The case of the day is In re Rainsy (N.D. Cal. 2017). Sam Rainsy, a Cambodian politician, and several other Cambodians had “alleg[ed] human rights violations before the International Criminal Court.” They brought an application for leave to take discovery from Chevron Corp. relating to the 2016 assassination of Cambodian government critic Kem Ley. They sought the discovery not just for use in the ICC proceeding but also in connection with a libel claim Cambodia’s prime minister brought against Rainsy after Rainsy accused the government of involvement in the assassination.

The judge granted the motion. Nothing too interesting in the opinion. But what I find quite interesting is the nature of the ICC case. The Rome Statute allows people to provide information to the Prosecutor, but of course the decision whether to ask for authorization to initiate an investigation is for the Prosecutor, not for interested members of the public. So is there a basis to say that Rainsy and the other applicants are “interested persons,” as § 1782 requires? Or is there a basis to say that a proceeding is within “reasonable contemplation,” which is the bar the Court set in Intel?

It’s useful to compare the situation in Intel itself with the situation here. Intel involved an antitrust complaint that a competitor made to the Directorate-General for Competition of the Commission of the European Communities alleging antitrust violations by Intel. The key point, which the Court emphasized in Intel, is the complainant’s right to seek judicial review of a decision not to pursue a complaint. Now, I disclaim any expertise about ICC procedure, and I would invite someone who knows this area to chime in if I’m wrong. But when I look at the Rome Statute it does not appear to me that there is a means for a complainant to appeal from the Prosecutor’s refusal to present a case to the Pre-Trial Chamber to seek authority to proceed.

If I have that right, then it seems to me that complainants such as Rainsy should not be deemed “interested persons” for purposes of § 1782. Anyone can bring a matter to the ICC Prosecutor’s attention, but it’s not clear to me what, if anything, you can say about the likelihood of a proceeding following from information provided to the Prosecutor.

The court did not address these concerns in its ex parte decision, perhaps because the existence of the libel claim makes the point somewhat moot.