The International Criminal Court in The Hague , Netherlands . Photo from Thinkstock.com
3.2 Key Players
In general, the Rome Statute establishes a system with three major divisions: the Office of the Prosecutor , the Judiciary, and the Registry , the latter of which carries out the administrative operations of the Court. In addition to these, other players include the Assembly of States Parties , a body composed of member states to ratify the budget and propose amendments to the Rome Statute ; the United Nations, particularly the Security Council ; the Government of the Netherlands , where the Court is housed and where defendants are detained pending trial; and non-member states, which affect the Court’s investigations and proceedings in various ways.
3.2.1 The Prosecutor
The most important actor at the International Criminal Court is the Prosecutor . Since 2012, this position is held by Fatou Bensouda of The Gambia , a small country in West Africa, and from 2002 to 2012 by Luis Moreno Ocampo of Argentina. Under the Rome Statute , the Prosecutor must be strictly independent. She may not act on instructions from any external source, and cannot be influenced by external sources in determining whether to accept, investigate, and prosecute a case. In addition, the Prosecutor is limited by the requirements of due process: she may not act arbitrarily or discriminatorily, and cannot abuse her power. The Prosecutor must apply the same methods, criteria, and legal thresholds to all groups in determining the level of criminality present in a situation (Guariglia 2009: 212). The role of the Prosecutor at the International Criminal Court is substantially more complex than that of the prosecutors at the ICTR and ICTY, because the ICC Prosecutor must choose the places in the world to focus investigative resources and defer to national courts when they were conducting credible investigations. By contrast, the ICTR and the ICTY were limited to their respective geographic contexts and had primacy over national courts. The political implications of case selection are a far greater obstacle for the ICC than for the predecessor ad hoc tribunals (Bosco 2014: 94). In general, the Prosecutor prioritizes the highest-level offenders, the ones with the greatest culpability and broadest potential for deterrence.
Under the Rome Statute , the Prosecutor is responsible for both the investigation and the prosecution, a broad and central role similar to that of a procurator in a civil law system. As a matter of necessity, the Prosecutor is highly selective in committing resources to investigating and prosecuting particular cases. Similar to her domestic counterparts, she develops a strategy for isolating a handful of individuals considered most responsible. Because the decision to prosecute must be selectively made, a prosecution is an intrinsically political act, with significant political consequences. These are exacerbated when the defendant is a very senior government or military official. Like her counterparts in domestic systems, the ICC Prosecutor is motivated by factors such as the sufficiency of evidence, reliability of witnesses, and seriousness of the offense, but, unlike in domestic systems, she must also be guided by the unique considerations of transitional justice, reconciliation, and peace building in the aftermath of armed conflict and mass atrocity (Ralston and Finnin 2008: 49–50). Unlike the more adversarial prosecutors of the ICTY and ICTR, who played roles akin to that of a common law prosecutor, the ICC Prosecutor is obliged to investigate both inculpatory and exculpatory evidence, and must consider incriminating and exonerating circumstances equally. Exonerating evidence is made available to defense counsel (Mundis 2003: 135).
For the supporters of the International Criminal Court at the Rome Conference, ensuring the independence and impartiality of the prosecutor was one of the greatest victories of the Like-Minded Group and the NGO Coalition. Although the United States , China , and Russia opposed the creation of an independent prosecutor over fears that the position would become politicized or rogue, global civil society advocates worried that a Security Council “veto” would add an overtly political element to the Court’s jurisdiction and could provide impunity to human rights abusers. The Singapore compromise allows the Security Council to delay a prosecutorial investigation for 12 months, subject to renewal (Glasius 2006: 52–56). The majority of states participating at the Rome Conference considered the Prosecutor ’s proprio motu power to initiate prosecutions on her own motion to be an indispensable feature. Subordinating case selection to a political actor, such as a group of states or the Security Council , could shield actors from prosecution and thereby discredit the Court. On the other hand, some states feared that an overzealous or politically-motivated Prosecutor could target highly-sensitive political situations; in this debate, the Israeli -Palestinianconflict figured prominently. The risk of a rogue Prosecutor , however, is mitigated by a compromise in which the Pre-Trial Chamber is required to review the Prosecutor ’s evidence for initiating an investigation on his or her own accord (Fernandez de Gurmendi 2001: 55–56). To this extent, the Prosecutor ’s powers are circumscribed. As in an inquisitorial criminal proceeding, characteristic of civil law countries, early judicial involvement in the investigation works as a check on an overzealous prosecution.
