The ICC authorizes first use of OTP proprio motu powers in Kenya: Opening a new Pandora’s Box of legal difficulties (and revisiting some old ones too…)

By Dov Jacobs 

On the 31 March, Pre-Trial Chamber II issued its Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya. The decision was reached by a majority of two, with a strong dissent from Judge Kaul. It is an important decision, because it is the first one to be based on a request from the OTP to open an investigation based on its proprio motu powers under Article 15 of the Rome Statute. Until now, all the investigations opened had been in situations either self-referred by States or referred by the Security Council, in relation to Darfur. The Prosecutor had refused to request the opening of an investigation in Iraq and Venezuela in the past. This practice had, in hindsight, made a joke of the fears of the opponents of Article 15 because they thought it might lead to a politicization of the work of the OTP who might use his powers to go after western powers. These fears remain unfounded today, with a further investigation opened on African territory.

But let’s leave political considerations out of it for the moment and take a look at the decision. It would be cumbersome to do a comprehensive analysis of the decision here, given its length (83 pages, with a further 80 pages for the dissenting opinion of Judge Kaul). I would just like to point out certain key aspects: the textual basis, admissibility and the question of crimes against humanity. 

1. Textual Basis for the Evaluation: Article 15 and Article 53 

First of all, there is the nature of the examination done by the PTC. What are the criteria to be followed and satisfied in order to authorize the commencement of an investigation? Article 15 is not very precise. It provides that:

3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

In addition to that, Rule 48 of the Rules of Procedure and Evidence provide that:

In determining whether there is a reasonable basis to proceed with an investigation under article 15, paragraph 3, the Prosecutor shall consider the factors set out in Article 53, paragraph 1(a) to (c) [whether a crime within the jurisdiction of the Court has been committed, whether the case is admissible under Article 17 (complementarity and gravity) and whether an investigation would not be in the interests of justice]

Based on this textual foundation, PTC II considers that it can authorize the commencement of an investigation only if it controls the existence of all these elements, most importantly that the Court has jurisdiction and that the case is admissible.

A small comment on the reasoning of the Court in relation to this before dealing with the specific question of admissibility. The Court refers to Article 15 and the link with Article 53 to base its finding of what it needs to evaluate. That makes sense, but then (§64) it goes into an analysis of the supposed redundancy between 15(4) and 53(1)(a), which both require that a crime within the jurisdiction of the Court be committed, concluding that "it follows from the above analysis that the Chamber is satisfied that a review [of Article 53] is sufficient for the purpose of this procedure and there is no need to duplicate its assessment of jurisdiction under Article 15(4) of the Statute". But they’ve got the reasoning in the wrong order! 15(4) comes first, as the reason why the PTC is involved in the first place, and it is only through the application of Rule 48 that Article 53 comes into play as possibly defining more precisely the scope of the PTC’s evaluation. Both provisions are not on the same level and there is therefore no redundancy!

2. The Issue of Admissibility 

There are several remarks to be made on the question of admissibility at this stage of the proceedings. For one, I am glad that PTC II finally acknowledges that the supervision of the Prosecutor should mirror the obligations of the Prosecutor under the Statute. It is only natural that if the Prosecutor is statutorily required to evaluate admissibility, that this evaluation be controlled by the PTC. Unfortunately, this finding here is in contradiction with the case law of the Court in relation to the powers of Pre-Trial Chambers to assess admissibility on issuance of an arrest warrant under Article 58. Early decisions in the Uganda and DRC situations had found that it was necessary to evaluate admissibility when granting an arrest warrant. This was overturned at the time by the Appeals Chamber based on the fact that under Article 19, this is a discretionary power rather than an obligation, and that this discretion should only be used in exceptional circumstances, in light of the fact that these type of proceedings were done ex parte, without the presence of the defendant. I have commented elsewhere on this (see ALC Vol. 23), criticizing the Appeals Chamber decision, but the fact is that it is the law as it stands right now, and I don’t quite see how it is reconcilable with the current decision. We are at an even earlier stage than the arrest warrant stage and it does not make sense that an assessment of admissibility be compulsory when we don’t even know the names of the defendants, whereas it should only be done in exceptional circumstances at the arrest warrant phase. Why should there be a higher threshold here than when a State or the Security Council refers a situation? This is one more example where some consistent decision-making is still laking at the Court and hopefully, with time, this will be resolved.

Now let’s look more in detail at the two components of admissibility: complementarity and gravity.

