The Inevitable Practice of the Office of the Prosecutor
It was not clear in 2002 how the court would function precisely because of the multitude of challenges it faced. Eleven years later only some of those questions have been resolved. [...] It is clear, however, that the ICC is an institution with the capacity to change habits and outcomes. We may be seeing the start of that in Kenya today, where the electoral violence of 2007 has thankfully not been repeated, perhaps because of its ongoing intervention which was a major topic throughout the political campaign.
Established institutions condition the conduct of their leaders and those who work within their structures. New institutions, however, are conditioned by the personalities and characteristics of their first leaders and staffs, as they lack existing institutional controls and cultures.1 This was clearly the case with the International Criminal Court (ICC) and its prosecutorial division, the Office of the Prosecutor (OTP), and an understanding of the Court requires an appreciation of the circumstances of their creation and first 11 years of operation.
Since its inception in July 2002, the OTP has faced two primary critiques: first that it has been inefficient, and second that it has preoccupied itself with Africa and failed to investigate equally severe conflicts elsewhere. These criticisms do not arise in a vacuum, however, and must be understood within the context of the court’s recent creation, administrative and personnel challenges, legal impediments imposed by the Rome Statute, and external pressure to prosecute as many cases as possible in order to satisfy its value-oriented goal of “guarantee[ing] lasting respect for and the enforcement of international justice.”2 These factors have made the choices of the prosecutor largely inevitable, although future practice must be reformed.
In assessing the work of the ICC and the OTP, one must come up with a benchmark against which to measure it. But it is unclear what standard should be used as the ICC is a sui generis institution that had to be built from the ground up within the context of ongoing conflicts that demanded immediate attention. While it shares some similarities to the practices and procedures of national judicial institutions, it is also forging a new path based on the adoption and incorporation of practices and staff representing divergent legal philosophies, traditions and practices. It also shares some similarities to the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as to some extent the mixed model tribunals (Sierra Leone, Kosovo, Cambodia, East Timor, and Lebanon), but again its provisions make it different in scope and operation from those institutions. Nevertheless, there are some relatively objective characteristics and factors that are applicable to the evaluation of the court and its prosecutor, the person upon whom the enormous responsibility was bestowed to establish and run its investigatory and prosecutorial arm.
The first prosecutor, Luis Moreno-Ocampo of Argentina, was sworn in in June 2003 and tasked with establishing the OTP, which is the investigative and prosecutorial engine of the ICC.3 This significant project not only required the development of prosecutorial policies based on his interpretation of the Rome Statute and the Rules of Procedure and Evidence, but also the nuts and bolts of hiring personnel, creating internal and administrative structures, and developing procedures and professional accountability mechanisms from scratch. Further, all of this had to be done within the context of UN standards of diversity and national quotas, which often led to a modern day tower of babel as lawyers attempted to meld together divergent and sometimes mutually exclusive policies and practices.
It is clear that the operation of the OTP in its nascent stage was a product of Moreno-Ocampo’s professional experience, the clarity of his vision, and his personal characteristics including his character, poise, management style and personal probity. For Moreno-Ocampo this task was particularly challenging, as his experience was limited to an eight-year period as an assistant prosecutor in Argentina and then domestic defense practice, he had no international legal experience, he was largely unfamiliar with investigations and case management, and he had never before run a large office.4 Though no one doubted his good will, high aspirations and commitment, his management style left much to be desired, as is well known, and his personal behavior also raised questions. By the end of his term, Moreno-Ocampo’s record had raised questions and caused consternation among the Court’s supporters and outside experts. He was also accused by critics of bias in selectively targeting African cases and failing to pay sufficient attention to conflicts in the rest of the world.
The challenges posed by the creation of the OTP were mirrored throughout the Court, as each organ had to come up with its own internal procedures and practices and then forge working arrangements with each other. Additional pressure came from the Assembly of State Parties (ASP), which had its own expectations, and in particular from influential states within the ASP. External pressures came from major political powers that exerted influence over the ICC, as well as NGOs who wanted action and academics who critically examined each step the court took.
In essence, the ICC had to balance numerous, often divergent, interests, while simultaneously satisfying its supporters and maintaining its public support. This required bringing cases to trial as quickly as possible in order to be seen to be doing something and satisfying its mandate. It was not clear in 2002 how the court would function precisely because of the multitude of challenges it faced. Eleven years later only some of those questions have been resolved. What the ICC will become and how it will operate is still a matter of some speculation, although these unresolved questions are increasingly coming into focus. It is clear, however, that the ICC is an institution with the capacity to change habits and outcomes. We may be seeing the start of that in Kenya today, where the electoral violence of 2007 has thankfully not been repeated, perhaps because of its ongoing intervention which was a major topic throughout the political campaign.