3.2.2 The Court President
The President is responsible for Court administration under the Rome Statute . The President and First and Second Vice Presidents are elected by and from among the judges on the Court. Philippe Kirsch of Canada was elected the first President of the Court in 2003 for two terms; he had previously presided over the Rome Conference and the subsequent follow-up sessions. In 2009, Song Sang-Hyun of South Korea , a judge on the Court since its inception, replaced Kirsch as Court President. The President is largely responsible for managing the Court’s external relations, including cooperation from governments, promoting public awareness of the Court’s operations, and overseeing the administrative operations of the Registry and the Judicial Division.
3.2.3 The Judges
The Judicial Division comprises eighteen judges organized into Pre-Trial , Trial, and Appeals Chambers. The Pre-Trial Chamber has authority to issue a warrant for the accused if there are reasonable grounds for the charge. The Pre-Trial Chamber also holds a preliminary hearing to confirm charges once an accused person appears before the Court. After the Pre-Trial Chamber confirms the charges, each case is assigned to a Trial Chamber of three judges, which is able to convict and pass sentence. After both the Pre-Trial and Trial phases, either the accused or the Prosecutor may appeal a decision or sentence (Falligant 2010: 733–734). Like the Prosecutor , judges are elected by a majority vote of the Assembly of States Parties . Judges are to be representative of the principal legal systems of the world and reflect equitable geographic diversity; they are also to be chosen from two lists, one composed of those with experience in criminal law and another of those experienced in international law. The election process is cumbersome. The voting threshold for judges is high: to be elected, a candidate has to secure the support of two-thirds of all members of the Assembly, with each state casting one vote. All members may nominate judges, and no country could have more than one national on the bench (Bosco 2014: 54–55, 82–83). A judge is elected to a nine year term, and is paid according to whether he or she is full-time or effectively part-time and whether he or she takes up residence in The Hague (Mundis 2003: 143).
The representation of women on the Court is another important aspect of the Court’s structure. Article 36 of the Rome Statute requires that there be “fair representation of female and male judges,” which is the first time that the statute of any international court established such a requirement. In addition, the appointment of women to legal support and assistant roles may help create a pool of future candidates for judicial or prosecutorial office. The appointment of more female judges may reinforce the Court’s focus on systemic gender-based violence, including rape, as a war crime or crime against humanity as authorized by the Rome Statute . Not only does the Rome Statute require fair representation of women on the bench, but provides that judges with legal expertise on violence against women and children ought to be appointed, at Article 36. The ascent of women as international prosecutors and judges has helped reprioritize sexual violence as a serious crime, contrary to the experience of Nuremberg and Tokyo, which had no women judges and where no defendants were prosecuted for rape or sexual assault crimes (Wald 2011: 403–405; Grossman 2011: 649). By way of illustration, the first case heard by the Rwanda tribunal was the prosecution of Jean-Paul Akayesu , who had been charged with genocide and crimes against humanity . Although Akayesu was not originally charged with mass rape, delicate inquiry of two female witnesses by South African Judge Navanethem Pillay , the only woman on the Rwanda tribunal, uncovered testimony of gross sexual violence. Akayesu’s indictment was amended, and the case became the first recognizing systemic rape as a crime against humanity. The Akayesu case shows that ensuring representation of women on international courts could serve the ends of justice (Booth 2003: 168–172). On the other hand, assigning women to work on gender issues specifically may “ghettoize” women in the international legal profession and could lead to their isolation from the main channels of power. Sexual and gender-based violence is not simply the concern of women, but of judges and lawyers across the profession (Sadat 2011: 660).
