In accordance with Articles 53 and 15 and Rules 104 to 110, the PTC exercises a supervisory role over the Prosecutor’s discretion to open investigations. The role of the PTC will differ depending on the applicable mechanism triggering the jurisdiction of the Court.
In the case of a referral from the Council or a State Party, the Prosecutor has the discretionary power to decide whether to open an investigation. If the Prosecutor is satisfied that there is a ‘reasonable basis to proceed’ and decides to open an investigation, the PTC has no power to review this positive conclusion.232 The investigation in cases of referral will thus be formally opened
directly by the Prosecutor without the intervention of any other organ. It has been argued that this is justified by the need to preserve the Prosecutor’s functional independence pursuant to Article 42(1) and further that Article 53 provides sufficient safeguards to ensure that investigations will be opened only if warranted by the Statute.233 However, this particular discretionary power given to the Prosecutor has the potential to undermine the credibility and legitimacy of the Court if not subject to appropriate checks and balances. This lacuna in the Statute raises important concerns due to the potential abuse of referrals and the possibility that the Prosecutor may be unduly influenced by the political agenda of the referring State or the Council. As will be argued in Chapter 4, in order to effectively ensure the Court’s independence and impartiality, an additional safeguard should be included giving the PTC the power to review the Prosecutor’s positive assessment of the existence of a ‘reasonable basis to
232 As has been the case with the situations in the DRC, CAR, Uganda, Darfur, Libya and Mali. 233 Morten Bergsmo and Pieter Kruger, ‘Article 53: Initiation of an investigation’ in Otto Triffterer
(ed), Commentary on the Rome Statute of the International Criminal Court (Second edn, C.H. Beck - Hart - Nomos 2008) 1066.
proceed’ with an investigation following a referral. As the Statute stands now, however, the role of the PTC following a referral from a State Party or the Council is restricted to the cases in which the Prosecutor decides not to open an investigation. In such cases, under certain circumstances, the PTC can review the Prosecutor’s negative decision.
The situation is different in cases where the Court moves to initiate a proprio motu investigation, ie without the situation being referred by the Council or a State, in which scenario the Prosecutor requires to be specifically authorised by the PTC to proceed with the investigation.
2.4.1 PTC’s review of a Prosecutor’s determination not to initiate an investigation following a referral
Article 53(1), (3)(a) and (4) and Rules 104, 105, 107 and 108 provide for one of the most remarkable manifestations of the Prosecutor’s independence and, indeed, of the Court as a whole. It ensures that a referral by a State Party or by the UNSC does not automatically activate the Court’s jurisdiction. Following a referral by the Council or a State Party, the Prosecutor shall analyse the seriousness of the information made available to him and decide whether there is a ‘reasonable basis to proceed’ under the Statute.234 Reasonable basis to proceed is
the lowest evidentiary standard provided for in the Statute (...) thus, the information available to the Prosecutor is neither expected to be ‘comprehensive’ nor ‘conclusive’, if compared with evidence gathered during the investigation.235
The Court’s jurisprudence has interpreted the threshold to be satisfied with the existence of ‘a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court “has been or is being committed”’.236 In order to determine if the threshold is met, the Prosecutor shall consider
234 Pursuant to Rule 104(2), the prosecution may seek additional information from reliable
sources and may interview witnesses.
235 Kenya, ICC-01/09-19-Corr para. 27; Situation in the Republic of Côte d'Ivoire, ICC-02/11-14-
Corr Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation
into the Situation in the Republic of Côte d’Ivoire Pre-Trial Chamber III, 15 November 2011 para. 24.
whether: (a) the information available provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) the case is or would be admissible under Article 17; and whether (c) taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
If the Prosecutor’s assessment were to lead him to conclude that there is ‘no reasonable basis to proceed’,237 he should promptly inform the Council or the
referring State. The referring State or the UNSC may request the PTC to review the Prosecutor’s decision.238 If the Prosecutor’s decision is based on sub- paragraphs (a) and (b) of Article 53(1), once the revision is concluded, the PTC can request the Prosecutor to review, in whole or in part, his decision not to initiate an investigation. Therefore, the PTC does not have the power to ‘order’ the Prosecutor to proceed with an investigation as would be the case if the Prosecutor’s decision had been taken pursuant to Article 53(1)(c), ie based on the interests of justice. In addition, this review process needs to be triggered by the referring party, the PTC being unable to review on its own initiative. Once the Prosecutor has taken a final decision following the request for reconsideration from the PTC, he shall notify the PTC and communicate his conclusion and the reasons that justify it to all those who participated in the proceedings. The Statute and the Rules strongly protect the independence of the Prosecutor, and therefore, no further recourse or review is provided for the Prosecutor’s final decision on this matter.
