Another Authorization Decision at the International Criminal Court

A third ‘authorization decision’ was issued by a Pre-Trial Chamber of the International Criminal Court last week.

The Chamber enlarged the scope of the investigation into events in Côte d’Ivoire that had been the object of its decision last October dealing with post-electoral violence. Another Pre-Trial Chamber issued a similar decision in 2010 concerning post-electoral violence in Kenya. The new decision means that the Prosecutor can investigate pre-electoral violence as well as post-electoral violence.

These three decisions are the first judicial pronouncements on the exercise of prosecutorial discretion, in accordance with article 15. One of the novel and much celebrated features of the Rome Statute has been the authority of the Prosecutor to proceed with an investigation proprio motu, that is, acting on the basis of his own judgment and without the investigation being requested by either the Security Council or a State Party. Surprisingly, it took several years for the Prosecutor to actually use this power given by the Statute.

When the Statute was being drafted, this notion was highly controversial. For example, the United States remained vehemently opposed throughout the negotiations. As an attempt to temper critics of the idea, the Statute includes a degree of judicial oversight. The Pre-Trial Chamber must approve of the Prosecutor’s decision before he can proceed. These three decisions, including the last one, are interesting indications about how this judicial review of prosecutorial discretion will be exercised in practice.

In the first two decisions, the Pre-Trial Chambers noted that the judicial review of prosecutorial discretion had been included in the Rome Statute in order to deal with the danger of ‘politicization’ by the Prosecutor. Last week’s decision is much more summary, and does not discuss again the rationale for judicial review.

It is surely of interest that both Pre-Trial Chambers contained judges who had been involved, in earlier diplomatic careers, in the Rome Statute negotiations. Judge Kaul, who was in the Kenya Pre-Trial Chamber, had been head of the German delegation, and Judge Fernandez, who was in the two Côte d’Ivoire decisions, was one of the key members of the delegation of Argentina. In last October’s decision, Judge Fernandez noted that the Rome Statute’s provision concerning judicial review of prosecutorial discretion had been proposed jointly by the delegations of – yes, indeed – Germany and Argentina. Thus, those who drafted the provision are now interpreting it!

The three decisions indicate that while the alleged purpose of such judicial review by the Pre-Trial Chamber may have been to avoid ‘politicization’, in reality it is a perfunctory assessment of the very same issues that Pre-Trial Chambers consider when they issue arrest warrants. The judges consider whether there is jurisdiction, and whether the admissibility requirements (complementarity and gravity) appear to be met. The only difference is that the standard of proof required from the Prosecutor is not as high for judicial review of discretion as it is for issuance of an arrest warrant.

In any event, how could the Pre-Trial Chambers actually assess the ‘politicization’ of a decision to investigate by the Prosecutor? What evidence would they be able to rely upon? The proceeding itself is an ex-parte matter, so the only real evidence that they consider is what comes from the Prosecutor himself. Representatives of victims may have a word in this matter too, but they almost invariably support the Prosecutor. The Prosecutor is hardly likely to bring evidence that might undermine his application.

To the extent that there are genuine concerns about politicization, it would be necessary for the Pre-Trial Chamber to go beyond considering whether there is jurisdiction and whether the situation is admissible, which is all that it seems to do now, and look additionally at the situations where the Prosecutor is not attempting to proceed. Only then would it be able to determine whether the Prosecutor was targeting one situation, for apparently politicized motives, while ignoring another.

The decision to proceed in Côte d’Ivoire is political in nature. The Prosecutor has decided to devote the resources of the Court to cases in Côte d’Ivoire. At the same time, he has set aside other situations: Palestine, Afghanistan, Colombia, Korea, and so on. We have no explanation for this. If pushed, the Prosecutor will answer with the word ‘gravity’. That is an easy answer, and there is no doubt that the situation in Côte d’Ivoire is grave. But the other situations are also grave. If the Pre-Trial Chamber is to conduct a genuine inquiry into the ‘politicization’ of prosecutorial discretion, it needs the Prosecutor to explain why he is not proceeding in other situations.

But this is not what is happening nor is this something that is likely to change. As a result, the judicial review of the prosecutorial to proceed with an investigation in a particular situation looks to be an essentially unnecessary step that simply delays matters.