Volume I, s.3 Jurisdiction, 17 ‘Trigger Mechanisms’, Ch.17.1 Referral by States Parties
Philippe Kirsch, Darryl Robinson
Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones
The term ‘trigger mechanism’ emerged during the development of the ICC Statute to refer to the procedural mechanisms by which ICC jurisdiction over a particular situation might be activated. As the concept developed, it became clear that it referred not simply to the commencement of specific investigations of a particular case or individual,1 but rather to the ability to direct the Court’s attention to events in a particular time and place, possibly involving numerous criminal acts, with a view to initiating an exercise of jurisdiction over those events. Since the issue of trigger mechanisms relates to the special problems of activating an international criminal justice mechanism, it is hardly surprising that there could be no relevant precedents in national procedural laws. But perhaps less obvious is the fact that even the international precedents of the Nuremberg and Tokyo Tribunals and the Yugoslav and Rwanda Tribunals do not offer guidance on this issue, because the situational jurisdiction of each of those institutions is explicitly delineated in their respective founding documents.2 The ICC, however, References(p. 620) presented a novel problem as it represented the first permanent international criminal law institution empowered to deal with future and unknown situations. Thus, it was necessary to determine the procedural mechanisms to ‘trigger’ ICC proceedings over future situations that may arise.
Three possible trigger mechanisms were discussed during the negotiations and eventually, all three were included in the ICC Statute. These were referral by a State Party, referral by the Security Council, and initiation by the independent Prosecutor. This chapter deals with referral by a State Party.3
The 1994 Draft Statute developed by the International Law Commission allowed States Parties to lodge complaints with respect to specific crimes, rather than entire situations.4 The right to lodge complaints concerning genocide was restricted to those States Parties that were also party to the Genocide Convention. The right to lodge complaints with respect to other crimes was restricted to those States that had accepted the Court’s competence over those crimes.5 This approach contemplated a form of ‘reciprocity’, meaning that a State unwilling to recognize ICC jurisdiction over a crime could not initiate a complaint concerning that same crime when committed by others (hereinafter described as a ‘reciprocity restriction’). This restriction was part of the ‘opting-in regime’ of the ILC Draft Statute, wherein states could pick and choose the crimes for which they would recognize ICC competence. In this respect, the ILC Draft Statute approach appears to have been loosely based on the model of the International Court of Justice.6
References(p. 621) When the ILC Draft Statute was reviewed by the Ad Hoc Committee and by the Preparatory Committee, several issues emerged. Many delegations shared a particular uneasiness about the lodging of complaints with respect to one particular crime or individual, as this was considered likely to create an excessive politicization of the complaint procedure.7 Thus, it was argued, States Parties should be empowered to refer not individual cases but rather general ‘matters’ or ‘situations’, in the same manner as a Security Council referral.8 As the PrepCom negotiations continued over the years, this view gathered support, and in fact became the clearly predominant view. By the time of the Rome Conference, support for referral of situations rather than cases was sufficiently clear that the issue was hardly controversial.9 As will be discussed below, the referral of situations rather than specific cases seems to be a more appropriate approach, in terms of both avoiding politicization and promoting efficiency.10
Other issues revolved around the question of which States Parties should be allowed to refer situations. In the earliest discussions, concerns were expressed about the provision allowing States Parties to lodge complaints only if they had accepted the ICC’s jurisdiction over the crime in question (hereafter, ‘reciprocity restriction’). Several delegations argued that any State Party to the ICC Statute should be entitled to lodge complaints with respect to the ‘core crimes’ (genocide, crimes against humanity, war crimes, and possibly aggression).11 This was closely related to the initiative to reject the ‘opt-in’ jurisdictional approach in favour of automatic jurisdiction.12 Other delegations, particularly those who preferred the opt-in regime, were attracted to the reciprocity restriction.13 The relevance of this particular issue gradually faded, however, as the general focus shifted from the (p. 622) lodging of complaints on specific cases to the referral of ‘situations’. In the context of referrals of entire situations, it would be less clear which specific types of crimes had been committed until an investigation was underway, so a reciprocity restriction would become rather complicated (and possibly unworkable). Moreover, the trend towards automatic jurisdiction also made this issue less relevant. Early in the Rome Conference, interest in a reciprocity restriction had waned to such an extent that it was not even an issue in the first Bureau Discussion Paper14 and indeed no such restriction was included in the Statute.
