On 27^th January 2016, Pre-Trial Chamber 1 of the International Criminal Court (ICC) approved the Prosecutor’s application to investigate crimes within Georgia. Under Article 15 of the Rome Statute, when the Prosecutor initiates an investigation proprio motu (that is, of their own accord without UN Security Council or state referral), she must seek the approval of the Pre-Trial Chamber of the Court. Prosecutor Bensouda sought permission to investigate alleged crimes committed between 1^st July – 10^th October 2008 in South Ossetia, Georgia. Despite the Majority approving the investigation, there were interesting divergences between Judges Aluoch and Tarfusser (who issued a joint judgment with Judge Kovacs) and Judge Kovacs who despite agreeing on the substantive decision of the Court, handed down a separate opinion interpreting the Court’s obligations under Article 15. In this short paper, I will explain the Court’s approach to its role under Article 15.

The International Criminal Court has jurisdiction to hear cases are commenced by the Prosecutor proprio motu. This means that the Prosecutor can commence an investigation of her own accord with the approval of the Court (Art 15). This is a more unusual way for the Court to attract jurisdiction with most cases coming from state or United Nations Security Council referrals. The Prosecutor is responsible for gathering evidence to present an application to the Pre-Trial Chamber for authorisation. Art 15(4) deals with the role of the Court in determining these matters, and states:

If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

Prosecutor Bensouda made an application for authorisation from the Pre-Trial Chamber of an investigation into alleged crimes committed in Georgia under Article 15. She alleged that the war crimes of wilful killing or murder; destruction of property; pillage and intentional attacks on peacekeepers had been committed. Additionally she alleged the crimes against humanity of murder, deportation or forcible transfer of population and persecution. The crimes were alleged against Georgian, Russian and South Ossetian forces and military units. The majority judgment outlines the individual circumstances of each of these alleged offences.

In considering the application, the Majority noted that the test was whether there ‘exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has or is being committed’ [25]. In making their assessment they concluded that there was an international armed conflict between Georgia and Russia, with the South Ossetian forces being controlled by Russia which makes them (Russia) a party to the conflict [27]. In doing so, the Majority felt that the Prosecutor had proven a reasonable justification for a belief that a crime falling within the jurisdiction of the Court had been committed.

The Majority then proceeded to make preliminary assessments against each of the elements of the offences alleged. In relation to assessing admissibility, the Chamber concluded that their determination rests on the ‘information available at this stage and in light of the Prosecutor’s submissions’. The two components of admissibility before the ICC are complementarity and gravity (Art 17). The Majority, invoking Art 53(1)(b) noted that ‘[i]f (some of) those potential cases are not investigated or prosecuted by national authorities’ then complementarity is satisfied. The Majority found that no proceedings within South Ossetia would be considered valid before the ICC, as it is not a recognised state [40]. The Georgian investigation had ceased operation due to a lack of ability to properly investigate in the location of the alleged offences [41]. Finally regarding the Russian investigation a letter was presented which simultaneously suggests that Russian authorities were gathering further evidence and exculpated the command of the Russian military [44]. The Majority found that the complementarity requirement had been satisfied in relation to Georgia and South Ossetia. However, it found itself ‘unable’ to determine whether the Russian proceedings were inadequate due to an insufficiency of evidence [46]. The Majority also suggested that there was no onus on them to seek further evidence in order to resolve this matter.

The Majority also quite quickly dispensed with the matter of gravity. It cited statistics inter alia that 13,400-18,500 persons were displaced and there was a 75% decrease in the ethnically Georgian population in South Ossetia. Finally, the Majority determined that there were no interests of justice which would inhibit such an investigation into the alleged crimes in Georgia. It thus authorised the investigation into events related to the conflict in and around South Ossetia between 1 July and 10 October 2008.

While not disagreeing with the substantive findings of the Majority that the investigation should in principle have been authorised, Judge Kovacs strongly disagreed with their approach to determining the Prosecutor’s application. Judge Kovacs took strong issue with the Majority’s statement that their role was ‘strictly limited’ (Majority judgment [3]). Judge Kovacs conversely emphasises that the Court has a ‘duty to reach its own conclusion’ [5]. He invokes rule 50(4) of the Rules of Procedure and Evidence to suggest that the Court’s power to request further information from the Prosecutor does not accord well with the majority’s view of the Court’s power being strictly limited. Judge Kovacs emphasised that authorisation of a proprio motu investigation requires an ‘independent judicial inquiry’ from the Court [6].

Kovacs also invoked the history of a proprio motu investigation to demonstrate the importance of the Court independently assessing the Prosecutor’s case. He noted the hesitancy of the initial drafters of the Rome Statute to include Art 15 [9]. He emphasised that ‘an agreement would have never been reached in Rome on article 15…without having judicial control before the initiation of an investigation (emphasis in original)’ [10]. After outlining his criticisms, Judge Kovacs then proceeded to outline all of the evidence that he believed should have been considered in the Majority decision, but was not.

One of the main areas that Judge Kovacs considered deficient in the Majority decision, was the failure to establish a crucial component of the crime of attacking peacekeepers. In his view, the Majority did not even establish that the peacekeepers were those who can properly receive protection under the Rome Statute [18]. Judge Kovacs’ variance with the Majority becomes clear as he implored that the Court should go beyond the submissions of the Prosecutor and request further information as, and when, required [20].

On issues of admissibility Judge Kovacs echoed his previous concerns. He claimed that the Majority withheld important facts from their written decision which would have strengthened the persuasiveness and logic of their decision [41]. On his reading of the evidence, it was clear that there was a lack of willingness on the part of Georgia to prosecute the crimes. One of the documents that the Prosecutor relied upon was an unsigned decree of charges [48]. He asserted that the Chamber should have requested further evidence from the Prosecutor to properly make their decision.

Despite the differences of opinion, the Pre-Trial Chamber of the International Criminal Court authorised the Prosecutorial investigation into Georgia. This is an important step in the process of justice for the people living within that region. Important lessons can be drawn from this decision into what the Prosecutor is required to present to the Court in an Article 15 application for authorisation of an investigation. Whilst the Majority were satisfied with the evidence presented before them by the Prosecutor, Judge Kovacs was not, and went to great lengths to describe what further information he would have requested and the way that he sees the role of the Court under an Article 15 application.