On 22 May, Palestinian Foreign Minister Riyad al-Maliki submitted a referral to the International Criminal Court (ICC) regarding the situation in Palestine since 13 June 2014, with no end date. This follows the Prosecutor’s statements on 8 April and 14 May responding to the situation on the Gaza border (which were themselves unusual, if not unique, examples of OTP practice). As with the proposed investigation of US nationals in the Situation in Afghanistan, the Myanmar and Bangladesh issue that is under consideration and the investigation of Russian conduct in Georgia and Ukraine, the question of whether, and if so how, the ICC may exercise jurisdiction over nationals of non-state parties absent a Security Council referral is pressing once again.
By proceeding with investigation of Russian conduct in Georgia and Ukraine, Israeli conduct in Gaza and the West Bank, and American conduct in Afghanistan, legal issues which arise upon exercise of the Court’s enforcement jurisdiction will foreseeably give rise to challenges both before the ICC, as well as in national jurisdictions during surrender proceedings. This contribution suggests that a prudential, even cautious, policy-based approach to the investigation of nationals of non-states parties may help the OTP avoid pitfalls resulting from proceeding without sufficient regard to non-states parties’ jurisdictional objections.
A policy-based approach to situation and case selection
As part of a progression towards a policy-based approach to situation and case selection, the OTP has published policy papers on the interests of justice (2007), preliminary examinations (2013), and case selection and prioritisation (2016). Undoubtedly influenced by its experience since publication of its policy paper on the interests of justice in 2007, its 2016 “Policy Paper on Case Selection and Prioritisation” reflects a more pragmatic approach than historically adopted. Although gravity remains the predominant case selection criterion, as part of its ‘operational case prioritisation criteria’ the OTP should focus on cases in which a successful investigation can lead to a prosecution with a ‘reasonable prospect of conviction.’
The OTP’s Policy Paper on Case Selection and Prioritisation indicates criteria to assess operational viability in a relative manner across selected cases. These include (i) the likelihood of international cooperation and judicial assistance to support the Office’s activities; (ii) the Office’s capacity to effectively conduct the necessary investigations within a reasonable period; and (iii) the potential to secure the appearance of suspects before the Court. With respect to the investigation of nationals of non-states parties – whose states owe no obligation to the Court – the OTP’s policy criteria may be expanded expressly to regulate a strict construction of the applicable law, through granting a margin of appreciation to the non-states parties with respect to its acts of state, and by bearing the burden of proof itself as opposed to placing it on the non-state party in its complementarity analysis. By adopting these policies, the OTP will be better placed to guard against operational failures arising from the legal reality that non-states parties have no obligation to cooperate with the Court and are entitled not to do so.
Strict construction of the applicable law
At present it appears that the OTP is guided by the “reasonable basis to believe” standard contained in Article 53 of the Rome Statute, and the “reasonable grounds to believe” standard contained in Article 58, when considering whether crimes fall within the jurisdiction of the Court. This suggests that it is content to proceed with such investigations so long as the Court’s jurisdiction is arguable.
A more rigorous standard is warranted. Too often a progressive interpretation de lege ferenda is adopted despite the law itself. A strict construction of the applicable law must, as a matter of law not simply policy, precede an OTP investigation. Such a strict standard is required by the Court’s statutory duties under Article 21(3) and Article 22 of the Rome Statute, as well as being suggested as a matter of policy by the OTP’s own operational guidance.
In cases in which nationals of non-state parties are suspected of criminal conduct occurring prior to the date of a Security Council referral, or an Article 12(3) declaration by a non-state party, the Court’s jurisdiction may be established on the basis of the crimes forming a part of customary international law at the time they were committed. Marko has argued that the Court should ‘read down’ the Rome Statute so as to conform with this requirement, not least when the Statute is viewed as jurisdictional (as opposed to substantive) in nature. That process is not likely to be simple. It will be similarly complex for the Court to resolve the conflict of laws which arises from the inconsistency of Statute obligations with international obligations under SOFAs or other bilateral agreements (as described by Mike Newton).
