by Mohammad Hadi Zakerhossein
[Dr. Mohammad Hadi Zakerhossein is a Lecturer at Tilburg University.]
On 9th November 2017, the Judges at PTC III of the International Criminal Court sprung a great surprise by unsealing an unexpected decision, thereby authorizing the Prosecutor to open a full investigation into the situation in the Republic of Burundi. The Chamber’s decision sparked off a lively debate on Article 18 of the Rome Statute. This apparently uncontroversial article obliges the Prosecutor to notify all States Parties and those States which would normally exercise jurisdiction over the crimes concerned within a situation of her decision to open an investigation (paragraph 1), and to defer to the State’s investigation if within one month of receipt of the notification a State informs the Court that it is investigating or has investigated crimes referred to in the notification (paragraph 2). According to Article 18 (1), when the Prosecutor activates the Court’s jurisdiction over a situation based on her proprio motu power, this notification should be made when the Prosecutor ‘initiates’ an investigation pursuant to articles 13 (c) and 15.
Some believe that Article 18 applies to ‘investigation stage’ that commences upon concluding a preliminary examination, and after issuing an authorization by the PTC. According to this reading of Article 18, during the preliminary examination there is no need for notifying States in order to enable them to challenge the Prosecutor’s determination on the admissibility of a situation. In addition, in the authorization process, States ,contrary to victims, lack a ‘participatory right’. The Prosecutor concurs with this interpretation. In all Prosecutors’ requests seeking authorization of an investigation into the situations in Kenya, Cote d’Ivoire and Georgia, it has been explicitly mentioned that only upon an a judicial authorization, the Office of the Prosecutor would notify States under Article 18. In the Burundi situation, the Prosecutor filed a request under seal and ex parte on 5 September 2017, and, inter alia, requested the PTC III to issue its decision in an ex parte procedure, namely, a procedure without participation of States and victims. As to the participation of States, the Chamber concurred with the Prosecutor that Article 15 of the Rome Statute “does not confer any rights of participation on the States which would normally exercise jurisdiction over the alleged crimes”. Indeed, the Chamber believed that pursuant to Article 18, States “acquire rights of participation only once the Prosecutor initiate an investigation following authorization by a Pre-Trial Chamber”.
Upon uncovering the decision, Heller wrote a piece casting doubt of the mainstream understanding of Article 18. He argues that the Article 18 notification should be made during the preliminary examination not after initiating an investigation following a judicial authorization. He asserts that the current Court’s approach stands Article 18 on its head. Dov Jacobs reacted to Heller’s piece by rejecting his position. According to him, all procedural steps of Article 16 need to have been followed before the notification obligation of Article 18 kicks it.
Here, I would like to elaborate on Heller’s arguments and add more reasoning to enhance the interpretation that understands the Article 18 mechanism as a component of Article 15.
To figure out the correct position of the Article 18 notification, we need to understand the meaning of the concept of ‘investigation’ in the Rome Statute. Generally speaking, it is possible that a single term in a legal text carries different meanings. For this reason, provisions should be understood contextually, and the Rome Statute should be read as a whole. The term ‘case’ is an example here. The meaning of the term ‘case’ in the situation phase ( as referred to in Article 53 (1)) differs from its meaning in the case stage (as referred to in Article 53(2)). ‘Investigation’, as referred to in the chapeau of Article 53 of the Rome Statute, is a pre-trial phase that links the preliminary examination stage to the case stage; “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation”. The dividing line between the investigation stage and the case phase is the issuance of an arrest warrant or a summons to appear. So, the investigation phase is distinct from the preliminary examination. A preliminary examination is a process within which the Prosecutor finds out if there is a reasonable basis to initiate an investigation. If a situation is brought to the Prosecutor’s attention through ‘communications’, the Prosecutor shall obtain a judicial authorization if she believes that the statutory requirements to initiate an investigation are met. Only by issuing an authorization, the Prosecutor initiates the ‘investigation’ phase. Taking into account this procedure, at first sight, it seems that Article 18 is a mechanism within the investigation phase; i.e. after conducting the preliminary examination and the automation process, because Article 18(1) obliges the prosecutor to notify States when she initiates an ‘investigation’.
