Initiation of an Investigation

The power of the prosecutor to initiate an investigation on his own initiative is one of the main elements of the accusation model. The existence of this right is a staple of every national system, but its granting to the ICC Prosecutor has taken long negotiation.

The ICTY and ICTR Prosecutors initiate proceedings “ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and nongovernmental organisations” (Article 18(1)). They enjoy the competence to assess the information received and decide whether there is sufficient basis to proceed. The ICTY and ICTR Statutes instruct the Prosecutor in such a situation as to initiate an investigation, collect information and prepare an indictment based on evidentiary material. It results from the phrasing of Article 18 that the Prosecutor need not obtain any authorisation to initiate and proceed with investigation.⁴

While designating the powers of the ICC Prosecutor during the negotiation stage, his independent power to start an investigation became one of the most disputed and controversial problems.⁵

Many states supported a solution where the Prosecutor could start an investigation only by demand of one of the States Parties to the Statute or the Security Council. Prosecutorial discretion has been seen as a danger in the ICC system. During negotiations, many states strongly opposed granting the Prosecutor the power to initiate investigations proprio motu. Most prominently, the United States was strongly opposed to giving these powers to the Prosecutor, indicating that his discretion to start an investigation would not allow him to proceed in an unbiased way, drawing his attention to political questions and problems and making him a political player. They expressed anxiety about “frivolous” or even “malicious” accusations made by an “unpredictable” prosecutor.⁶ Anyway, such a solution was adopted in the Draft Statute of the ICC.⁷ The final adoption of the proprio motu Prosecutor’s powers to initiate an investigation became (supposedly) the main reason for the US’s refusal to ratify the Statute. However, both supporters and opponents of this solution agreed as to one thing: this power was to have a key significance for the ICC’s competences. It was to become a test of its independence.⁸

Finally, the version promoted by the European states prevailed, and on the basis of Article 15(1) “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”. The power to make this decision was given to the Prosecutor of the ICC rather than to the States Parties or the Security Council. He is the sole organ of the Court that decides who will be prosecuted and who will be not. It empowers the Prosecutor to decide about the factual scope of the ICC’s jurisdiction. This power was, however, surrendered to the control of the Pre-Trial Chamber, which must authorise initiation of an investigation before a case can enter the stage of investigation. Upon examination of the request of the Prosecutor to start an investigation and of the supporting material, the Pre-Trial Chamber considers whether there is a reasonable basis to proceed with an investigation. When the case appears to fall within the jurisdiction of the Court, it confirms the commencement of the investigation. The wording of the Statute stresses that the Prosecutor has only the power to “initiate” investigations and not to “start” it. It is only the decision of the Pre-Trial Chamber that may become a basis for the “commencement” of the investigation.⁹

No limitations were imposed in respect of the sources of information from which the Prosecutor may obtain communications on the commission of crimes within the jurisdiction of the Court. It is the Prosecutor himself who decides whether a given source is reliable. The OTP adopted the term “communication” to describe this type of information coming from independent sources. The enigmatic wording of Article 15(1) does not clarify whether the Rome Statute does confer discretion upon the Prosecutor to completely disregard the notitia criminis without having taken further action. On the one hand, Article 15(2) uses the term “may”, which should be interpreted as leaving the decision, whether to react to such a communication, to the Prosecutor. On the other hand, some authors believe that the Prosecutor is under an obligation to react to such a communication. Accordingly, by communication of the notitia criminis the informants would acquire the right to demand performance of certain actions by the Prosecutor, e.g. to properly assess the notitia criminis and to inform the informant of her decision not to proceed with an investigation, or not to request the Pre-Trial Chamber the authorisation to initiate an investigation.¹⁰ However, the latter theory is not convincing—especially taking into consideration the number of communications received by the Office of the Prosecutor.

Acting proprio motu, the ICC Prosecutor “initiated” two investigations. In both cases, his decision was authorised by the Pre-Trial Chamber. The first investigation pertained to the civil war in Kenya. On 31 March 2010, the Pre-Trial Chamber issued a decision permitting the Prosecutor to proceed with the investigation. It emphasised therein that Kenya demonstrated a lack of will to prosecute perpetrators of crimes and therefore it was necessary to refer to international justice. On the other hand, however, the state (primarily) agreed to co-operate with the ICC Prosecutor and to submit all required information pertaining to crimes, including classified information. The political context of the Prosecutor’s decision has also been highlighted. The Prosecutor himself declared that addressing the issue of Kenya is aimed at discouraging other African states from exercising violence during elections.¹¹ The second case in which the Prosecutor initiated proceedings proprio motu pertained to the situation in Côte d’Ivoire. This state is not a party to the Rome Statute, but it accepted the ICC jurisdiction in respect of the specific period and specific actions on 18 April 2003, pursuant to Article 12(3) of the Statute. On 3 October 2011, the Pre-Trial Chamber approved the Prosecutor’s decision on the initiation of investigation of the crimes that could have been committed there between 28 November 2008 and the moment of filing the indictment.

The Statute provides for three different “triggering mechanisms”. While it is only the Prosecutor who may initiate the investigation, he may do so not only acting proprio motu, on the basis of communications from independent sources. The other two ‘triggering mechanisms” are referrals made by a) State Parties and b) the Security Council. According to Article 13 of the Statute, the Court may exercise its jurisdiction if

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  a) a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party and
  
  
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  b) in a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.

The information on the commission of international law crimes (notitia criminis) that is referred by the Security Council (Article 13(b)) has the strongest position. The Security Council may collect information using the measures as foreseen in the UN Charter in every case where it deems it necessary in order to maintain or restore international peace and security. This “peculiar” hierarchy highlights the strong position of the Security Council and the national sovereignty.¹²

The second group is information provided by States Parties. According to Article 14 of the Statute, “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. 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”.

