Once an ICC is established, it is essential that when one of the egregious crimes within its subject matter jurisdiction is committed and national authorities do not investigate, the Court is able to fulfil its mandate, carry out an investigation and, if appropriate, prosecute. States and the Security Council have important roles in bringing the commission of crimes to the attention of the prosecutor for this purpose. Of crucial importance to the effectiveness and independence of the Court, however, is the ex officio power of the ICC prosecutor. In this section we make recommendations as to necessary trigger mechanisms and, aware of concerns that delegations have expressed in relation to ex officio powers, we address those concerns directly. Finally, we comment on the appropriate scope for judicial review of the decision to investigate ex officio.
COMPLAINT BY STATES
Article 11 : Complaint by all state parties
· Recommendation: Any state party should be permitted to lodge a complaint with the prosecutor with regard to any crime within the subject matter jurisdiction of the Court.
Comment: The current text of Article 11  provides an unnecessarily complex range of options concerning which state parties should be able to refer cases to the prosecutor. The first option provides that a complaint may be lodged only by a state party that has accepted the jurisdiction of the Court in respect of the crime which is the subject of the complaint (or, in the case of genocide, is a party to the Genocide Convention). The second is even more restrictive in allowing only the state on whose territory the crime is committed, the state which has custody of suspects, the state of nationality of a suspect or of the victim to make such a compliant.
All state parties should be able to refer cases to the Court.157 As the acceptance of the Court's jurisdiction over the core crimes should be automatic on ratification ofthe statute, the references in both options to state parties "which accept the jurisdiction of the Court" is redundant and should be deleted.
Article 11: Complaint by non-state parties
· Recommendation 2: The statute should allow complaints to be made by non-state parties to the ICC, on the condition that a complaining non-state party recognize the competence of the Court and assume the obligations under the statute in respect of the investigation or prosecution of the matters which are the subject of the complaint.
Comment: The current text of Article 11 allows only for complaint by "state parties."158 The ICC should have the broadest possible access to information concerning the commission of crimes of concern to the international community as a whole. As such, we support the possibility of non-state party complaints. However, if non-state parties are entitled to make complaints on the same basis as state parties, it is essential that they should also assume the obligations incumbent upon state parties, for the purposes of the particular matter referred to the Court.
Article 10: Complaint by the Security Council
· Recommendation: The Security Council should be empowered to refer a matter to the ICC.
Comment: At part C of this Commentary, on the role of the Security Council, we indicated support for the power of the Council to refer matters to the Court, and readers are referred to that section.
EX OFFICIO POWERS OF THE PROSECUTOR
Article 12 : Ex officio powers of the prosecutor
· Recommendation: The prosecutor should be empowered to initiate investigations ex officio on the basis of information obtained from any source.
Comment: In order to establish an independent and effective Court it is absolutely essential that the prosecutor be empowered to initiate investigations ex officio on the basis of reliable information. The contribution of information from victims is of particular importance and would be especially valuable in bringing perpetrators to justice. If only states and the Security Council can trigger prosecutorial investigations, the proper functioning of the Court will be dependant on the political motivations of these entities. This exposes the Court to the risk that only individuals or nationals of states that have fallen out of favor will be prosecuted, rather than those responsible for the most egregious crimes.
History bears witness to the reality that, in practice, states or the Council will often be reluctant or unable to lodge complaints or refer situations to the Court. The inter-state complaint mechanism in human rights instruments is vastly underutilized:159 no state complaints having been brought to the Inter-American Court of Human Rights, nor to the Human Rights Committee under the International Covenant on Civil and Political Rights,160 and only one inter-state case has been heard by the European Court of Human Rights.161 Similarly, only one case alleging violation of the Genocide Convention has ever been brought before the International Court of Justice.
The factors which one commentator has suggested may account for this are the impact on inter-state economic and political relations and the fear ofcounterclaims.162 Even where states want to bring claims, for example a state after a transition may wish to complain to the ICC regarding atrocities during the previous regime, it will often be under enormous internal pressure not to do so. This, coupled with the fact that any one permanent member of the Security Council would be able to prevent Security Council referral, runs the risks that inaction or lack of political will on the part of states and Security Council could, in practice, continue to protect perpetrators of very serious crimes from accountability.
