The Politics of Prosecution: The Role of the Prosecutor of the International Criminal Court

The Politics of Prosecution

The Role of the Prosecutor of the International Criminal Court¹

Philip Stenning

Introduction

The year 2012 was a significant year in the short history of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC): it marked the end of the nine-year incumbency of the first holder of this office (Evenson et al. 2011) and the assumption of office of his successor;² and it was the year in which the Court concluded its first two complete trials, one ending with a conviction,³ the other with an acquittal.⁴ On both counts, therefore, 2012 provides an opportune moment to review how the role of the Prosecutor of the ICC has evolved so far.⁵

In the debates which preceded the adoption of the Rome Statute establishing the ICC,⁶ concerns were expressed about the role of the prosecutor of the proposed new court, and in particular whether the prosecutor would have sufficient political independence to secure legitimacy and the confidence of the international community.⁷ These concerns have not gone away during the nine-year tenure (2003–2012) of the first incumbent. In fact, much of the experience with the office during those years has contributed to, rather than allayed, them. In this chapter, the issues and challenges that have arisen as a result of that experience are reviewed, and the extent to which these may be rooted in the structural location and features of the office itself, rather than being specific to any particular incumbent, is considered.

Drawing on Two Legal Traditions

In common law jurisdictions prosecutors are typically administratively located within the executive arm of government and are subject to the governance of a senior member of the executive (traditionally, the long-established office of Attorney General). Concerns to reduce opportunities for unwanted partisan political direction of prosecutors have led to different responses in different jurisdictions.⁸ In continental civil law jurisdictions, the status, structural location, and accountability of prosecutors has traditionally been associated with the judicial rather than the executive branch of government, and it is through this association with the judiciary (or magistracy) that their “independence” from partisan political direction is sought to be ensured (see, e.g., Delmas-Marty and Spencer 2002; Hodgson 2005; Hodgson 2010; Di Federico 1998).

In civil law jurisdictions prosecutors typically have investigative as well as prosecutorial responsibilities,⁹ whereas in most (but not all) common law jurisdictions responsibility for criminal investigations lies exclusively with police rather than prosecutors, and in some police enjoy considerable “independence” from direction or influence of prosecutors in undertaking their investigative and charging responsibilities.¹⁰ Prosecutors in common law jurisdictions enjoy a high level of discretion (involving consideration of “the public interest” as a basis for decision-making), while prosecutorial decision-making in civil law jurisdictions has, in theory at least, been subject to a “principle of legality” which, if adhered to faithfully,¹¹ greatly reduces the scope for the legitimate exercise of discretion. Along with the prosecutor’s alignment with the judiciary, this principle of legality has been considered an important safeguard against unwanted partisan political influence over prosecutorial decision-making.¹²

In creating the office of the prosecutor of the new International Criminal Court, the framers of the Rome Statute faced the challenge of finding an acceptable compromise between these different prosecutorial traditions. While there were some precedents to draw on,¹³ for a variety of reasons these were not very readily applicable to the role in the permanent ICC.¹⁴

The Rome Statute: The Legal Framework for the OTP

For at least two understandable reasons, the model for the OTP which emerged in the provisions of the Statute of Rome was much more similar to the civil law than the common law prosecutorial model. In the first place, since there is no international equivalent of a democratically elected domestic national government, replicating the common law model at the ICC would have been practically impossible.¹⁵ Despite this, the UN Security Council has been given a significant role to play with respect to prosecutorial decision-making at the ICC, as discussed below. Secondly, the fact that the prosecutor at the ICC has no international police service to draw on means that the OTP inevitably requires its own investigative as well as prosecutorial responsibilities and powers.

As a result, the OTP is a discrete element of the ICC itself, which is required by Article 42 of the Statute to “act independently as a separate organ of the Court.” Its structural location within the ICC is illustrated in Figure 4.1.