When “a situation” has been “referred” by one of the two privileged organs, the starting of an investigation by the Prosecutor does not require authorisation by the Pre-Trial Chamber. The absence of this requirement has led to calling this manner of proceedings initiation “fast track” proceedings.¹³ When an investigation has been initiated by the Prosecutor acting proprio motu, on the basis of notitia criminis referred to the Prosecutor by other sources, it cannot be proceeded with without a specific authorisation by the Pre-Trial Chamber.

There is a major difference between “referral of a situation” by one of the privileged entities and initiating an investigation. Particularly problematic is the issue of binding effect of a “referral”. The wording used in the Statute, stating that the privileged authority “refers a situation”, is sufficiently ambiguous to multiply doubts as to whether it is a request, a demand for the Prosecutor to proceed with the investigation in a given situation or merely a suggestion.

Pursuant to the first theory, the fact that a given situation was referred by one of the privileged entities does not impose on the Prosecutor a duty to proceed with the investigation. In such a situation, his only duty is to carry out a preliminary examination of the case in order to determine whether there are grounds for the initiation of the investigation. The Prosecutor cannot be released from this obligation as he may not refrain from acting having received a notitia criminis. This is the difference between the specific nature of information coming from the privileged entity and information provided by other sources.¹⁴

Proponents of the second theory claim that the nature of the UN Security Council’s actions conducted pursuant to the UN Charter Chapter VII should be considered binding and that offering the Prosecutor discretion as to whether to initiate an investigation in a case referred by the Security Council would be inconsistent with the basic principles of international law and the properly understood role of the Security Council.¹⁵ Article 103 of the Charter requires that “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. The hierarchy of sources of international law should lead to a conclusion that the provisions of the Charter have priority over the provisions of the Rome Statute. It should be impossible to enact a law that would cancel the powers of the UN authorities. Therefore, the Court should not have the right to deny the powers articulated in the UN Charter. However, this hierarchy is not recognised by the Rome Statute, which explicitly governs the powers of the Security Council in an entirely different way from what would follow from the UN Charter. Pursuant to this theory, it leads to violation of the Charter by the Rome Statute.

This assumption gives rise two fundamental issues. First, in this situation referral of a situation by the Security Council prevents the Prosecutor from evaluating whether the conditions of initiation of an investigation as set up in Article 53 have been fulfilled, thus limiting prosecutorial discretion in assessing whether there is “a reasonable basis to proceed under this Statute”. Neither would he be capable of performing an independent assessment as to whether an investigation “would not serve the interests of justice” and whether it is in the “interests of victims”. The second problem that may appear is that by assuming that the Prosecutor is obliged to proceed with a case referred by the Security Council, the ICC becomes the “the Security Council court”, hearing cases de facto charged by this authority, and not as a result of the Prosecutor’s free decision.¹⁶ This would lead to a situation where the ICC takes over the function that is currently fulfilled by ad hoc tribunals. Although the ICC Prosecutor’s powers should not be considered separately from the role of the Court itself as a body restoring peace and security, or from the international political situation, it certainly was not the Court founders’ intention to condition his actions on the decisions of a political authority such as the Security Council. There is no doubt that decisions made by the Council are, in principle, political rather than taken solely to serve the interests of international justice.¹⁷ It should also be said that the text of the Charter should not lead to amendments of the provisions of the Rome Statute. It is the Statute, and not the Charter, that governs the procedural issues before the ICC. As it is highlighted, the Court operates pursuant to the Statute, not to the UN Charter.¹⁸

Therefore, the first view should be considered correct, especially that Article 103 of the Charter seems not to relate to the powers of the ICC Prosecutor. It may be noticed, however, that despite the fact that the Prosecutor himself has emphasised the non-binding nature of the referral made by privileged entities, every time one of them referred a situation to the ICC, the Prosecutor initiated an investigation.

Moreover, in the context of the nature of referrals provided by privileged entities, the difference between a “situation” and a “case” is of a particular importance. In accordance with the principles governing his actions, the ICC Prosecutor investigates specific “cases” within a certain “situation”. Privileged entities make a “referral of a situation” on the basis of which the ICC Prosecutor defines specific “cases”. A situation is defined in general terms of geography, of time and, on occasion, of the (many) persons involved. Therefore, while the “situation” referred to in Article 13, which justifies the initiation of the proceedings before the Court, includes a whole range of behaviours restricted to time, venue and potential perpetrators, the “case” refers to the specific event constituting one of the crimes falling within the Court’s jurisdiction: “is used herein to denote one or more defendants and one or more charges stemming from one or more related incidents”.¹⁹ The Registrar even keeps a separate record for each “situation” and each “case”. When a “case” is commenced, its record is completed with copies of the relevant documents from the “situation” record.²⁰ Therefore, the decision to prosecute a case consists of these two decisions: first, whether to investigate a situation and, second, whether to prosecute a particular case. It should then be borne in mind that even if privileged entities entrust the Prosecutor with the conduct of proceedings in a specific conflict situation, the Prosecutor is still entitled to select specific perpetrators and to focus his investigation on specific fragments of this situation.²¹

There is an interesting concept of “dormant jurisdiction” of the ICC arising in this context.²² When a situation is referred by an authorised entity, the Prosecutor’s power to initiate any number of cases under the reported situation (most frequently, a specific conflict) is activated. Results of the referral could be compared to the Security Council’s definition of ad hoc tribunals’ jurisdiction (pursuant to the resolution establishing the basis of their operations), which, from the moment of their establishment, was limited by these two aspects: geography and time. These two parameters are defined by the entity referring a given situation before the ICC, setting the limits for the Prosecutor’s freedom of selecting specific cases and pressing charges against specific suspects. The Prosecutor’s power extends over the whole territory of the conflict and all its participants. In the limits of a single situation, the Prosecutor may initiate a number of proceedings.