3.2.4 The Registrar
In addition to the Court’s “legal” side, the institution also possesses a significant administrative side. The Registry is responsible for the non-judicial aspects of Court administration: ensuring the security of victims and witnesses, admitting defense counsel to practice before the Court, conducting public information and outreach, and providing services to victims who participate in Court proceedings. Since 2003, the Court has had three Registrars serving single five-year terms: French judge Bruno Cathala (2003–2008), Italian prosecutor Silvana Arbia (2008–2013), and the Dutch jurist Herman von Hebel (since 2013), previously the deputy registrar of the Special Court for Sierra Leone . Like the President of the Court , the Registrar and Deputy Registrar are elected by the Court judges. The Registrar of the Court, along with the Prosecutor and the President, serves as one of the three major power centers of the Court, but the role is considerably less diplomatic and more technical (Bosco 2014: 93). According to Article 43 of the Rome Statute , the Registrar is also responsible for the Victims and Witnesses Unit , which provides protective measures and security arrangements as well as counseling, with specific expertise in trauma related to crimes of sexual violence.
The Registry is also responsible for safekeeping evidence. The Court requires fully functioning and reliable technological infrastructure, as it is based on the model of an “electronic court ,” enabling it to handle tens of thousands of documents and exhibits that will be submitted in electronic form. To the extent possible, evidence will be presented in electronic form, including testimony by witnesses through video link and prior recording (Kaul 2005: 371–372). In the early years of the ICC, the majority of its documentary evidence was collected in hard copy, just as at the Yugoslavia and Rwanda tribunals, at which point it was scanned and assigned a sequential number. The digital copy was disclosed to the defense and presented to the court electronically. Currently, two of the Court’s three courtrooms are fully electronic. Although the ICC has come to embrace new technological tools such as videoconferencing, broadcast technology, electronically-stored information, internal private messaging among the parties and support staff, and electronic search functions, the Court faces unique challenges due to the large scale of its cases. One of these is the existence of “big data”—that is, data sets that are so large that they are difficult to process by traditional means. Although the Nuremberg tribunal was able to organize and present evidence very quickly using only traditional record-keeping, wrapping up trials within one year’s time, the ICC faces new and pressing electronic challenges that may be prohibitively costly, such as forensic recovery of destroyed electronic data (Dillon and Beresford 2014: 1–7).
3.2.5 The Assembly of States Parties
All countries that ratify the Rome Statute secure a seat in the Assembly of States Parties , which provides broad oversight of the Court’s budget and operations. The Statute does not allow the Assembly to direct investigations or curb the power of the Prosecutor or the judges. All states parties have an equal vote (Bosco 2014: 54). On matters of substance, decisions of the Assembly must be approved by a two-thirds majority, while on procedural matters a simple majority will suffice. The Assembly may also approve amendments to the Rome Statute by a two-thirds majority of states parties, though consensus is preferred. A substantive amendment also requires ratification by seven-eighths of states parties to enter into force, and a state that has refused to ratify an amendment to the definitions of one of the four core crimes opts out of the Court’s jurisdiction for that crime once that amendment enters into force. At its first meeting in 2002, the Assembly passed a cooperation agreement with the United Nations, an agreement protecting the privileges and immunities of Court personnel, financial regulations for the Court, and rules for the nomination and election of the Prosecutor and judges. The agreement on privileges and immunities ensures that Court personnel are not arrested, searched, or detained while engaging in an investigation, and that their documents and personal effects are not seized (Mundis 2003: 132–139). The Assembly of States Parties elects its own president, the first of whom was Prince Zeid of Jordan (one of the few Arab states parties), who later chaired the working group on the crime of aggression and was elected UN High Commissioner for Human Rights in August 2014.