The Rome Statute provides several methods for the Prosecutor to open an investigation into serious crimes around the globe.9 These options include: the Prosecutor’s proprio motu power, United Nations Security Council referral, and referral by a state party.10 The power to self-refer cases is derivative of the ability of states to refer situations to the prosecutor.11 The referral power is listed by the Rome Statute as follows:

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.12

Therefore, states employ the ability to refer situations happening within their own territory as that territory exists within the jurisdiction of the Court. These states abdicate their responsibility for determining whether crimes should be charged to the OTP and effectively self-refer themselves to the Court. However, this power of the state parties seems in conflict with the general requirement for the state to be unwilling or unable to prosecute themselves. If the state is willing to refer to the Prosecutor, then it seems as though it should also be willing to prosecute at a national level.13 Nonetheless, throughout the Court’s history, the Prosecutor, the Court, and the state’s party to the Rome Statute have accepted that a state may refer activities occurring within their borders to the Court.14

III. Arguments Against Self-Referrals

The practice of states self-referring to the court has drawn several different criticisms.15 These criticisms include:

1. textual challenges to the ability to self-refer arising from challenges to whether the drafters intended to allow states to self-refer;

2. concerns about the status quo preservation effects of self-referrals;

3. adverse effects on prosecutorial discretion caused by self-referrals.16

Some of these criticisms may be avoided by the Court in the long term, while others are necessary costs to the advancement of the legitimacy of the Court overall.

The textual arguments arise out of a number of normal legal interpretive tools. These critiques, if damning, would be a strong basis for preventing self-referrals. Although, the Court’s current acceptance of self-referrals is good evidence that the Court at least does not accept these critiques as serious concerns. Nonetheless, critiques argue the text of the Rome Statute, when interpreted in light of the drafting discussions, precludes states from self-referring to the ICC.17, 18 Although no exceptions against self-referral are explicitly drafted into the text of Article 14 with its expansive language of “a State Party may refer to the Prosecutor a situation in which…,”19 the critiques argue that, in drafting the Rome Statute, the drafters never contemplated or mentioned the concept of states referring their own territory to the Court.20 Nonetheless, traditional concepts of legal interpretation call for the text to be the primary source of interpretation only to be dislodged if there is significant evidence indicating that the text was an error in drafting. Therefore, it seems odd to suggest that if the plain language of the text does not preclude an action to be taken by the states, that it would be so prevented by the Statute. As stated earlier, it is a good indication that, since the Court does take self-referrals, at least the current Court administration does not support this position.21

A fallback position for the textual argument is to cite the statements of the Court itself referring to its position as the “court of last resort”22 and its more recent statements stating that it has a goal of “encourage[ing] States Parties to further discuss issues related to the principle of complementarity and to explore proposals by States Parties introduced as ‘positive complementarity.’”23 Positive complementarity is usually understood to mean the goal of promoting domestic prosecutions wherever possible by the Court.24 The critic may argue that self-referrals are directly in opposition to the Court’s goals by usurping the most serious cases from creating legitimacy in the national courts. However, the Court should be seen as doing exactly the opposite by offering an alternate justice mechanism to state parties. First, the Court offers itself as an exemplar to national courts on judicial procedure, investigation, and upholding justice. The Court does this by having experienced litigators in an advanced legal mechanism try the cases of the most serious offenders in a public forum. Through this, national courts, lawyers, and the populous may observe a possible aim for their own national systems. Second, there is no reason that the ICC could not become a natural extension of a state party’s own legal system. If the state party observes the Court and believes that it is an advantageous situation for the Court to handle the most serious cases, then the state party has affirmatively consented to the Court becoming an expansion of their own legal system. Though some may think of this international system as fundamentally non-national, such an expansion of the state party system is not substantially different to states moving towards federal level systems (e.g., the ECJ, ICJ, U.S. Federal System, etc.).

The second critique relates to the political features of the referring state making a self-referral. Such an argument takes several forms and attacks the legitimacy of the Court’s action at several stages of the case. First, the state-party self-referring has the ability to selectively refer cases to the Court. For example, states may only refer situations in which the prevailing political group has not performed any illicit conduct. However, this should be a persistent concern with any investigations of the Prosecutor. The ICJ has struggled with similar concerns in arriving at their decisions:

The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a “legal question” and to “deprive the Court of a competence expressly conferred on it by its Statute”. Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task.25

Political questions and concerns are central to all judicial decisions, especially those decisions made by young courts when legitimacy is at a premium. Therefore, the OTP should be comfortable navigating the political landscape associated with accepting and refusing cases. It is also unclear why this worry is specifically at issue with self-referrals. Certainly, states may have similar political incentives to refer only situations in which they as a state have committed no illicit acts, yet such decisions by the OTP do not concern us. Therefore, we should trust the OTP in making decisions of when an investigation is appropriate.