However, it may not be ruled out that the “situation” referred by an entity will be narrow enough so as to restrict the Prosecutor’s choice. Both the Security Council and the State Party have the powers to conduct an initial examination of a conflict and may refer the situation to the ICC only when they identify the perpetrators and formulate a list of charges.²³ In fact, in the first referred situation in Sudan, the Security Council emphasised in its resolution that the Prosecutor should focus on the crimes committed only by one of the parties to the conflict.²⁴

Adopting the concept of a “dormant jurisdiction” gives rise to further questions. Firstly, we need to ask for how long the ICC jurisdiction is activated in respect of a specific situation. Can we assume that once a referral triggers the Court’s jurisdiction, there is no temporal limitation to the Prosecutor’s powers to initiate an investigation? It seems that this is precisely the case, and the Prosecutor can suspend such an investigation or discontinue it and later reopen it at any time without having to go through the triggering procedure again.²⁵

Secondly, considering the above discussion of the binding nature of the Security Council’s referral, does the Prosecutor also have powers not to activate “dormant jurisdiction” and not to proceed with a case?²⁶ As it was said earlier, it should be concluded that he has such powers.

The earliest communications regarding committed crimes were made by the Security Council and the interested States Parties.

The first two investigations conducted by the Prosecutor in the Democratic Republic of Congo (DRC) and in Uganda were initiated pursuant to the procedure set forth in Article 13(a), in conjunction with Article 14 of the Statute. These two states provided the Prosecutor with information suggesting the commission of crimes falling within the Court’s jurisdiction. This came as a surprise even to the authors of the Statute, as they had not expected that this mechanism of “self-denunciation” would have so much practical importance for the operation of the Court.²⁷ In the case of the Democratic Republic of Congo, it was the president himself who provided incriminating information on July 2003.²⁸ Upon a preliminary examination of the case, the Prosecutor concluded that there were grounds for initiation of an investigation.

In the case of Uganda, the state was divided between two hostile parties, and the referral pertained exclusively to crimes committed by only one of them.²⁹ The international community exerted some pressure on the ICC Prosecutor to address the situation in Uganda as his first case. Some Ugandan sources even claim that the Prosecutor himself suggested that the president of Uganda referred the case to the ICC as he did not want to initiate his first case proprio motu. The fact that the Prosecutor proceeded with the case was very comfortable for the President of Uganda: first of all, it presented the rebels as “criminals” whose acts deserved condemnation; second, it presented all parties (including foreign states) that provided assistance to the rebels as co-perpetrators of these acts. Moreover, the costs of the prosecution and of criminal proceedings against all criminals were covered by the international body. As far as the ICC Prosecutor was concerned, these proceedings validated the grounds for his existence within 1 year of his appointment.³⁰

The case of the Central African Republic was also referred to the ICC by the government of this state, notifying the Court about violations of law committed during the pending armed conflict between the government and rebel forces.³¹ On 13 July 2012, the Court received a referral from the government of Mali.³² As the Government of Ukraine on 17 April 2014 lodged a declaration accepting the jurisdiction of the International Criminal Court under Article 12(3) of the Rome Statute over alleged crimes committed on its territory from 21 November 2013 to 22 February 2014, this situation became the next one to be referred to by a State Party. Upon receipt of such a declaration, the Office of the Prosecutor, as a matter of policy, opened a preliminary examination of the situation at hand.

Following the referral of the Uganda case, some observers started asking whether it was the Prosecutor’s duty to indict perpetrators representing both sides of the conflict. It was argued that law enforcement by international courts should not be transformed into victor’s justice.³³ It could not be overlooked that, so far, in the case of three self-referrals, the referring state asked the Prosecutor to investigate crimes allegedly committed by “rebels” fighting against the central authorities.³⁴ It was asked whether—to prevent accusations of arbitrariness in selection of the accused—the Prosecutor’s aim should be to strive for equilibrium between both sides of the conflict is concerned. And if so – should the equilibrium express itself e.g. in the number of indicted perpetrators on both sides. After receiving the referral, the Prosecutor notified the authorities referring the situation that he would address all cases of crimes within this situation, regardless of who committed them. He argued that it was his competence to address the whole situation first and that he would outline the limits of the case—by selecting the perpetrators and formulating charges—only after completing a preliminary examination. By this decision, he asserted his right to prosecute also those criminals who had not been included in the referral. He decided that the complaint of a state should be treated as a call to investigate the entire situation.³⁵

The Prosecutor’s decision sent a message to other states referring situations to the ICC: that in subsequent cases, the investigating Prosecutor will not restrain himself to the personal limits determined by a given referral but will rather take into account the entire territorial and temporal scope of a given conflict reported in the referral. On the one hand, this is a reflection of the desired equality of parties involved in a conflict: the referring party does not enjoy special protection by the international administration of justice. In practice, however, the situation developed contrary to the Prosecutor’s claims. Although he emphasised that despite the fact that the conflict had been referred by one of the involved parties he was obliged to address all crimes committed during the conflict, from the very beginning he focused on the crimes committed by the forces opposing the government. Responding to the criticism that ensued, the Prosecutor argued that the crimes allegedly committed by the “rebels” were of a higher gravity than alleged crimes committed by any other group.³⁶

The Security Council has made two referrals. In 2005, it addressed international law crimes committed in Sudan, referring the case to the Court.³⁷ Naturally, in a situation where the Prosecutor considers it necessary to accuse the presiding head of a state, he may not expect to have the situation referred by that state. As the Security Council referred the case for the ICC’s investigation, the President of Sudan became the first governing president accused before the ICC. On the one hand, the Prosecutor’s decision was criticised for ruining the chances for peace, but on the other it was praised for having demonstrated that even the head of a state is not immune from prosecution.³⁸ For obvious reasons, the ICC may not force the government of Sudan to co-operate with it in order to surrender the accused. Therefore, a practical problem arises: if the Prosecutor fails to bring the perpetrator before the Court, he might lose his credibility. Should he give up then the prosecution to protect the credibility of his office³⁹ or should he rather keep formulating indictments without any hope of bringing the accused to justice, only to convey the condemnation expressed by the international community or in order to achieve current political goals?

