Impartial ICC prosecutions
While the Coalition remains neutral on International Criminal Court (ICC) situations and cases, global civil society calls for impartial ICC prosecutions of all perpetrators of grave crimes, on all sides to conflicts, in every part of the world.
The ICC is often unjustly accused of being politically or geographically biased in its selection of situations to investigate and cases to prosecute.
There is no doubt, international justice is applied unevenly around the world. But lopsided justice is in fact mainly due to the failure of states to accept ICC jurisdiction, to refer situations to the Court, and to undertake national prosecutions of grave crimes in the first place.
A lack of state cooperation also hampers many ICC investigations and prosecutions. Civil society has consistently called on states to cooperate with the ICC to ensure justice is applied to state and non-state actors alike.
Budgetary and resource constraints imposed by governments also impact the ICC prosecutor’s ability to open new investigations and cases.
The Rome Statute, the Court’s founding treaty, has clear criteria and safeguards to ensure the delivery of impartial justice by the independent ICC prosecutor.
The Office of the Prosecutor (OTP) must always apply the same legal criteria in opening an investigation or case, irrespective of the states, parties, persons or groups, concerned. There is no immunity based on the capacity of state officials.
Under the principle of complementarity, ICC member states are encouraged to prosecute at the national level not only those most responsible, where possible, but also lower-level perpetrators.
The prosecutorial policy of the OTP has been fill the impunity gap by focusing its investigations and prosecutions on those who bear the greatest responsibility for crimes under ICC jurisdiction – and who are often insulated from national prosecution.
The Rome Statute gives the UN Security Council the power to refer situations that represent a threat to international peace and security to the ICC prosecutor for investigation, and possibly prosecution, irrespective of whether a state is party to the Rome Statute. However, political selectivity in the selection of ICC referrals on the part of Security Council members further exacerbates the uneven application of international justice.
This is an increasingly pressing issue given well-documented mass human rights violations in many places around the world where the ICC does not have automatic jurisdiction.
The Security Council has also failed to enforce the cooperation, such as in arresting ICC suspects, necessary to make ICC referrals function effectively.
Independent ICC prosecutor
One of the main achievements and pillars of the Rome Statute is the independence of the ICC prosecutor – from governments and from the United Nations Security Council.
The OTP is responsible for conducting investigations and prosecutions before the Court. The OTP acts independently as a separate organ of the Court. No other entity or governing body has authority over the OTP and its preliminary examinations and investigations. The prosecutor alone decides whether to start a preliminary examination or to open an official investigation into any crimes committed within the jurisdiction of the Court.
Individuals, intergovernmental or non-governmental organizations, or any other reliable sources can provide the OTP with information that may help trigger a preliminary examination or formal investigation. Where the OTP seeks to open an official investigation based on these sources of information but absent referrals from a state or the United Nations Security Council, ICC judges will first ensure the prosecutor’s independent criteria are properly satisfied. Only then will the OTP be able to conduct its own investigations to gather evidence and build cases.
Decisions on whether to open investigations and cases are based on legal criteria laid out in the Rome Statute and other legal texts and policies governing the work of OTP.
Jurisdiction and admissibility test
In the selection of its investigations and cases, the OTP applies an ‘admissibility’ test, assessing the Court’s ability to exercise jurisdiction in the territory or over suspected parties, the gravity of the crimes, along with the status and genuineness of any national proceedings covering the same crimes (complementarity).
As the Rome Statute is an opt-in treaty, the ICC cannot investigate or prosecute in situations where it does not have jurisdiction.
The ICC has automatic jurisdiction over genocide, crimes against humanity, and war crimes committed either (I) on the territory of an ICC member state; or (II) by a national of an ICC member state, irrespective of where the crime(s) occurred.
The Court can also gain jurisdiction when a non-ICC member state lodges a declaration accepting the jurisdiction of the Court, or when a situation is referred by the Security Council acting under Chapter VII of the Charter of the United Nations.
Complementarity involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the OTP. Where relevant domestic investigations or prosecutions exist, the OTP assesses their genuineness.
Gravity includes an assessment of the scale, nature, and manner of commission of the crimes, and their impact, bearing in mind the potential cases that would be likely to arise from an investigation of the situation.
The ‘interests of justice’ are a countervailing consideration, in which the OTP assesses whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
Factors such as geographical or regional balance are not statutory criteria for a determination that a situation shall be investigated by the Court.
Focus on those most responsible
The ICC will not be able to bring to justice every person suspected of committing crimes of concern to the international community. Resources available to the OTP limit the number of cases it can investigate and prosecute at any given time.
The prosecutorial policy of the OTP is to focus its investigations and prosecutions on those who bear the greatest responsibility for crimes under ICC jurisdiction.
From the OTP case selection policy 2016
43. Regulation 34(1) of the Regulations of the Office and the Prosecution’s Strategic Plan direct the Office to conduct its investigations towards ensuring that charges are brought against those persons who appear to be the most responsible for the identified crimes. In order to perform an objective and open ended investigation, the Office will first focus on the crime base in order to identify the organisations (including their structures) and individuals allegedly responsible for the commission of the crimes. That may entail the need to consider the investigation and prosecution of a limited number of mid- and high level perpetrators in order to ultimately build the evidentiary foundations for case(s) against those most responsible. The Office may also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious.
44. The degree of responsibility of alleged perpetrator(s) will also be taken into consideration when defining the charges. The Office will explore and present the most appropriate range of modes of liability to legally qualify the criminal conduct alleged. For this purpose, the Office will also consider the deterrent and expressive effects that each mode of liability may entail. For example, the Office considers that the responsibility of commanders and other superiors under article 28 of the Statute is a key form of liability, as it offers a critical tool to ensure the principle of responsible command and thereby end impunity for crimes and contribute towards their prevention.
Case selection policy
Following consultations in 2016 with civil society, among other stakeholders, the OTP released a policy paper on case selection and prioritization, in which it not only reaffirms its commitment to impartiality as a key element of its case selection, but also offers impact on affected communities as a selection criterion.
Coalition members have advocated for the impact of OTP decisions on affected communities to be given due consideration and weight, ensuring victims’ rights to justice are not subjugated to operational constraints or state interests.
The case selection policy states that the OTP 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.
It goes on to say that impartiality does not mean equivalence of blame, however, and that the OTP will not prosecute rival parties within a situation for the sake of an appearance of parity where the legal criteria are not met.
The policy also states that it must further balance operational factors and interests of justice when deciding the order in which it will pursue all those cases that have satisfied legal thresholds for investigation or prosecution.
Prosecutorial discretion allows for the OTP to take into account several practical and operational factors, such as security, resources, and level of cooperation.
The paper also lays out sequenced versus simultaneous prosecutions as an operational factor. Thus, ICC investigations, in the way they are rolled out, may not immediately reflect the full spectrum of alleged Rome Statute offenses within a given situation.
