By Andrés Morales

Andrés Morales is a Colombian lawyer holding an Advanced LLM in Public International Law (cum laude) from Leiden University. Before joining the IRMCT as a Legal Reviewer for the OTP, Andrés worked at the ICC, the ICTY, the Special Jurisdiction for Peace in Colombia as a legal officer and the Kalshoven-Gieskes Forum on IHL as a researcher.

Introduction

In the Context of the International Criminal Court (“ICC”), the concept of ‘situation’ “denotes the confines within which the Court determines whether there is a reasonable basis to initiate an investigation” (Rastan, 2011). This seemingly simple concept becomes more complex when considering that the confines of situations include “seldom well-defined events [that] stop and restart, have precursors and encounter periods of low intensity and resurgence” (Rastan, 2011). 

Adding to that complexity is the fact that some situations are not defined in the referral of a State Party or the Security Council, but rather depend on the Prosecutor and the Pre-trial Chamber. This is the case when the Prosecutor decides to initiate an investigation when she has reasonable basis to believe that a crime under the jurisdiction of the Court was committed. These are called proprio motu investigations. This writing will only focus on this type of investigations in order to shed light on  the problems that derive from the delimitation of its scope. In essence, it is argued that when defining the scope of proprio motu investigations, the Pre-Trial Chamber does so based on arbitrary criteria resulting in unnecessarily stricter scopes of investigations compared to other situations. 

1. The scope of proprio motu investigations

Situations that have emerged from proprio motu investigations have been defined in detail by the Pre-Trial Chamber. As the jurisprudence of Article 15 (authorization of proprio motu investigations) decisions shows, from the Situation in Kenya to the Situation in Afghanistan, the investigative powers of the Prosecutor have been defined more strictly than in the cases of State Party referrals or ad hoc declarations by States pursuant to Articles 14 and 12 of the Statute. Besides this commonality, Article 15 decisions have undergone many variations.

Today, it is the understanding of the Pre-Trial Chamber that a situation derived from proprio motu investigations is not only delimited by the Prosecutor’s request, but also by crimes that are sufficiently linked to those referred to in the request. “Sufficiently linked” crimes, in this context, means that the additional crimes must be part of the same attack (in case of crimes against humanity) or committed within the same armed conflict (in case of war crimes) as the crimes contained in the Prosecutor’s request. This approach, followed in Georgia, Burundi, Bangladesh/Myanmar and the appeal against the Afghanistan decision, remains stricter than that of State referral and ad hoc declaration situations. While this represents the current understanding of situations in the context of proprio motu investigations, the jurisprudence is not evidence of a settled view.

2. Why should we care about proprio motu investigations?

The Pre-Trial Chamber does not have the power to define the scope of an investigation

While it is clear that Article 15 of the Rome Statute grants the Pre-Trial Chamber the power to exercise judicial review of proprio motu investigations, it has been established through the above-mentioned jurisprudence that the Chamber has claimed the power to additionally define the scope of the investigations it authorizes. The Chamber has done so even in the absence of a statutory provision. 

This point was raised by Judge Fernández de Gurmendi’s separate and partly dissenting opinion to the Côte d’Ivoire Article 15 decision. Here, Judge Fernández argues that the role of the Pre-Trial Chamber in article 15 decisions is limited to the underlying purpose of preventing “unwarranted, frivolous, or politically motivated investigations” and as such, 

“The Chamber is only mandated (and indeed, only permitted) to review the Prosecutor’s conclusions (as contained in the request) in order to confirm: (i) that the statement of facts is accurate, and (ii) that the legal reasoning applied to establish that there is a reasonable basis to believe that the facts may constitute crimes within the jurisdiction of the Court and that cases would be admissible, is correct under the ICC legal texts and the jurisprudence of the Court” (emphasis added).

In this decision, however,  the Pre-Trial Chamber not only assessed the scope of proprio motu investigations when it lacked the power to do so, but it also defined these situations in a much stricter manner in comparison with State referrals and ad hoc declaration situations. By claiming a power that is not given by law, the Pre-Trial Chamber’s approach may be questionable from a rule of law perspective and could in principle be challenged by the parties in the proceedings. Additionally, it is not explained how defining the scope of an investigation would help determine whether the investigations are unwarranted, frivolous or politically motivated; this being the sole purpose of article 15 authorizations.  

The Pre-Trial Chamber’s role in defining the scope of investigations has led to an arbitrary categorization of situations 

The meaning and scope of situations change dramatically depending on the triggering mechanism of the ICC’s jurisdiction. Such difference in the meaning and scope of situations is justified in cases of Security Council referrals where the scope is strictly defined because the source of jurisdiction is not State consent but rather the binding power of Security Council resolutions.

However, it is open to question whether a difference in the meaning and scope between  proprio motu investigations, and investigations that originated from State Party referral or ad hoc declarations is equally justified. In other words, is there a reason as to why the scope of proprio motu investigations is stricter than the scope of investigations that stem from State Party referrals or ad hoc declarations? 