2.1 A vague Assessment of Complementarity 

In relation to complementarity, one can legitimately wonder how one is to evaluate that a "case" is under investigation when an investigation at the ICC hasn’t even started and when there is not necessarily any specific defendants yet. The PTC argues that although Article 53 and Article 17 refer to a "case", the drafters didn’t actually mean case… They justify this by saying that "case" is a generic term that can mean different things depending on the stage of the proceedings. They therefore required the Prosecutor to provide a list of potential cases (including the "groups of persons involved" ) within the context of the situation and the crimes allegedly committed. Given that Kenya has apparently not initiated any proceedings for crimes against humanity, the PTC easily found that the complementarity requirement was satisfied.

But this reasoning is extremely problematic. Up until now, we all thought a case meant a case, with a specific defendant, as opposed to a situation. Moreover, the judges of the Court have in previous decisions interpreted the complementarity requirement in a very strict fashion, adopting the "same person, same conduct" test. This does not fit well with this vague global evaluation that PTC II proposes here, applying complementarity at this early stage to a list of potential "candidates" for prosecution, whereas this was not required in other situations, not even at the arrest warrant phase when there is a identifiable defendant!

2.2 The continued problems with the Gravity Threshold 

Similarly, and I move to one of my favourite topics, PTC II’s findings on gravity can be seen as equally problematic. The gravity threshold seems to be the conceptual thorn in the sides of the judges of the ICC since the beginning. How can we apply a gravity threshold when the jurisdiction of the Court is already triggered by only the gravest crimes? So far, the answer to that has been highly unsatisfactory, and this decision is no different.

I do agree with their first criteria of gravity, in relation to the persons, that  the investigation should carry on those who bear the greatest responsibility (§60). Unfortunately, this is here too at odds with the Appeals Chamber decision concerning the Lubanga Arrest warrant, which rejected this criteria. So once again, we seem to have conflicting case law that requires some harmonisation.

The second criteria relates to the crimes, the gravity of which should be examined "following a quantitative as well as a qualitative approach". The PTC then refers to the sentencing guidelines to establish a list of relevant factors:

(i) the scale of the alleged crimes (including assessment of geographical and temporal intensity); (ii) the nature of the unlawful behaviour or of the crimes allegedly committed; (iii) the employed means for the execution of the crimes (i.e., the manner of their commission); and (iv) the impact of the crimes and the harm caused to victims and their families. (§62)

PTC II therefore adopts the same approach as PTC I in the Abu Garda Confirmation of Charges decision. I have already had the opportunity to comment on this elsewhere. Basically, the reference to the sentencing guidelines strips the concept of mitigating and aggravating circumstances of any content. If the aggravating circumstances are already taken into account at the admissibility phase, then any later evaluation will be redundant. Moreover, I have an issue with the criteria of the methods employed and the impact on the victims. In relation to the methods employed, the Court refers later on in the decision to the "brutality" of the perpetrators (§192). Does this imply that there is a "humane" way to commit crimes against humanity, such as, for example, goading people into gas chambers by telling them they are going to be taking a shower? As for the impact on victims, it can’t seriously be a criteria. Apparently, the Prosecutor made the groundbreaking submission that "victims have suffered devastating impacts". But the direct victims of crimes always suffer, especially in the case of mass violence such as genocide and crimes against humanity. If this is to be a legal criteria, then all crimes will satisfy the gravity threshold.

More generally, it seems that the criteria have, in a joint effort by judges and the Prosecutor, been defined in such a flexible way that there will always be a reason to consider that the gravity threshold is satisfied. If there are a lot of victims and the crimes are widespread, the Prosecutor will insist on the scale of the crimes, as he does in the Kenya submission. If there are less victims and they don’t amount to genocide or crimes against humanity, the Prosecutor will be able to insist on the nature of the acts, as he did in Abu Garda, and still obtain satisfaction. The gravity threshold therefore needs further refinement if it is to have any reality as a procedural rule at the ICC.

3. The Scope of Crimes Against Humanity

Finally, I would like to say a few words about the question of the crime allegedly committed, namely crimes against humanity. There were in fact not many options available for the Prosecutor, as the situation clearly does not fall within the scope of genocide, nor war crimes, as there is no armed conflict in Kenya. The question therefore is whether the attacks amount to a crime against humanity as defined under Article 7 of the ICC Statute which provides that

for the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (paragraph 1).

"Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack (paragraph 2(a)).

