The decision of the Office of the Prosecutor (OTP or Prosecutor) to seek a ruling on jurisdiction under Article 19(3) of the Rome Statute (Statute) was unique.Footnote 1 While the discussions were going on about a probable referral by the United Nations Security Council [UNSC], the OTP made this unprecedentedFootnote 2 request.Footnote 3 This landmark documentFootnote 4 embodies the first OTP's request, where Article 19(3) has been invoked.Footnote 5 In her request, the Prosecutor asked the International Criminal Court (ICC or Court) to determine “whether [it] may exercise jurisdiction under Article 12(2)(a) over the alleged deportation of the Rohingya people from Myanmar to Bangladesh”.Footnote 6 While the state of Bangladesh is a Party to the Court, the state of Myanmar is not, and since the Rohingya issue involved both these states, the request was put up to determine the Court's jurisdiction in this matter. The request was made on 9 April 2018 and the Decision Footnote 7 was delivered on 6 September, 2018. The Court was divided in its opinion. Judge Péter Kovács and Judge Reine Adélaïde Sophie Alapini-Gansou gave the majority opinionFootnote 8 granting the Prosecutor's request, whereas Judge Marc Perrin de Brichambaut gave a partially dissenting opinion.Footnote 9 There are some inconsistencies between the Request and the Decision,Footnote 10 but I will not focus on those in their totality. Instead, my focus here will be on Article 119(1) of the Statute (paragraph one disputes) and how the Court self-invoked and misinterpreted it, thereby creating and losing a golden chance to explain one of the untouched provisions of the Statute.Footnote 11 The irony is that this Article was invoked by the Court proprio motu,Footnote 12 as it was nowhere mentioned in the OTP's request.
As noted earlier, in this paper, I seek to address the dispute surrounding paragraph one disputes. This Article demands attention because of its unique nature, which can be understood when read together with the second paragraph, which envisages a dispute of a different character. A lot has been written about the second paragraph, which takes care of interstate party disputes, much like the disputes before the International Court of Justice [ICJ]. Thus, the term “dispute” used there has been defined before, albeit not by the ICC. It is because of such interpretations and definitions that we understand the nature of disputes under Article 119(2). But paragraph one disputes have never been defined, hence the present attempt to address the gap.
In my endeavour to settle the dispute regarding the term “dispute” under Article 119(1), I will first discuss the components of the Article, i.e. the phrases “any dispute” and “judicial functions of the court”. Here, too, the focus will more be on the definition of the term “dispute” for the purposes of Article 119(1).
Article 119
Settlement of disputes
1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.
2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.
It must be observed that the term “dispute”, as used in both of the paragraphsFootnote 13 of Article 119, has different meanings. In fact, the term “dispute” used in the title of the Article is also not synonymous with the ones used in both of the paragraphs of the Article. I will elaborate on this subsequently.
The discussion on these terms will primarily be based on the commentaries on the Statute by Otto Triffterer and Kai Ambos,Footnote 14 William A. Schabas,Footnote 15 and Antonio Cassese, Paola Gaeta, and John Jones.Footnote 16 At the very outset, I must confess that all of these commentaries, with the minor exception of Triffterer and Ambos, give a discriminatory treatment to paragraph one disputes, so much so that Professor Schabas has not even discussed the term “dispute” in his commentary on Article 119.Footnote 17 Alain Pellet, while writing Article 119's commentary in Cassese, Gaeta, and Jones totally disregards any need to interpret the term “dispute” for paragraph one disputes. He writes that “[i]t is not very important to discuss the word ‘dispute’ for the purpose of paragraph 1 of Article 119”.Footnote 18
The minor exception mentioned above is to be found in the commentary by Triffterer and Ambos, but, even there, Roger S. Clark, who wrote the commentary on Article 119,Footnote 19 contributes very little towards our understanding of the term “dispute”. He uses the neutral terms “difference of opinion” or “disagreement”Footnote 20 for disputes, but this substitution is not exclusive for the paragraph one disputes, and, as I have mentioned earlier, any sweeping attempt to define the term “dispute” under the two paragraphs similarly is misleading as the two paragraphs relate to different types of disputes. Thus, all these commentaries fail to provide a conclusive meaning (or any meaning for that matter) of the term “dispute” for the purposes of Article 119(1), and this is where I intend to contribute through this paper.
In the latter half of the paper I will use the Rohingya situation to explain the paragraph one disputes. Through an analysis of the majority and dissenting opinion on the prosecutor's request, I will try to determine the contours of paragraph one disputes.
I. SETTLEMENT OF DISPUTES UNDER THE STATUTE
The provision for settlement of disputes under the Statute is provided under Part 13 with the title “Final Clauses”. Though the Statute was originally drafted by the International Law Commission [ILC], following its settled practice of not drafting the final clauses of any article, it decided not to draft Part 13 of the Statute too.Footnote 21 At paragraph 3 of Appendix I to the Draft Statute, it merely suggested a list of six issues that needed to be considered for this Part. The sixth issue was “settlement of disputes”.Footnote 22 The relevant part of the suggestion is that “[t]he court will, of course, have to determine its own jurisdiction … and will accordingly have to deal with any issues of interpretation and application of the statute which arise in the exercise of that jurisdiction”.Footnote 23 Accordingly, the matter was taken up at the Rome Conference.Footnote 24
Provision for settlement of disputes was provided under Draft Article 108, which contained four options to settle disputes.Footnote 25 These four options were:
A) Option 1
[Except as otherwise provided in the Statute] [,a] [A]ny dispute concerning the interpretation or application of this Statute shall be settled by the decision of the Court.
B) Option 2
Without prejudice to the competence of the Court concerning disputes relating to its judicial activities as is established in accordance with this Statute, any dispute between two or more States Parties relating to interpretation or application of this Statute which is not resolved through negotiations [within a reasonable time] [within … months] shall be referred to the Assembly of States Parties which shall make recommendations on further means of settlement of the dispute.