2.4.2 PTC’s authorisation for the Prosecutor’s proprio motu investigation
Article 15, Rules 46 to 50 and Regulations 49 and 50 establish the procedure for the PTC’s authorisation for a proprio motu investigation, which may be initiated by the Prosecutor on the basis of information on crimes within the jurisdiction of the Court. The Prosecutor shall analyse the information at his disposal and,
237 Pursuant to Article 53(4), the Prosecutor may, at any time, reconsider his decision not to
initiate an investigation, based on new facts or information.
238 In accordance with Rules 93 and 107, the PTC can request the Prosecutor to transmit further
information, may request observations from the referring State or the Council and may also seek the views of victims.
where necessary, may seek additional information and receive written or oral testimony at the seat of the Court. Even before the jurisdiction of the Court is triggered, Rule 47(2) authorises the collection of testimony that may not be subsequently available, providing for the PTC’s intervention in order to ensure the efficiency and integrity of the proceedings and to protect the rights of the defence.239
The Prosecutor should analyse the seriousness of the information and determine whether or not there is a reasonable basis to proceed with an investigation, considering the factors set out in Article 53(1)(a) to (c).240 If the Prosecutor determines that there is no reasonable basis to proceed he shall promptly inform his determination and reasoning to those who provided information. In these proceedings, Article 53(3)(a) does not apply and the PTC has no power to review the Prosecutor’s decision not to proceed with an investigation when based on Article 53(1)(a) and (b), as this review proceeding may only be triggered by a request from the referring State or Council.
If upon analysis of the seriousness of the information, the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he shall seize the PTC and request its authorisation to commence an investigation, providing any supporting material collected. The Prosecutor should then immediately inform the victims in order to allow them to make representations to the PTC. The Prosecution’s request for authorisation shall provide the Chamber with clear and concise reference to the crimes allegedly committed and the reasons that
239 An effective application of Rule 47(2) – particularly in the volatile environments in which the
initial steps of investigations of situations of crisis are normally carried out – will be of particular importance given the strict judicial interpretation that Articles 69(2) and 74(2) and Rule 68 have received so far in the jurisprudence of the Court. See, in particular, The Prosecutor v. Jean-
Pierre Bemba Gombo, ICC-01/05-01/08-1386 Judgment on the appeals of Mr Jean-Pierre Bemba
Gombo and the Prosecutor against the decision of Trial Chamber III entitled 'Decision on the admission into evidence of materials contained in the prosecution's list of evidence' Appeals Chamber, 3 May 2011 paras 74-80. A testimony provided at the time of the events, or immediately in its aftermath, may be of critical importance during the trial stage of any case arising out of the particular situation. In accordance with Rule 47(2), statements collected at this stage should be admissible evidence in accordance with Article 69(4), and therefore, may be considered an exception to the requirement of viva voce or oral testimony provided in person at trial as pursuant to Article 69(2) and Rule 68.
240 Rule 48 was introduced with the aim of filling the gap for a comprehensive provision
regulating all the requirements for the PTC’s authorization to initiate an investigation proprio
motu. The Rule indeed links Articles 15 and 53 stating that the former must be read in
conjunction with the latter. On this, see the discussion on the preparatory works in Kenya, ICC-
provide the reasonable basis to proceed with an investigation. In deciding the procedure to be followed, the PTC may hold a hearing and/or request additional information from the Prosecutor or any of the victims.
The PTC shall review the assessment made by the Prosecutor considering the identical ‘reasonable basis to proceed’ standard,241 confirming that the requirements of Article 53(1)(a) to (c) are fulfilled.242 In case the PTC considers
that there is a ‘reasonable basis to proceed with an investigation’, it shall authorize the commencement of the investigation. This is without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of the cases arising out of the situation. The refusal of the PTC to authorise the investigation shall not preclude the Prosecutor from presenting a subsequent request based on new facts or evidence.
2.5 The role of the PTC during the investigation stage of the