The Aperture of the ICC—More Than Just the Issue of Gravity
We may be misconceiving the aperture issue if we place exclusive or too much focus on gravity. If it is true, as the report of the Independent Experts suggests, that the OTP and the Court will need to narrow the aperture in order for the Court to succeed, we should look to the various different ways that the aperture is controlled. In some ways, it is worth considering an approach in which the aperture-control mechanism can be applied in a more holistic manner—for example, an approach in which gravity is considered not solely in relation to the underlying conduct, but in relation to how egregious any failure to investigate or prosecute, or any decisions not to pursue conventional criminal responsibility, may be.
What is the aperture issue? On a camera, the aperture is the opening through which light passes for the camera to process. It can be widened or narrowed, depending on the desired result. Light is essential, but different people will have different perceptions of what settings are optimal.
So too with the ICC. The ICC has no “lens” as such, but various dials regulate the size of the opening and how the Court goes about selecting the situations and cases on which it will focus. Questions about the aperture will be at the forefront of issues confronting the Court as the ICC enters its third decade. The Independent Expert Report, completed in September 2020, underscored the central importance of getting these issues right,1 as has the newly-elected ICC Prosecutor.2 As discussed below, much of the aperture discussion has been about possible re-calibration of the way the ICC approaches the issue of gravity, but it would be prudent for the Court and the new Prosecutor to broaden their thinking in the way they analyze these issues.
I. How Does the Rome Statute Set the Aperture?
The Rome Statute controls the aperture in numerous ways but the two most basic are its provisions on jurisdiction and admissibility.
First, the Rome Statute tells us the types of cases over which the ICC can and cannot exercise jurisdiction. Article 11, for example, tells us that the ICC has jurisdiction only over crimes committed after the Rome Statute entered into force. More fundamentally, Article 5 tells us that the ICC has jurisdiction only over four specific types of crimes. The negotiators of the Statute considered, but ultimately rejected, proposals to include numerous other crimes but, in the end, created a Court with jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression, and—indeed—only as those four crimes are defined in the Rome Statute.3 Thus, no matter how heinous, de-stabilizing, or shocking to the conscience they may be, crimes like airplane hijacking, the murder of diplomats, killing of peacekeepers outside of armed conflict, mass shootings, systemic corruption, staging of a military coup, drug-trafficking, and terrorism do not fall within the Court’s jurisdiction unless in particular cases they somehow manage to fit into the definitions of these four crimes.
The Rome Statute also established preconditions to the exercise of jurisdiction. Thus, within the universe of crimes described in Article 5, the Court may not exercise jurisdiction unless the conduct in question occurred on the territory of a state that is a party to the Rome Statute or the accused is a national of such a state.4 Once again, no matter how heinous, de-stabilizing, or shocking to the conscience they may seem to the international community, the Court may not exercise jurisdiction unless these preconditions are satisfied. The distinction between situations in which the Court has jurisdiction and those in which the Court is able to “exercise” jurisdiction need not be addressed here. The relevant point for present purposes is that, taken together, these provisions circumscribe the kinds of cases over which the exercise of ICC jurisdiction is possible.
There is another provision—the first sentence of Article 5—that also warrants mention. It precedes the sentence that specifies that the Court has jurisdiction over the four crimes listed above and says that the jurisdiction of the Court “shall be limited to the most serious crimes of concern to the international community as a whole.” At least on its face, this first sentence of Article 5 leaves room for debate whether it is intended to convey that any commission of these four crimes are considered ipso facto to be “the most serious crimes of concern to the international community as a while,” or whether the intent is to limit the Court’s jurisdiction to that subset of these four crimes that is in fact of “most serious concern.” The Preamble of the Rome Statute vows that whatever crimes are included in this category are crimes that “must not go unpunished.”5
In addition to the questions about the Court’s jurisdiction, there is an additional issue of admissibility. Specifically, under Article 17(1) of the Rome Statute, a case over which the Court could otherwise exercise jurisdiction is inadmissible if either:
a State satisfies the complementarity principles described in subsections (a), (b), or (c) of that provision, or
under subsection (d), “the case is not of sufficient gravity to justify further action by the Court.”
Article 17 is written to apply to the admissibility of a specific “case,” but the same general ideas are relevant when, under Article 53, the Prosecutor decides whether to initiate an investigation of a “situation” in the first place. However, at the point at which he or she is deciding whether to commence an investigation, the Prosecutor will not have identified particular cases to bring to trial and looks instead to potential cases that might be brought.6
There is also an additional admissibility-like provision—set out in Article 53(1)(c)—which provides that the Prosecutor, in deciding whether to commence an investigation, should also consider whether there are “substantial reasons to believe that an investigation would not serve the interests of justice.” Taken together, these three elements—complementarity, gravity, and the interests of justice—narrow what would otherwise pass through the aperture as a suitable matter for the Court to take up.
