Aman
(3 min read)
For a chronicler of ICC, this year gives a lot of interesting events. From acquiring jurisdiction over Crime of Aggression to Philippines withdrawal to Bemba’s acquittal to receiving a threat from the USA, it has dealt with all of these. The latest development is the group referral of the Venezuela situation by the Governments of the Republic of Argentina, Canada, the Republic of Colombia, the Republic of Chile, the Republic of Paraguay and the Republic of Peru. Among other things, this move underscores the support to ICC at a time when the institution is under direct threat from its staunch critic i.e. the USA.
About the Venezuela Situation
Venezuela has been going through a tumultuous time since its incumbent President Mr Nicolás Maduro took charge in 2014. Many human Rights bodies have condemned the prevailing situation in the country. There have been reports of blatant violation of law and order situation.
In this regard, the OTP opened a preliminary examination of the Venezuela Situation on 08th February 2018. In her official statement, the Prosecutor mentioned that the examination would be regarding the alleged crimes committed both by the security forces and by the group of protestors since at least April 2017. The term ‘at least’ gains significance in the light of the recent referral which wants the Prosecutor to investigate crimes committed since 12th February 2014! The date is important because it is the date on which President Nicolás Maduro took over. Her statement notes that the Security forces of Venezuela ‘seriously abused and ill-treated‘ protestors whereas the Protestors reportedly ‘injured or killed‘ a few security personnel
About the referral
The referral is an outcome of the investigation done by the Organization of American States (OAS). As the referral mentions, on May 29, 2018, OAS submitted a report on the Possible Commission of CAH in Venezuela. The report has two parts. In Part I, it lists out all the incidents of possible CAH, and in Part II it explains how the ICC can prosecute for these alleged crimes. The report hints at the commission of CAH of Murder, Imprisonment or other severe deprivation of physical liberty, Torture, Rape, Persecution of an identifiable group or collectivity on political grounds and Enforced disappearance of person. In conclusion, it suggested that the Secretary-General of OAS to invite state parties of OAS to refer the Venezuela situation to the ICC. Another significant aspect of the report is the acceptance by the OAS of the grave nature of the crimes concerned and the difficulties faced in solving them at the domestic or regional level. It notes that”(t)he regional mechanisms for international protection, whether judicial or quasi-judicial and political, have sought by different means to put an end to the gross violations of human rights and crimes against humanity….In the absence of effective domestic mechanisms and the difficulty that regional mechanisms have in stopping the grave human rights violations and crimes against humanity in Venezuela, the Office of the Prosecutor of the International Criminal Court and the ICC have become the international body of last resort for pursuing justice, ending the impunity in Venezuela, and preventing and deterring the crimes that offend the conscience of the international community.” [emphasis supplied]
Is referral by a ‘group of states’ possible under the Rome Statute?
When Uganda ‘self-referred’ its Situation to the ICC, Professor Paola Gaeta wrote a piece highlighting two inherent dangers of such practice. This piece’s title draws its inspiration from that critique by Professor Gaeta. One of the intriguing questions regarding the present referral is that it’s a referral by a group of State Parties. The Prosecutor in her statement on this referral has acknowledged that this is’…the first referral submitted by a group of States Parties concerning a situation on the territory of another State Party…’ [emphasis supplied]
However, is such group referral possible under the Rome Statute? Referrals to the ICC are stipulated under Article 14 of the Rome Statute. Leading commentary on the Rome Statute by ‘Otto Triffterer & Kai Ambos’ is silent on this issue. However, the discussion in William A. Schabas’s book ‘An Introduction to the International Criminal Court’ on ‘State Referrals’ does point out certain aspects of this Article. His observations on state referrals and specially self-referrals do point out that Article 14 was intended to be a mechanism to be adopted by a State. When he is being cynical about states’ willingness to refer situations due to their bi-lateral relations, he is talking of a state party referring a matter. His reference to the European Convention on Human Rights ‘inter-State complaint provisions’ also points to the same conclusion. Expressing his astonishment on the practice of ‘self-referrals under the garb of Article 14 he notes that “(t)he mechanism did not, however, operate as most had expected. These were not inter-State complaints at all.” [emphasis supplied]
The Rome Statute prescribes three methods of the exercise of jurisdiction which are provided under Article 13. These are State Referrals, United Nations Security Council (UNSC) Referrals and Referrals by the Prosecutor herself. The Statute further elaborates the whole procedure of a State Referral (Article 14) and referrals by the Prosecutor (Article 15). Nowhere in Article 14 is the term group referral mentioned or even hinted at. Thus, it would be quite irrational to conclude that despite such omission, the drafter intended to include group referrals in Article 14. Title of Article 14 is “Referral of a Situation by a State Party”. [emphasissupplied] Further Paragraph 1 of the Article states that “AState Party may refer to the Prosecutor a situation…” [emphasissupplied] Thus, the tenor of the Article and its constructive interpretation would tell us that referrals under Article 14 are to be made by individual states and not by a group of states. The Prosecutor’s statement regarding this group referral notes that “…a referral from a State Party (or a group of States Parties)or the United Nations Security Council, or by a declaration accepting the exercise of jurisdiction by the Court…”. [emphasis supplied]
It’s noteworthy that in her statement, Madam Prosecutor has herself added the phrase ‘or a group of States Parties‘ when it is actually missing from the text of Article 14. Thus, it can be concluded that such a ‘group referral’ is outside the scope of Article 14 since the concerned Article only contemplates referrals by individual state parties. It must also be noted that I am not questioning the inherent nature of referral by a group of states. An argument can be made that the nature of aUNSC referral (Article 13(b)) is also collective in nature. The question is not whether a group of states can refer a matter to ICC jointly or that how is it different in substance from a UNSC referral. The question is simple, can a group referral be made under Article 14 and the answer is an emphatic no.
Conclusion
It must be underscored that in its conclusion of the OAS Report, the Panel of Independent International Experts had suggested that “The Secretary-General should invite States Parties to the Rome Statute to refer the situation of Venezuela to the office of the Prosecutor of the ICC and to call for the opening of an investigation into the crimes against humanity set forth in this report, in accordance with Article 14 of the Rome Statute. ” (sic) [emphasissupplied]
The suggestion, it seems, was not to form a group of like-minded members of OAS but was rather to invite state parties to refer the matter individually. One must also take note of the procedural effects of this referral. Since the Prosecutor and the State Parties concerned has termed it a ‘State-Party’ referral, it will exempt the former to take permission to start an investigation. This is provided in Article 53 of the Rome Statute which states that “(t)he Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute.” [emphasis supplied]
Considering that the Office of the Prosecutor has been accused of political prosecutions in the past and recently by the Philippines and the USA, the Prosecutor should be careful in accepting such ‘group referrals’. As of now, the Prosecutor is well within her rights to start an investigation since she no longer needsPTC’s authorization to do so. The legality of this ‘group-referral’ can now only be questioned, if it is, by the PTC at the next stage when the, Prosecutor will submit a request for issuance of an arrest warrant.
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