There does not seem to be any doubt from the evidence that the attacks were against the civilian population (although why the term "civilian" directly imported from IHL should be used here is a mystery given that there is no longer any link between crimes against humanity and armed conflict. But that is a different debate…) and that the attacks were widespread and systematic. The real issue was on the question of the existence of a "State or organizational policy".

I won’t go into a history of the different approaches to this concept. The majority opinion seems to adopt a fairly broad organisational definition. It considers that, although "some have argued that only State-like organisations may qualify" (§90, the footnote refers to two un-influential young scholars in the field of International Criminal Law whose opinion can easily be set aside: Profs. Schabas and Bassiouni…), a key element is "whether a group has a capability to perform acts which infringe basic human values" (§90) and refers to questions of hierarchy, capacity to carry out widespread and systematic attacks, control over part of the territory, criminal activities as the primary purpose, existence of an intention to attack civilians and integration in a larger group that fulfills the same criteria. The flexibility of the chosen criteria is shown later on in the decision in the evaluation of evidence, where the PTC identifies different groups involved in the violence, and how the attacks were "organised" and supported by local leaders and businessmen, without any reference to a State plan or policy.

It is on this point that Judge Kaul strongly dissents. After a very convincing general comment on the risks of using the case law of other tribunals, especially when they don’t contain the same requirements for the crimes, as is the case for crimes against humanity, Judge Kaul explains why he would adopt a much narrower conception of "State or organisational policy". He considers that a broad approach as adopted by the majority (the capacity to perform acts which infringe on basic human values) "may expand the concept of crimes against humanity to any infringement of human rights" (Dissenting opinion (DO), §53). Looking at the history of crimes against humanity as applying to the most egrerious state policies against civilians and combining this with the ambition of the ICC to intervene for international crimes that affect the international community as a whole, he considers that crimes against humanity shouldn’t be banalised concluding that:

a demarcation line must be drawn between international crimes and human rights infractions; between international crimes and ordinary crimes; between those crimes subject to international jurisdiction and those punishable under domestic penal legislation. One concludes that the ICC serves as a beacon of justice intervening in limited cases where the most serious crimes of concern to the international community as a whole have been committed (DO, §65).

Applying this to the elements put forward by the Prosecutor, Judge Kaul considers that although some attacks were organised, there is too much disparity in the groups involved, their motives, and the level of involvement of local politicians and businessmen for the attacks to meet the organisational and policy threshold of crimes against humanity.

I would tend to agree with Judge Kaul. On the face of it, what happened in Kenya seems to have been widespread human rights violations by the police and various political and criminal groups. However abhorrent this violence was, I don’t think that the notion of crimes against humanity applies here and a line should indeed be drawn between Human Rights law and international criminal law. However, strictly speaking, the majority decision can be justified by the vague phrasing of the statute and given the very low evidential threshold required at this stage of the proceedings, it is also defensible for the investigation to be opened.

4. Concluding remarks

This landmark decision of the ICC has provided for the first time some insight as to the criteria for the supervision the Pre-Trial Chamber over the exercise of his proprio motu powers by the Prosecutor. The decision does contain some welcome evolutions, such as the mirroring of the PTC’s power of control with the obligations of the Prosecutor. However, it also raises a certain number of legal issues, in relation to the application of the admissibility test at such an early stage of the proceedings. One wonders, as is often the case, if the articulations between the various provisions of the Statute have been adequately thought out. Should one really require, as Rule 48 does by sending back to Article 53, that the Prosecutor do an evaluation of admissibility at such a preliminary phase? How does that affect the rights of the defense, given that the victims have already extensively participated in the proceedings? In addition to that, the decision once again fails to convincingly define the gravity threshold.

From a policy perspective, if cases are to go ahead in this situation, I concur, as I mentioned earlier, with Judge Kaul, that it will blur the line between human rights and international criminal law. If the ICC is to intervene in every case of post-election violence, then it will have its docket filled for the foreseeable future. Politically, the chaotic situation in Kenya means that the ICC is likely to be instrumentalised by all parties and if there was ever a case when international justice might not contribute to social stability, I believe Kenya to be a good test case in the eternal peace Vs Justice debate….

Finally, even if I do not fundamentally adhere to the theory that the ICC is a neo-colonialist institution only prosecuting crimes in Africa (as I argue here and here), the fact remains that the Prosecutor will face renewed criticism for using his proprio motu powers to request another investigation on the African continent. The Prosecutor will argue that he goes where the evidence leads him, but there are certainly other places in the world that deserve his attention, and most importantly, the attention of the "world community" of whom he is merely the agent rather than the embodiment.

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