As one commentator has put it, “The ICC Prosecutor sits at a critical juncture of the Court, where the pressures of law and politics converge” (Danner 2003: 510). The Statute provides (art. 15) that the Prosecutor may initiate investigations proprio motu on the basis of information received—an important power expected to enhance the perception of the OTP as an “independent” office (Nanda 1998: 426). Nevertheless, the inclusion of this power was the subject of considerable controversy which the first appointee alluded to in his acceptance address.¹⁶

The OTP’s role, however, is constrained in the following ways that the role of a domestic prosecutor, especially in common law systems, is typically not:

1. The Court itself (and hence its prosecutor) has jurisdiction over a very limited range of international criminal offences (war crimes, crimes against humanity, genocide, and crimes of aggression), as defined by Articles 5 through 8 of the Statute, and only those committed after the court was actually established in 2002. Even in these cases, the preamble to the Statute indicates that the Court’s jurisdiction is dependent on the “gravity” of the offence (it only has jurisdiction with respect to the “most serious crimes of concern to the international community”), and the Court is required to rule a case “inadmissible” if it considers that the case does not meet this gravity test (art. 17). Article 17 also requires the Court to rule a case inadmissible on principles of double jeopardy where a suspect has already been “genuinely” investigated and/or prosecuted with respect to the offence under a State jurisdiction (see also art. 20). The Court only has jurisdiction over persons who were eighteen years or older at the time of the alleged offence (art.26).
   
2. The Court only has jurisdiction over offences if (a) the State(s) in which the offences are alleged to have occurred, or the State(s) of which the alleged perpetrator(s) is/are nationals, are either Parties to the Statute or have accepted the Court’s jurisdiction (art. 12), or (b) the situation has been referred to the Prosecutor by the UN Security Council (art.13).
   
3. The Court only has jurisdiction if the relevant state(s) have shown themselves unwilling or unable to bring the offenders to justice in their own domestic courts (art. 17)—the so-called “complementarity principle.”
   
4. The Prosecutor can only undertake a formal investigation proprio motu with the approval of the Court’s Pre-Trial Chamber (art. 15).
   
5. If the prosecutor, after a preliminary examination of the available information, decides that a situation that has been referred to him/her does not warrant a formal investigation solely because an investigation “would not serve the interests of justice,”¹⁷ the Court’s Pre-Trial Chamber must be notified of this decision (Art. 53 (1)).¹⁸ The Pre-Trial Chamber, as well as a State Party or the Security Council that has referred a situation to the Prosecutor, must be notified of any decision not to pursue a prosecution following an investigation, for whatever reason, and of the Prosecutor’s reasons for this decision (art. 53(2)). At the request of a State Party or the Security Council (as the case may be) that has referred a situation to the Prosecutor for investigation, the Pre-Trial Chamber may review any decision by the Prosecutor not to investigate or pursue a prosecution, and ask the Prosecutor to reconsider it (art. 53(3)(a)). If the Prosecutor’s decision not to investigate or prosecute is based on a conclusion that an investigation or prosecution would not be “in the interests of justice,”¹⁹ the Pre-Trial Chamber may itself initiate such a review, and the Prosecutor’s decision “shall be effective only if confirmed by the Pre-Trial Chamber” (art. 53(3)(b)).
   
6. A case may be suspended (initially for one year, but the suspension may be indefinitely renewed) by a resolution of the UN Security Council if the Security Council determines that this is required in the interests of “international peace and security” (art. 16 of the Statute and chap. VII of the UN Charter). In addition, the Security Council can exert pressure on the Prosecutor to investigate a case by exercising its authority to refer a situation to the Court under Article 13 of the Statute. Apart from being a legal constraint, the exercise of these powers of the Security Council involves the highest levels of international politicking. Domestic political authorities rarely have such unfettered legal authority to influence prosecutorial decision-making as these provisions provide to the Security Council.²⁰
   
7. All proposed charges and requests for arrest warrants or summonses that the Prosecutor makes are subject to confirmation by the Court’s Pre-Trial Chamber (arts. 58 and 61).
   