Leaving aside the question of whether Moreno-Ocampo’s personality and management capabilities were well-suited to the needs of the first ICC prosecutor, the more important question remains as to whether he pursued the right cases in light of the political realities, public perceptions of the court’s activities, and challenges identified above.5 The Prosecutor had so many challenges and difficulties to address that it is difficult to imagine how any person, no matter how competent and talented, could have addressed them satisfactorily in the eyes of so many demanding constituencies. Fortunately, however, the OTP’s resources and staffing were more than ample. Indeed, few institutions have had as many resources at their disposal as the ICC. Over the 11 years since it came into being, the ICC has been allocated approximately €942.8 million by the ASP. For the year 2013 alone, the OTP has an allocated staff of 2176 and an approximate budget of €28.3 million, both of which account for approximately a quarter of the Court’s total.7
While these resources allowed the OTP to overcome some of its initial difficulties, they have also fostered questions over its efficiency. The next question then is what the Court, and in particular the OTP, has accomplished. During its ten year existence, the OTP has announced the existence of preliminary examinations into 18 conflicts,8 eight of which resulted in formal investigations,9 seven in various types of pre-trial preliminary examination,10 and three in the declination of further investigation.11 Seven of these investigations have led to the issuing of warrants.12 No other examinations have been made public.
While there is no clear metric for measuring the efficiency of the ICC and the OTP, the most readily apparent one is expenditure per indictee. Since issuing its first indictments in July 2005, the OTP has initiated proceedings against 30 individuals. Excluding the budget for 2013, the court has spent approximately €27.6 million per indictee.13 On its face this number suggests that the ICC has achieved less than its predecessor tribunals for the former Yugoslavia and Rwanda, which indicted 161 and 91 individuals, respectively,14 and spent far less per indictee.15 It is clear that more needs to be done to fulfill the court’s mandate to help “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”16 While there are clearly other factors involved, the ICC and OTP’s productivity has been limited. If these numbers are the standard for the future, and these the likely costs of ICC prosecutions, it is hard to think that the Court will continue to justify itself in the eyes of the ASP. More needs to be done in the future to improve efficiency and show that the Court is sustainable.
Beyond the general efficiency of the OTP, critics have also questioned its apparent focus on Africa and its failure to address obvious violations committed by other states across the globe. As indicated above, all eight investigations currently under investigation by the OTP are in Africa. This has rankled African leaders, some of whom have complained that the continent is being singled out and that the OTP is applying a discriminatory17 double standard.18 Much of this critique has come from African heads of state and regional leaders, who increasingly closed ranks during Moreno-Ocampo’s term as prosecutor, and rejected the ICC’s attempts to investigate and prosecute new cases on the continent. For instance, in the wake of the ICC’s indictment of Sudanese President Omar al-Bashir the African Union’s (AU) Peace and Security Commissioner Ramtane Lamamra expressed the “legitimate concerns” of African heads of state over a double standard towards the continent and that the “conduct of the prosecutor…[represented] a glaring practice of selective justice.”19 In 2011 Jean Ping, the Chairman of the AU, went so far as to declare that the AU would not cooperate with the ICC after the indictment of Muammar Qaddafi due to the court’s “discriminatory” practices for only investigating situations in Africa, decrying its failure to intervene in Afghanistan, Iraq and other places where Western powers have been implicated.20 As Chairman Ping remarked cuttingly, “What have we done to justify being an example to the world? Are there no worst [sic] countries, like Myanmar?”21
Perhaps the most strident critique has come from Courtney Griffiths, the lead defense attorney for former Liberian President Charles Taylor. During summation before the Special Court for Sierra Leone, Griffiths argued that Taylor’s prosecution—and by implication the prosecution of those at the ICC—was “a 21st century form of neocolonialism.”22 In a later opinion piece Griffiths attacked the perceived cynicism of the ICC, writing:
(T)he requirement of international justice is not the raison d’être of the International Criminal Court at all. Instead, the court acts as a vehicle for its primarily European funders, of which the UK is one of the largest, to exert their power and influence, particularly in Africa.23
The unease of African leaders over the state of ICC investigations has manifested itself in their refusal to cooperate with it. One example is the refusal of most African states to detain and surrender al-Bashir to the Court. At a 2009 summit of African Heads of State in Sirte, Libya, a declaration was made that African states “shall not cooperate…in the arrest and transfer of President Omar al-Bashir of the Sudan to the ICC.”24 Similarly, after the Security Council referred the situation in Libya to the ICC, the AU came out in strong opposition to the referral.25 One other possible outcome is that African states will withdraw from the Rome Statute over these investigations, a possibility that was floated after the indictment of al-Bashir.26
The question then arises as to why Africa became the primary target of ICC investigations, and whether this violates notions of decency and fairness. It is a salient question, and people of good faith must ask why this has come about and whether it is a form function of selective justice and neo-colonialism, as argued by various critics, or rather a function of the court’s jurisdictional limits, the “geography” of conflict today and the capacity of these states to investigate and prosecute matters on their own. Given the nature of the allegations, it is not enough to cite the nationality of the court’s judges or prosecutor, or the good will of the drafters of the Rome Statute, and a reasonable explanation must be given.