The Security Council also referred the situation in Libya.⁴⁰ It passed a resolution to impose on the authorities of Libya (which is not, however, a State Party to the Statute) an obligation to co-operate with the Court and its Prosecutor.

The preliminary examination of a case is the stage of proceedings when information on committed crimes is analysed in order to determine whether the initiation of an investigation is justified. It may be noticed that the more formalised an investigation is, the greater the need to precede it with non-formalised actions aimed at checking whether its instigation is necessary (admissible). In continental systems, the degree of formalisation of investigation resulted in the development of a statutory practice of preliminary examination whose objective is to check whether “there is a justified suspicion of commission of a crime”. Only when this suspicion is confirmed may a formal investigation be started. In Polish criminal trials, a verification of the facts in the matter may be carried out on the basis of Article 307 CCP, or the necessary inquiries, as foreseen by Article 308 CPP; in the German procedure, it is the Vorermittlungen performed pursuant to Article 152(2) StPO that is undertaken to establish whether there are “sufficient factual preconditions” (zureichende tatsächliche Anhaltspunkte).⁴¹ During this procedure, information contained in the notice of the offence committed can be completed and verified. All these actions are conducted informally. If needed, such actions are recorded in the form of “official notes” that cannot, however, be presented during the trial. In the verifying proceedings, no evidence from an expert opinion or actions requiring records are undertaken. These actions cannot be considered the initial form of an investigation because they precede its initiation. Only upon their completion is the investigation formally initiated—or abandoned, in which case “discontinuation prior to initiation” takes place, which is an unusual mechanism, not only from the semantic point of view. The existence of this institution is justified by the argument that the more preliminary examinations are performed to verify the suitability (admissibility) of an investigation, the less investigations end in discontinuation.⁴² However, it can be very difficult to draw a clear line between preliminary checks and the “formal” initiation of proceedings.⁴³

Before the ICC, numerous elements formalising an investigation were introduced. Of key importance is the requirement that the Prosecutor’s decision on the initiation of proceedings must be confirmed by the Pre-Trial Chamber. This requirement was the reason why, following the example of continental states, it was considered necessary to implement a particular stage, which is not yet an investigation but is considered as a sort of “pre-investigation”. Its aim is to determine whether there are reasonable and sufficient grounds to initiate a proper “investigation”. It should be carried out before requesting the authorisation to investigate a case and precisely with this aim—to gather information and evaluate if it constitutes sufficient basis for authorisation.

It is obvious that on the basis of preliminary information available to the Prosecutor, it is often still not possible to define specific events and perpetrators. The preliminary analysis of a case is designed to determine these factors: it serves to single out the “case” limited to specific events and persons referred by one of the information sources from a whole range of events included in a “situation”. The initiated investigation must pertain to a specific event and a specific perpetrator, i.e., to a “case” rather than to a “situation”.

Preliminary examination of a case has only one goal: collecting information, which would enable taking the decision as to whether it is reasonable to initiate an investigation. Primary analysis of a case provides a tool to verify and confirm potential doubts about the credibility of communications received. The Statute provides the Prosecutor with measures to analyse the seriousness of the information received. For this purpose, he may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organisations or other reliable sources that he or she deems appropriate and may receive written or oral testimony at the seat of the Court—but only from those who chose to appear at the seat of the Court willingly. In practice, the Prosecutor can also take part in field missions, as he did, for instance, in 2008 in Columbia or in November 2014 in Kiev. Having obtained information in this way, the Prosecutor must decide whether, within the investigated situation, specific events and perpetrators of crimes falling within the jurisdiction of the Court may be indicated with sufficient precision.

Already at the stage of preliminary examination of a case and prior to taking the decision on initiation of prosecution, the Prosecutor must also assess the issues of admissibility listed in Article 17 of the Statute. It is at this stage that the Prosecutor investigates whether the criterion of complementarity is satisfied, justifying the Court’s jurisdiction.

The relation between Article 15(3) and Article 53 of the ICC Statute, both introducing parameters for initiation of an investigation, is not clear. It is not easy to reconcile these two provisions. It has been indicated that the discrepancies between Article 53 and Article 15(3) arise from the fact that these provisions have not been consolidated by the authors of the Rome Statute. The origins of these two provisions can be found in two different proposals presented by two different states and were dealt with not only by different working groups but by different delegates. Consequently, there was no stage where these two provisions could be reconciled.⁴⁴

In the case law, it is now recognised that the criteria used to assess the suitability of an indictment are, simultaneously, the criteria used by the Prosecutor during the preliminary examination of a case to verify whether it is reasonable to initiate an investigation.⁴⁵ According to the opinion of the Pre-Trial Chamber, the drafting history of Articles 15 and 53 of the Statute reveals that the intention was to use exactly the same standard for these provisions. According to Article 15(2) and (3) of the Statute, the Prosecutor, after having analysed the seriousness of the information received from different sources, may conclude that there is “a reasonable basis to proceed with an investigation”. In reaching this conclusion, Rule 48 RPE dictates that the Prosecutor shall consider the factors set out in Article 53, paragraph 1(a) to (c). It signifies the need to analyse the criteria justifying a decision on the confirmation of charges at the stage of the initiation of an investigation, even when the investigation is not yet in progress.⁴⁶

In addition to the concept expressed by the Pre-Trial Chamber, there are two further theories regarding the mutual relation of these two provisions. First, it may be assumed that Article 15(3) provides guidelines for the Prosecutor as to when to initiate an investigation proprio motu. Article 53 governs situations that are referred to the Prosecutor by the Security Council or States Parties.⁴⁷ One may also encounter the theory that Article 15 refers to preliminary examinations, that is, to preliminary gathering of information in order to determine whether to proceed to request the Pre-Trial Chamber to authorise a full investigation, whereas Article 53 refers to “the commencement or start of a full investigation with a view to determining whether to prepare an indictment and prosecute”.⁴⁸

