Part III: What Kinds of Situations and Cases Should the ICC Pursue? The Independent Expert Review of the ICC and the Question of Aperture

Editor’s Note: This is the third part of a three-part series regarding the ICC’s Independent Expert Review, the crossroads at which the ICC finds itself, and issues that lie ahead for the Court. Part I is available here and Part II is available here

The first two parts of this series discussed portions of the recent report of the International Criminal Court (ICC) Independent Experts that addressed the need for the ICC to narrow its aperture, and potential implications of this observation related to the Court’s treatment of “complementarity,” “gravity,” and “interests of justice.” This third part addresses two additional considerations that bear on the aperture issue, and concludes with some thoughts about the risks of aperture narrowing as well as about how any desired changes might be advanced.

The “Situation as a Whole” Principle 

The first consideration relates to the doctrine under which the ICC Office of the Prosecutor (OTP) and the Court assume that a preliminary examination or an investigation should involve the “situation as a whole.” The underlying idea is that, once the Prosecutor’s investigation of the situation in a country commences, the investigation should proceed impartially, and should follow wherever the evidence leads to allegations against persons on any of the “sides.” While there is a logic to this principle, it can also generate concerns.

Consider an armed conflict that involves two sides. The forces of one side are shown to be responsible for grave war crimes, that side is doing nothing to bring the perpetrators to justice, and the ICC Prosecutor’s request for authorization of an investigation of that side’s activities thus meets all the relevant tests under the Rome Statute. The forces of the other side are not alleged to have committed any war crimes.

The ICC Prosecutor has been clear on her view that, once an investigation is authorized, the authority to investigate applies to “the situation as a whole.” For example, when the Government of Uganda referred the situation “concerning the Lord’s Resistance Army” in northern Uganda to the ICC Prosecutor in 2003, the Prosecutor notified Uganda that the referral would be interpreted as covering “all crimes under the Statute committed in northern Uganda, and that [its] investigation would be impartial.” This approach was intended to prevent a sitting government from instrumentalizing OTP by empowering it to proceed only against the forces of the government’s adversaries and not those of the government.

The question arises differently in a proprio motu investigation (i.e., an investigation not involving a referral by a state but instead undertaken at the initiation of the Prosecutor), which does not entail the same risk of a referring State instrumentalizing the Prosecutor by enabling it to go after only the forces of its adversary. Should the same “situation as a whole” rule apply? Normally in a proprio motu situation, the Prosecutor must make a showing to persuade an ICC Pre-Trial Chamber that the jurisdictional requirements are met and an evidentiary threshold has been reached. If the Prosecutor makes that showing with respect to the conduct of the forces of one of the parties, should the Prosecutor be authorized automatically to investigate the conduct of the other party’s forces as to which no such showing has been made?

For its part, that other party may consider it fundamentally unfair that it will become subject to the legal burdens to which states are subject in a formal ICC investigation based solely on allegations about the conduct of its adversary.  In the negotiation of the Rome Statute, at least some states relied on assurances that the treaty contained a built-in check that protected states from the risk of being subject to the burden of an investigation absent a conclusion that the standards set out in the Rome Statute had been met. The idea was that this would help protect states in situations where there was an insufficient basis to investigate the conduct of their personnel. At least arguably, the fact that a state can – under the “situation as a whole” principle – be enmeshed in an investigation based on the conduct of other parties erodes the value of such assurances. From the perspective of the aperture issue that is the focus of this series, this approach can result in a wider aperture and increase the prospects for a state to come into tension with the ICC. This “situation as a whole” issue may well be one that could benefit from further consideration.

The Scope of Pre-Trial Chamber Review

Another issue arises in connection with the question of who decides whether the admissibility criteria for commencing an investigation have been met. In cases in which a situation has been referred to the Prosecutor by a Rome Statute party or the United Nations Security Council, the Rome Statute makes clear that the Prosecutor can commence an investigation based on her own assessment. As described above, however, the Prosecutor in proprio motu situations must request authorization from an ICC Pre-Trial Chamber, which must then conclude – in the words of Article 15 of the Rome Statute – “that there is a reasonable basis to proceed with an investigation, and that the case falls within the jurisdiction of the Court.”

The Afghanistan case, mentioned in Part I of this series, presented an important issue posed by this wording. The Appeals Chamber in that case looked at whether the Pre-Trial Chamber – in carrying out its responsibilities under Article 15 – was permitted to review the Prosecutor’s treatment of the “interests of justice” issue, alongside the admissibility factors of gravity and complementarity, or whether the Prosecutor’s treatment of these issues is dispositive. The details are beyond the scope of this article, but the Rome Statute describes the “interests of justice” test in a way that at least arguably supports a conclusion that the Pre-Trial Chamber’s role in overseeing the conclusions of the Prosecutor’s decisions on the interests of justice issue is different than its role in overseeing the gravity and complementarity tests.

Language in the decision of the Appeals Chamber, however, swept broadly. Specifically, the Appeals Chamber in the Afghanistan case said that, in deciding whether to provide authorization for the Prosecutor to investigate, the role of the Pre-Trial Chamber is limited to determining whether “there is a reasonable factual basis for the Prosecutor to proceed with an investigation, in the sense of whether crimes have been committed, and that potential case(s) arising from such investigation appear to fall within the Court’s jurisdiction.”  It then completed the thought by saying that “the pre-trial chamber’s determination under article 15(4)” – the provision of the Rome Statute under which the Pre-Trial Chamber would grant authorization to investigate – “should not incorporate issues of admissibility” (emphasis added).

It is not quite clear (at least to me) whether a different ICC Appeals Chamber would reach this same conclusion, but it is quite plainly a conclusion worthy of further consideration. In addition to depriving states of a “check” that they may have thought they had on the Prosecutor’s conclusions regarding admissibility before a proprio motu investigation of their activities is authorized, the approach adopted by the Appeals Chamber removes a step that can serve an important filtering function. Indeed, the Appeals Chamber’s approach may create greater pressure for a prosecutor – perhaps one seeking to manage a surfeit of situations but who would under this principle not be able to point to the need to persuade the ICC judges – to push forward in a situation where it is less clear that the gravity and complementarity tests have been satisfied.

Complications: What to do with the issue of scope?

The answer to this question is unclear. First it should be underscored – truly underscored – that the answer should not be to adopt in each case the rule that would narrow the Court’s aperture. The question is complicated even for a state like the United States, whose forces in recent years have been involved in armed combat in many countries around the world, and whose potential exposure to ICC action gives it an interest in a narrow aperture.  Indeed, the previous sentence says “even for the United States,” but it might be said that this is true “particularly for the United States” because – along with its longstanding interest in the protection of its forces from outside legal risk – the United States is a state with an abiding interest in accountability and in atrocity prevention and deterrence.

Those interests are in fact aligned with the work of the ICC in the great majority of countries in which the ICC is operating. At least in the Bush and Obama administrations – the United States in key cases looked to the ICC Prosecutor for action and public statements to highlight the possibility of punishment by the ICC as a way to dampen the enthusiasm of would-be perpetrators to commit further atrocities. The genocide in Darfur during the Bush Administration and widespread atrocities in the Central African Republic during the Obama Administration are two cases that come quickly to mind.

In short, there may be important reasons, as the Experts recommend, to narrow the Court’s aperture. But aperture narrowing also comes at a significant cost. Careful thought – a hard-nosed assessment of both the pros and the cons – needs to be given to each of the possible ways in which such narrowing might occur.

Effecting Change

Separate from the task of identifying what the ideal aperture would be, there remains an issue of how to bring about any desired narrowing of the aperture. Different stakeholders have significantly different appetites for any changes of this type. The Experts’ report perceptively recognizes that these differences arise at least partly from the fact that the Court is simultaneously both a judicial entity and an international organization, and different stakeholders have different views about the extent to which it should function as one rather than the other.  As the Experts say:

As a judicial entity, the Court must benefit from judicial independence. As an international organization, States Parties reasonably expect to be able to guide and shape the institution.

In light of this duality, some maintain that States should not take any action and should leave these aperture issues entirely to the Court. This may stem either from a belief that these questions should be left exclusively to Court actors out of a sense of propriety based on the Court’s judicial nature, or from fear that an effort to find sufficient common ground among States on these issues is, as a practical matter, doomed to failure.

By contrast, others maintain that it is appropriate for States to play a more active role in “guiding and shaping” the Court. From this perspective, the States might be thought of as functioning in a manner akin to the way a legislature in a domestic system acts to change the way law is being applied in appropriate circumstances. On a more practical level, some States may feel that there is no realistic alternative to the latter approach, fearing that the Court is sufficiently over-extended that a lack of reform will doom it to failure. Indeed, although the primary recommendation of the Experts on aperture-narrowing is focused only on the gravity issue, the Experts broader point is that the Court is over-extended to such an extent that “the current situation is unsustainable.”

Even where there is a convergence of views among States, it is not always clear what steps would be needed to effect changes. Change could, as a purely legal matter, be effected through amendments to the Rome Statute, but bringing amendments into force would be a herculean task, in most cases requiring ratification by seven-eighths of the States Parties in order for an amendment to enter into force.

But States may be able to steer Court actors toward desired results in other ways. In some cases, the Court’s interpretation of a rule in the Rome Statute may have been based at least in part on actions that States have taken, such as interpretations that were informed by provisions in the Elements of Crimes or the Rules of Procedure and Evidence that were adopted by a two-thirds majority of the Assembly of States Parties and can be changed in the same way. Such provisions can thus more easily be changed. Some judicial interpretations are based on assessments by Court actors of the practice and views of States. The further practice and views of those States is thus inherently relevant. In other cases, resolutions or statements adopted by the Assembly of States Parties may steer Court actors in informal ways. Indeed, even well-considered statements and writings outside any formal ICC setting by academics and other experts may over time influence the thinking of Court actors, in much the same way that courts in the United States may pick up on thoughts developed in persuasive law review articles. At the same time, the inevitable limitations on funding and resources – with little likelihood of significant future increases – creates its own pressure for Court actors to find ways to narrow the aperture.

Another important way – perhaps the most important way – in which aperture narrowing can occur is through the process of prosecutorial discretion. Thus, even if the formal rules about jurisdiction and admissibility remain unchanged, the ICC Prosecutor can to a very large extent narrow the aperture by deciding where, as a matter of policy, to direct her Office’s resources and energy.  We see some of this happening already, such as in connection with action by the ICC Prosecutor to “hibernate” certain investigations so that resources can be concentrated on other matters more likely to lead to successful prosecutions. More such pragmatic decision-making is possible.

And there may also be space for addressing these issues through a more holistic approach by the Prosecutor to the analysis of admissibility issues.  For example, a State’s efforts to deal with past crimes through measures outside traditional criminal prosecutions might not be considered sufficient to satisfy the legal criteria for complementarity in Article 17 of the Rome Statute in a traditional sense, but might be treated as an ameliorating factor that is incorporated into the analysis of gravity. So, for example, if the State also undertakes significant legal reforms, puts in place measures of non-repetition, and addresses harms to victims through reparations or other amends, the Prosecutor might incorporate the combination of actions into her calculations as she decides where best to direct her energies.

To be sure, this kind of reform through prosecutorial discretion is a two-edged sword, as the extent to which decisions are based on decisions of the Prosecutor can itself raise concerns that such decisions are unchecked or overly prone to becoming politicized. At a minimum, to help address such concerns, it would be important for the Prosecutor to promulgate in advance, as tangibly as feasible, the criteria that she will apply.

Conclusion

The Report of the Independent Expert, together with ongoing discussions in other fora, provide an important service in bringing the aperture issue to the fore and framing the issues in intelligent ways that can promote constructive follow-on discussions. My purpose in this series is not to agree or disagree with any particular recommendations, or to stake out a position on the particular aperture issues that this article describes, but rather to underscore that, though difficult, there are many different ways to address these issues, and the issues need to be addressed if the Court is to succeed.

Indeed, publication of the Experts’ report is intended to lead to a follow-up process for implementation, with the Experts themselves recommending that the States Parties establish a standing coordination or working group that would shepherd efforts to develop concrete plans, keeping the Assembly of States Parties and the Court apprised of progress. Given the report’s volume, it will take significant time for stakeholders to fully digest its contents, only one aspect of which is addressed in this series. But the report makes one thing abundantly clear: the Court is at an inflection point in its history. The issues with which it grapples deserve the attention of all States, as well as other stakeholders, with an interest in the Court’s future.

IMAGE: Exterior View of new International Criminal Court building in The Hague. (Photo by Michel Porro/Getty Images)

 

About the Author(s)

Todd Buchwald

U.S. Ambassador and Special Coordinator for Global Criminal Justice, 2015-2017.