It is worth noting that half of the situations in Africa over which the ICC has expressed jurisdiction—CAR, DRC, Mali and Uganda—were the result of self-referrals by those states. Two situations—Libya and the Sudan—were the result of Security Council referrals and were not discretionary. Finally, two situations—Côte d’Ivoire and Kenya—were the result of a proprio motu determination of the prosecutor to initiate an investigation. But these last two cases require some further clarification. Côte d’Ivoire recognized the jurisdiction of the court in December 2010, after the outbreak of the civil war between forces loyal to Alassane Ouattara and Laurent Gbagbo. It was thus more in the nature of a state referral than a straight exercise of prosecutorial discretion, as it was clearly the intent of Ouattara to have his opponent investigated in order to strengthen his own position.27 The situation in Kenya only came within the jurisdiction of the court after failed domestic attempts to implement accountability mechanisms, as recommended by the Waki Commission and affirmed by Kofi Annan. It thus reflects in a convoluted way a self-referral by Kenya because the parties could not agree to the domestic alternatives that they had consented to in the aftermath of electoral violence in 2007, namely the inquiry by Annan and the report of the Waki Commission.
In short, the only situations in which the Court’s jurisdiction is truly controversial are those that have been referred by the Security Council. In fact, African political leaders have only objected specifically to these two, and therefore the argument should perhaps be refocused on the role of the Security Council, and not the ICC, in African conflicts, as well as the Council’s lack of action elsewhere.
Notwithstanding the preponderance of self-referrals among the active situations before the ICC, it must be recalled that the Court functions on the principle that its jurisdiction is “complementary to national criminal jurisdictions.”28 This means that the court cannot exercise jurisdiction if a state is currently investigating or prosecuting a case, where it has previously investigated or prosecuted a case, or where it previously investigated a case and declined to prosecute, unless there is evidence that the state was “unwilling or unable genuinely to carry out the investigation or prosecution.”29 In other words, the ICC is predicated on the belief that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”30 Not only does this mean that the primary responsibility for the enforcement of international criminal law rests with states, but also that domestic prosecution is preferable to the intervention of the ICC.31
The complementarity provision of the Rome Statute means that the ICC cannot automatically usurp jurisdiction from states or steamroll local considerations or needs, and that states may exercise jurisdiction over the wishes of the OTP if it so choses and it is able to conduct a genuine investigation and prosecution. It is worth noting that, of the eight cases currently under investigation, only Libya has challenged the jurisdiction of the court.32 Accordingly, it cannot be said that the affected African states themselves object to the conduct of the ICC. Within this context, one might rightly ask whether unaffected African states and their leaders have any greater purchase to criticize the ICC or its conduct than any other state or individual. If the subjects of the ICC’s purported anti-African and neo-colonialist impulse do not perceive themselves to be its victims and welcome the intervention, and those who do perceive these impulses are not affected by the conduct, we might reasonably reject the strong form of the argument as alleged.
Notwithstanding the lack of domestic action by the states under investigation, it is worth pausing to ask whether these states should deal with these issues themselves rather than allowing the ICC to assume jurisdiction. There are a number of good reasons for them to do so, perhaps most importantly the enhancement of their domestic judicial capacity and the rule of law as a long-term solution to these problems. The problems in the DRC or Côte d’Ivoire are not new and are unlikely to disappear tomorrow, and any long-term solution requires the enhancement of domestic capacity.