C) Option 3
Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.
D) Option 4
No article on dispute settlement.
As can be observed, the first three of these options proposed a mechanism to settle disputes, whereas the fourth one outrightly rejected any such article on dispute settlement. Further, the options differed on the “types of disputes” they were referring to and also on the “methods of settlement” of those disputes. Thus, though all these options had only one paragraph, because of their inherent differences, the final Article 119 has two paragraphs incorporating most of these options.
II. TYPES OF DISPUTES
The two paragraphs of Article 119 refer to two different types of disputes. While paragraph one refers to disputes regarding “judicial functions of the Court”, paragraph two refers to “interpretation or application of this Statute”. This classification has a history which can be explained through a discussion on the previously stated Draft Article 108. While the first two options of the Draft Article 108 talked about disputes concerning (or relating to) the “interpretation or application of this Statute”, the third one addressed disputes concerning the “judicial functions of the Court”.
A. Judicial Functions of the Court
During the negotiations on Draft Article 108, it was largely felt that the Court must have the competence to determine its own jurisdiction.Footnote 26 It “[wa]s important the independence of the court” [sic].Footnote 27 However, various views had to be considered. Thus, a compromise was reached whereby two paragraphs, instead of one, as proposed earlier, were included. This was intended to take care of the first three options. Option 3 of the Draft thus became paragraph 1 of Article 119 ad verbum.Footnote 28 This took care of the disputes regarding “judicial functions of the court”.
B. Interpretation or Application of this Statute
Option 1 and Option 2 dealt with disputes regarding “interpretation or application of this Statute”. However, there were certain differences between these two options. Option 1 referred to “any dispute concerning the interpretation or application of this Statute” [emphasis added]. But Option 2, though still talking about “interpretation or application of this Statute”, limited it to disputes “between two or more States Parties”. Option 2 was finally incorporated into the final text of the Statute, albeit with a few changes, such as a referral to the ICJ. This effectively ruled out a dispute between the OTP and the Presidency or the Assembly of State Parties [ASP].
III. METHODS OF SETTLEMENT OF DISPUTES
Though there was no coherence in the kind of disputes being addressed at the Rome Conference, it is noteworthy that all these options proposed only one method of dispute settlement.Footnote 29 However, this one method too had no common consensus. Option 1 proposed that a dispute shall be settled by the “decision of the Court”. Option 3 echoed a similar understanding. However, Option 2 proposed “negotiation” as a means for the settlement of a dispute. In the case of a failure of negotiation, it further provided the power to the ASP to “make recommendations on further means of settlement of the dispute”. Therefore, though all the Options referred to only one method of dispute settlement, they varied amongst each other on the method of dispute settlement. The end result, i.e. Article 119, is an amalgamationFootnote 30 of Options 1 and 2 with the addition of certain new elements. Thus, Article 119 provides for two distinct methods of dispute settlement in its two paragraphs. Paragraph one is guided by Options 1 and 3 and provides “decision of the Court” as a method of settlement of disputes. Paragraph two, on the other hand, gives the authority to the ASP to resolve the dispute in the case of failure of negotiations.
While Option 1 had envisaged that disputes should be settled by the “decision of the Court”, Option 2 gave the resolving authority to the ASP. Also, there were some states who wanted the ICJ to play a role in resolving such disputes.Footnote 31 However, it can be said that Option 2 had already made room for a referral to the ICJ as one of the “further means of settlement of the dispute” by the ASP.Footnote 32 Thus, the second paragraph of Article 119 was drafted after taking all these into consideration. Consequently, the ASP was also given the power to settle disputes, something which was not mentioned in any of the four Options.
Further, the implied referral to the ICJ was made explicit. Hence, while Option 2 had proposed that the ASP “shall make recommendations on further means of settlement of the dispute”, the final draft of Article 119 provides that the ASP “may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court” [emphasis added]. Thus, Article 119 is a compromiseFootnote 33 to heed the demands of the multiple participants present at the conference. It has created two methods of settlement of disputes, both dealing with two different types of disputes.
IV. PARAGRAPH ONE DISPUTES
After this brief detour of the drafting history and the current form of Article 119, I now return to the focal point of my argument. As noted earlier, paragraph one disputes have received discriminatory treatment by the commentators of the Statute. The enthusiasm has always been surrounding the second paragraph, probably because of its uniqueness.Footnote 34 However, my endeavour here is to analyze the nature of paragraph one disputes. At the very outset, it is imperative to understand how the nature of the disputes under the two paragraphs differs. The text of Article 119(1) mandates that “[a]ny dispute concerning the judicial functions of the Court shall be settled by the decision of the Court” [emphasis added]. This paragraph is reflective of Article 36(6) of the Statute of the ICJ and embodies the principle of competence de la competence.Footnote 35
Paragraph two, on the other hand, provides for settlement of “any other dispute”. It further classifies it as a dispute between two or more “States Parties”. Finally, the dispute shall be “relating to the interpretation or application of the Statute”.
While it is clear that only States Parties can be the disputants under paragraph two, the Article leaves one in limbo as to the identification of disputants (Who?) for paragraph one disputes. It also is conspicuously silent about the nature of any such dispute (What?). Thus, let us try to understand the whos and whats of paragraph one disputes.