Are there crimes that that fall outside these jurisdictional and admissibility rules that warrant the attention of the international community? Of course. Are there victims of other crimes whose plights should not be forgotten and whose rights deserve to be vindicated? Of course. So why create an ICC that is so limited? The framers of the Rome Statute needed to balance many considerations. Some kinds of cases—perhaps terrorist attacks—may be every bit as egregious but less amenable to prosecution before a new international court, or in comparatively less need of a fail-safe mechanism to guard against states pursuing cases with insufficient zeal. Others were excluded to help ensure that states have confidence “that their sovereign right to try crimes […] would not be encroached upon”7 and to frame the Court’s mandate in a way that would help it develop and maintain the support from other international actors that it requires in order to thrive. In a more general sense, the Court, like all international (and indeed domestic) institutions, has finite resources. It must compete for those resources with other priorities—global health, environmental, and development, just to name a few—and needs to make decisions about the kinds of situations and cases to which its resources and energies are best directed. These are the kinds of considerations to which the inclusion of the various aperture-control provisions in the Rome Statute were implicitly responding.
II. Concerns About the Aperture
All these provisions were of course agreed upon at Rome. At least in some quarters, however, there is lively debate about their interpretation and application, and about the number of preliminary examinations and investigations in which they have led the Court to become involved. Thus, although the Independent Experts Report did not use the word, “aperture” was a key point of departure for their analysis. They reported that, in the course of their consultations, they “repeatedly heard concern that the Court should focus on a narrower range of situations, and limit its interventions to the extent possible, focusing on situations.” In the face of concern that the Court is spread too thin to operate successfully, they concluded:
While it is a prospect that would be disappointing for many, and further restrict the already limited jurisdiction of the Court, the current situation is unsustainable having regard to the limited resources available.8
For their part, the Independent Experts recommended that the Prosecutor consider adjusting the aperture by raising the gravity threshold when considering what situations to investigate (though they did not make clear how they would calculate either the existing gravity threshold or their recommended replacement).9
The OTP appears to have accepted the Experts’ logic at least in part. “It is true,” said the OTP in responding to the Experts’ recommendations, “that, in order to succeed, the OTP must connect the ends it wishes to achieve with the means it has available to achieve them.”10 It said, however, that “insofar as [gravity] is applied as a legal threshold under the Statute, [it] cannot be addressed unilaterally by the OTP, since it will be subject to judicial review.”11
III. Admissibility and Jurisdiction in Practice
Lying beneath the surface of all this are questions about the manner in which the Rome Statute provisions on admissibility and jurisdiction have been interpreted and applied in practice.
A. The Gravity Threshold
The Chambers that have addressed the issue do not appear to have assigned gravity a significant filtering role. For example, according to the Appeals Chamber in last year’s Al Hassan decision, the four crimes over which the Court has jurisdiction are by definition the most serious crimes of international concern and these crimes “are, in principle, of sufficient gravity to justify further action.”12 In the view of the Appeals Chamber, it thus follows that the gravity test aims only at excluding “rather unusual cases” and that the purpose of the gravity requirement “is not to oblige the Court to choose only the most serious cases.”13 The Pre-Trial Chamber in the Comoros case was even more emphatic, saying that gravity “is not a criterion for the selection of the most serious situations and cases,” but rather is only “a requirement for the exclusion of (potential) cases of marginal gravity.” It further said that the gravity test is met if a situation gives rise even “to only one potential case that is not of marginal gravity.”14
Such a conception of gravity, and such an approach to selecting situations, could involve the Office of the Prosecutor in far more situations than those in which it is currently involved. It certainly seems a far cry from “the holocaust, the killing fields of Cambodia, and the genocide in the former Yugoslavia and Rwanda” that the newly-elected prosecutor has reminded us those present in Rome invoked as warranting the Court’s creation.15 For each of these, the selection of the situations that would be subjected to the scrutiny of the tribunal reflected an assessment of the overall level of atrocities that had been perpetrated and not simply the existence of particular cases.