Second, the issue of politics can come into play when the OTP attempts to pursue the investigation of government actors’ possible culpability. Because the OTP is reliant on state compliance with their investigation, it is particularly vulnerable to timing issues with enforcement. Without an international enforcement body, there is nothing to prevent the state from ousting the Prosecutor or withholding evidence as soon as their personnel become subject to investigation,.26 There are two primary responses possible by the Prosecutor in addressing this issue: either work with the limitation, and prioritize those persons the government will assist in investigating; or go after government and non-government actors simultaneously, risking being ousted by the government. To date, it seems as if the OTP has chosen the former option. For example, in Uganda, the OTP investigated the members of the opposition party, making a number of arrests, while investigating the government and eventually determining that no government actors warranted arrest, though the investigation is ongoing.27 This action appeared political to many onlookers, potentially exacerbated by the united front presented by the OTP and the then standing Ugandan President Yoweri Museveni.28 It is unclear why the OTP has neither made any arrests, nor closed the case at hand, but one possibility is that they lack the evidence necessary to make a proper determination due to a lack of government assistance. There are populations on the ground who view the ICC’s involvement in the situation as a tool of the Ugandan government’s enforcement action.29 This puts at issue the legitimacy of the Court and hampers future investigative efforts. However, the OTP is stuck between a rock and a hard place because investigating objectively may lead to no convictions at all. Nonetheless, this issue is not particular to self-referrals as the critique may hope. The OTP is always reliant on state party assistance and access in performing their investigation, especially where many of the actors, witnesses, and evidence will be in government control, regardless of whether the situation was self-referred or brought to the OTP through alternate means.

The proper solution to this issue is not to abandon self-referrals but to increase knowledge of the task of the ICC to build political pressure on the sitting government. Removing support for an investigation is only a tenable position where the ICC’s shaming of a state for refusing to assist with the investigation does not garner sufficient political blowback. The process of gaining sufficient political legitimacy with state citizens will be a long and tiring process for the OTP, but it will be reliant on the OTP actually taking and completing a critical mass of cases that can be used to show local populations what the Court does and why it can be trusted to be placed in a judicial role.

The final issue with self-referrals is that they may put pressure on the Prosecutor to make specific determinations regarding whether a crime has occurred or not.30 Similar to United Nations Security Council referrals, self-referred situations place a party with superior information in a position to bias the Prosecutor towards finding that a crime has been committed when compared with proprio motu investigations. There are two reasons that this could influence the prosecutor.31 Firstly, because the information being presented to the Prosecutor has been packaged by an interested party, the information could seem to be better or characterized in a way that is in favor of finding liability.32 Second, the Prosecutor could fear the legitimacy loss in a country where there is popular support for ICC involvement, but the facts do not support a finding of liability.33 Perhaps the second scenario is most like the United Nations Security Council referral situation; however, in the case of a UNSC referral the Prosecutor will face much more pressure to declare the situation sufficient for liability.

The evidence authenticity/objectivity concern will always be a concern for the Prosecutor where they are frequently receiving evidence second hand months after the facts have occurred. Evidence turned over by parties will always be loaded with various biases and slants. The job of the investigator is to fully understand the issue before making any judgements about whether the evidence is sufficient. Additionally, the adversarial litigation process provides a second check against abuse by the Prosecutor. Defense counsel will be able to gather the relevant evidence and present it to the fact finder who should not be subject to the same biased viewpoint. I will admit, however, that such an adversarial process comes with the cost of time for the defendant and money for the ICC, so it may be a less than ideal solution.

A loss of legitimacy from not pursuing an investigation despite a party referral is a serious issue, but it is solvable with sufficient legitimacy for the Court. To deal with this situation, the Court must achieve sufficient legitimacy that they may be believed over the referring party when this situation occurs. Essentially, this issue turns on which party is believed more. Not indifferent from a traditional “he said she said” situation where the question turns on the believability of the parties, this will require the Prosecutor’s determination to be the more believable story. The Prosecutor can take steps to stack the deck by providing transparent investigation procedures and having a set of open scenarios for the public to view their decision making.

IV. In Pursuit of Legitimacy: Why Self-Referrals are the Best Path Forward for the Court

One aspect has been my constant rejoinder to critiques of the Court throughout this comment: legitimacy. The Court, in the coming ten years and for the foreseeable future, will be pursuing a public view of greater legitimacy. This legitimacy must be gained from many different actors including state parties, the international community, and citizens themselves. However, there is one central requirement for gaining legitimacy: trying cases. Currently, however, the Court is at an awkward crossroads where it seeks to only take the hardest and most dire scenarios where the arrest issue34 and evidentiary problems are most brought to the forefront. Therefore, the OTP should make an open appeal for state parties to refer any and all situations that fall under the legal definitions of the Rome Statute to the Court. This will serve many goals of the OTP and the Court itself by providing the Prosecutor with the chance to prove that it can handle the work of protecting justice worldwide.

