Towards Advisory Opinions of the International Criminal Court

Introduction

On 25 October 2022, the Appeals Chamber (“AC”) of International Criminal Court (“ICC” or “the Court”) delivered the Decision on the Admissibility of the Appeal in the case of The Prosecutor v. Mahamat Said Abdel Kani (“Said Decision”). The context of the appeal is that the Defence had sought leave to appeal the Trial Chamber’s (“TC”) decision by which it permitted the Prosecutor to take witness testimony remotely via audio- and video-link technology. While the Trial Chamber found that the issues raised did not meet the criteria for appeals set out in Article 82(1)(d) of the Rome Statute, that Chamber exercised its discretion, reformulated the issues raised by the Defence and submitted the following question to the Appeals Chamber:

“Does the Court’s legal framework allow Trial Chambers to treat testimony given via audio-video technology as an equivalent alternative to in-court testimony, which can be resorted to whenever the conditions of rule 67 of the Rules are satisfied, or are there additional criteria that Trial Chambers should consider in exercising their discretion in general or on a case-by-case basis, before authorising the use of audio-video technology?” (Said Decision, para. 5)

The Appeals Chamber refused to answer this question. When an interlocutory appeal is lodged under Article 82(1)(d), this article requires that a contested decision must involve an “issue”. As consistently interpreted in the Court’s case law, “an “issue” is an identifiable subject or topic requiring a decision for its resolution, not merely a question over which there is disagreement or conflicting opinion” and thus “cannot represent a hypothetical concern or an abstract legal question” (Gbagbo, 13 July 2013, para. 8). In other words, an “issue” shall contain specific alleged errors of law or facts that were made by lower chambers. Although the TC’s question was related to the case pending before it, it did not ask the Appeals Chamber to rule on whether it had made concrete errors of fact, law or procedure. What it sought was more similar to general legal guidance on the remote testimony given via communication technologies. In this sense, the TC’s question failed to involve an “issue”.

Moreover, when the Appeals Chamber considers an appeal, it confirms, reverses or amends the impugned decision after it adjudicates the concrete findings made by chambers. In the present case, had the Appeals Chamber found the appeal admissible, it would have to give its legal opinion on the TC’s question in generalized manner, without addressing the alleged errors made by the TC. In such a case, the Appeals Chamber’s determination would not include specific and binding instructions to the TC, as no alleged errors were brought at the appeal. The effect of the Appeals Chamber’s decision would be confined to what it has called “guidelines on the interpretation” when it interpreted the elements of Article 82(1)(d) (see Situation in the DRC, 2006, para. 5). In terms of procedure, the Trial Chamber’s question is easily comparable to the request for an advisory opinion to the ECtHR under Protocol No. 16, when national court seeks an advisory opinion in the context of a case pending before it.

Against this background, and taking into account the wording of the question that the Trial Chamber asked to the Appeals Chamber, one cannot escape the impression that such formulation of “an issue” in the meaning of Article 82(1)(d) of the Rome Statute closely resembles those questions that are submitted for advisory opinions to the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), or the regional human right courts (ECtHR, IACtHR and AfCtHR). This led the Appeals Chamber to declare the appeal inadmissible, finding that:

“If the Appeals Chamber were to examine the issue concerned, it would be tantamount to rendering advisory opinions on issues that are not properly before it. In this context, the Appeals Chamber notes that the Court, founded by the Rome Statute, which is itself an international treaty, in principle, has the power to pronounce on general matters of interpretation and application related to the Statute. However, for this to take place by way of an advisory opinion, the relevant procedure would have to be enacted by the Assembly of the State Parties (hereinafter: “ASP”). Absent such action by the ASP, the Appeals Chamber may not exercise a power to provide advisory opinions. […] The Appeals Chamber recalls that it does not provide guidance on the interpretation of the law in the abstract as it is not an advisory body. This is not a role vested in the Appeals Chamber by the applicable law before the Court.” (para. 23, footnotes omitted).

ICC’s Advisory Competence

Very little space has been dedicated to discussing the advisory component of the ICC’s jurisdiction. However, the Said Decision is not the first time the Appeals Chamber has dismissed an appeal due to abstract or generalized nature of the question brought before it and ruled out acting as an advisory body. For example, the Appeals Chamber refused to pronounce on obiter dicta of the Trial Chamber as this “would be tantamount to rendering advisory opinions on issues that are not properly before it” (Katanga and Chui, 2009, para. 38). In the earlier decisions, the AC refused to consider those requests that were outside the legal framework of the Court, stating that “[I]f the Appeals Chamber were to answer such a request, it would have to assume the role of an advisory body, which it considers to be beyond and outside the scope of its authority”(see Situation in the DRC, 2008, para. 30; Situation in Darfur, Sudan, 2008, para. 19; Lubanga, 2007, para. 6). Also, the AC declined determination of an issue that would be made in the abstract, “as the Appeals Chamber is not an advisory body” (Gbagbo, 16 December 2013, para. 54). Furthermore, the Appeals Chamber did not address the alleged errors that did not substantially affect the contested decision and spared itself from engaging in “what would be a purely academic discussion” (Mbarushimana, 2012, 68).

When the ICC Pre-Trial Chamber (“PTC”) issued the decision on its jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar (not a State Party to the Statute) to Bangladesh (State Party to the Statute), one of the issues the Court had to deal with was whether Article 19(3) which allows the Prosecutor to request a ruling on jurisdiction or admissibility, could be applied at the “pre-preliminary examination” stage, i.e. when even a preliminary examination was not officially announced. The PTC found that the Prosecutor’s request did not precede a preliminary examination and was part of it. This remark did not prevent the ICC Judge Marc Perrin de Brichambaut from arguing that the PTC’s decision was in fact an advisory opinion, “which this Court was expressly prohibited from doing” (Partially Dissenting Opinion of Judge Marc Perrin de Brichambaut, paras. 4, 6, 33-39). Dov Jacobs agreed with Judge Brichambaut, and observed that by rendering this decision the Court issued advisory opinion.