In regard to the issues of preliminary examination of a case, a question arises as to how far a preliminary examination of a case may go without the Pre-Trial Chamber’s authorisation. There are no rules regulating the duration of this stage of proceedings. This issue was considered by the Pre-Trial Chamber in relation to the preliminary examination of the situation in Kenya. The organ concluded that the answer might be found in Article 53(1) of the Rome Statute. According to this conception, the Prosecutor is entitled to continue gathering additional information until he feels sufficiently confident about the actual existence of a “reasonable basis to proceed with the investigation” or lack thereof. So far, none of the preliminary examinations conducted by the Prosecutor have lasted more than 2 years. However, when the Prosecutor was investigating the case of the Central African Republic (CAR), he was asked by the Pre-Trial Chamber (which referred to the right of the State Party that reported the situation to be informed about the course of the case) to provide information on the current state of the preliminary examination of the case, as well as on the expected term of its completion and the decision on the initiation of an investigation.⁴⁹ The Prosecutor submitted a description of the current status of the preliminary examination of the CAR situation; he even applied for authorisation of the investigation within the next 6 months. At the same time, though, he observed that the prosecutorial discretion to examine a case on a preliminary stage and time thereof are not susceptible to judicial review by the Pre-Trial Chamber.⁵⁰ He indicated that the role of the Pre-Trial Chamber is limited solely to controlling a decision on the initiation of, or refusal to initiate, an investigation and is not extended to the preliminary examination of a case. On the one hand, the Prosecutor emphasised that it was not his duty to reply to a question asked in this form, but on the other it can be seen that a new type of judicial review was exerted in the form of an official enquiry about the current status of the case. The development of the situation demonstrates that the role the Pre-Trial Chamber plays in an investigation is very similar to that of official supervision in hierarchically structured prosecution offices, especially in the light of seizing even more controlling powers than provided expressly by the Statute. This tendency shows how, even when lacking a hierarchical structure, the ICC Prosecutor’s actions do not remain unsupervised. Similarly, even in the absence of time limits for the completion of the preliminary examination of a case, it cannot go on without end.

In light of the considerations pertaining to the binding character of the referrals received by the Security Council, there is also the question of whether, having received information from this source, the Prosecutor has the power (or even the obligation) to carry out a preliminary examination to analyse the reliability of the information received. Such a requirement seems to arise from the Rules of Procedure and Evidence, which provide that in each case, whether it is the initiation of proceedings proprio motu or following the referral made by the privileged authority, “in acting pursuant to Article 53, paragraph 1, the Prosecutor shall, in evaluating the information made available to him or her, analyse the seriousness of the information received” (Rule 104 RPE). Therefore, there should be no doubt that the preliminary examination should be conducted regarding all kinds of information—from both privileged and other sources.⁵¹ The practice shows that, even in the case of receiving information from the Security Council, regarding the situation in Sudan, the Prosecutor, independently from this authority’s opinion, had conducted a preliminary analysis of the available information and concluded that there was a “reasonable basis to proceed with an investigation”. There are opinions that he had done so in order to emphasise his liberty to take decisions as to the validity of grounds for initiation of an investigation independently from the assessment of the Security Council.⁵² It was highlighted that the Prosecutor already acted this way in relation to the first case referred by the Security Council, thus defining the relations between the ICC and this organ at the first opportunity. It is also noted in the doctrine that the preliminary examination should be conducted regarding all kinds of information—from both privileged and other sources.⁵³

After evaluating the information received during the preliminary analysis of the case, the Prosecutor shall “initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute” (Article 53(1) of the ICC Statute). If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he shall submit to the Pre-Trial Chamber a request for authorisation of an investigation, together with any supporting material collected—if the analysis was initiated proprio motu. Authorisation of an investigation is the borderline between preliminary examination of a case by the Prosecutor and the investigation proper. If, however, a case is referred by one of the privileged entities, the borderline is constituted by the Prosecutor’s decision itself to proceed with (rather than to initiate) an examination, in accordance with Article 53(1) of the Rome Statute. Therefore, when the informant is the Security Council or a Sate Party, an investigation is automatically opened if the Prosecutor decides that there is a “reasonable basis to proceed”.⁵⁴ No judicial review is provided for in the “fast-track procedure”. In such a situation, the procedure described below does not need to be conducted.

Article 53(1) of the Rome Statute provides that the Prosecutor may initiate an investigation “unless he or she determines that there is no reasonable basis to proceed under this Statute”. This provision defines the conditions for the preliminary assessment of suitability and admissibility of a case to be brought before the Court. They serve a twofold purpose: first, they provide guidelines for the Prosecutor as to when he should initiate an investigation and, second, they are a basis for the Pre-Trial Chamber’s assessment as to whether his decision should be authorised. The general principle remains that judicial organs themselves have the competence to decide whether they have jurisdiction over a given case and whether this case is admissible.⁵⁵ Namely, while deciding whether to initiate an investigation, the Prosecutor shall consider the following conditions:

Sometimes an additional fourth condition is added. Bearing in mind that Article 1 of the Rome Statute defines the scope of the Court’s jurisdiction, which should pertain solely to “the most serious crimes of concern to the international community as a whole”, the Prosecutor may initiate an investigation only in the situation where the reported situation concerns the commission of such crimes.⁵⁶

