A Newly-Revealed Cost of Article 15 Communications

In 2016, I published an article on The Hidden Costs of Strategic Communications for the International Criminal Court. The article identifies the growing trend of publicizing Article 15 Communications (investigation requests submitted to the ICC Prosecutor). In the piece, I draw a parallel between this practice and that of strategic litigation, highlighting how highly-publicized requests are often geared not towards actually bringing about any ICC-related activity, but are instead used as a vehicle to call international attention to atrocities taking place around the globe. As set out in the article, it is unsurprising that this instrumental use of the Court’s Article 15 process has taken off; like their litigation counterparts, strategic communications can achieve important goals, such as educating the international community about gross human rights violations and mobilizing public opinion against harmful government policies.

As the article also notes, these valuable benefits appear to have blinded both communication filers and court watchers to the fact that strategic communications also come with a price. At a minimum, the practice increases the number of investigation requests submitted to—and  subsequently vetted by—the  Office of the Prosecutor (568 between 2016 and 2017, and more than 12,500 since 2002), thereby creating additional work for an under-resourced arm of the Court. Also troubling for the Court is the fact that the publicity associated with the filings tends to create the misimpression that some type of ICC action is officially underway. As the article explores in depth, this can lead to a host of perception problems for the ICC when an actual investigation fails (for quite legitimate reasons) to materialize. Perhaps most troublesome is the cost that strategic communications can exact from victims who have, at times, been sold the false promise of recourse from the ICC, only to have been let down in the end.

Notably, recent developments in US jurisprudence have revealed a new—and tangible—cost associated with the filing of all Article 15 communications (not just those of the strategic variety).   In 2017, the filers of a Article 15 communication sought to use 28 § USC 1782—which  authorizes the use of US district courts to obtain discovery for use in foreign proceedings—to obtain evidence “critical to the ICC proceeding.” The application was initially granted despite there being no evidence that the ICC Prosecutor had opened a formal investigation (according to existing case-law, “1782(a) does not limit the provision of judicial assistance to `pending’ adjudicative proceedings”).

While this development seems like an argument in favor of filing Article 15 communications, the matter didn’t end there. Instead, the target of the application (Chevron) moved to vacate the order, arguing that the American Service-Members’ Protection Act (ASPA) bars the use of section 1782 to obtain discovery for use in connection with ICC proceedings.  This Act, it may be recalled, prohibits US cooperation with the ICC, including support from US courts.

Ultimately, the parties to the Chevron matter filed a joint stipulation resolving their discovery dispute, but the developments in the case highlight a previously masked cost of Article 15 communications, and yet another reason for lawyers and non-governmental organizations to proceed with caution before submitting an investigation request to the ICC Prosecutor. Going forward, would-be filers should carefully assess whether their intended Article 15 communication might later be invoked to prevent victim access to evidence in the US.

Remarkably,  Facebook has already tried to take a page out of Chevron’s playbook, maintaining that a recent application aimed at it was “an obvious attempt to evade federal law by obtaining discovery that may be used in support of ICC proceedings.” The link Facebook tried to make between the request and an existing Article 15 communication was tenuous, and the argument was ultimately disregarded by the Magistrate Judge (who described the allegation as “sinister,” “speculative” and “unsubstantiated”). Nevertheless, Facebook’s quick use of the arguments from the Chevron matter suggests that one must expect similar—and possibly stronger—arguments by the targets of 1782 applications in future.

Incidentally, it was in preparing  to participate at the recent ICC Scholars Forum in The Hague  that I came across these recent developments. I’m delighted to have been a part of this incredibly productive conference, which was organized by fellow IntLawGrrls Leila Sadat and Larissa van den Herik, along with Leiden University’s Sergey Vasiliev. At the event, I had the pleasure of commenting on Emma Irving’s important and timely research on the removal of information from social media platforms and consequent access issues for the ICC.

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