procedure for amending the RPE in general.