This approach is particularly striking when combined with the Court’s jurisprudence interpreting and applying Article 53, which has regularly emphasized that—at least in situations that are referred—the mandatory nature of the wording of Article 53 (“the Prosecutor shall […] initiate an investigation”)16 leaves the Prosecutor without discretion to decline to investigate if the conditions under the Rome Statute are met.17 Thus, the Pre-Trial Chamber in the Comoros case concluded that, if the conditions are met, “the Prosecutor is duty-bound to open an investigation.” According to the Chamber, the Prosecutor would then have discretion to refrain from going forward only if he determines “that such an investigation would not serve the interests of justice,” which the Court treats as a policy factor rather than a factor going to the issue of admissibility.18 The result of all this has been a gravity test that plays a less robust role than it might in the process of filtering what situations will progress from preliminary examinations to investigations. Indeed, once there is found to be a single case that justifies the opening of an investigation, other incidents need not be “closely linked” to that one case in order also to be subject to that investigation. The result is an even wider aperture opening in terms of what the OTP can then choose to pursue.19
One reason so much attention flows to the issue of gravity is that the Rome Statute is worded in a way that would seem to make it an inviting target for playing a stronger role in aperture adjustment. Thus, Article 17 of the Statute simply says that a case must be “of sufficient gravity to justify further action by the Court.” The word “sufficient” can readily be interpreted as involving an assessment that takes into account the resources that an investigation of the situation would be expected to consume, and the alternative uses to which the Court might otherwise put those resources, in determining whether the gravity of a specific situation of case is “sufficient.” To give an admittedly over-simplified example: if the Prosecutor has resources for only one investigation, a situation involving one hundred atrocity victims may well not entail sufficient gravity if there is an alternative situation involving one million victims, but it might well do so if the alternative situation involved ten victims.
B. Complementarity and the Interests of Justice
Although not addressed by the Independent Experts in these terms, one can also imagine the principles of complementarity and the interests of justice as playing stronger roles in filtering than they presently do.
Much about complementarity is enigmatic. The basic principle is simple enough—the ICC should only step in where states are unable or unwilling to do so in a genuine manner—though at least arguably the words of the Rome Statute do not quite match this basic principle. Among other things, the principle of complementarity can help conserve the Court’s resources, defer to local actors who may well have a better understanding of local circumstances, promote local ownership of the process and development of local justice institutions, encourage states to implement their responsibilities to address these problems, allow and encourage states to self-correct, and reduce the number of situations in which the ICC might clash with states in ways that states would likely see as intruding on their sovereign rights. Questions about deferral under the principle of complementarity issues can, however, be particularly thorny, including because the same local actors to whom the Court would defer may well be aiming their efforts at shielding rather than prosecuting those responsible for alleged crimes. Nevertheless, one could easily imagine the principle of complementarity being applied in a manner so as to concentrate on—to allow to pass through the aperture—those situations in which the shielding is the most egregious or the most systematic, on the principle that this represents the heart of what the ICC was created to safeguard against.
In practice, the application of the complementarity principle, including the use of “same person/same conduct” and “inactivity” tests, has led to at least some criticism that the principle is being applied in a too “mechanistic” manner.20 The “inactivity” test was developed in the context of early self-referrals in the DRC and Uganda and helped avoid the need to show that those states were “unwilling” to prosecute in order for the ICC to exercise jurisdiction as the states had requested. Would it be palatable to assert that Uganda was at the time “unwilling” to investigate or prosecute members of the LRA who had perpetrated atrocities? The question could be avoided if the simple fact that Uganda had not done so was sufficient to make the matter admissible. At least from a policy perspective, however, situations in which a state has self-referred may present a poor model when figuring out how to balance the various equities that the Court must confront when facing a state that is contesting the need or propriety of ICC involvement. A different balancing may thus be appropriate in cases in which a state is not requesting the Court’s assistance, with greater deference given a state’s decision not to pursue criminal cases, at least if its failure to do so does not establish that it is driven by an intent to shield the perpetrators.
Beyond questions like this, there are also broader policy questions about whether the ICC might adjust its aperture to take into account responses that do not involve traditional criminal prosecutions, or that involve other forms of genuinely coming to terms with the past, in determining whether a state’s response is so inadequate that an ICC investigation of the situation should be pursued.
The more mechanistic approach to complementarity that the Court has applied can also interplay with the logic of the Court’s decision in the Comoros case that an investigation should be commenced—indeed that the Prosecutor may be required to commence an investigation—if there is even one potential case that would be admissible. Under a version of these principles under which greater reliance is placed on complementarity-related principles for filtering, the Court might look more broadly to the actions of the state in question, as opposed to the existence of particular cases; more squarely zero in on shielding and non-genuineness; and take account also of forms of accountability and coming to terms with the behavior in question that do not involve traditional criminal prosecutions or that otherwise involve other forms of genuinely coming to terms with the past.