A. Defining Dispute
Disputes can involve disagreement on points of law as well as facts.Footnote 36 In order to identify a dispute, it must be shown that the claim of one party is positively opposed by the other.Footnote 37 Under international law, any attempt to understand the word “dispute” oftenFootnote 38 leads us to the famous decision by the Permanent Court of International Justice [PCIJ] in the Mavrommatis Palestine Concessions case.Footnote 39 It defined a dispute as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”Footnote 40 [emphasis added]. However, that definition had two limitations, first in terms of the number of parties (two) to a disputeFootnote 41 and second in terms of the characterization of the disputants (persons). These limitations were later removed by the ICJ in the East Timor case.Footnote 42 Here, the ICJ recalled that “in the sense accepted in its jurisprudence and that of its predecessor, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties”Footnote 43[emphasis added]. Thus, by substituting the word “parties” in the place of “two persons” the ICJ took care of both shortcomings of the earlier definition.Footnote 44
It has been suggested that this definition of a dispute is “perhaps more apposite to the range of possibilities that are likely to arise in respect of the ICC”.Footnote 45 However, I beg to differ, and my disagreement is because of the word “parties”. Considering the fact that this was a judgment given by the ICJ, the term “parties” means “States”.Footnote 46 This is because only states may be parties before the ICJ.Footnote 47 However, in the case of paragraph one disputes, other than state, the disputants could be the Prosecutor, Defendant, an organ of the Court,Footnote 48 etc. Thus, this definition of dispute might be suitable for paragraph two disputes, but it cannot provide any meaning to paragraph one disputes.
V. THE DECISION (MAJORITY AND DISSENT)
The Chamber was divided in its ruling on the Prosecutor's request. As noted earlier, Judge Péter Kovács and Judge Reine Adélaïde Sophie Alapini-Gansou gave the majority opinion granting the Prosecutor's request, whereas Judge Marc Perrin de Brichambaut gave a partially dissenting opinion. In this part of the paper, I will briefly discuss the observations of the majority and the dissent, respectively.
The Bangladesh/Myanmar situation (Rohingya Issue) had the Chamber divided on the meaning of the term “dispute”. However, what is worth mentioning in the context of our present discussion on dispute is that nowhere in her request had the Prosecutor accepted that there exists a dispute in this situation. In fact, the term “dispute” had not been mentioned even once in her request.Footnote 49 One then wonders why the majority decided to discuss it? The Prosecutor's request was pursuant to Article 19(3) of the Statute. However, for reasons best known to the two judges in the majority, they first observed that there existed a dispute and hence concluded that the “chamber [was] empowered to rule on [the] question of jurisdiction set out in the Request in accordance with Article 119(1) of the Statute”.Footnote 50 And because of this determination, it concluded that it “doesn't see the need to enter a definite ruling on whether Article 19(3) [wa]s applicable at th[at] stage of the proceedings”.Footnote 51 But the majority's detour to Article 119(1) provides us with an opportunity to talk about paragraph one disputes vis-à-vis this Decision.
The majority, in just four sentences, determined that: (a) there was a dispute; (b) the dispute was regarding the Court's jurisdiction; and (c) the Court was empowered to rule on the request in accordance with Article 119(1). It noted in its decision that “based on the material available in the record, the jurisdiction of the court is clearly subject to dispute with Myanmar”.Footnote 52 This observation is followed by a reproduction of Article 119(1) after which the majority notes that this Article “has been interpreted as including questions related to Court's jurisdiction”.Footnote 53 Both the above sentences which I have quoted raise serious doubts about the use of this Article in the Decision.
The majority's determination of the dispute is “based on the material available in the record”, but it does not give any reference for these materials either in the body or in the footnotes of the Decision. Thus, we do not know what materials the majority was referring to. As mentioned earlier, the Prosecutor's request is silent about any dispute. Hence, it can be concluded that it must not have submitted any material to prove a dispute. Thus, the mentioned materials remain a mystery to us. Moreover, the majority mentioned the “materials available in the record” [emphasis added]. This further testifies to the point that no material was put on record by the Prosecutor.
The majority also does not seem to be worried about the determination of a dispute as the discussion on the same is limited to just a footnote,Footnote 54 albeit a comprehensive one. The majority too, as the authors discussed earlier,Footnote 55 referredFootnote 56 to the same definition of dispute as was given in the East Timor case.Footnote 57 I have already discussed the problems of using this definition of dispute.Footnote 58 Sadly, the majority did not provide any alternative and appropriate definition.Footnote 59 Also, it named only one of the disputants, i.e. Myanmar. But Myanmar is in dispute with whom: the Court, the OTP? The majority does not clarify this point either. The dissenting opinion notes that the majority has identified the Prosecutor as the other disputant,Footnote 60 which, in my opinion, is a false observation since it is not mentioned anywhere in the majority's decision.
However, the dissent notes another glaring mistake on the part of the majority. It highlights that the:
[m]ajority omits to address the question of who can validly present a “dispute concerning the judicial functions of the Court” to the latter. This is of pivotal concern when seeking to assess whether Article 119(1) of the Statute can be applied in the present instance.Footnote 61
The Decision is also ambiguous regarding the “dispute” and the “judicial functions of the Court”. The observation that there exists a dispute with Myanmar takes care of the first part of Article 119(1). As for the determination regarding which “judicial function of the Court” the dispute is about, the majority observes that it is about “the jurisdiction of the Court”.Footnote 62 This determination is based on “interpretations” of scholarsFootnote 63 and an ASP Resolution,Footnote 64 both of which are not convincing references.
The interpretations of scholars are not of a judicial nature, and considering the fact that this was the first time the Chamber was presented with a chance to throw some light on this part of the Statute, it should have been more persuasive in its approach. A reasoned decision was also obligatory because it was the Chamber's own choice to invoke Article 119(1).Footnote 65 The interpretation is basically that of Roger S. Clark, who, as one author points out, was a founding father of the Statute.Footnote 66 Clark himself writes in Otto that:
[m]y understanding, from participating in the drafting process, is that, at the least, anything that could be said to have some relationship, however tenuous, to prosecution of an individual or a group of individuals on the basis of a concrete complaint of a breach of the Statute, would be included in the notion of judicial functions.Footnote 67
Based on this understanding, he lists certain instances of judicial functions of the Court. However, as pointed out in the dissent, which was written by another founding fatherFootnote 68 of the Statute, Clark has made only “tentative suggestions”.Footnote 69
As for the “non-binding”Footnote 70 ASP resolution, the majority has cited a non-relevant part of a non-relevant resolution. The cited part reads “[r]eaffirms … article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court”.Footnote 71 The reference in the resolution is to highlight the independence of the judges of the Court. This reference does not seem to have a relation with the “judicial functions of the Court”.