Given the scope for error, as well as the stakes, there are coherent legal and policy reasons for the OTP to adopt a cautious approach to investigations which engage non-state parties predicated on a strict construction of the applicable law. Such an approach would also recognise the horizontal relationship under international law between the ICC and non-states parties in situations not referred to the Court by the Security Council, as well as that Article 12 of the Rome Statute’s prescribes a form of delegated territorial jurisdiction over nationals of non-states parties, as opposed to a form of universal jurisdiction or the ius puniendi of the international community as a whole.
A margin of appreciation afforded to the state
From the Rome Conference onwards, non-states parties’ concerns about the adjudication of inter-state disputes by an international court without their consent have contributed to decisions not to sign and ratify the Rome Statute. By determining, for example, whether a state is responsible for the commission of international crimes, or whether the law of armed conflict or international human rights law governs a state official’s conduct, or whether a situation’s factual and legal matrix is to be considered through the prism of international or non-international armed conflict, ICC rulings have the capacity legally to determine issues which are the subject of inter-state disputes. To the extent that such determinations might be made absent the consent of an affected state is arguably unprecedented and, on any view, renders the exercise of such a jurisdiction problematic in practical terms.
Although in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another (Secretary of State for Constitutional Affairs and others intervening)  UKHL 26, Lord Bingham held that ‘a state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings,’ here we are concerned with a form of indirect impleading. Affected non-states parties may argue that such indirect determinations of inter-state disputes operate as a bar to sovereign acts which are necessary to protect citizens’ security, and as such are adverse to the interests of international peace and security.
Although the ICC’s function as a court of criminal jurisdiction (determining individual as opposed to state responsibility) arguably negates such concerns as a legal barrier to jurisdiction, that non-states parties concerns in this regard have significant policy implications is broadly accepted. An international criminal law jurisprudence which rules on the legality of acts of state inevitably has a profound effect on the conduct of diplomacy and foreign affairs in the wider sense. To what extent and how should the OTP take account of this?
Drawing upon the approach of the European Court of Human Rights, the OTP may consider granting a margin of appreciation to non-states parties in situations not referred to it by the Security Council with respect to its acts of state. This would follow an established methodology for international courts with respect to decisions of national authorities. The human rights protections contained in Article 21 and Article 22 of the Rome Statute are not adequate to protect non-consenting states’ interests prior to the issuance of an arrest warrant or summons; they are arguably not engaged at that stage. Yet by drawing on the Strasbourg doctrine of the margin of appreciation, and by assuring non-states parties that the ICC recognises the value of their interests and their discretion in the application of norms affecting them, the OTP may ensure a greater level of international cooperation and judicial assistance to support its activities.
Placing the burden of proof on the OTP rather than the non-state party in complementarity analyses prior to Article 18 engagement
The Appeals Chamber in Ruto suggested that states bear the burden of proof in complementarity analysis. This ratio cannot apply to non-states parties as they are not bound by the Rome Statute. Although it is correct that Article 18 of the Rome Statute envisages a role for a non-state party in complementarity analyses, it imposes no obligation on that non-state party to cooperate with the statute’s scheme. It has been argued that Article 36(2) of the Vienna Convention on the Law of Treaties (VCLT) would require that a non-state party which exercises rights pursuant to Article 18 must be taken as having consented to the right, and therefore comply with the conditions under which that right might be exercised. This says nothing about the non-state party which does not choose to exercise such rights.
In the absence of any obligation on the non-state party (prior to engagement pursuant to Article 18(2)), the burden of proving admissibility must fall on the OTP, as opposed to an affected non-state party (which bears no obligation to the Court). The situation is different if a non-state party exercises rights conferred by Article 18. In those circumstances, Article 36(2) of the VCLT would be engaged and the non-state party would be under an obligation to comply with the conditions under which Article 18 might be exercised, including with respect to the burden of proof under the Rome Statute’s complementarity framework.
The legal complexities arising from the investigation of nationals of non-state parties absent a Security Council referral sit within the overall context of the OTP’s discretion with respect to situation and case selection. This discretion is far wider than that possessed by any historic international prosecutor, but the OTP’s limited resources do not allow it to investigate all the alleged crimes that fall within its jurisdiction. As a result, the OTP has moved towards a policy-based approach to case selection and prioritisation. A cautious and prudential policy-based approach to the investigation of nationals of non-state parties might therefore properly guide the OTP when it exercises its discretion in such cases.