Moreover, the statute as presently drafted would appear to restrict the Court's jurisdiction to the crimes or individuals specified in the state complaint or Security Council referral. For example, the complaint may restrict the investigation to particular crimes, committed by particular individuals, under one regime or during a specified time period, for example, in a way that would skew the prosecutor's ability to conduct a thorough investigation. Strong ex officio powers are essential to ensure that the prosecutor enjoys the independence and flexibility necessary for the effective carrying out of his or her functions.
The ability of the prosecutor to independently respond to allegations of egregious crimes is essential for the independent administration of justice. An international criminal court that could not investigate a case of genocide, for example, in the face of overwhelming information from victims and survivors, because of the absence of state or Security Council complaint, would be of questionable legitimacy.
Addressing concerns regarding a proprio motu prosecutor
Human Rights Watch is concerned by the opposition on the part of certain states to the inclusion of a prosecutorial power to investigate proprio motu which is an indispensable attribute of any independent prosecutor. The prosecutor will be a very experienced professional person of the highest standing and moral character.163 In the unlikely event that the prosecutor proves to abuse the power afforded to him or her, or to be incompetent, he or she will be subject to removalfrom office164 or lesser disciplinary measures,165 in accordance with Part 4 of the statute.
If incompatible with the principle of complementarity, which ensures the highest deference to national authorities, the investigation will not proceed, and if it does, it can be challenged. Further, Article 13 , entitled "Information submitted to the Prosecutor,"166 on which specific comments are made below,167 effectively provides for the Pre-Trial Chamber to screen the decision by the prosecutor to initiate an investigation. If this article prevails, it renders even less credible the assertion that an ex officio prosecutor poses a real threat of politically motivated or otherwise inappropriate investigations.
PRE-TRIAL CHAMBER REVIEW OF THE DECISION TO INVESTIGATE EX OFFICIO
Article 13 [2nd 46] : Information submitted to the prosecutor
· Recommendation: If the decision of the prosecutor to initiate an investigation is subject to judicial review, the standard by which the decision is judged must not go above the existence of a "reasonable basis" to proceed with an investigation.
Comment: This provision would allay any legitimate concerns that may exist concerning the dangers associated with ex officio powers. Judicial review of the decision to commence an investigation provides strong guarantees of fairness and propriety on the part of the prosecutor's office, and would therefore serve the important function of shielding the prosecutor from the detrimental effects of unfounded allegations as to impropriety, thus protecting the integrity and reputation of the Court.
It is critical, however, that the standard established is appropriate to the preliminary stage at which review will be taking place. It would be entirely inappropriate, for example, for the prosector to be expected to prove a prima facie case or probable cause at this stage, before initiating any investigation into the facts. We believe that new Article 13[2nd 46] sets an appropriate standard, by providing that the prosecutor must satisfy the Pre-Trial Chamber that a "reasonable basis" exists to proceed with an investigation.
Article 13[2nd 46] explicitly gives an important role to victims and organizations representing them, not only to present information to the prosecutor but also to make representations to the Pre-Trial Chamber. This is of fundamental importance to the fulfilment of the Court's mandate to provide redress to victims of the egregious offences within its jurisdiction.
Finally, it is appropriate that Article 13[2nd 46](2) and (3) clarify that a finding by the Pre-Trial Chamber, or a decision by the prosecutor, that the investigation should not proceed precludes neither the reconsideration of the matter by the prosecutor, nor its resubmission to the chamber in the light of new facts or evidence.
157 See Recommendation 1 for Article 6, 7, and 9.
158 Note that Article 6 on the exercise of jurisdiction contemplates the lodging of complaints by non-state parties.
159 See Scott Leckie, "The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking," Human Rights Quarterly, vol.10, (1988), p.302, for a helpful chart detailing use of state-to-state complaint procedures in various human rights bodies.
160 Article 41 of theInternational Covenant on Civil and Political Rights, adopted by the General Assembly on December 16, 1966 and entered into force on March 23, 1976. G.A. Res. 2200, U.N. GAOR, 21st Session, Supp. No. 16, at 52, 59, U.N. Doc. A/6316 (1966), 999 U.N. Treaty Series 171, 301 (1967).
161 Ireland v. the United Kingdom (ECHR 5310/71).
162 Leckie, "The Inter-State Complaint Procedure...," p.254.
163 See Article 43  of the current text.
164 Article 47 .
165 Article 48 [39 bis].
166 The proposal which was submitted to the March-April Preparatory Committee by the delegations of Argentina and Germany appears as Article 13[2nd 46] in the latest text.
167 See the following recommendation.
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