The dissent, on the other hand, questions the very timing of the request, and Judge Marc Perrin de Brichambaut observes that it “comes at a highly unusual juncture before even a preliminary examination of a situation”.Footnote 72 He finds himself “not in a position to participate in any kind of ruling by the Chamber” and hence pens down his dissent which is “partial” since he does not go into the proper legal questions asked by the OTP, i.e. the jurisdiction of the court. He rather focuses on the nature of the request and how the majority dealt with it. He accordingly finds Article 19(3) “inapplicable to the present instance”; rules that the principle of la competence de la competence cannot be an alternative basis for exercising jurisdiction for the present request; and finds that ruling on the request would amount to giving an advisory opinion,Footnote 73 something which Court is “expressly prohibited” from doing. The dissent, however, never points out this “express” prohibition but notes that the Statute makes no provision for advisory opinions and that “[d]uring its negotiations, such a role was contemplated and rejected”.Footnote 74 If anything, this observation points towards an implied construction and not an express one.
Regarding Judge Brichambaut's observations on Article 119(1), it is significant that he did not find the majority's detour to Article 119(1) as alternative legal bases for the Chamber to entertain the Prosecutor's request persuasive.Footnote 75 The placement of Article 119(1) in Part 13, titled “Final Clauses”, is his cause of concern. The placement, according to him, means that the Article is “not directly related to issues of jurisdiction before this Court”.Footnote 76
He considers it necessary to interpret Article 119(1) according to Article 31 of the Vienna Convention on the Law of the Treaties.Footnote 77 Arguing accordingly for a contextual interpretation of Article 119(1), the dissent notes that “as the second paragraph of this article clearly addresses only ‘dispute[s] between two or more States Parties’, the same restriction would weigh in on article 119(1) disputes ‘concerning the judicial functions of the Court’”. However, this attempt to equate the two paragraphs is wrong, as I have highlighted earlier.Footnote 78
The dissent also discredits the use of the PCIJ's and ICJ's definition of “dispute” by noting that only states are disputants before these courts. It further contrasts the stage of proceeding of cases before those courts and the present one before the ICC. Nevertheless, it refers to the observations of those two courts and discusses the present “dispute” in that light. It holds that the present situation “doesn't correspond to the general definition of ‘dispute’”Footnote 79 provided by the PCIJ and ICJ. I have noted my disagreement with this observation in my ‘Conclusion’.Footnote 80
VI. CONCLUSION
Determining the dispute in the East Timor case, the ICJ observed that “Portugal has, rightly or wrongly, formulated complaints of fact and law against Australia which the latter has denied. By virtue of this denial, there is a legal dispute.”Footnote 81 Thus, for the ICJ, a mere denial would be a testament to an existing dispute. The majority seems to follow this line of argument in order to conclude that there exists a dispute,Footnote 82 and rightly so. It is noteworthy that the Prosecutor has in her request mentioned that she considers that the Court has jurisdiction in this situation.Footnote 83 Though Myanmar has declined to engage with the Court by way of a formal reply,Footnote 84 it did say through a press release that the “Court has no jurisdiction on Myanmar whatsoever”.Footnote 85 Now here is a situation where one party (the OTP) is claiming that the court has jurisdiction, and the other party (Myanmar) is denying that. Hence, it is a “dispute” over a legal point, i.e. the “jurisdiction of the court”.
The dissenting opinion questions the legal value of the diplomatic press release and concludes that it cannot be taken into consideration for the determination of a dispute.Footnote 86 It concedes that there is a disagreement,Footnote 87 but not in the legal sense.Footnote 88 This observation merits attention because the East Timor definition considers dispute as a disagreement on “a point of law or fact, a conflict of legal views or interests between parties” [emphasis added].Footnote 89 So, there has to be a disagreement, and that disagreement should be on a legal or factual point. The Bangladesh/Myanmar situation, prima facie, seems to involve a legal point. However, the majority in its determination of dispute is conspicuously silent on this issue. The dissent, on the other hand, notes that Myanmar's refusal to co-operate with the Court does not make it a dispute in the legal sense.Footnote 90 In my opinion, the dispute is not about Myanmar's co-operation with the Court but about whether the Court can exercise jurisdiction over the alleged deportation of Rohingya people from Myanmar to Bangladesh.Footnote 91 The Prosecutor says yes, it can, but Myanmar says it cannot since Myanmar is not a Party to the Statute. As noted earlier, this amounts to a dispute on a legal point between a state and the OTP.Footnote 92
In one of its Advisory Opinions, the ICJ noted that whether there exists an international dispute is a matter for objective determination.Footnote 93 Thus, after the analysis of the available literature on the subject and also the decision of the Pre-Trial Chamber, the nature of paragraph one disputes can objectively be determined as “a disagreement on a point of law or fact, a conflict of legal views or interests involving either States, Organs of the Court or defendant”. Hence, considering the unique nature of the Court, what is required is a modification of the character of disputants in the East Timor definition of dispute. The matter might not be discussed at the confirmation of charges stage, but if any suspect is arrested and a trial commences, there might come a scenario where Article 119(1) will be called into question. The Court should be vigilant to take that opportunity to dispel the doubts surrounding paragraph one disputes.
