False Positives, False Negatives, and Prosecutorial Discretion regarding the Jurisdiction of the ICC

Critics of the ICC Prosecutor’s request for a determination under article 19(3) in the Situation in the State of Palestine are right to point out that she could have simply launched an investigation without seeking such a ruling. As this critique goes, the Prosecutor has the authority to investigate a State referral without seeking the authorisation of the Pre-Trial Chamber (“PTC”). But on closer inspection, one must acknowledge the practical and strategic soundness of the Prosecutor’s decision. Even if the Prosecutor had not raised it at this stage, the jurisdictional question now submitted by the Prosecutor would certainly not have been avoided. Surely, once the investigation advanced, Israel or an individual suspect would have brought a challenge to the jurisdiction of the Court. It seems the Prosecutor is wise to take pre-emptive action. In that vein, one could argue that the Prosecutor could have raised this question with the PTC a long time ago. The Court first received a declaration from Palestine in 2009, at which time the former Prosecutor, Luis Moreno Ocampo, made his own determination of the boundaries of the Court’s jurisdiction. The interests that the Prosecutor refers to now in support of her decision to submit the question for judicial determination, namely, the interests of “legality” and “certainty” (paras 36-40), certainly would have existed back in 2009.

But, now that the question has been raised, there is no guarantee that it will be addressed. The PTC has in the past expressed ambivalence about the evocation of article 19(3) in this manner. In her request, the Prosecutor has fully articulated the legal basis for seizing the PTC at this stage. What she has not explained, however, is that there are serious practical consequences should the PTC refuse to take up her question. Therefore, it is worth spending a few words, here, to emphasise the importance of dealing with the question now raised by the Prosecutor on its merits under the framework for challenges to the Court’s jurisdiction in article 19.

In its decision on the Prosecutor’s request for an article 19(3) ruling in the Situation in Bangladesh/Myanmar, the same PTC determined that relying on article 19(3) at a stage prior to the investigation was “quite controversial based on different readings of the Court’s statutory documents and the literature interpreting the provision” (para. 27). The PTC declined to enter a “definite ruling” on whether article 19(3) was available to the Prosecutor at that stage. It instead decided to rely on its inherent powers and its power to decide disputes concerning “the judicial functions of the Court” (paras 28-33).

It is conceivable that the PTC could deal with the questions raised now by the Prosecutor under the Court’s inherent powers instead of under article 19(3) as it did in Bangladesh/Myanmar. However, following that determination, it would be bizarre, to say the least, to continue to raise doubts as to the admissibility of the Prosecutor’s question but at the same time continue to deal with it on its merits. So, it is likely that the PTC may now be inclined to sidestep the question altogether by limiting the application of article 19(3). This would effectively preclude the Prosecutor from bringing jurisdictional issues to the Court at any stage before an arrest warrant is issued. The Prosecutor would be left to herself delineate the scope of the Court’s jurisdiction in contested cases.

This exercise of discretion comes with inherent risks, some of which are enumerated in the Prosecutor’s request. For example, should the Prosecutor decide jurisdiction in the affirmative, there is a risk that her decision may be a “false positive”. That is, if the Prosecutor were to assess the Court’s jurisdiction and find in the affirmative, she may then pursue a potentially dangerous and costly investigation and issue warrants of arrest despite the existence of dubious grounds to do so, only to later learn that there is in fact no jurisdiction to proceed (paras 36-38). Indeed, as issues of jurisdiction in contested cases will inevitably reach the Court in one form or another, it is better that they do so at the earliest stage possible. This is the spirit of article 19 of the Statute (see e.g., article 19(5)).

However, there is another risk that, though very real, was not articulated by the Prosecutor. This is the risk of a “false negative”. Essentially, when made behind closed doors, a decision about controversial, politically charged jurisdictional issues may be perceived as arbitrary. This is no more apparent than in the methodology adopted by the Prosecutor in her assessment of the Court’s jurisdiction over contested States.