2. Interests of Justice
The Rome Statute’s “interests of justice” language was unclear from the outset, and there appears to have been no clear agreement about what it was intended to encompass. There are of course different things that it could be understood as encompassing. At least some in Rome intended it to provide a basis for not pursuing investigations and prosecutions in situations where—as in the then-recent case of the truth and reconciliation commissions in South Africa—a society had made a good-faith decision to utilize alternatives to traditional modes of criminal accountability in order to come to terms with its past. Indeed, speaking shortly after the Rome Conference, then-U.N. Secretary-General Kofi Annan dismissed as a “travesty” any argument that the unwillingness or inability to pursue criminal accountability as part of such a reconciliation process could be a basis for ICC action:
No one should imagine that it would apply to a case like South Africa’s, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited power. It is inconceivable that, in such a case, the Court would seek to substitute its judgement for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future.21
In practice, the OTP has essentially read the interests of justice language as playing virtually no role as a filtering mechanism. This is reflected in its September 2007 policy paper in which the OTP reasoned that the “interests of peace” is not part of the assessment of the interests of justice that the Prosecutor should take into consideration in deciding whether to pursue an investigation.22 One can readily understand the reluctance of the OTP to take on responsibility for assessing these kinds of considerations that might be involved in evaluating the “interests of peace”—e.g., on what basis could the OTP claim a superior ability to assess such questions than other international actors involved in pursuing peace in a region? But this does result in an outcome that risks an under-filtering in which, from a policy perspective, crimes are too readily able to pass through the aperture. The “interests of justice” test may present the Prosecutor and the Court with politically difficult questions, but the fact that they are difficult does not mean they are unimportant.
The interests of justice test could also be interpreted to address the issue of infeasibility—i.e., where the prospects for success in a particular situation were sufficiently remote that it would not serve the broader cause of justice to devote limited resources to it. This was of course the approach taken by the Pre-Trial Chamber in its April 2019 decision declining to authorize an investigation in Afghanistan.23 That decision, coming in the wake of strident U.S. attacks on the Court, provoked a storm of criticism and was reversed by the Appeals Chamber,24 but the idea that feasibility is a factor that needs to figure in decisions about where to direct resources is hard to simply dismiss out of hand. It may be unfortunate that the Court will never have the resources needed to pursue investigations and prosecutions of all of the otherwise-unpunished crimes that deserve attention, but it is at the same time inevitable.
IV. Other Ways in Which the Aperture Opening Is Wide
There are a variety of other elements that affect the Court’s aperture in ways we might not ordinarily think about, three of which I will describe here.
A. Contextual Factors
The reliance upon contextual elements in the definitions of Rome Statute crimes plays an essential part in distinguishing between the type of conduct to which the Prosecutor and the Court should, and the type of conduct to which they should not, direct their attention and resources. As an obvious example, an “ordinary” murder is a horrifying crime, but it would not amount to a “crime against humanity” over which the Court has jurisdiction unless committed as “part of a widespread or systematic attack directed against [a] civilian population.” It is the contextual elements that tell us that the conduct is not only horrific, but that we are dealing with a crime against humanity that potentially warrants the involvement of the ICC.
Given the practical reality that almost all of the ICC’s actual prosecutions will continue to be for war crimes or crimes against humanity, it is worth comparing the contextual elements of the two crimes.
For crimes against humanity, a significant amount of filtering is at least in principle built into the definition of the crime by virtue of the requirement that the relevant act must have been committed as part of a widespread or systematic attack against a civilian population, and the associated requirement that the attack have been undertaken in furtherance of a state or organizational policy.25 Much of course depends on how the Prosecutor and the Court interpret these contextual elements and strong differences of view have in fact been expressed about how they should be interpreted and how strong a filtering role they should be expected to play,26 but at least the basic idea of a substantial filter is built into the definition.
The late Judge Kaul spoke to the importance of the aperture-setting function of the contextual elements in his famous dissent in the Situation in Kenya case, in which he described the risk of what he considered the setting of too low a standard for what qualified as crimes against humanity:
It is my considered view that the existing demarcation line between those crimes must not be marginalized or downgraded, even in an incremental way. I also opine that the distinction between those crimes must not be blurred.
Furthermore, it is my considered view that this would not be in the interest of criminal justice in general and international criminal justice in particular. It is neither appropriate nor possible to examine and explain in this opinion all the potential negative implications and risks of a gradual downscaling of crimes against humanity towards serious ordinary crimes. As a Judge of the ICC, I feel, however, duty-bound to point at least to the following: such an approach might infringe on State sovereignty and the action of national courts for crimes which should not be within the ambit of the Statute. It would broaden the scope of possible ICC intervention almost indefinitely. This might turn the ICC, which is fully dependent on State cooperation, in a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. Taken into consideration the limited financial and material means of the institution, it might be unable to tackle all the situations which could fall under its jurisdiction with the consequence that the selection of the situations under actual investigation might be quite arbitrary to the dismay of the numerous victims in the situations disregarded by the Court who would be deprived of any access to justice without any convincing justification.27
In contrast to crimes against humanity, the contextual elements for war crimes carry virtually no such water. The only real contextual element for war crimes is that the relevant acts must have the requisite nexus with an armed conflict. Article 8—the provisions that contains the Rome Statute definition of “war crimes”—does provide that the Court has jurisdiction over the war crimes listed therein “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” But the Court has made clear that the use of the phrase “in particular” means that jurisdiction is not in fact limited to cases involving a plan or policy or large-scale commission. Indeed, the Appeals Chamber has said that “a single act could also amount to a war crime within the jurisdiction of the Court if it was committed in the context of and was associated with an armed conflict.”28
B. Article 53 Standard of Proof for Commencing an Investigation
The standard of proof that must exist in order to commence an investigation also affects the aperture.