Throughout the preparatory negotiations, at the same time as some delegations sought to broaden the approach reflected in the ILC Draft Statute (by removing the reciprocity restriction), others were concerned about the potential for abuse of State Party referrals for frivolous or vexatious purposes. Many delegations supported a proposal to restrict the ability to refer a situation to those States Parties with an ‘interest’ in the matter.15 ‘Interested’ States would include those whose territory was the locus of the crimes in question, or whose nationals were victims or perpetrators, or those States with custody over particular perpetrators. Other delegations were of the view that these crimes were, by their very nature, of fundamental concern to the international community as a whole. Moreover, considering that the ICC could only have jurisdiction where States failed to prosecute,16 all States Parties would be ‘interested’ States where there is a failure to prosecute such serious international crimes.17 During the Rome Conference negotiations, support for a power of referral by any State Party was clear and those delegations that had suggested a restriction to ‘interested’ State Parties did not oppose the consensus but rather focused their diplomatic resources on higher priority issues.18 Article 14 accordingly permits any State Party to refer a situation, without being restricted to ‘interested’ States Parties.
There were nevertheless many other suggestions throughout the preparatory negotiations on measures to reduce the risk of abuse of State Party referrals. One suggestion was to restrict the referral power by allowing referrals not from single States Parties but rather from groups of a specified number of States Parties.19 This suggestion did not attract widespread support as negotiations progressed. However, other proposals to prevent abuse were incorporated. One was to create an internal screening process to allow the Prosecutor to reject claims that were frivolous or not warranting international adjudication. Another was to require that interested References(p. 623) States be notified and given an opportunity to effectively investigate and prosecute the crimes in question. The latter two proposals attracted considerable support and were eventually incorporated into the Statute, thereby offering safeguards against abuse and ensuring deference to legitimate national proceedings.20
The relevant Article of the ICC Statute, Article 14, provides as follows:
1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.
The Draft Rules of Procedure and Evidence offer a further technical clarification that a referral of a situation to the Prosecutor must be in writing.21
A number of observations may be made with respect to referrals by States Parties.
First, the general approach of referring ‘situations’ rather than ‘cases’ seems a prudent one. This helps reduce the arguably unseemly prospect of States Parties referring complaints against specific individuals, which might create a perception of using the Court to ‘settle scores’. The approach of referring ‘situations’ rather than ‘cases’ is also consistent with the approach in the Nuremberg, Tokyo, Yugoslav, and Rwandan Tribunals, where specific individuals were not named in the mandate given to those bodies.22 Perhaps more importantly, it is also prudent in terms of efficiency, since as a practical matter, a State Party concerned about an outbreak of atrocities elsewhere in the world should not be required to carry out a full-fledged investigation in order to identify all of the perpetrators before it can call upon the ICC for action. Instead, the ICC Statute contemplates that the Prosecutor will assume that function (aided perhaps by documentation from the referring State and other information), which is an appropriate use of expertise and resources.
Second, the absence of a restriction to ‘interested’ State Parties, thus allowing all States Parties to refer a situation, is consistent with the long-standing view that these most serious international crimes are ‘crimes of concern to the international community as a whole’.23
References(p. 624) Third, the absence of a reciprocity restriction (as in the ILC Draft Statute) is not surprising, particularly given the affirmation of automatic jurisdiction in Article 12(1). During the Rome Conference discussions, even when an opt-in/opt-out regime was under discussion, the need for a reciprocity clause was not seriously pursued by delegations. This may have been because of the general desire to reduce impediments to ICC jurisdiction, or because the approach of allowing referrals of ‘situations’ rather than ‘cases’ made such a restriction unworkable or unnecessary, given that any situation warranting ICC scrutiny would be unlikely to involve only war crimes, and would be likely to include at least crimes against humanity as well. In any event, this question was not even publicly raised in the context of the compromise transitional arrangement in Article 124,24 which only emerged on the eve of the end of the Conference, and accordingly the Statute allows referrals of situations without any reciprocity restriction.