In her article 19(3) request, the Prosecutor has announced that she will continue Ocampo’s policy that an entity is not a ‘State’ for the purposes of article 12 of the Rome Statute unless the UN General Assembly has given “unequivocal indications” that it is a ‘State’ (paras 109-111, 121). This, according to the Prosecutor, accords with the practice of the Secretary-General as depositary of treaties to follow or seek the General Assembly’s directives in permitting an entity to accede to a treaty (such as the Rome Statute) open to ‘all States’ for ratification. However, this policy requires closer scrutiny. Is the practice of the Secretary-General one that can be comfortably adapted to the needs of an international court of criminal jurisdiction? Would this practice, if wholly transposed into article 12, be capable of providing the “legal certainty” that is the bedrock of criminal proceedings? One need not look further than the Situation in the State of Palestine to find answers to these questions.

Based on his policy regarding contested States, Ocampo decided in 2009 that the Court did not have jurisdiction over Palestine. For him, it was determinative that the UN at the time recognised Palestine only as an ‘observer’, but not as a ‘non-member State’ observer. This, despite the fact that the Cook Islands, though not a member of the UN, was nevertheless permitted to sign the Rome Statute because it was at the time a full member of the WHO. According to the Secretary-General, the WHO’s membership is “fully representative of the international community” (p. 24), which provides “indications” that are a sufficient substitute for the otherwise required “indications” from the UN General Assembly itself.

However, when both the Secretary-General and the Prosecutor were of the firm opinion that Palestine could neither accept the Court’s jurisdiction (article 12(3)) nor accede to the Statute (article 125), the UNESCO had already bestowed full membership on Palestine. Given that the WHO has a membership of 194 States and the UNESCO has a membership of 193, it would be difficult to argue that the WHO’s membership is materially more “representative of the international community” than that of the UNESCO.

Whatever the justification may be for denying Palestine membership of the Court until 2015, one thing is abundantly clear: the decisions taken by the Secretary-General as depository are not legal determinations. His office does not consider principles like procedural fairness and legal certainty when accepting new signatories and, thus, extending the Court’s territorial jurisdiction. Rather, his decisions are made in his admittedly “administrative” (para. 132) function as depositary, pursuant to a policy designed to remove practical impediments to multilateral treaty making. When imported into article 12, such decisions may indeed be perceived as arbitrary.

Now, both the Prosecutor and the Secretary-General seem to place heavy reliance on GA Res 67/19, as if to say that this was a watershed moment for Palestine. After the resolution was passed, Palestine was permitted to accede to the Rome Statute. But it is questionable whether this resolution provides an “unequivocal indication” of the will of the international community, as required by the practice of the Secretary-General. Observers have pointed out (comment on 3/12/2012 at 20:44) that States that voted in favour of the resolution made comments on the assembly floor that appear to contradict the resolution’s stated purpose. Some States that voted against the resolution remained silent when Palestine eventually acceded to the Rome Statute rather than lodging an objection when given the opportunity to do so. Others ostensibly supported GA Res 67/19 (Austria and Brazil) or abstained from voting (Germany and Hungary) but have now announced that they oppose the Prosecutor’s investigation on jurisdictional grounds (here, here, here, and here, respectively).

The will of the international community, it seems, is a fickle creature. Should the PTC limit the Prosecutor’s ability to seize the Court of jurisdictional questions, the Prosecutor will struggle to keep score of what is and is not a State and her decisions will expose her office to criticism. But it is within the power of the Court under article 19 to make determinations of its own jurisdiction, and it is well suited to do so at any stage of a situation before the Court. When faced with difficult jurisdictional questions, such as those in the Situation in the State of Palestine, the PTC should not shy away. It now has the opportunity to conduct an open, participatory proceeding capable of providing legal certainty to those involved. Ultimately, if the PTC finds in favour of the Prosecutor, its ruling will remove the perceived arbitrariness that may otherwise unduly cast a shadow over the Prosecutor’s decision to investigate.

The views expressed herein are those of the author and do not necessarily reflect the views of the Special Tribunal for Lebanon

Image source: jbdodane, https://www.flickr.com/photos/jbdodane/38794179861