The question on the lips of Rohingyas and their advocates is how quickly can the prosecutor of the ICC act?
Recent developments at the International Criminal Court (ICC) and the United Nations (UN) have contributed to a battering of Myanmar’s reputation globally. There are now heightened expectations of an international process which will deliver justice for the Rohingyas and, once and for all, end the impunity of Myanmar’s generals.
Firstly, in a thumping 440-plus-page report, the UN’s Fact Finding Mission accused Myanmar’s generals of the most heinous crimes in international law. Then, critically, the ICC followed up by passing a decision that they had jurisdiction over Myanmar’s crime of deportation of Rohingyas from Myanmar to Bangladesh. This is not something the Myanmar government and the military had ever imagined possible given that the country is not a signatory to the Rome statutes.
Apart from these measures taken by multilateral organizations (but fortified by them), Canada weighed in with its House of Commons unanimously declaring that Myanmar’s crimes against the Rohingyas constitute genocide.
So the question on the lips of Rohingyas and their advocates is how quickly can the prosecutor of the ICC act? The reality is that the prosecutor cannot just simply begin an investigation. She has to go through a few loops and hoops. A trigger mechanism is required before the court’s jurisdiction can be exercised through an investigation.
There are three types of triggers: a referral by a state party, a referral by the UN Security Council, or where the prosecutor has requested and received authorization for an investigation from a Pre-Trial Chamber.
The chances of a Security Council referral are practically zero given the cosyness between Myanmar and both Russia and China. This would have been the swiftest pathway to an investigation based on past experience.
So the two potentially realisable triggers are state referral or a prosecutor request. Do these alternative triggers have different implications for the time frame? What do we know from previous instances where the prosecutor requested to open an investigation without a state referral?
It seems as though the fastest it has ever been done was about 16-17 months from the time that a preliminary examination (the phase we are in currently with the prosecutor) started to when the request was made. Then more time is required for the judicial process to decide the outcome of that request.
In short, the timeframes for the prosecutor request scenario do not look good from a quick glance at history.
For Afghanistan, a preliminary examination was opened in 2007 but did not request authorization to open an investigation until 2017. That is still pending a decision from the judges. Similarly in Nigeria, a preliminary examination started in 2010 and nothing has happened to date.
Kenya was faster. The preliminary stage lasted from February 2008 to November 2009. It then took until March 2010 for the chamber to authorize it. So the whole process was around two years.
Colombia records the longest preliminary examination phase. It lasted more than 13 years.
State referrals are faster
With regard to state referrals, if we just look at the ones that have resulted in an investigation, then there have been five in total. Three were during the time that Luis Moreno Ocampo was the prosecutor. Those cases may be less useful to go on, as things were regarded as decidedly “sloppy” under his dispensation. It was also the early days of the court and the prosecution was arguably feeling its way to some extent.
The remaining two examples are Mali and the Central African Republic, which took 6 and 7 months respectively. A less positive state referral story is Gabon. There was a referral in 2016 and there is still no investigation.
So, on the basis of the above, state referral seems to be a lot faster. Indeed, we can argue this conclusion even though every situation is different and some may be more or less complex. The reason for that conclusion is about the process that is involved. The mechanism of the process of a prosecutor request (under Article 15) is far more convoluted and onerous than that which applies to a state referral (under Article 13a).
Additional steps in a prosecution request contributes to delays
Briefly, if there has been a state referral, the prosecutor looks at the criteria in Article 53(1), and if she thinks they are met, she opens an investigation. If there is no state referral she has to look at the same criteria in Article 53(1), and if she concludes they are met, then she has to make a filing to the judges convincing them of that. And it is here that an Article 15 request has three additional onerous and time-consuming steps.
The production of a written request may take weeks or months. Then there is a process for collecting victims’ representations and finally the actual decision by the Pre-Trial Chamber based on the submissions of the prosecutor. This may drag on for some time. These steps are not required if a state referral is made.
Compounding this is a manpower and resource issue.
Currently there are approximately 11 preliminary examinations open and only 12 permanent staff in the team who work on this process. It has taken four months already for the prosecutor to secure the jurisdiction that she needed to open a preliminary examination. Some work has been done for sure.
However, to seek authorisation she needs to cover not only the area of jurisdiction but also admissibility and interests of justice. So far they have only looked at a part of jurisdiction - deportation.
Even then, they have only looked at deportation from a theoretical perspective - basically assuming certain facts and asking if those facts were borne out, would jurisdiction exist.
However, at this new stage, it would not simply be a theoretical exercise - they would actually need to collect material. Although this would not be as onerous as material collection for a proper investigation, it would still significantly add to the duration of the process.
In conclusion, an investigation by the ICC is currently a long way off. A state referral would almost certainly result in an earlier opening of an investigation. Question is, will any state come forward?