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The decision of the Office of the Prosecutor (OTP or Prosecutor) to seek a ruling on jurisdiction under Article 19(3) of the Rome Statute (Statute) was unique.Footnote 1 While the discussions were going on about a probable referral by the United Nations Security Council [UNSC], the OTP made this unprecedentedFootnote 2 request.Footnote 3 This landmark documentFootnote 4 embodies the first OTP's request, where Article 19(3) has been invoked.Footnote 5 In her request, the Prosecutor asked the International Criminal Court (ICC or Court) to determine “whether [it] may exercise jurisdiction under Article 12(2)(a) over the alleged deportation of the Rohingya people from Myanmar to Bangladesh”.Footnote 6 While the state of Bangladesh is a Party to the Court, the state of Myanmar is not, and since the Rohingya issue involved both these states, the request was put up to determine the Court's jurisdiction in this matter. The request was made on 9 April 2018 and the Decision Footnote 7 was delivered on 6 September, 2018. The Court was divided in its opinion. Judge Péter Kovács and Judge Reine Adélaïde Sophie Alapini-Gansou gave the majority opinionFootnote 8 granting the Prosecutor's request, whereas Judge Marc Perrin de Brichambaut gave a partially dissenting opinion.Footnote 9 There are some inconsistencies between the Request and the Decision,Footnote 10 but I will not focus on those in their totality. Instead, my focus here will be on Article 119(1) of the Statute (paragraph one disputes) and how the Court self-invoked and misinterpreted it, thereby creating and losing a golden chance to explain one of the untouched provisions of the Statute.Footnote 11 The irony is that this Article was invoked by the Court proprio motu,Footnote 12 as it was nowhere mentioned in the OTP's request.
As noted earlier, in this paper, I seek to address the dispute surrounding paragraph one disputes. This Article demands attention because of its unique nature, which can be understood when read together with the second paragraph, which envisages a dispute of a different character. A lot has been written about the second paragraph, which takes care of interstate party disputes, much like the disputes before the International Court of Justice [ICJ]. Thus, the term “dispute” used there has been defined before, albeit not by the ICC. It is because of such interpretations and definitions that we understand the nature of disputes under Article 119(2). But paragraph one disputes have never been defined, hence the present attempt to address the gap.
In my endeavour to settle the dispute regarding the term “dispute” under Article 119(1), I will first discuss the components of the Article, i.e. the phrases “any dispute” and “judicial functions of the court”. Here, too, the focus will more be on the definition of the term “dispute” for the purposes of Article 119(1).
Article 119
Settlement of disputes
1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.
2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.
It must be observed that the term “dispute”, as used in both of the paragraphsFootnote 13 of Article 119, has different meanings. In fact, the term “dispute” used in the title of the Article is also not synonymous with the ones used in both of the paragraphs of the Article. I will elaborate on this subsequently.
The discussion on these terms will primarily be based on the commentaries on the Statute by Otto Triffterer and Kai Ambos,Footnote 14 William A. Schabas,Footnote 15 and Antonio Cassese, Paola Gaeta, and John Jones.Footnote 16 At the very outset, I must confess that all of these commentaries, with the minor exception of Triffterer and Ambos, give a discriminatory treatment to paragraph one disputes, so much so that Professor Schabas has not even discussed the term “dispute” in his commentary on Article 119.Footnote 17 Alain Pellet, while writing Article 119's commentary in Cassese, Gaeta, and Jones totally disregards any need to interpret the term “dispute” for paragraph one disputes. He writes that “[i]t is not very important to discuss the word ‘dispute’ for the purpose of paragraph 1 of Article 119”.Footnote 18
The minor exception mentioned above is to be found in the commentary by Triffterer and Ambos, but, even there, Roger S. Clark, who wrote the commentary on Article 119,Footnote 19 contributes very little towards our understanding of the term “dispute”. He uses the neutral terms “difference of opinion” or “disagreement”Footnote 20 for disputes, but this substitution is not exclusive for the paragraph one disputes, and, as I have mentioned earlier, any sweeping attempt to define the term “dispute” under the two paragraphs similarly is misleading as the two paragraphs relate to different types of disputes. Thus, all these commentaries fail to provide a conclusive meaning (or any meaning for that matter) of the term “dispute” for the purposes of Article 119(1), and this is where I intend to contribute through this paper.
In the latter half of the paper I will use the Rohingya situation to explain the paragraph one disputes. Through an analysis of the majority and dissenting opinion on the prosecutor's request, I will try to determine the contours of paragraph one disputes.
I. SETTLEMENT OF DISPUTES UNDER THE STATUTE
The provision for settlement of disputes under the Statute is provided under Part 13 with the title “Final Clauses”. Though the Statute was originally drafted by the International Law Commission [ILC], following its settled practice of not drafting the final clauses of any article, it decided not to draft Part 13 of the Statute too.Footnote 21 At paragraph 3 of Appendix I to the Draft Statute, it merely suggested a list of six issues that needed to be considered for this Part. The sixth issue was “settlement of disputes”.Footnote 22 The relevant part of the suggestion is that “[t]he court will, of course, have to determine its own jurisdiction … and will accordingly have to deal with any issues of interpretation and application of the statute which arise in the exercise of that jurisdiction”.Footnote 23 Accordingly, the matter was taken up at the Rome Conference.Footnote 24
Provision for settlement of disputes was provided under Draft Article 108, which contained four options to settle disputes.Footnote 25 These four options were:
A) Option 1
[Except as otherwise provided in the Statute] [,a] [A]ny dispute concerning the interpretation or application of this Statute shall be settled by the decision of the Court.
B) Option 2
Without prejudice to the competence of the Court concerning disputes relating to its judicial activities as is established in accordance with this Statute, any dispute between two or more States Parties relating to interpretation or application of this Statute which is not resolved through negotiations [within a reasonable time] [within … months] shall be referred to the Assembly of States Parties which shall make recommendations on further means of settlement of the dispute.