Fourth, the requirement that a referral specify the relevant circumstances as far as possible, and be accompanied by available supporting documentation, is a sensible procedural requirement which changed very little during the negotiations and is largely based on the ILC Draft Statute.25 Such information should be of great assistance to the Prosecutor in the evaluation of whether there is a reasonable basis to proceed with a formal investigation, and may help to provide a starting point for formal investigations.
Finally, the relationship between this trigger mechanism and other aspects of the Statute may be mentioned. Several provisions of the Statute are designed to respond to concerns about possible abuse of the trigger mechanism by States Parties. For example, Article 53 requires the Prosecutor to evaluate information made available to him and to determine whether there is a reasonable basis to proceed further. In this determination, the Prosecutor must consider whether there is a reasonable basis to believe that crimes within the jurisdiction of the ICC have been committed, whether the case would be admissible under the complementarity regime, and whether investigation would serve the interests of justice (Article 53(1) and (2) ). In addition, as had also been suggested during the discussions of trigger mechanisms, the Statute requires the Prosecutor to notify States Parties and other interested States and to provide them with ample opportunity to carry a genuine investigation or prosecution of the matter in question (Article 18). These provisions are discussed in more length elsewhere in this volume,26 but are References(p. 625) noteworthy in this context as important safeguards which made possible the relative flexibility of the trigger mechanisms.
The inclusion in the Statute of an additional trigger mechanism, namely initiation by the Prosecutor proprio motu, makes the State Party referral provision less critical. For example, a State Party could decide instead to provide information to the Prosecutor and allow the Prosecutor to decide whether to initiate an investigation. Nevertheless, the State Party referral is still useful for practical reasons, as it is procedurally less complicated than Prosecutor-initiated referrals, and for symbolic reasons, as States Parties can take concrete action against serious crimes by formally referring them to the ICC.
Neither the Statute nor the Rules of Procedure and Evidence offer a clear explanation of the concept of a ‘situation’, i.e. the parameters of a referral by a State Party. It seems likely that a ‘situation’ could be defined by reference to temporal and geographic parameters, as was the case for the ICTY and the ICTR.27 It is less clear, however, whether a situation referred to the ICC could also be defined by other parameters, such as nationality of perpetrators or victims, partisanship in a conflict,28 or the nature of the crimes. For example, the Nuremberg and Tokyo Tribunals were given mandates focusing on those acting on behalf of only one side of an armed conflict,29 giving rise to strong concerns about victor’s justice. In today’s context, particularly given that the purpose of the ICC is to move away from international justice that might be seen as selective, it is questionable whether a referral restricted on a basis of partisanship would still be considered acceptable. Similarly, the reference in the ICTR Statute to nationality where the crime is committed outside Rwanda,30 at least leaves open a question as to whether a referral defined in part by nationality would be appropriate. Another issue is whether a referral could be limited to particular types of crimes, for example, a referral complaining only of genocide.31 The drafters of the Statute and the Rules have left these questions, perhaps wisely, to be determined by the ICC over the course of its practice and experience in the future.References(p. 626)
1 For example, within the context of a State Party referral or Security Council referral, it became clear in the negotiations that general ‘situations’ would be referred to the Prosecutor and that the Prosecutor would have authority to decide to pursue specific indictments within the scope of those situations. The issue with respect to ‘trigger mechanisms’ is which entities should be able to direct the Court’s attention to a previously unreferred situation, and in particular whether the Prosecutor should be able to do this ex officio (see Ch. 17.3, below).
2 The ICTY Statute, adopted by the Security Council acting under Chapter VII of the UN Charter, specifically articulates the territorial and temporal jurisdiction of the ICTY, which applies to the territory of the former Yugoslavia since 1991: Arts. 1 and 8 of the ICTY Statute. The temporal jurisdiction will continue until a time to be specified by the Security Council.
Likewise, the ICTR Statute specifically defines the jurisdiction of the ICTR, encompassing serious violations of international humanitarian law committed in the territory of Rwanda, or such violations by Rwandan citizens in the territory of neighbouring States, between 1 January and 31 December 1994: Arts. 1 and 7 of the ICTR Statute.