How clear must it be that jurisdiction exists? The answer in practice has been: not very. I have mentioned above the language of Article 53 under which the Prosecutor shall “initiate an investigation unless he or she determines that there is no reasonable basis to proceed under the Statute.” This, various chambers have pointed out, is “the lowest evidentiary standard provided in the Statute”—requiring merely “a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed.” The information available to the Prosecutor is not “required to point towards one conclusion,” and the existence of facts that are “unclear” is identified as an affirmative reason to commence an investigation.29 There has thus been an underlying tilt towards opening an investigation, reflecting a seeming premise that “we won’t know unless we investigate,” but also perhaps an unstated (though not self-evidently correct) premise that the resource, political, and credibility costs to the Court of commencing investigations are relatively small.
In proprio motu situations—i.e., those in which neither a state nor the Security Council has referred the situation—there are of course provisions under which the Prosecutor must persuade an ICC Pre-Trial Chamber of her conclusion that “there is a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the Court.” This requirement is designed to act as a check on the discretion of the Prosecutor and thus stands as another way in which the Court’s aperture might be regulated. In practice, however, the lowness of the standard and the way the Court applies it have resulted in little by way of filtering. Indeed, the ICC judges have recently said that, when the Prosecutor has concluded that an investigation should be commenced, the Prosecutor’s assessment of complementarity or gravity, or the interests of justice, is unreviewable.30 Following this, the Prosecutor accordingly provided no explanation whatsoever for her conclusion that the gravity, complementarity, and interests of justice tests had been met in the recent request for authorization to commence an investigation in the situation in the Philippines that she recently submitted to the judges.31
On the other hand, in its recent decision not to commence an investigation of UK forces in Iraq, the OTP appears to have subjected itself to a higher standard—moving away from a “we don’t know and therefore need to investigate” approach to a decision not to move forward because the OTP was not in a position affirmatively to substantiate that the UK had not proceeded in a genuine manner. It is hard to know whether this may be the beginning of a trend, but it at least potentially represents a move toward aperture adjustment efforts that could narrow the universe of situations on which the ICC would focus.32
How much leeway does the OTP have to set the aperture control in proprio motu situations as it sees fit? There is room for debate whether the language of Article 15 permits OTP to decline to move forward with a request for an investigation as a matter of complete discretion. For example, on the one hand, Article 15(3) of the Rome Statute says that the Prosecutor “shall” submit a request for authorization if she concludes there is a reasonable basis to proceed, and the OTP Policy Paper on Preliminary Examinations states that “[i]f the Office is satisfied that all the criteria established by the Statute for this purpose are fulfilled, it has a legal duty to open an investigation into the situation.”33 On the other hand, the OTP had suggested that the decision to seek authorization in a proprio motu situation is discretionary34 and the Appeals Chamber appears to have embraced this view in the Afghanistan case35 Perhaps most importantly, there is no apparent enforcement mechanism built into the Rome Statute to compel the OTP to move forward, as one might expect if there were an obligation to do so.
C. The “Situation as a Whole” Principle
When the Government of Uganda referred the situation “concerning the Lord’s Resistance Army” in northern Uganda to the ICC Prosecutor in 2003,36 the Prosecutor notified Uganda that the referral would be interpreted as covering “all crimes under the Statute committed in northern Uganda, and that [its] investigation would be impartial.”37 This episode embodies the essence of the “situation as a whole” principle, and the desirability of preventing a sitting government from instrumentalizing the ICC by empowering the OTP to proceed only against the forces of the government’s adversaries and not those of the government. At least in proprio motu cases, however, the Rome Statute requires the Prosecutor to persuade a Pre-Trial Chamber that the conditions warranting an investigation have been met before the investigative tools of the Prosecutor can be deployed against the personnel of a state that believes an investigation is unwarranted. The need for approval from the judges was a built-in check designed to protect states from the risk of being subject to the burden of an investigation absent a conclusion that the standards set out in the Rome Statute had been met. At least arguably, the fact that a state can—under the “situation as a whole” principle—be enmeshed in an investigation based on the conduct of other parties erodes the value of such assurances, and represents a kind of further opening of the aperture.
The sections above suggest various ways in which the ICC’s aperture is set. Each of the aperture settings affects the extent to which Court actors must bear the political responsibility for seeming to favor one kind of situation over another—even in such basic ways as precluding the need for the Court to address whether a crime beyond the four listed in Article 5 should contend for the Court’s attention. Some of the aperture settings may be easier to adjust and some less easy, depending for example on the extent to which they are grounded in the wording of the Rome Statute, and for each of the settings there can be legitimate questions about the extent to which it is the Prosecutor or the Court that is best positioned to widen or narrow the aperture.