One could try to justify this difference by stating that proprio motu investigations must be stricter in scope to prevent unwarranted, frivolous or politically motivated investigations. However, that role allows the Chamber to authorize an investigation, not to define its scope. Aside from this, no other argument seems to justify why different triggering mechanisms result in different scopes of investigations. 

On the contrary, reasons could be given in favour of maintaining the same scope of situations, regardless of the ICC’s triggering mechanism. Perhaps the most apparent reason is associated with the fact that an investigation is preliminary in nature and thus it should remain wide in scope in order to allow for the procurement of evidence into all possible cases under the jurisdiction of the Court. This fact does not depend on how the jurisdiction of the ICC was triggered and therefore should not affect the scope of investigations.  

The over-reliance on Prosecutor’s requests in proprio motu investigations

Thus far, it has been argued that proprio motu investigations are the result of the non-existing power of the Pre-Trial Chamber and that they have been arbitrarily delimited in stricter terms than other situations have. Along the same lines, this section argues in favour of consistency when determining the scope of all situations by showing why the stricter delimitation of proprio motu investigations t is illogical. 

The scope of these situations has been defined on the basis of the Prosecutor’s request and the crimes that are sufficiently linked to them. These requests, as that very same jurisprudence states, are “inherently based on limited information” (Article 15 Decision in the Situation of Georgia, 2016, para. 63). With that said, how could it be justified that the Prosecutor’s requests have constituted the basis for defining the scope of proprio motu situations?

The Office of the Prosecutor argued in its appeal to the Article 15 decision in Afghanistan that the Prosecutor’s requests should not be taken into account as a guide to define the scope of situations. In them, “the prosecutor may choose to identify multiple examples. [However,] this is merely illustrative of a threshold that is already met and may be motivated by practical considerations or a desire for an appropriate degree of public transparency. But such examples cannot, and do not, constitute the outer parameters of the situation” (OTP Appeal brief Afghanistan. Para 79). 

In the same vein, as noted by Judge Fernández in her dissenting opinion in Côte d’Ivoire, the information presented by the Prosecutor in her request is meant to be illustrative and, as such, is necessarily non-exhaustive.

The excessively restrictive understanding of “sufficiently linked” crimes in proprio motu investigations 

What the Article 15 jurisprudence shows is that “sufficiently linked” crimes refer to crimes that are part of the same attack against the civilian population (in case of crimes against humanity) or crimes occurring within the same armed conflict (in case of war crimes). This idea is problematic. First, it excludes crimes from situations. In the case of a Prosecutor’s request that lists only crimes against humanity, arguably no war crimes or genocide could be included as they would not fulfil the criteria to be considered sufficiently linked crimes: the same attack against the civilian population. By the same token, in a Prosecutor’s request including only war crimes, crimes against humanity or genocide may not be considered sufficiently linked crimes as they may not be linked to the same armed conflict. 

A second problem with this understanding of the term “sufficiently linked crimes” is that it assumes that one situation equates to one single and static armed conflict or attack against the civilian population. A situation may encompass war crimes in the context of both an international armed conflict (“IAC”) and a non-international armed conflict (“NIAC”). If in this example the Prosecutor’s request only covers war crimes committed in a NIAC, the Prosecutor would not be authorized to consider other war crimes in an IAC as sufficiently linked crimes, simply because the existence of an IAC was not mentioned in the Prosecutor’s request. 

From this, it becomes evident that the possibility to enlarge the Prosecutor’s request so as to include “sufficiently linked” crimes may not be appropriate to capture the full extent of a situation. This may lead to the undesired effect of initiating separate situations for those crimes that cannot be sufficiently linked, which in turn leads to unnecessary fragmentation of situations or “mini-cases” (Jacobs, 2019).

3. Concluding remarks

Proprio motu investigations are strictly defined to the scope mentioned in the Prosecutor’s request and the crimes “sufficiently linked” to that situation. This is crimes that share the same contextual elements as those contained in the Prosecutor’s request.

A critical look at these situations brings to light a series of problems including granting the Pre-Trial Chamber a power it does not have and setting arbitrary limitations to investigations necessarily based on the inherently limited information provided by the Prosecutor in her request. 

While these problems will become evident in the future, some have already manifested in cases before the Court; most notably in the Myanmar/Bangladesh situation. In the Article 15 decision, the Pre-Trial Chamber decided to define the scope of that situation based on the Prosecutor’s request and the sufficiently linked crimes. By applying these criteria, the Pre-Trial Chamber made it impossible for the Prosecutor to charge the crime of genocide in a future case within this situation even if there is sufficient evidence to support it simply because this crime does not share the same contextual elements as the war crimes and crimes against humanity identified in the initial request, and therefore it cannot be considered as a sufficiently linked crime to this situation. This may negatively impact the Prosecutor’s duty to establish the truth under article 54 of the Rome Statute. To conclude, by shedding light on the problems that derive from the Pre-Trial Chamber’s practice of delimiting the scope of proprio motu investigations, this piece presented an argument in favour of investigations with a wide scope, regardless of the triggering mechanism of the ICC’s jurisdiction, which would go in line with the duties of the Prosecutor; in particular, that of establishing the truth.