In September 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (hereinafter, the ICC or “the Court”) published a Policy Paper on Case Selection and Prioritisation (“the Policy Paper” or “the document”).
The document follows a long series of papers on policy and strategy of the ICC Prosecution. By delivering such documents, the OTP aims to clarify some aspects of its work. This effort of transparency has the purpose of dissipating allegations of bias and managing public expectations towards the Court. The document was awaited to respond to criticisms commonly raised by observers. First, the lack of objectivity in the selection of cases, often targeting only one side within a situation, as detailed below. Second, the lack of efficiency in terms of quantitative results, with five completed trials in the Court’s first 15 years of work.
This post will argue that, despite the efforts of transparency of the OTP, the Policy Paper does neither fulfill expectations concerning the bias critique, nor does it offer valuable solutions to the problem of efficiency.
Selectivity – on the impossibility to reach impartiality through objective criteria
The Policy Paper broadly reiterates the principles affirmed in the Rome Statute and confirmed by the practice of the Court: impartiality and objectivity, to avoid one-sided or biased case selection. Paragraph of the document 20 quotes:
“The Office will examine allegations against all groups or parties within a particular situation to assess whether persons belonging to those groups or parties bear criminal responsibility under the Statute. However, impartiality does not mean “equivalence of blame” within a situation. It means that the Office will apply the same processes, methods, criteria and thresholds for members of all groups to determine whether the crimes allegedly committed by them warrant investigation and prosecution.”
Although this principle is uncontroversial, the statement fails to address the issue of prosecutions and investigations targeting only one side within a situation, which appears to be an unfortunate pattern in the action of the Court. In cases where the Court’s jurisdiction was triggered through a self-referral (e.g. Uganda, the Democratic Republic of Congo, the Central African Republic, Ivory Coast and Mali), the OTP did not target any state official. To the contrary, it focused solely on the rebels, i.e. the non-state actors adversaries of the referring Government. Conversely, in the Darfur and Libya situations, referred by the UN Security Council, prosecutions disregarded crimes perpetrated against government officials. In Darfur, no charges were made for crimes committed against Sudanese troops; the only rebels who were indicted faced charges for attacking Peacekeepers. In Libya, prosecutions targeted only officials of the then Libyan Arab Jamahiriya.
From a legal point of view, the ICC Prosecutor has consistently proclaimed the duty to deal with all the groups and parties within a situation. This position has been clear since in the context of the first self-referral by the Government of Uganda in 2004. Under the principle of ‘‘symmetric interpretation’ of a referral enshrined in Rule 44(2) of the Rules of Procedure and Evidence, the Prosecutor clarified his mandate to impartially prosecute international crimes within the situation referred regardless of possible selectivity in the text of the referral. Yet, in practice, not only was the referral jointly announced in January 2004 by then Prosecutor Luis-Moreno Ocampo and Ugandan President Yoweri Museveni, but prosecutions have only targeted rebel leaders so far.
Beyond the Ugandan situation, it appears that the Court regularly joins the side of the subject referring the situation (i.e. the local Government or the Security Council; the Kenyan situation, triggered by the proprio motu initiative of the Prosecutor, makes exception). The reiteration of the OTP position on impartiality in the policy paper does not change the matter. Indeed, the bias issues of the ICC seem to have deeper institutional roots, which cannot be properly addressed by stating objective criteria in a policy paper.
Efficiency – Lowering Ambitions to Meet Expectations?
The lack of efficiency in the first 15 years of the Court’s work can be assessed from a mere quantitative point of view, given the scarce number of completed trials, but also from a qualitative perspective. The most ambitious prosecutions have targeted high-profile individuals identified as the most responsible for the crimes investigated. Joseph Kony, Omar al Bashir, Uhuru Kenyatta and Muammar Gaddafi are distinct examples of senior figures that the ICC indicted, but could not apprehend and prosecute.
The main obstacle lies in the failure of States to cooperate with the Court on the field, to implement the arrest warrants and the decisions of the ICC. The discretionary power of the Prosecutor, still, allows her to focus on cases with a reasonable prospect of conviction. In particular, the Policy Paper states that:
“The Office may also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious. The notion of the most responsible does not necessarily equate with the de jure hierarchical status of an individual within a structure, but will be assessed on a case-by-case basis depending on the evidence.”
This confirms a shift from the previous prosecutorial strategy, which implied to “investigate and prosecute those who bear the greatest responsibility” and was already mentioned in the Prosecutorial Strategy paper published in February 2010.
The purpose of the new strategy is clearly to privilege targeting individuals who are likely to appear on trial before the Court. This approach appears grounded from a legal point of view, as it does not contrast with the Rome Statute; and it seems desirable from a policy point of view, given the failures in the more ambitious prosecutions mentioned above.
However, this prosecutorial strategy has been the object of controversy within other international tribunals. At the ICTY, Prosecutor Goldstone decided to start prosecuting low-level perpetrators. His aim was both to respond to public pressure, which asked for prompt indictments, and to build stronger cases for future prosecutions against higher-level individuals. The ICTY Judges, nevertheless, explicitly objected to the strategy in a public statement and requested the Prosecutor to target high-level perpetrators. Judge Cassese defended the action as a means to safeguard respect for the ICTY Statute. The Prosecutorial strategy then shifted to focus on higher-level perpetrators.
At the ICC, the first trial seeming to implement the new strategy, against al Mahdi in the situation of Mali, has been criticised by scholars on various grounds. The strategy also reminds of the criticisms levelled against the low-level charges that the Prosecutor brought in the Lubanga case. Thomas Lubanga received the arrest warrant while he was detained, inter alia, for torture, and was convicted before the ICC to 14 years for the war crimes of enlisting and conscripting children.
The first independent permanent international criminal court has been surrounded by pressures and expectations since before its entry into force in 2002. The Court is often expected to achieve results beyond the scope of its mandate, for instance, when its action is invoked in the middle of an armed conflict, or to solve an international crisis. The efforts of the OTP to deliver information on its policy and strategy may indicate attention on outreach, to improve the public image of the Court.
The Policy Paper on Case Selection and Prioritisation appears as an attempt to justify the selectivity of cases through the introduction of an objective legal criteria. However, this does not respond to the problem of political interference with the Court, which still depends on the support of States and international organisations – and consequently on their political will – to fulfill its mandate. Basically, the new prosecutorial strategy appears to be aimed at collecting a major number of convictions in a shorter time, at the detriment of the relevance and of the quality of the prosecution. This could betray a further lack of independence, this time from the pressure of international public opinion.
 “the Statutes of the international tribunals do set out some general guidelines, if only implicitly, by suggesting that they must prosecute the most serious international crimes. However, such guidelines are rather loose. It falls to the prosecutor, who enjoys immense discretion and total independence, to decide upon his or her strategy and to set the priorities and the main targets of prosecutorial action. […] the Judges as a whole are the only body that can try to reorient prosecutorial action so as to keep it within the Statute’s explicit or implied objectives.” A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2(2) JICJ 585, at 587. A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2(2) JICJ 585, at 587.