Mohammad H. Zakerhossein discusses how an extra power that the Prosecutor of the International Criminal Court has could be used to put pressure on a state to prevent atrocities from being committed.
Paragraph 1 of Rule 44 of the ICC’s Rules of Procedure and Evidence refers to one of the untouched Prosecutor’s authorities that could be called as ‘inquiry mechanism’. According to the Rule, “The Registrar, at the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in Article 12, paragraph 3”.
The ICC’s jurisdiction is not universal. Under the Rome Statute, the Court is able to activate its jurisdiction only over those crimes, which either are committed in the territory of States Parties or by nationals of those States. Territories and nationals of non-member States are generally excluded from the Court’s jurisdiction as a treaty-based international organization. Nevertheless, the Rome Statute has set two exceptions to this rule, namely, UNSC referrals and declarations of acceptance. The UNSC is authorized to refer a situation dealing with crimes committed in the territory of a non-member State. In addition, a non-member State can accept the Court’s jurisdiction on an ad hoc basis by lodging a declaration of acceptance as referred to in Article 12(3). A declaration of acceptance is an alternative to ratification. The founders of the Court sought universality of this institution. Therefore, they have left the Court’s door open for those States that are willing to confer their jurisdictions to the Court in a narrow context without joining this organization. Where a crisis happens and the local state is willing but not able to deal with the atrocities lodging a declaration of acceptance paves the way of the Court’s intervention. Such a declaration, however, differs from referrals. Making a referral is an exclusive privilege for States Parties. Non-member States are deprived from advantages of referrals. Therefore, if a non-member State lodges a declaration, it is the Court’s Prosecutor who might exercise her proprio motu power to active the Court’s jurisdiction if she finds that the ICC-identified crimes are being or have been committed. In this scenario, the Prosecutor needs a judicial authorization to initial a full investigation if the Court’s jurisdiction is met.
Lodging a declaration under Article 12(3), like ratifying the Rome Statute, falls within the exclusive authority and discernment of States. However, Rule 44 authorizes the Prosecutor to invite a non-member State, through the Registrar, to lodge such a declaration. Inquiring a state’s intent to make a declaration of acceptance inherently accompanies with some incitement and pressure. Inviting a non-member State to accept the Court’s jurisdiction should not be regarded contradictory to impartiality of the Prosecutor.
This authority is often applicable to those situations in which there is a nexus with the Court. For instance, where the Court lacks jurisdiction over a territory in which one or more crimes within the Court’s jurisdiction is being committed, but because of the involvement of some persons who have the nationality of States Parties, the personal jurisdiction for the Court’s involvement is met. In such a situation, the Prosecutor can take the initiative and inquire about the territorial state’s intent to accept the Court’s jurisdiction. If the invited state accepts, the Court is able to broaden its initial narrow jurisdiction.
Nevertheless, the applicability of Rule 44 is not limited to such a situation. Rule 44 has capacity to assume more roles in light of expressivism. The OTP’s Policy Paper on Preliminary Examinations sets forth a ‘filtering process’ through which the Prosecutor and her team examine all situations brought to her attention. The ‘phase one’ of this process filters those situations that are manifestly outside of the Court’s jurisdiction. They are those situations related to non-member States without the involvement of States Parties’ nationals and in the absence of UNSC referrals. These situations are not low in quantity. It is understandable that a large number of most serious crimes of concern to the international community and many unimaginable atrocities are committed in territories that are not under the Court’s jurisdiction. States that do not see themselves immune of committing the ICC crimes are not willing to join the Court. In such a scenario, however, the story does not end before the ICC.
Ending impunity and crimes’ prevention are main constituent objectives of the Court. The spirit of the Statute requires the Court to strive for these goals as much as possible. Seeking universality is a corresponding aim from such a perspective. When the grave crimes are being committed but the Court lacks territorial or personal jurisdiction to step in, the Prosecutor may exercise her authority under Rule 44. She, at very least, can encourage the territorial State to accept the Court’s jurisdiction through the mechanism referred to in Article 12(3). However, such an invitation could be ineffective. There is no sanction against a non-member State that rejects the Court’s invitation. Indeed, there is no stick or carrot at the Court’s disposal to persuade an invited State to accept the Court’s jurisdiction; a State that has not shown willingness to join the Court yet.
However, from an expressive perspective, Rule 44 can assume an expressive and symbolic, but prominent role in furthering the Court’s objectives. Adopting expressive as a normative framework gives expressive and symbolic values to the Court’s functions, including the Rule 44 mechanism. The effectiveness of symbolic and educative functions should be examined by taking into account their expressive function and value. Contacting a non-member State that engages in committing the ICC-identified crimes conveys a message to the given State, namely, the ICC is monitoring atrocities and prima facie believes that one or more crimes within its jurisdiction is being committed. Such a message can bring about some preventive effects. Issuing preventive statements that have expressive value is among the Prosecutor’s practices. In many occasions, the Prosecutor has issued preventive statements publicly. In Policy Paper on Gender-Based and Sexual Crimes, the OTP insists that where it has jurisdiction, “it may also issue preventive statements to deter the escalation of violence and the further commission of crimes, to put perpetrator on notice and to promote national proceedings”. For example, ICC Prosecutor confirms situation in Guinea under examination (14 October 2009); ICC Deputy Prosecutor: We are keeping an eye on events in Guinea (19 November 2010); Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the occasion of the 28 September 2013 elections in Guinea (27 September 2013).
These statements convey a clear message that the Prosecutor is monitoring closely the commission of crimes. Such a message conveys a degree of threat of the Court’s intervention that could be preventive. Regarding non-member States, such a preventive effect is in place, but with a lower degree. The Rule 44 mechanism can be understood from such a perspective that explains the desirability and necessity of this mechanism in helping the Court with shattering the culture of impunity. An enterprise that commits atrocities may make a change in its behavior if it sees that its atrocities are being monitored and spotted.
The humble mechanism referred to in Rule 44, in a situation in which there is no prospect for justice, might create hope for victims and credibility for the ICC as a global court. The Court lacks universal jurisdiction but universality is an ambition for the Court, and the ICC should demonstrates that it is ambitious to realize its goals. Inviting a non-member State involved in atrocities can result in prevention and can demonstrates the Court efforts to deliver justice and to give voice to voiceless victims. The ICC is known for its inabilities rather than abilities. In a world where an international court is needed, all possibility and capacities of the ICC should be exercised in delivering justice.
Nevertheless, adopting this understanding of Rule 44 requires a minor amendment. Rule 44 insists that the inquiry should be confidential. However, a confidential invitation deprives this mechanism from its potential expressive functions and effects. Expressivism and publicity go in tandem. There is no justification for confidentiality of such an invitation and inquiry. Inviting a State to join the Court is not a matter with security considerations that warrants confidentiality. The Prosecutor should be able to publicly inquire about a non-member State’s intent that engages with the commission of crimes to take the very least action it can takes in fighting impunity.
Mohammad H. Zakerhossein is a Lecturer at Tilburg University, the Netherlands