When submitting his decision to initiate proceedings for the Pre-Trial Chamber’s confirmation, the Prosecutor must properly justify his point of view, making references to the materials collected during a preliminary examination of the case. He must also prove that the crimes that have been committed are not common crimes but are rather crimes of concern to the international community. He needs to establish the existence of every element of crime: if he suspects that crimes against humanity have been committed, he must prove that the acts when committed were not a single case constituted but a part of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7(1) of the Statute). Therefore, it is necessary for the Prosecutor to present information that would show the nexus between specific offences and their proliferation. As an example, the preliminary examination of the situation in Venezuela can be mentioned, as a result of which the Prosecutor decided that despite the suspicion that crimes against humanity had been committed there, the acquired materials did not support the conviction that the alleged crimes constituted “a part of a widespread or systematic attack”.⁵⁷

When submitting his decision to proceed with an investigation for the Pre-Trial Chamber’s confirmation, the Prosecutor must demonstrate that “the information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed” (Article 53(1)(a) of the Statute). Despite the consistent use of the term “reasonable basis” in the English text of Article 53, both in paragraph 1 and paragraph 1(a), the Polish legislator decided to differentiate between these two provisions. As a result, in the Polish version of the Statute, Article 53(1) provides that “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no justified basis (Pol. uzasadniona podstawa) to proceed under this Statute”, whereas Article 53(1)(a) provides that when submitting his decision to proceed with the investigation for the Pre-Trial Chamber’s confirmation, the Prosecutor must demonstrate that “the information available to the Prosecutor provides a reasonable basis (Pol. rozsądna podstawa) to believe that a crime within the jurisdiction of the Court has been or is being committed”.⁵⁸

This phrasing entails that the Prosecutor does not have to prove a suspect’s guilt “beyond reasonable doubt”, which is a condition for charging the latter with alleged crimes. For an investigation to be initiated, it is sufficient to initially determine that there are grounds to suspect that a person has committed an offence falling within the Court’s jurisdiction. In order for the Prosecution to meet its evidentiary burden, it must offer concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific allegations.⁵⁹ In The Prosecutor v. Bahar Idriss Abu Garda, the Prosecutor charged the suspect with commission of war crimes during the domestic conflict in Darfur, treating him as co-perpetrator within the meaning of Article 25(3)(a) of the Rome Statute. The Pre-Trial Chamber decided, however, that the evidence presented by the Prosecutor during the hearing to confirm the charges is “scant and unreliable” and, as a consequence, refused to confirm charges.

The Pre-Trial Chamber emphasised that it is “the lowest evidentiary standard provided for in the Statute”. As the confirmation hearing should not be turned into a mini-trial, its purpose should be limited to confirming that sufficiently compelling charges going beyond mere theory or suspicion have been brought. Thus, the information available to the Prosecutor is neither expected to be “comprehensive” nor “conclusive”—if compared to evidence gathered during the investigation. The above is a distinctive feature of all legal systems: the existance of a justified suspicion that a crime has been committed is sufficient to proceed with an investigation (e.g., Article 303 CCP, § 203 StPO).

A detailed interpretation of the significance of the conditions set forth in Article 53 of the Statute was presented in the case of the situation in the Republic of Kenya, pertaining to the commission of crimes against humanity during the conflict that took place during parliamentary elections, which was the first of the two cases so far in which the Prosecutor has proceeded proprio motu. ⁶⁰ In this case, the Appeals Chamber found that the standard of proof justifying the investigation proceedings did not require the evidence to lead to the only reasonable conclusion on the suspect’s guilt. It is sufficient that the commission of crimes by the suspect is “possible and reasonable to confirm”, along with other potential versions of events. The Prosecutor does not need to prove beyond any doubt that no other solution is possible. Determination as to whether there are reasonable grounds to proceed with an investigation should be analysed, taking into account specific facts, and, therefore, the Prosecutor’s presentation of general facts pertaining to a specific case is not sufficient. He must at least indicate groups of persons suspected of having committed specific crimes, even if he is not yet able to prove the names of suspects or present specific charges. Even the Prosecutor’s selection of charges and suspects is, by its nature, preliminary and non-binding for the purposes of preparing a further indictment brought to the Court.

Also, when adjudicating on the confirmation of an investigation into the situation in Côte d’Ivoire pertaining to alleged crimes against humanity during the civil unrests that broke out after the presidential election in the period of 16 December 2010–12 April 2011, the Pre-Trial Chamber confirmed that at such an early stage of proceedings, the Chamber may review only potential “cases” chosen from a broader “situation” as part of which a crime under international law could have been committed. We may speak of a “potential case” when the following two conditions are met: there is a specific group of persons that is likely to become the subject of the Prosecutor’s interest, and there is a suspicion that crimes have been committed that fall within the Court’s jurisdiction (and are serious enough for their scale, nature, manner of performance and impact on the victims to be brought before the Court).⁶¹ The Prosecutor does not indicate potential suspects but must only prove that specific crimes have been committed, providing information to support that specific acts were not isolated but together constitute a single crime of concern to the international community as a whole. At this stage of proceedings, the Chamber refers not to the “evidence” but rather to the “information provided by the Prosecutor”, and it takes its decision not on the basis of specific evidence but rather on the basis of “available information”.

As part of the decision to proceed with an investigation, the Prosecutor has to determine the time framework for proceedings to be held before the Court. However, similarly as with the final formulation of charges, the time when crimes were committed does not have to be specified in detail. In the case pertaining to the commission of war crimes and crimes against humanity in Congo, the Pre-Trial Chamber decided that “such a situation can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral”.⁶² The above entails that the Chamber confirms proceedings related to acts that have not been committed yet but will have been committed by the time the Prosecutor formulates charges and presents them for the Pre-Trial Chamber’s authorisation (as was the case with Côte d’Ivoire).

The Pre-Trial Chamber acknowledges that there are reasonable grounds to conduct the proceedings if the Prosecutor demonstrates that the case is, or would be, considered admissible pursuant to Article 17 of the Statute. The Prosecutor needs to prove that a given act constitutes a crime as defined in Article 5 of the ICC Statute (that it meets the ratione materiae conditions), was committed in a period enabling the ICC to exercise its jurisdiction (Article 11—jurisdiction ratione temporis) and complies with the conditions of Article 12—the suspect is a national of a state that ratified the Statute or committed the act on the territory of such a state (jurisdiction ratione loci or ratione personae).