Interestingly, the Nuremberg Tribunal was given jurisdiction limited not on territorial grounds but rather on the basis of participation in the Axis war effort; it had jurisdiction over ‘persons … acting in the interest of the European Axis countries, whether as individuals or as members of organizations’: Charter of the International Military Tribunal for the Trial of the Major War Criminals, appended to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, 8 Aug. 1945, 59 Stat. 1544, 82 UNTS 79 (hereinafter ‘Nuremberg Charter’).
Likewise, the Tokyo Tribunal had a similarly defined jurisdiction limited to ‘Far Eastern war criminals’: Charter of the International Military Tribunal for the Far East, 19 Jan. 1946 (General Orders No. 1), TIAS No. 1589, 4 Bevans 20 (hereinafter ‘Tokyo Charter’).
4 Report of the International Law Commission on the work of it forty-sixth session, 2 May–22 July 1994, UN GAOR 49th Sess., Supp. No. 10, UN Doc. A/49/10 (1994) 29–161; (hereinafter ‘ILC Report’ or ‘ILC Draft Statute’), Art. 25(1) and (2).
6 Under the so-called ‘optional clause’ of the ICJ Statute (Art. 36(2) ), States may submit a unilateral declaration accepting the compulsory jurisdiction of the ICJ, either unconditionally or subject to reservations. However, such a declaration is only effective ‘in relation to any other state accepting the same obligation’: Art. 36(2) of the ICJ Statute. Thus, States seeking to bring a matter to the Court in reliance on such a declaration may only do so to the extent that they have also accepted the same commitment. See E. B. Weiss, ‘Reciprocity and the Optional Clause’, in L. F. Damrosch (ed.), The International Court of Justice at a Crossroads (1987) at 82; L. Gross, ‘Compulsory Jurisdiction under the Optional Clause’, ibid. at 19; S. Rosenne, The World Court: What It Is and How It Works (1995) at 81–95.
7 Report of the Preparatory Committee on the Establishment of an International Criminal Court, 1996, Vol. I (Proceedings of the Preparatory Committee during March–April and August 1996), GAOR, 51st Sess., Supp. No. 22, UN Doc. A/51/22 (1996) (‘Report of the PrepCom (1996)’), p. 34.
8 See Ch. 17.2, below.
9 Consistent with this situation, the Bureau Discussion Paper on Part 2, UN Doc. A/CONF. 183/ C. 1 /L.53 (6 July 1998), presented this as the only option; a position accepted without difficulty in the subsequent debates of the Committee of the Whole.
12 At that time, the concept of automatic jurisdiction was often described with the label ‘inherent jurisdiction’, a label which caused considerable confusion as it meant different things to different people. See Ch. 16, above.
16 Due to the principle of complementarity. See Ch. 18.1, below.
18 From the perspective of hesitant States, seeking such a restriction on State referrals became less useful, given the strong support for allowing the Prosecutor to initiate proceedings proprio motu.
22 Supra note 2. We are drawing an analogy between an ICC referral, triggering jurisdiction over a situation, and the mandates given to these tribunals, likewise bestowing jurisdiction over a situation.
24 This provision allows new States Parties a one-time only, seven-year ‘opt-out’ with respect to war crimes. As it was produced, suggestions were privately made on the margins of the Conference that a State unwilling to recognize the jurisdiction of the ICC over war crimes for its own actions should arguably not be able to initiate ICC proceedings dealing with war crimes by others. Those suggestions were not pursued.
30 As mentioned above, the ICTR has jurisdiction over serious violations of international humanitarian law committed on the territory of Rwanda, but it also has jurisdiction over violations committed outside Rwanda, in neighbouring States, where those violations are committed by Rwandan citizens. Supra note 2.
31 One possibility would be to require referrals based on pre-determined, objective criteria, for example, defined in geographic and temporal terms. Another possibility would be to allow States Parties to articulate referrals more flexibly (for example, including references to nationality or to specific types of crimes), with the expectation that referrals deliberately crafted to include some crimes but exclude others for inappropriate political reasons could be easily remedied by a broader referral from another State Party (or proprio motu proceedings by the Prosecutor; see Ch. 17.3, below).