C) Option 3
Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.
D) Option 4
No article on dispute settlement.
As can be observed, the first three of these options proposed a mechanism to settle disputes, whereas the fourth one outrightly rejected any such article on dispute settlement. Further, the options differed on the “types of disputes” they were referring to and also on the “methods of settlement” of those disputes. Thus, though all these options had only one paragraph, because of their inherent differences, the final Article 119 has two paragraphs incorporating most of these options.
II. TYPES OF DISPUTES
The two paragraphs of Article 119 refer to two different types of disputes. While paragraph one refers to disputes regarding “judicial functions of the Court”, paragraph two refers to “interpretation or application of this Statute”. This classification has a history which can be explained through a discussion on the previously stated Draft Article 108. While the first two options of the Draft Article 108 talked about disputes concerning (or relating to) the “interpretation or application of this Statute”, the third one addressed disputes concerning the “judicial functions of the Court”.
A. Judicial Functions of the Court
During the negotiations on Draft Article 108, it was largely felt that the Court must have the competence to determine its own jurisdiction.Footnote 26 It “[wa]s important the independence of the court” [sic].Footnote 27 However, various views had to be considered. Thus, a compromise was reached whereby two paragraphs, instead of one, as proposed earlier, were included. This was intended to take care of the first three options. Option 3 of the Draft thus became paragraph 1 of Article 119 ad verbum.Footnote 28 This took care of the disputes regarding “judicial functions of the court”.
B. Interpretation or Application of this Statute
Option 1 and Option 2 dealt with disputes regarding “interpretation or application of this Statute”. However, there were certain differences between these two options. Option 1 referred to “any dispute concerning the interpretation or application of this Statute” [emphasis added]. But Option 2, though still talking about “interpretation or application of this Statute”, limited it to disputes “between two or more States Parties”. Option 2 was finally incorporated into the final text of the Statute, albeit with a few changes, such as a referral to the ICJ. This effectively ruled out a dispute between the OTP and the Presidency or the Assembly of State Parties [ASP].
III. METHODS OF SETTLEMENT OF DISPUTES
Though there was no coherence in the kind of disputes being addressed at the Rome Conference, it is noteworthy that all these options proposed only one method of dispute settlement.Footnote 29 However, this one method too had no common consensus. Option 1 proposed that a dispute shall be settled by the “decision of the Court”. Option 3 echoed a similar understanding. However, Option 2 proposed “negotiation” as a means for the settlement of a dispute. In the case of a failure of negotiation, it further provided the power to the ASP to “make recommendations on further means of settlement of the dispute”. Therefore, though all the Options referred to only one method of dispute settlement, they varied amongst each other on the method of dispute settlement. The end result, i.e. Article 119, is an amalgamationFootnote 30 of Options 1 and 2 with the addition of certain new elements. Thus, Article 119 provides for two distinct methods of dispute settlement in its two paragraphs. Paragraph one is guided by Options 1 and 3 and provides “decision of the Court” as a method of settlement of disputes. Paragraph two, on the other hand, gives the authority to the ASP to resolve the dispute in the case of failure of negotiations.
While Option 1 had envisaged that disputes should be settled by the “decision of the Court”, Option 2 gave the resolving authority to the ASP. Also, there were some states who wanted the ICJ to play a role in resolving such disputes.Footnote 31 However, it can be said that Option 2 had already made room for a referral to the ICJ as one of the “further means of settlement of the dispute” by the ASP.Footnote 32 Thus, the second paragraph of Article 119 was drafted after taking all these into consideration. Consequently, the ASP was also given the power to settle disputes, something which was not mentioned in any of the four Options.
Further, the implied referral to the ICJ was made explicit. Hence, while Option 2 had proposed that the ASP “shall make recommendations on further means of settlement of the dispute”, the final draft of Article 119 provides that the ASP “may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court” [emphasis added]. Thus, Article 119 is a compromiseFootnote 33 to heed the demands of the multiple participants present at the conference. It has created two methods of settlement of disputes, both dealing with two different types of disputes.
IV. PARAGRAPH ONE DISPUTES
After this brief detour of the drafting history and the current form of Article 119, I now return to the focal point of my argument. As noted earlier, paragraph one disputes have received discriminatory treatment by the commentators of the Statute. The enthusiasm has always been surrounding the second paragraph, probably because of its uniqueness.Footnote 34 However, my endeavour here is to analyze the nature of paragraph one disputes. At the very outset, it is imperative to understand how the nature of the disputes under the two paragraphs differs. The text of Article 119(1) mandates that “[a]ny dispute concerning the judicial functions of the Court shall be settled by the decision of the Court” [emphasis added]. This paragraph is reflective of Article 36(6) of the Statute of the ICJ and embodies the principle of competence de la competence.Footnote 35
Paragraph two, on the other hand, provides for settlement of “any other dispute”. It further classifies it as a dispute between two or more “States Parties”. Finally, the dispute shall be “relating to the interpretation or application of the Statute”.
While it is clear that only States Parties can be the disputants under paragraph two, the Article leaves one in limbo as to the identification of disputants (Who?) for paragraph one disputes. It also is conspicuously silent about the nature of any such dispute (What?). Thus, let us try to understand the whos and whats of paragraph one disputes.
A. Defining Dispute
Disputes can involve disagreement on points of law as well as facts.Footnote 36 In order to identify a dispute, it must be shown that the claim of one party is positively opposed by the other.Footnote 37 Under international law, any attempt to understand the word “dispute” oftenFootnote 38 leads us to the famous decision by the Permanent Court of International Justice [PCIJ] in the Mavrommatis Palestine Concessions case.Footnote 39 It defined a dispute as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”Footnote 40 [emphasis added]. However, that definition had two limitations, first in terms of the number of parties (two) to a disputeFootnote 41 and second in terms of the characterization of the disputants (persons). These limitations were later removed by the ICJ in the East Timor case.Footnote 42 Here, the ICJ recalled that “in the sense accepted in its jurisprudence and that of its predecessor, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties”Footnote 43[emphasis added]. Thus, by substituting the word “parties” in the place of “two persons” the ICJ took care of both shortcomings of the earlier definition.Footnote 44
It has been suggested that this definition of a dispute is “perhaps more apposite to the range of possibilities that are likely to arise in respect of the ICC”.Footnote 45 However, I beg to differ, and my disagreement is because of the word “parties”. Considering the fact that this was a judgment given by the ICJ, the term “parties” means “States”.Footnote 46 This is because only states may be parties before the ICJ.Footnote 47 However, in the case of paragraph one disputes, other than state, the disputants could be the Prosecutor, Defendant, an organ of the Court,Footnote 48 etc. Thus, this definition of dispute might be suitable for paragraph two disputes, but it cannot provide any meaning to paragraph one disputes.
V. THE DECISION (MAJORITY AND DISSENT)
The Chamber was divided in its ruling on the Prosecutor's request. As noted earlier, Judge Péter Kovács and Judge Reine Adélaïde Sophie Alapini-Gansou gave the majority opinion granting the Prosecutor's request, whereas Judge Marc Perrin de Brichambaut gave a partially dissenting opinion. In this part of the paper, I will briefly discuss the observations of the majority and the dissent, respectively.
The Bangladesh/Myanmar situation (Rohingya Issue) had the Chamber divided on the meaning of the term “dispute”. However, what is worth mentioning in the context of our present discussion on dispute is that nowhere in her request had the Prosecutor accepted that there exists a dispute in this situation. In fact, the term “dispute” had not been mentioned even once in her request.Footnote 49 One then wonders why the majority decided to discuss it? The Prosecutor's request was pursuant to Article 19(3) of the Statute. However, for reasons best known to the two judges in the majority, they first observed that there existed a dispute and hence concluded that the “chamber [was] empowered to rule on [the] question of jurisdiction set out in the Request in accordance with Article 119(1) of the Statute”.Footnote 50 And because of this determination, it concluded that it “doesn't see the need to enter a definite ruling on whether Article 19(3) [wa]s applicable at th[at] stage of the proceedings”.Footnote 51 But the majority's detour to Article 119(1) provides us with an opportunity to talk about paragraph one disputes vis-à-vis this Decision.
The majority, in just four sentences, determined that: (a) there was a dispute; (b) the dispute was regarding the Court's jurisdiction; and (c) the Court was empowered to rule on the request in accordance with Article 119(1). It noted in its decision that “based on the material available in the record, the jurisdiction of the court is clearly subject to dispute with Myanmar”.Footnote 52 This observation is followed by a reproduction of Article 119(1) after which the majority notes that this Article “has been interpreted as including questions related to Court's jurisdiction”.Footnote 53 Both the above sentences which I have quoted raise serious doubts about the use of this Article in the Decision.
The majority's determination of the dispute is “based on the material available in the record”, but it does not give any reference for these materials either in the body or in the footnotes of the Decision. Thus, we do not know what materials the majority was referring to. As mentioned earlier, the Prosecutor's request is silent about any dispute. Hence, it can be concluded that it must not have submitted any material to prove a dispute. Thus, the mentioned materials remain a mystery to us. Moreover, the majority mentioned the “materials available in the record” [emphasis added]. This further testifies to the point that no material was put on record by the Prosecutor.
The majority also does not seem to be worried about the determination of a dispute as the discussion on the same is limited to just a footnote,Footnote 54 albeit a comprehensive one. The majority too, as the authors discussed earlier,Footnote 55 referredFootnote 56 to the same definition of dispute as was given in the East Timor case.Footnote 57 I have already discussed the problems of using this definition of dispute.Footnote 58 Sadly, the majority did not provide any alternative and appropriate definition.Footnote 59 Also, it named only one of the disputants, i.e. Myanmar. But Myanmar is in dispute with whom: the Court, the OTP? The majority does not clarify this point either. The dissenting opinion notes that the majority has identified the Prosecutor as the other disputant,Footnote 60 which, in my opinion, is a false observation since it is not mentioned anywhere in the majority's decision.
However, the dissent notes another glaring mistake on the part of the majority. It highlights that the:
[m]ajority omits to address the question of who can validly present a “dispute concerning the judicial functions of the Court” to the latter. This is of pivotal concern when seeking to assess whether Article 119(1) of the Statute can be applied in the present instance.Footnote 61
The Decision is also ambiguous regarding the “dispute” and the “judicial functions of the Court”. The observation that there exists a dispute with Myanmar takes care of the first part of Article 119(1). As for the determination regarding which “judicial function of the Court” the dispute is about, the majority observes that it is about “the jurisdiction of the Court”.Footnote 62 This determination is based on “interpretations” of scholarsFootnote 63 and an ASP Resolution,Footnote 64 both of which are not convincing references.
The interpretations of scholars are not of a judicial nature, and considering the fact that this was the first time the Chamber was presented with a chance to throw some light on this part of the Statute, it should have been more persuasive in its approach. A reasoned decision was also obligatory because it was the Chamber's own choice to invoke Article 119(1).Footnote 65 The interpretation is basically that of Roger S. Clark, who, as one author points out, was a founding father of the Statute.Footnote 66 Clark himself writes in Otto that:
[m]y understanding, from participating in the drafting process, is that, at the least, anything that could be said to have some relationship, however tenuous, to prosecution of an individual or a group of individuals on the basis of a concrete complaint of a breach of the Statute, would be included in the notion of judicial functions.Footnote 67
Based on this understanding, he lists certain instances of judicial functions of the Court. However, as pointed out in the dissent, which was written by another founding fatherFootnote 68 of the Statute, Clark has made only “tentative suggestions”.Footnote 69
As for the “non-binding”Footnote 70 ASP resolution, the majority has cited a non-relevant part of a non-relevant resolution. The cited part reads “[r]eaffirms … article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court”.Footnote 71 The reference in the resolution is to highlight the independence of the judges of the Court. This reference does not seem to have a relation with the “judicial functions of the Court”.
The dissent, on the other hand, questions the very timing of the request, and Judge Marc Perrin de Brichambaut observes that it “comes at a highly unusual juncture before even a preliminary examination of a situation”.Footnote 72 He finds himself “not in a position to participate in any kind of ruling by the Chamber” and hence pens down his dissent which is “partial” since he does not go into the proper legal questions asked by the OTP, i.e. the jurisdiction of the court. He rather focuses on the nature of the request and how the majority dealt with it. He accordingly finds Article 19(3) “inapplicable to the present instance”; rules that the principle of la competence de la competence cannot be an alternative basis for exercising jurisdiction for the present request; and finds that ruling on the request would amount to giving an advisory opinion,Footnote 73 something which Court is “expressly prohibited” from doing. The dissent, however, never points out this “express” prohibition but notes that the Statute makes no provision for advisory opinions and that “[d]uring its negotiations, such a role was contemplated and rejected”.Footnote 74 If anything, this observation points towards an implied construction and not an express one.
Regarding Judge Brichambaut's observations on Article 119(1), it is significant that he did not find the majority's detour to Article 119(1) as alternative legal bases for the Chamber to entertain the Prosecutor's request persuasive.Footnote 75 The placement of Article 119(1) in Part 13, titled “Final Clauses”, is his cause of concern. The placement, according to him, means that the Article is “not directly related to issues of jurisdiction before this Court”.Footnote 76
He considers it necessary to interpret Article 119(1) according to Article 31 of the Vienna Convention on the Law of the Treaties.Footnote 77 Arguing accordingly for a contextual interpretation of Article 119(1), the dissent notes that “as the second paragraph of this article clearly addresses only ‘dispute[s] between two or more States Parties’, the same restriction would weigh in on article 119(1) disputes ‘concerning the judicial functions of the Court’”. However, this attempt to equate the two paragraphs is wrong, as I have highlighted earlier.Footnote 78
The dissent also discredits the use of the PCIJ's and ICJ's definition of “dispute” by noting that only states are disputants before these courts. It further contrasts the stage of proceeding of cases before those courts and the present one before the ICC. Nevertheless, it refers to the observations of those two courts and discusses the present “dispute” in that light. It holds that the present situation “doesn't correspond to the general definition of ‘dispute’”Footnote 79 provided by the PCIJ and ICJ. I have noted my disagreement with this observation in my ‘Conclusion’.Footnote 80
VI. CONCLUSION
Determining the dispute in the East Timor case, the ICJ observed that “Portugal has, rightly or wrongly, formulated complaints of fact and law against Australia which the latter has denied. By virtue of this denial, there is a legal dispute.”Footnote 81 Thus, for the ICJ, a mere denial would be a testament to an existing dispute. The majority seems to follow this line of argument in order to conclude that there exists a dispute,Footnote 82 and rightly so. It is noteworthy that the Prosecutor has in her request mentioned that she considers that the Court has jurisdiction in this situation.Footnote 83 Though Myanmar has declined to engage with the Court by way of a formal reply,Footnote 84 it did say through a press release that the “Court has no jurisdiction on Myanmar whatsoever”.Footnote 85 Now here is a situation where one party (the OTP) is claiming that the court has jurisdiction, and the other party (Myanmar) is denying that. Hence, it is a “dispute” over a legal point, i.e. the “jurisdiction of the court”.
The dissenting opinion questions the legal value of the diplomatic press release and concludes that it cannot be taken into consideration for the determination of a dispute.Footnote 86 It concedes that there is a disagreement,Footnote 87 but not in the legal sense.Footnote 88 This observation merits attention because the East Timor definition considers dispute as a disagreement on “a point of law or fact, a conflict of legal views or interests between parties” [emphasis added].Footnote 89 So, there has to be a disagreement, and that disagreement should be on a legal or factual point. The Bangladesh/Myanmar situation, prima facie, seems to involve a legal point. However, the majority in its determination of dispute is conspicuously silent on this issue. The dissent, on the other hand, notes that Myanmar's refusal to co-operate with the Court does not make it a dispute in the legal sense.Footnote 90 In my opinion, the dispute is not about Myanmar's co-operation with the Court but about whether the Court can exercise jurisdiction over the alleged deportation of Rohingya people from Myanmar to Bangladesh.Footnote 91 The Prosecutor says yes, it can, but Myanmar says it cannot since Myanmar is not a Party to the Statute. As noted earlier, this amounts to a dispute on a legal point between a state and the OTP.Footnote 92
In one of its Advisory Opinions, the ICJ noted that whether there exists an international dispute is a matter for objective determination.Footnote 93 Thus, after the analysis of the available literature on the subject and also the decision of the Pre-Trial Chamber, the nature of paragraph one disputes can objectively be determined as “a disagreement on a point of law or fact, a conflict of legal views or interests involving either States, Organs of the Court or defendant”. Hence, considering the unique nature of the Court, what is required is a modification of the character of disputants in the East Timor definition of dispute. The matter might not be discussed at the confirmation of charges stage, but if any suspect is arrested and a trial commences, there might come a scenario where Article 119(1) will be called into question. The Court should be vigilant to take that opportunity to dispel the doubts surrounding paragraph one disputes.