All that said, the description above does not tell nearly the whole story because, in fact, there is an enormous amount of filtering that takes place behind the scenes via the exercise of prosecutorial discretion. One way this can occur is through the decisions made, after the Prosecutor commences an investigation, to prioritize or de-prioritize particular investigations, parts of investigations, or potential cases against particular individuals. Thus, there are easily hundreds—probably thousands—of cases that would fit through the aperture as the Court and the Prosecutor have to this point set it, yet only a small handful of actual prosecutions. Whatever the legal constraints that might be seen as requiring the Prosecutor to commence an investigation, there are few discernible standards that the OTP is required to apply in deciding how, or even whether, to actually proceed once an investigation is launched.38
Should not the de facto aperture narrowing that this kind of prosecutorial discretion supplies be good enough to ensure that the Court is not over-extended? My answer to that question is: I am not so sure. First, unless the Prosecutor can keep a matter bottled up interminably in the preliminary examination stage, this approach only works for dealing with matters after an investigation is commenced, and it will be the judgment of the Prosecutor rather than the application of rules laid out in the Rome Statute that will actually be decisive in what is actually pursued. To be sure, some discretion—indeed, a significant amount of discretion—is both unavoidable and desirable. But it is virtually inevitable that even the fairest choices by the Prosecutor will be criticized and attacked, and it may do the Prosecutor no real favor to saddle him with political responsibility for so vast a portion of the filtering process.
One can sense the way these issues both pull and tug the OTP. On the one hand, the OTP has published an extensive Policy Paper that in principle is supposed to give more substance to the criteria it applies in selecting and prioritizing cases.39 This is a way to elaborate in advance basic principles that can be visible to the public, and better position the OTP to be seen as applying these principles in an objective manner rather than simply exercising discretion. On the other hand, the paper is ultimately quite opaque in that it ultimately does little to clarify what the OTP will actually decide to pursue when facing real life situations and cases. For example, the Policy Paper includes an extensive discussion of gravity, with the OTP saying that the assessment “includes both quantitative and qualitative factors,” and that it is guided by “the scale, nature, manner of commission and impact of the crimes.” At the end of the day, however, it provides little real insight, sprinkled as it is with explanations like the “[t]he nature of the crimes refers to the specific factual elements of each offence.” In other places the Policy Paper sets out seemingly important principles (e.g.,, the OTP will consider “the extent to which the crimes were systematic or resulted from a plan or organised policy or otherwise resulted from the abuse of power or official capacity”), but never quite informs us how all these factors will actually be weighed against each other, how cases within a situation will actually be compared, or how the rules are supposed to apply in assessing cases across different situations. In the words of William Schabas:
The Policy Paper pretends to clarify and inform but in reality it only serves to obscure things, perpetuating the fiction that the process is fundamentally objective rather than one that is inevitably steeped in subjectivity.40
That said, the indefiniteness of the policy paper is not without an important rationale. Unstated is the understandable reluctance of any prosecutor to voluntarily rule out in advance any cases, or to bind the Prosecutor to a formula that he or she may later regret, particularly in a realm where it is so difficult to predict the many different situations that might arise in the future. More explicit is the fear that a more definite rule about what constitutes sufficient gravity “would hamper the deterrent role of the Court.”41 Better to have an enormous universe of conduct that might be prosecuted so as not to encourage would-be perpetrators to commit crimes that would fall outside a narrowed universe of crimes that the OTP would be saying in advance it would be willing to pursue. And, to be sure, it is hard to be unsympathetic to the idea that perpetrators of all serious crimes should be held to account.
But what does such an approach mean in practice? Is the goal to deter individuals who the ICC will not in fact pursue on the theory that the ICC might in fact pursue them? It is fair to ask whether such a strategy is sustainable over time. What is the effect of such an approach as the world comes to see, time and again, that conduct that the Rome Statute says we should treat as crimes that must not go unpunished do in fact go unpunished, or the risk that the ICC will be increasingly seen as an institution making a promise that it avows is sacred but does so little to vindicate?