The admissibility of a case handled by the Prosecutor also depends on the compliance with a fourth precondition of the ICC jurisdiction—the requirement of Article 17(1)(d) relating to the “gravity of the case”—which should “justify further action by the Court”. As the last criterion is of a fully discretionary character, the parameter of admissibility of a case, evaluated as a whole, can be called “a fluctuating parameter”⁶³: being both non-discretionary (as the first criteria of jurisdiction) and discretionary—depending on the specific issues of admissibility that come into consideration.

In Article 17, the Rome Statute defines what should be understood by the notion of “shall be complementary to national criminal jurisdictions”. In order to come to such a conclusion, the Court should determine whether:

In consequence, only if in a given state having jurisdiction are there ongoing investigations or prosecutions (lis pendens premise)—or there have been investigations in the past (ne bis in idem premise)—and as their result it has been decided not to prosecute the person concerned, can the Prosecutor examine the question of unwillingness and inability to act. Examining unwillingness and inability before establishing facts as to former and ongoing investigations would amount to, quoting the Court’s judges, “putting the cart before the horse”.⁶⁵ Both notions are defined in the ICC Statute in order to avoid any prospective ambiguities. It provides that in order to determine unwillingness within the meaning of the Statute in a particular case, the Court considers, having regard to the principles of due process recognised by international law, whether one or more of the following exist, as applicable:

In order to determine inability in a particular case, the Court considers whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out criminal proceedings.

The Paper on some policy issues adopted on September 2003 by the OTP presents the official analysis of what will be meant under the principle of complementarity of jurisdiction by the Office.⁶⁶ The OTP expressed an opinion that the ICC is not intended to replace national courts. The reason behind adopting the principle of complementarity was to create an institution that is global in scope while recognising the primary responsibility of States themselves to exercise their ius puniendi. The system of international accountability before the ICC is based on the assumption that states do not only have a right but that they also have an obligation to prosecute crimes falling within the Court’s jurisdiction. The Office also indicated that States will generally be more effective in conducting investigations as they have the best access to evidence and witnesses. In line with the official opinion of the Office, the provision of the Statute that defines the notions of “inability” and “unwillingness” of a state to prosecute these crimes was established in order to allow the Prosecutor to conduct an investigation in a situation where there was a lack of central government or a state of chaos due to the conflict or crisis or public disorder leading to collapse of national systems that prevents the State from discharging its duties to investigate and prosecute crimes within the jurisdiction of the Court. We may also envisage a situation in which a state concludes that the Court is more capable of handling the proceedings. This may happen when, as a result of collapse of the state’s normal functioning, the national justice system also becomes disorganised and also when there are two interest groups that seek an impartial forum to decide on the criminal liability of perpetrators.

During the examination of the complementarity principle in respect of the situation in Kenya, discrepancies in understanding of this concept occurred. The meaning of the phrase “the case is being investigated or prosecuted by a State” was analysed when Kenya challenged the correctness of the Pre-Trial Chamber’s findings about the admissibility of the case.⁶⁷ The state claimed that the Court had wrongly decided, based on the information provided by the Prosecutor, that the case being heard by the Court was not subject to national criminal proceedings in Kenya as there were ongoing investigations into this situation. Kenya argued that it had been prosecuting the same conduct as was examined by the Prosecutor during investigation. It further submitted that, although the national proceedings were not conducted in respect of the same persons as suspected by the Court of committing certain acts, they were conducted in respect of “persons at the same level in the hierarchy as those being investigated by the ICC”. In consequence, it should be acknowledged that they constituted an obstacle preventing the proceedings from being initiated before the Court. Kenya submitted that the Court had not yet authoritatively established the meaning of the word “case” in Article 17(1) of the Statute. In the view of Kenya, it was sufficient to conclude that there is an investigation “in the case” and not necessarily “against a certain person”. The theory according to which a case can be inadmissible before the Court only when a national jurisdiction is investigating the same person and for the same conduct as in the case already before the Court (“same person/same conduct” test) should be therefore rejected.

The Pre-Trial Chamber, however, did not agree with this reasoning. It found that the condition that “the case is being investigated or prosecuted by a State which has jurisdiction over it” is only fulfilled when the “same person/same conduct” test is applied. At this stage of proceedings, the conclusion that the case “is being investigated” (although at other, earlier stages the contours of the likely cases will often be relatively vague) cannot be considered sufficient. The statement that the proceedings are held in relation to the same conduct that falls within the Court’s interest but against different persons is also insufficient. The State must be carrying out steps directed at ascertaining whether these suspects are responsible for substantially the same conduct as is the subject of the proceedings before the Court. The objective of this provision of the Statute was primarily to ensure that specific persons would not be able to avoid criminal responsibility for committed acts.⁶⁸ Moreover, in such a situation, there is no risk that a person will be tried twice for the same offence and the question of a conflict of jurisdictions does not exist.

In turn, when examining the complementarity principle with respect to the situation in Côte d’Ivoire, the Prosecutor informed that although no proceedings regarding acts falling within the Court’s jurisdiction were in progress in this state (in relation to the persons most involved in the conflict), lawyers of the state’s president had notified a French court about the commission of crimes against humanity. The Prosecutor had to analyse the cases pending in France but finally concluded that none of them pertained to the events or persons that were within his interest.⁶⁹ He also found that the national proceedings did not concern the persons who were to the greatest extent responsible for the events undergoing examination.