To summarize the AC’s early case law, the Court’s observations on its advisory function is consigned to passing and routine mention that rendering advisory opinions would be ultra vires as the Court’s legal framework does not bestow on it advisory jurisdiction.

Said Decision: A Turning Point

In contrast to the earlier case law, the Said Decision is the most refined and articulate statement of the AC on the Court’s possible advisory jurisdiction. It is of particular interest for two reasons. First, for the first time, the AC expressly held that “the Court, founded by the Rome Statute, which is itself an international treaty, in principle, has the power to pronounce on general matters of interpretation and application related to the Statute.” While in practice the Court has exceptionally provided “guidance on the interpretation of the law in the abstract” (see e.g. the AC’s interpretation of criteria set forth by Article 82(1)(d) in the Situation in the DRC, 2006, paras. 6-20), it has never acknowledged before that the Court is “in principle” competent to interpret or apply the Statute in generalized manner.

Second, and more notably, the AC signalled that for rendering an advisory opinion, the relevant procedure would have to be enacted by the ASP. From this finding, the temptation is high to infer that in the AC’s view, there is no need to amend the Rome Statute, but introduction of new procedures in the ICC Rules of Procedure and Evidence (‘RPE’) would be sufficient for requesting advisory opinions from the Court. It can be deduced that the ICC, as an international court, possesses an inherent or implied power to render advisory opinions, but it merely lacks a procedure for this competence to come into existence.

Activation of the ICC’s Advisory Jurisdiction by “the Relevant Procedure”

Pursuant to Article 51(2) of the Rome Statute, amendments to the RPE may be proposed by (a) any State Party; (b) the judges acting by an absolute majority; or (c) the Prosecutor. Proposed amendments require subsequent adoption by a two-thirds majority of the members of the ASP to enter into force. The inevitable question which comes next is whether a new procedure in the RPE is self-sufficient to operationalize the ICC’s allegedly inherent advisory competence. While answering this question merits in-depth analysis of the Court’s legal framework, which is beyond the scope of the present post, at this particular point I would draw parallel with other international court, namely ITLOS. Being mindful that the subject matter jurisdiction of the ICC and ITLOS radically differs, the latter is still a peculiar example. The competence of the ITLOS, to exercise advisory function as a full court, is not stipulated either in UNCLOS or the ITLOS Statute. Rather, such competence was enshrined in Article 138 of the Rules of the Tribunal (Rules).

When the ITLOS was seized of the first request for an advisory opinion (Case No. 21), a number of participating states submitted different objections, arguing on various grounds, that the ITLOS could not exercise advisory function conferred by Article 138 of the Rules, since a procedural rule could not expand the Tribunal’s competence and could not override the limits established by the Tribunal’s core constituent instruments. On the other hand, a number of states supported and upheld the validity of Article 138 of the Rules as the basis for advisory jurisdiction. The Tribunal found that its advisory jurisdiction was established by virtue of Article 21 of its Statute and “other agreement” referred therein (para. 58). Thus, although Article 138 of the Rules was not a source of its advisory jurisdiction as such, it provided for the prerequisites that needed to be satisfied before the Tribunal could exercise its advisory jurisdiction (para. 59). That being said, the ICC would not be the only international court whose advisory competence would be brought to life through “the relevant procedure”.

The Possible Reason behind the AC’s Inordinate Engagement with Advisory Opinions

Why did the AC deem it necessary to go to this length to offer its lavish view on the advisory opinion when it could easily avoid such elaborate pronouncement? I would only speculate that this point of departure on the Court’s advisory function in the Said Decision can perhaps be traced to the Presiding Judge Gocha Lordkipanidze. In 2020, in his written response to the question of the Advisory Committee on Nominations of Judges on what could be proposed in order to improve the perception of the Court in the eyes of the international community – then-candidate Lordkipanidze put forward the proposal to allow:

“Highest Courts in the States Parties with a procedural avenue to request advisory opinions from the Court from questions of principle to the interpretation and application of the Statute. The requesting court may seek an advisory opinion only in the context of a case pending before it. This definitely would enhance the legitimacy of the Court amongst the States Parties, local society and NGOs at the earliest stage of ICC engagement, and provide a unified front in the quest of international justice” (p. 3).

In candidate Lordkipanidze’s view, this would promote the judicial dialogue and cross-fertilisation between the ICC and national courts (p. 7). It is easy to notice that this proposal is modelled on the procedure set out in Protocol No. 16 to the European Convention on Human Rights, which extended the ECtHR’s jurisdiction to render advisory opinions.

Conclusion

It would not be an exaggeration to call the Said Decision a turning point as it raises the possibility to extend the ICC’s jurisdiction to give advisory opinions by amending the RPE. This scenario seems more realistic as it would bypass the time-consuming process of amending the Rome Statute. Moreover, amendment to the RPE may be introduced by the judges themselves, acting by an absolute majority. If this process is initiated, the initial proposal made by Judge Lordkipanidze could be used as a starting point. However, it is highly likely that in the process of adopting the new procedures by a two-thirds majority of the ASP, the advisability of activation the ICC’s competence to render advisory opinions will face legal, policy- and legitimacy-based challenges, both from inside and outside the Court. Whether it will survive, remains a significant question.