This terrain is filled with conundrums for which there are no fool-proof answers, but there are two thoughts that might benefit from more discussion. First, we may be misconceiving the aperture issue if we place exclusive or too much focus on gravity. If it is true, as the report of the Independent Experts suggests, that the OTP and the Court will need to narrow the aperture in order for the Court to succeed, we should look to the various different ways that the aperture is controlled. In some ways, it is worth considering an approach in which the aperture-control mechanism can be applied in a more holistic manner—for example, an approach in which gravity is considered not solely in relation to the underlying conduct, but in relation to how egregious any failure to investigate or prosecute, or any decisions not to pursue conventional criminal responsibility, may be. Second, with respect to gravity as traditionally conceived, it is worth considering ways for tying its application to more tangible standards, so that the evaluation of gravity is seen more as an application of rules identified and agreed in advance, and less as a simple exercise of discretion. To be sure, the task of developing more concrete rules is a formidable one, particularly with respect to what the OTP calls the qualitative factors that go into its assessments. At the end of the day, both quantitative and qualitative factors will be important, but this may be an argument in favor of according greater weight to the quantitative factors, which can be applied in a manner that can more readily be seen as objective.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Independent Expert Review of the International Criminal Court and the Rome Statute System: Final Report (Sep. 30, 2020) [hereinafter IER Report], available online. ↩
See, e.g., , Delivering the ICC Vision Through Deeds not Words: An Interview with Karim Khan QC, Opinio Juris (May 21, 2021) [hereinafter Charania Interview with Karim Khan], available online
(“To have impact, you need to prioritise against the greatest need”). ↩
See, e.g., , ICC, Situation in the Republic of Korea: Article 5 Report ¶ 55 (Jun. 2014), available online
(The Rome Statute “does not impose criminal liability for all violations of the laws of armed conflict” but rather only those codified in Article 8). ↩
(There are exceptions if the crime was committed on board a vessel or aircraft that is registered with a Rome Statute party, if the relevant state became a party to the Rome Statute after its entry into force, if a non-party has accepted the Court’s jurisdiction through a declaration under Article 12(3), or if the Security Council refers a situation to the ICC Prosecutor under Article 13(b)—but they do not affect the points that I am trying to make here. Also note that, for purposes of this comment, I am putting aside questions involving the Court’s jurisdiction over the crime of aggression, which is subject to a different jurisdictional regime). ↩
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, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, ¶ 4. available online. ↩
Situation in the Republic of Kenya, ICC-01/09-19-Corr, Corrigendum of the Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya ¶ 48 (PTC II, Mar. 31, 2010) [hereinafter Kenya Investigation Authorization], available online. ↩
The International Criminal Court: A Commentary on the Rome Statute 447 (2d ed. Nov. 22, 2016), paywall. ↩
Overall Response of the International Criminal Court to the “Independent Expert Review of the International Criminal Court and the Rome Statute System—Final Report” Preliminary Analysis of the Recommendations and Information on Relevant Activities Undertaken by the Court ¶ 404 (Apr. 14, 2021) [hereinafter ICC Response], available online. ↩,
The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18-601-Red, Judgment on the appeal of Mr Al Hassan against the decision of Pre-Trial Chamber I entitled “Décision relative à l’exception d’irrecevabilité pour insuffisance degravité de l’affaire soulevée par la défense” ¶¶ 55–56 (AC, Feb. 19, 2020), available online. ↩
Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13-111, Decision on the “Application for Judicial Review by the Government of the Comoros” ¶¶ 96–97 (PTC I, Sep. 16, 2020) [hereinafter Comoros], available online.
(“Thus, if a situation gives rise to at least one potential case that is not of marginal gravity, the requirements of articles 53(1)(b) and 17(1)(d) of the Statute are met.”). ↩
Charania Interview with Karim Khan, supra note 2; see also & , The Constitutionality of the Rome Statute of the International Criminal Court, 98 J. Crim. L. & Criminology 983, 992 (Mar. 1, 2008), available online
(The very nature of the exercise around which the international community circled was “to prosecute the masterminds of complex and massive atrocity crimes before an international court in The Hague”).
Rome Statute, supra note 5, Preamble, ¶ 2.
(The Rome Statute itself talks about the “millions of children, women and men [that] have been victims of unimaginable atrocities that deeply shock the conscience of humanity.”). ↩
Rome Statute, supra note 5, Article 53 (emphasis added). ↩
(See discussion in this comment at Section IV(B)). ↩
Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan ¶¶ 61–63 (AC, Mar. 5, 2020) [hereinafter Afghanistan Appeals Chamber Decision], available online. ↩
See Part II: What Kinds of Situations and Cases Should the ICC Pursue? The Independent Expert Review of the ICC and the Question of Aperture, Just Security (Dec. 1, 2020), available online. ↩
Press Release, U.N., Secretary-General Urges “Like-Minded” States to Ratify Statute of the International Court of Justice (Sep. 1, 1998), available online. ↩
Policy Paper on the Interests of Justice (Sep. 2007), available online. ↩, ICC,
Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online. ↩
Rome Statute, supra note 5, Article 7(2)(a). ↩
Compare Kenya Investigation Authorization, supra note 6, (majority decision) with id. (Hans-Peter Kaul dissenting). ↩
Kenya Investigation Authorization, supra note 6, ¶¶ 9–10 (Hans-Peter Kaul dissenting). ↩
The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the confirmation of charges ¶¶ 94–96 (PTC I, Dec. 16, 2011), available online; Situation in the Democratic Republic of the Congo, ICC-01/04-169, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58” ¶ 71 (AC, Jul. 13, 2006) [hereinafter DRC Arrest Warrants Appeal], available online. ↩
Situation in the Republic of Burundi, ICC-01/11-17-X, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi ¶ 30 (PTC III, Oct. 25, 2017), available online; see also Comoros, supra note 14, ¶ 16
(“Facts which are difficult to establish or unclear, or the existence of conflicting accounts, call for the opening of an investigation (rather than the opposite), since it is the very purpose of such an investigation to properly assess the facts and provide clarity.”). ↩
Afghanistan Appeals Chamber Decision, supra note 19, ¶ 40
(decision of the judges to authorize an investigation should not incorporate issues of admissibility).
Id. ¶ 41
(there is no basis for the pre-trial chamber to consider the issue of admissibility).
But see Kenya Investigation Authorization, supra note 6, ¶ 24
(Moreover, if the purpose of the article 15 procedure is to provide the Chamber with a supervisory role over the proprio motu initiative [then] the Chamber must equally consider whether the requirements set out in article 53(1)(a)–(c) of the Statute are satisfied for the sake of meeting the “reasonable basis to proceed” test before deciding whether to authorize the Prosecutor to commence an investigation). ↩
Situation in the Republic of the Philippines, ICC-01/21-7-Red, Request for authorization of an investigation pursuant to article 15(3) ¶ 130 (PTC I, Jun. 14, 2021), available online. ↩
See , ICC, Situation in Iraq/UK—Final Report ¶ 409 (Dec. 9, 2020), available online
(taking as sufficient explanations of decisions not to prosecute that are “generally reasonable” and justifying OTP’s decision not to pursue an investigation on basis that “the evidence available to it […] does not allow [the OTP] to conclude that there was intent on the part of the UK authorities to shield persons […] from criminal responsibility.”). ↩
Policy Paper on Preliminary Examinations ¶ 2 (Nov. 2013) [hereinafter OTP Policy Paper], available online. ↩, ICC,
Afghanistan Appeals Chamber Decision, supra note 19, ¶ 31
(emphasizing that the “discretionary nature of the power accorded to the Prosecutor under Article 15” and that it would be contrary to the nature of this power “to suggest that a duty to investigate could be imposed by the pre-trial chamber in the absence of a request for authorisation of an investigation by the Prosecutor”). ↩
Press Release, U.N., President of Uganda Refers Situation Concerning Lord’s Resistance Army (LRA) to International Criminal Court (Jan. 29, 2004), available online. ↩
See , ICC Prosecutor, Statement on the Uganda Arrest Warrants (Oct. 14, 2005), available online. ↩
OTP Policy Paper, supra note 33, ¶ 14.
(Another way this can occur is through decisions not to make decisions about whether to move from a preliminary examination to an investigation. As the OTP has noted, “[t]here are no timelines provided in the Statute for bringing a preliminary examination to a close.” By “parking” a matter as a preliminary examination, the Prosecutor can, at least for a time and probably an extended period of time, avoid the need to commence an investigation of a situation that could pass through the aperture but that the OTP believes does not really justify the use of the limited OTP resources that would be needed to conduct a proper investigation). ↩
See , ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩
Feeding Time at the Office of the Prosecutor, Int’l Crim. Just. Today (Nov. 23, 2016), available online.
(In his note, Schabas imagines an analogous OTP “Policy Paper on Meal Selection” that would explain how OTP staff members would choose menu items at a restaurant, including for example:
“When selecting within a category, members of the Office take into account the following factors: (a) appearance; (b) the name of the dish; (c) anticipated taste and texture; (d) availability; (e) variety; (f) cost; (g) caloric intake. There is no hierarchy, however, and one or more of these factors may be of particular importance, depending upon the circumstances.”).
(The point is not that the list of factors is wrong, but that it offers no actual insight into how the factors will be applied, or whether the staff members “will be eating fish, chicken, or beef, or drinking still water, sparkling water or diet Coke”). ↩
Policy Paper on Case Selection and Prioritisation, supra note 39, ¶ 32, citing DRC Arrest Warrants Appeal, supra note 28, ¶¶ 69–79. ↩
Suggested Citation for this Comment:
The Aperture of the ICC—More Than Just the Issue of Gravity, ICC Forum (Jul. 1, 2021), available at https://iccforum.com/gravity#Buchwald.,
Suggested Citation for this Issue Generally:
What is the Universe of Cases Upon Which the ICC Should Focus? What Should Be the Threshold for the Gravity That Warrants Investigation of a Situation or Prosecution of Those Most Responsible?, ICC Forum (Jul. 1, 2021), available at https://iccforum.com/gravity.