Through holding itself out as the Court to handle egregious crimes regardless of whether the national justice system could handle the case, it allows countries to offset the substantial cost of investigating and trying these alleged criminals.35 As shown by the ICC so far, investigations are accomplished in a thorough manner with excellent legal minds considering the cases. This offers unique value to state parties willing to abdicate their own legal responsibility in these cases. This may also allow the Court to engage in some cost cutting due to the return on the increased scale it can achieve under the higher case load.

The Prosecutor can also incentivize state parties by pointing to the political immunization an ICC investigation offers. Although an ICC investigation comes with some sovereignty loss, the Prosecutor can offer to burden the political costs of investigation where state actors may be unable to investigate due to political concerns. Additionally, a failed investigation will not cause blow back and raise bias questions on the national government if the investigation is offloaded to the Prosecutor.

Therefore, the Prosecutor has genuine advantages to offer state parties to self-refer their crimes to the ICC rather than tackling them domestically. Such a conveyance of cases to the Court also provides significant advantages to the Court as discussed. Certainly this process will also bring costs to the Court; however, the net effect of such actions will be to increase the legitimacy of the Court.

V. Conclusion

Incentivizing parties to self-refer will serve to increase the legitimacy of the Court and provide more significant advantages to state parties incentivizing other states to sign onto the Rome Statute. As the Court has already abandoned its position as the court of last resort, it should embrace itself as a natural extension of state parties’ own judiciaries. This will entrench it in the international community as the Court to handle the most egregious crimes and as an exemplar of the judicial ideal for state parties to use in their own countries.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Luis Moreno-Ocampo, ICC Prosecutor, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (Jun. 16, 2003), available online. ↩

2. 2.

   International Criminal Court Investigations, Global Pol’y F. [hereinafter ICC Investigations], available online (last visited Jun. 18, 2018). ↩

3. 3.

   David Davenport, International Criminal Court: 12 Years, $1 Billion, 2 Convictions, Forbes, Mar. 12, 2014, available online. ↩

4. 4.

   Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online. ↩

5. 5.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 17, available online. ↩

6. 6.

   Id. ↩

7. 7.

   Darryl Robinson, The Controversy over Territorial State Referrals and Reflections on ICL Discourse, 9 J. Int’l Crim. Just. 355, 358 (May 1, 2011), available online, doi. ↩

8. 8.

   About, ICC, available online (last visited Jun. 18, 2018). ↩

9. 9.

   Rome Statute, supra note 5, Arts. 13, 15. ↩

10. 10.

    Id. ↩

11. 11.

    Rome Statute, supra note 5, Art. 14. ↩

12. 12.

    Id. ↩

13. 13.

    (This criticism is discussed later in Part III). ↩

14. 14.

    ICC Investigations, supra note 2. ↩

15. 15.

    Robinson, supra note 7, at 356. ↩

16. 16.

    Id. ↩

17. 17.

    William A. Schabas, ‘Complementarity in Practice’: Some Uncomplimentary Thoughts, 19 Crim. L. Forum 5 (2008), paywall, doi. ↩

18. 18.

    Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385 (2005), available online, archived. ↩

19. 19.

    Rome Statute, supra note 5, Art. 14. ↩

20. 20.

    Robinson, supra note 7, at 361. ↩

21. 21.

    ICC Investigations, supra note 2. ↩

22. 22.

    About, supra note 8. ↩

23. 23.

    Assembly of States Parties, ICC, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/8/Res.3 (Nov. 26, 2009), available online. ↩

24. 24.

    Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21, 22 (2010), available online, archived. ↩

25. 25.

    Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), I.C.J. Rep. 226, 234 (Jul. 8, 1996), available online. ↩

26. 26.

    Robinson, supra note 7, at 369. ↩

27. 27.

    Patrick Wegner, Self-Referrals and Lack of Transparency at the ICC—The Case of Northern Uganda, Just. in Conflict (Oct. 4, 2011), available online. ↩

28. 28.

    Id. ↩

29. 29.

    Id. ↩

30. 30.

    Robinson, supra note 7, at 369. ↩

31. 31.

    Id. ↩

32. 32.

    Id. ↩

33. 33.

    Id. ↩

34. 34.

    What More Can Be Done to Secure Arrests?, ICC Forum (Feb. 13, 2014), available online. ↩

35. 35.

    Davenport, supra note 3. ↩