Introducing of the complementarity principle aims at encouraging states to exercise their own jurisdiction over crimes that fall within the Court’s jurisdiction.⁷⁰ The Statute provided for certain mechanisms of co-operation with states to share information that should ensure that, at any time, a state can choose to exercise its jurisdiction over a given case. Within 1 month of receipt of that notification, a state may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts that may constitute crimes referred to in Article 5 and that relate to the information provided in the notification to states. At the request of that state, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorise the investigation (Article 18(2) of the Statute).⁷¹

On the other hand, the solution provided for in the Statute was also intended to prevent the impunity of perpetrators. There are two mechanisms that enable the Prosecutor to control the actions of a state in the deferred case. The first institution is the state’s obligation to provide information: “When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. The State’s Parties shall respond to such requests without undue delay”. The second mechanism involves a review conducted to verify whether the state fulfilled its obligation to prosecute: “The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation” (Article 18(3) of the Rome Statute). If the review demonstrates that the state is still “unwilling or genuinely unable to carry out the investigation or prosecution”, the precondition of complementarity of the ICC’s jurisdiction is activated again. In consequence, the adopted regulation of the complementarity principle is “complicated and baroque”. As G. Turone observes “this regulation is liable to give rise to an inextricable entanglement of notifications, counter-notifications, challenges, complaints, judicial reviews entrusted to the Pre-trial Chamber and appeals, such as to substantially hamper any serious investigation”.⁷² Writing 12 years later it is hard to disagree, although no such problems have yet occurred.

Despite taking the gravity of crimes and interests of the victims into account, there may still appear significant reasons to believe that an investigation would not serve the interests of justice. The Prosecutor may refuse to initiate an investigation if he demonstrates “that an investigation would not serve the interests of justice” (Article 53(1)(c) of the Statute). This decision must be taken on the basis of all the circumstances of the case, in particular the gravity of the crime and the interests of victims. It does not mean, though, that the Prosecutor must prove a positive thesis (as was in the case of the former paragraphs of Article 53(1)): that an investigation “would serve the interests of justice”. In fact, the Prosecutor needs to notify the Chamber only when he concludes that there are no interests of justice in the prosecution. It has not been specified, however, what the Prosecutor should consider as serving (or not) the interests of justice; “the Prosecutor is invited to balance all relevant circumstances”.⁷³ The assessment of this parameter is entirely arbitrary and depends on the Prosecutor’s discretion. The standard of “not serving the interests of justice” may be defined more precisely by the Pre-Trial Chamber when the Prosecutor refuses for the first time to initiate an investigation on the basis of the above precondition. So far, the Prosecutor has never relied on this parameter to support his decision not to initiate an investigation.

In order to shed more light on this precondition, the Office of the Prosecutor published the Policy Paper on the Interests of Justice in September 2007.⁷⁴ These guidelines encourage the Prosecutor to take into account the following circumstances when analysing whether or not proceeding with a case would serve the interest of justice:

The guidelines indicate that, first of all, the Prosecutor needs to bear in mind that his task is to ensure to put an end to impunity and to ensure that the most serious crimes do not go unpunished. Therefore, he should assess whether prosecution by the ICC is the only way to punish perpetrators and whether the concerned states themselves would be able to perform the obligation to prosecute. The Prosecutor should consider the state of a conflict under which the crimes were committed and any potential adverse impact on security and crime prevention that the Court’s intervention may have. Pursuant to these guidelines, only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice: there is a presumption in favour of an investigation or prosecution. The document also emphasises that it would be hard to imagine criminal proceedings on international law crimes that would not serve the interests of justice.⁷⁵

By enumerating factors that may stand behind the decision, the OTP admitted that when taking a decision to initiate proceedings, the Prosecutor needs to take into account not only the interests of justice but also those of peace and international security. It stressed that the two concepts should not be identified with one another. It further conceded that there might be a conflict between these two. First of all, it should not be forgotten that “the broader matter of international peace and security is not the responsibility of the Prosecutor; it falls within the mandate of other institutions”. Moreover, political factors should never hamper punishment of the guilty. Differentiation between the interests of justice and interests of peace gives rise to some interpretative concerns with regard to the powers of the Security Council. Namely, it may lead to the assumption that there are no grounds for the Security Council to make a “referral of a situation” to the ICC as it has powers to make it by the UN Charter, i.e., when it aims at protecting the “interests of peace” but not the interests of justice.⁷⁶

When considering the meaning of the term “interests of justice” as presented by the Office of the Prosecutor, it should be borne in mind that these guidelines are a document prepared solely for the Office’s internal needs. They are not binding for other participants in the proceedings. They do not necessarily have to overlap with the definition adopted by the Court’s judges. The assumptions presented in the guidelines are also not binding for the Court. The participants in the proceedings may not rely on them as a valid interpretation of this provision before the Court. Moreover, they should not be treated as a precedent. They are the words of the Prosecutor that held the office at that time, and the current Prosecutor may even express a different opinion.⁷⁷

The parameter that is absent from Article 53 but that is also decisive for the admissibility of the Court’s jurisdiction pursuant to Article 17(1)(d) of the Statute is the gravity of the case. The concept lacks definition; it must be, however, “sufficient to justify further actions by the Court”. It must be also distinguished from the concept used in Article 53, which provides that the Prosecutor, evaluating whether an investigation “would not serve the interests of justice”, has to take into consideration “the gravity of the crime”. In this context, “gravity of the crime” occurs as an element of evaluation of the “reasonable basis to proceed”. These two concepts should be assessed separately. On the other hand, it is difficult not to notice that all cases of international law crimes fall into the category of “grave” cases.⁷⁸ As a result, it became necessary to establish certain preconditions to assist the Prosecutor in deciding whether the gravity of a case provides the grounds to initiate proceedings.

The first group of preconditions includes criteria adopted through case law. In The Prosecutor v. Lubanga, the Court concluded that “the gravity threshold is in addition to the drafters’ careful selection of crimes included in articles 6 to 8 of the Statute […]. Hence, the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court”.⁷⁹

The Pre-Trial Chamber indicated that when examining whether this threshold has been met, it takes the following factors into account: