The ‘reasonable basis to proceed’ threshold in the Kenya and Côte d’Ivoire Proprio Motu investigation decisions : the International Criminal Court’s lowest evidentiary standard?

Prior to the ICC Pre-Trial Chamber II's decision authorizing a proprio motu investigation with respect to the situation in Kenya, the jurisprudence of the ICC indicated that there existed three broad evidentiary thresholds pursuant to the Rome Statute: 'reasonable grounds to believe' for the issuing of warrants of arrest or summonses to appear, 'substantial grounds to believe' for the confirmation of charges, and 'beyond reasonable doubt' for a finding of guilt. However, the aforementioned decision held that there existed another: 'reasonable basis to proceed' for the authorizing of a proprio motu investigation. It further held that this was the lowest evidentiary threshold provided for in the Rome Statute-lower than that for the issuing of a summons to appear or an arrest warrant. This remained unquestioned in Pre-Trial Chamber III's subsequent Côte d'Ivoire investigation authorization decision. This result was based primarily on the fact that, at the preliminary examination phase, the Prosecutor cannot engage his/her full investigative powers. This article questions that conclusion on the basis that the standard offered by Pre-Trial Chamber II is, in substance, practically indistinguishable from that governing the issuing of an arrest warrant or a summons to appear and that the former Prosecutor was able to satisfy it without engaging his full preliminary examination powers. It argues that, instead, the standard should be the same for both. However, a distinction is maintained not because one standard is inherently lower than the other, but because of the different contexts in which they are applied. The critical element is evidence that 'pins' the crime(s) to an individual(s). Such evidence is not required when requesting authorization to commence a proprio motu investigation, but it is crucial when seeking an arrest warrant or a summons to appear. Thus, applying the same evidentiary standard in both circumstances results in different evidentiary material depending on the absence or inclusion of this element. It is submitted that the Prosecutor's full investigative powers are reserved to obtain exactly the more specific and narrow evidence that can justify the deprivation of a person's liberty or to summon him or her to The Hague.