However, Article 18 includes a hint for interpretation. It refers to initiation of an investigation under Article 15. It means that this provision should be interpreted in the context of Article 15. Article 15 (1) uses the term ‘investigation’. “The Prosecutor may initiate investigations proprio motu on the basis of information of crimes within the jurisdiction of the Court”. According to the common interpretation, this provision refers to the ‘investigation phase’, that might be initiated by the Prosecution on her proprio motu, namely, in the absence of referrals. However, reading this paragraph in light of paragraph 6 of Article 15 that states “after the preliminary examination referred to in paragraphs 1 and 2” makes it clear that the term ‘investigation’ referred to in Article 15(1) differs from the term ‘investigation’ referred to in Article 53 and paragraph 4 of Article 15. Indeed, paragraph 1 of Article 15 employs the word ‘investigation’ to refers to the preliminary examination as a pre-investigation phase. Paragraph 1 uses word ‘investigation’ because a preliminary examination is an investigation in nature but in a narrower scope. According to the first paragraph of Article 15, the Prosecutor ‘may’ initiate a preliminary examination (investigation). This possibility refers to the fact that all communications received by the Prosecutor do not lead to identifying a situation that undergoes a preliminary examination. Here, proprio motu power of the Prosecutor does not refer to her power to initiate the investigation phase, but refers to her power to open a preliminary examination in the absence of referrals and State’s demands. Indeed, the drafters of the Rome Statute have authorized the Prosecutor to open a preliminary examination on her own discretion and based on information she receives.
‘Complementarity principle’ is also helpful here to enhancing this contextual interpretation. Article 18 is meant to bolster the complementarity principle. During the preliminary examination, the Prosecutor, according to Article 53, should examine the admissibility of a situation by taking into account the complementarity requirement, in addition to the gravity of the situation. Adopting a teleological interpretation by giving considerations to the complementarity principle as a cornerstone of the Court enhances the approach that sees the Article 18 mechanism as a part of the ‘phase three’ of the preliminary examination, i.e. when the prosecutor begins examining the admissibility of a situation. In this phase of the preliminary examination, the Prosecutor shall take into account the domestic proceedings and the position of national jurisdictions. Following her examination, the Prosecutor shall be satisfied that there is no concurrent jurisdiction at the domestic level over the same situation. The Court functions selectively due to its broad inabilities. So, when there are proceedings in parallel over the same situation, the Court shall refrain spending time and money on the same situation whose impunity has already been ended at the domestic level. There is no justification to postpone discharging the notification obligation under Article 18. Without notifying the States concerned and Stets that have normally jurisdiction over a situation, the Prosecutor is unable to effectively examine the complementarity requirement to believe that there are no proceedings at the domestic level. In addition, the positive complementarity endorses this interpretation. Under positive approach to complementarity, the Prosecutor shall not be passive during the preliminary examination and should engage with States to encourage and assist them to activate their own jurisdictions. Notifying States of the Prosecutor activities and intent is a necessary condition for such an engagement.
Defining the Article 18 mechanism as a part of investigation stage, instead of preliminary examination, premises on the belief that preliminary examination is a marginal and instrumental stage that should be passed as soon as possible. A lengthy preliminary examination, from this perspective, is a deficit for the Court. However, it is a misunderstanding of the preliminary examination. This pre-investigation phase has some expressive mandates. It is a platform for positive complementarity activities. The Court is much more effective if it manages to activate the domestic jurisdiction during the preliminary examination. The preliminary examination is a bridge that should be passed, provided that it does not result in activating the States’ jurisdiction. The ICC is not a rival to States. It should not be eager to seize situations which are primarily objects for States’ actions. Primary in prosecution is with States. The Court should assume a more managerial and supervisory role. Conducting preliminary examination behind closed doors and in ex parte procedures in order to facilitate the Court to reach the investigation phase is in contradiction with the soul of the complementarity principle. The ICC, sooner or later, should notify states who has primary jurisdiction over the ICC crimes. What does justify postponing such a notification? According to Article 18, if a State requests a deferral, the Prosecutor ‘shall’ defer to the requesting State. It is something that should happen during the preliminary examination when the Prosecutor examines the complementarity requirement under Article 17. Based on this interpretation, if a State request a deferral but the Prosecutor objects, then the Prosecutor may request a judicial authorization under Article 18.