8. When all these potential obstacles have been addressed, the fact that the OTP does not have a police service at its disposal,²¹ means that it faces all kinds of political and practical challenges in actually investigating situations and getting offenders before the Court. These are the subject of further discussion below.

The combined effect of all these constraints on the OTP’s jurisdiction is to significantly circumscribe the Prosecutor’s practical independence with respect to investigatory and prosecutorial decision-making, and inevitably requires the Prosecutor to engage in sensitive and difficult political negotiations in many cases, just to get his or her decisions successfully implemented. In doing so, the OTP must rely on cooperation and support from the Court itself, from the UN, from state governments, from local and international law enforcement agencies, from NGO’s, and even from rebel or insurgent groups, all of which have the potential to compromise his or her political independence to a greater or lesser extent. So in light of these substantial constraints and obstacles, the idea that the kind of political independence that domestic prosecutors enjoy in many countries can easily be replicated at the ICC, is quite unrealistic.²² This has indeed turned out to be the case so far.

The Development of Standards and Policies: The Journey Towards the Regulations of the Office of Prosecutor (2009) and OTP “Prosecutorial Strategy” and Policy Documents

The first prosecutor of the ICC, Luis Moreno Ocampo, an Argentinian national, was elected (by the States Parties to the Statute) in mid-2003, a year after the Statute entered into force. Moreno Ocampo had had considerable experience prosecuting military personnel who were accused of offences of murder, kidnapping, and torture, and other human rights violations during Argentina’s “dirty war.” His election as the first Prosecutor of the ICC, however, was his first experience as a prosecutor of an international criminal tribunal.²³

Well before the ICC or its Office of the Prosecutor came into being, however, efforts had been made to develop international standards for prosecutors. It has been suggested by some commentators (e.g., Danner 2003: 541–550) that the independence as well as the effective accountability of prosecutors can be enhanced through the promulgation and publication of prosecutorial guidelines which provide some insight into how discretionary prosecutorial decisions will be made (including what considerations will and will not be taken into account, and what weight will be given to these in making decisions). Indeed, many domestic jurisdictions, in both common law and civil law countries, have adopted this approach (Danner 2003: 541).

Beginning in the 1990s a number of documents had been promulgated which set out proposed international guidelines and standards of conduct for, first, domestic, and later international, prosecutors, and which in particular began to articulate necessary requirements for prosecutorial “independence.”²⁴ The statute establishing the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993,²⁵ included the provision (in Article 16) that: “2. The Prosecutor shall act independently as a separate organ of the International Tribunal. He or she shall not seek or receive instructions from any Government or from any other source.” This represented the first formal recognition of the independence of an international prosecutor.²⁶ In 1999, the Prosecutor for the ICTY and the ICTR issued Prosecutor’s Regulation No. 2 (1999) for these two tribunals, ²⁷ entitled “Standards of Professional Conduct for Prosecution Counsel” (ICTR 1999).²⁸ This Regulation referred specifically to the International Association of Prosecutors Standards (see IAP 1999), and provided specifically that prosecutors for the two tribunals were expected

By the time the Office of the Prosecutor of the ICC was established in 2003, therefore, there had already been considerable discussion as to what compliance with the Rome Statute’s requirement that the Office “act independently as a separate organ of the Court” (art. 42) might require. Almost immediately upon his appointment, the new Prosecutor drafted a policy paper on the role of his Office, which was discussed at a public hearing at The Hague in June 2003.²⁹ Following this hearing, a revised version of the policy paper was issued (see ICCOTP 2003b),³⁰ in which it was stated that “The Office of the Prosecutor considers that Regulations are essential to ensure its independence and accountability.” Beyond this bold statement, however, the policy paper had nothing further to say about what the OTP’s “independence” might entail or require.³¹ The paper did recognise, however, that:

In addition to the policy paper, a document entitled “Draft Regulations of the Office of the Prosecutor” was also discussed at the public hearings in 2003. This document included the following:

It was not until 2009, however, that the Regulations of the Office of the Prosecutor were formally adopted and published (ICC 2009).³² These Regulations cover a wide range of matters. Regulation 13 is the only one that relates to “Independence of the Office of the Prosecutor,” and simply states that:

It has not been made clear why the more detailed “standards of independence” that were included in the Draft Regulations were not included in the 2009 Regulations. But this does raise a question as to whether, in the light of the experiences of the OTP during the six years between its establishment in 2003 and the promulgation of the Regulations in 2009, they may have been determined to be unrealistic and unachievable.³³

In addition to the development of the Regulations, the OTP has issued two “Prosecutorial Strategy” documents, in which it outlined its priorities for the next three years. The first of these, the OTP’s “Report on Prosecutorial Strategy,” issued in 2006, set out five priority objectives for the coming three years, which were explained in some detail:

    (a)  The first objective is to further improve the quality of the prosecution, aiming to complete two expeditious trials.

    (b)  The second objective is to conduct four to six new investigations of those who bear the greatest responsibility in the Office’s current or new situations.

Finally, the OTP has issued a number of policy papers on specific aspects of its mandate. These have included papers on “The Interests of Justice” (ICCOTP 2007), “Victims’ Participation” (ICCOTP 2010b), and draft papers on “Criteria for Selection of Situations and Cases”³⁴ and “Preliminary Examinations” (ICCOTP 2010c). These are discussed further below.

Over its first nine years, therefore, the OTP has developed a considerable policy and strategy framework to guide the way it handles its work. In the next section, its experience in handling particular situations and cases during this period is reviewed.

Experience so Far

Selecting “Situations” and Suspects for Investigation

Like all prosecutorial institutions, the OTP does not, of course, have unlimited resources with which to perform its functions; the ICC’s first budget allocated only just under €4m to the OTP (Danner 2003, 520).³⁵ So by force of this financial constraint alone, the Prosecutor had, of necessity, to be highly selective with respect to which of the potentially admissible cases that came to his attention would be investigated or prosecuted, what charges to proceed with, and against whom, and so on. As Danner (2003) has pointed out, the Statute itself provides almost no guidance (apart from the rather unhelpfully vague injunction that only the “most serious crimes of concern to the international community” should be brought to the Court)³⁶ as to how these choices should be made. As a result, Moreno Ocampo had to make the guidelines for such decision-making up as he went along, on a case-by-case basis, albeit with the help of a considerable amount of advice from interested parties.

As noted earlier, there are three ways in which a “case” may be formally initiated: (a) a case or situation may be referred to the Prosecutor by a State Party; (b) a case or situation may be referred to the Prosecutor by the UN Security Council; or (c) the Prosecutor may initiate an investigation proprio motu (most commonly as a result of a request or communication by some person or body other than a State Party or the Security Council).

On receipt (from whatever source) of information about a situation, the Prosecutor makes informal inquiries (referred to as “preliminary examinations”; art. 15) about a situation or allegation in order to determine whether a formal investigation would be justified.³⁷ In order to justify a formal investigation, a situation must satisfy three criteria; it must fall within the jurisdiction of the Court, it must satisfy the two “admissibility” criteria of “gravity” and the “complementarity” principle, and it must not be ruled out on the grounds that “an investigation would not serve the interests of justice” (art. 53(1)).

Between 2002 and the end of 2011, the OTP received 9,332 “communications” from various sources relating to Article 15 of the Statute (i.e., not referrals by States Parties or the Security Council) about situations with respect to which decisions had to be made as to whether to undertake preliminary examinations and subsequent formal investigations (ICCOTP 2011: 5). The fact that the OTP had reported that in the first three years of its activities (2003–2006) it had received 1,918 such communications, suggests that the flow of such communications has not decreased with experience. Of these 1,918, the OTP wrote that:

    6)  In addition, through to the end of June 2006, the Office received 1918 communications from individuals or groups in at least 107 different countries. 63% of the communications originated in just three countries: Germany, USA and France. The communications include reports on alleged crimes in 153 countries in all regions of the world.

    7)  All communications are subjected to an initial review to determine whether they provide a possible basis for further action. During the initial review of the communications received, approximately 80% of communications were found to be manifestly outside the jurisdiction of the Court.

    8)  Of the approximately 20% of communications warranting further analysis, 10 situations have been subjected to intensive analysis. Of these, three proceeded to investigation (the DRC, Northern Uganda, and Darfur), two were dismissed (Venezuela and Iraq), and five analyses are on-going. (ICCOTP 2006a: 9)³⁸

At the time of writing, the Prosecutor had indicated that his Office was currently conducting preliminary examinations into situations in seven countries,³⁹ one of which (Korea) is not a State Party to the Statute. As noted in the preceding quote, he expressly declined requests (other than referrals by States Parties or the Security Council) to initiate formal proprio motu investigations of allegations communicated to him with respect to situations in at least two other countries (Venezuela and Iraq), on grounds that the evidence submitted did not satisfy the requirements for such investigations.

Although the Prosecutor recently insisted that he acts independently with respect to decisions at this stage of the process,⁴⁰ one might expect that in reality a referral by a State Party or a referral by the Security Council would, for obvious reasons, be more difficult to decline, thus reducing somewhat the practical independence that the inclusion of the proprio motu authority was intended to foster.⁴¹ The data on formal investigations which follow seem broadly consistent with this interpretation.

So far, a total of seven formal investigations have been commenced by the Prosecutor following these preliminary investigations. Three of these—the investigation of the Lord’s Resistance Army in Uganda,⁴² and the investigations into the activities of militias in the Democratic Republic of the Congo (DRC)⁴³ and the Central African Republic⁴⁴—were initiated by referrals by States Parties. Two investigations—the investigation into the situation in Darfur (Sudan)⁴⁵ and the investigation into alleged international crimes in Libya⁴⁶—were referred to the Prosecutor by resolutions of the UN Security Council. The other two investigations—into alleged crimes in Kenya⁴⁷ and Côte d’Ivoire⁴⁸—were initiated by the Prosecutor himself under his proprio motu power.⁴⁹

These seven investigations have led to arrest warrants being issued against twenty-four people, of whom five are in custody, seventeen are still at large, and two died before they could be arrested. These twenty-four arrest warrants related to fifteen separate cases; all of which involve charges of crimes against humanity, ten of which involve charges of war crimes, and one involves charges of genocide. The Pre-Trial Chamber declined to confirm charges presented by the Prosecutor against four other people in three cases (in the DRC, Dafur, and Kenya). Trials have begun in four of the remaining fourteen cases,⁵⁰ one of which recently concluded with the Court’s first conviction,⁵¹ another with its first acquittal.⁵² The other two trials are still ongoing.

In addition to the need for selectivity with respect to investigations into situations, the OTP necessarily has to be selective in determining which persons to prosecute. Obviously, in almost all situations that the OTP investigates there are large numbers of people who may have participated in international crimes that fall within the Court’s jurisdiction, and not all of these can possibly be prosecuted before the Court. The OTP therefore, early on, adopted a policy of confining prosecutions to those who it considers “bear the greatest responsibility” for the crimes that it has investigated.⁵³ In its 2003 Policy Paper, the OTP wrote:

The Policy Paper recognised that this policy risks leaving an “impunity gap” if lower level perpetrators escape prosecution and are not held accountable for their crimes. Consequently it emphasised the importance of encouragement being given to states to incorporate the international crimes over which the Court has jurisdiction within their domestic laws, as well as the support and assistance being offered to them to strengthen or rebuild their national criminal justice institutions so that they can effectively investigate and prosecute such offenders.

Of course, all international criminal tribunals had to face up to this issue in some way that would not undermine their legitimacy in the eyes of victims and of the public more generally. But as an official of the UN Special Court for Sierra Leone stated very recently, after the conviction of the former President of Liberia in that court:

Because of its much wider jurisdiction, this poses an even greater challenge for the ICC Prosecutor.⁵⁵

Negotiating the Application of the Complementarity Principle