As described above, the essence of complementarity is the presumption that states can and should address violations of international criminal law themselves. This is predicated on the willingness and ability of states to do so, something that requires significant legal reform, capacity building and infrastructure investment.33 Paradoxically, the states least affected by violence are usually the most capable of doing so, while the states most affected by violence are usually the least able.34 At present it is hard to deny that even if there is a preference for domestic proceedings and a commitment by affected states to do something in the long-term, these conflicts require immediate action that the effected states cannot carry out in the short-term.
Several metrics can be used to measure the capacity of states to resolve these matters themselves, including their judicial capacity, their openness and transparency, the level of government intervention and authoritarianism, and in general the level of civil and political rights in each. The most useful of these is probably the Failed State Index, which measures a number of these factors and also aggregates them into a single ranking.35 It is also worthwhile to look at the Corruptions Perceptions Index,36 the Freedom in the World Index,37 the Worldwide Governance Indicators38 and the Press Freedom Index.39 These indexes do not, of course, tell a complete story of the capacity of states to conduct trials, but taken together they paint a general picture of the status of civil and political rights in each state, and therefore may serve as a proxy for their capacity to handle these cases.
The general picture is clear enough: the states in which the OTP is intervening, with the exception South Korea, score very poorly on these indexes and presumably lack the capacity to investigate and prosecute these cases on their own. Indeed, according to the Failed State Index, six of the Index’s 20 most “critical” countries are under investigation, namely the CAR, Côte d’Ivoire, the DRC, Kenya, Sudan and Uganda. The other two states, Mali and Libya, score higher, but Mali nearly collapsed in 2012 (presumably before the data was collected) and Libya was its “most worsened” state in the rankings.
Below is an overview of the states under investigation and their position on the above mentioned indexes:
Central African Republic
- Failed State Index (higher rank=more stable): 10 “critical”
- Press Freedom Index (higher rank=fewer freedoms): 65
- Corruption Perception Index (higher rank=more corruption): 144
- Freedom in the World Index (general ranking from 1–7): 5 “partly free”
- Worldwide Governance Indicator on Rule of Law (percentile rank, higher better): 7.0 %
- Failed State Index: 11 “critical”
- Press Freedom Index: 96
- Corruption Perception Index: 130
- Freedom in the World Index: 5 “partly free”
- Worldwide Governance Indicator on Rule of Law: 8.0 %
Democratic Republic of the Congo
- Failed State Index: 2 “critical”
- Press Freedom Index: 142
- Corruption Perception Index: 160
- Freedom in the World Index: 6 “not free”
- Worldwide Governance Indicator on Rule of Law: 1.9 %
- Failed State Index: 16 “critical”
- Press Freedom Index: 71
- Corruption Perception Index: 139
- Freedom in the World Index: 4 “partly free”
- Worldwide Governance Indicator on Rule of Law: 16.4 %
- Failed State Index: 50 “critical” “most-worsened state of 2012”
- Press Freedom Index: 131
- Corruption Perception Index: 160
- Freedom in the World Index: 4.5 “partly free”
- Worldwide Governance Indicator on Rule of Law: 12.2 %
- Failed State Index: 79 “In danger”
- Press Freedom Index: 99
- Corruption Perception Index: 105
- Freedom in the World Index: 6 “not free”
- Worldwide Governance Indicator on Rule of Law: 35.7 %
- Failed State Index: 3 “critical”
- Press Freedom Index: 170
- Corruption Perception Index: 173
- Freedom in the World Index: 7 “not free”
- Worldwide Governance Indicator on Rule of Law: 8.5 %
- Failed State Index: 20 “critical”
- Press Freedom Index: 104
- Corruption Perception Index: 130
- Freedom in the World Index: 4 “partly free”
- Worldwide Governance Indicator on Rule of Law: 43.2 %
While this data does not definitively preclude these states from addressing these issues themselves, it indicates that there would very likely face serious difficulties conducting trials on their own that satisfy the international fair trial standards.40 It seems obvious that states with existential threats to their basic functions will have difficulty conducting trials to international standards. Clearly some of these countries have vibrant civil societies and strong traditions of good lawyering, which may mitigate the inference of incapacity, these states display serious problems and seemingly lack judicial capacity.
The focus on Africa raises another question, however, namely why non-African states have not been investigated. There are several jurisdictional questions that arise in this context that limit the prosecutor’s ability to act as decisively and universally as he or she might want. In particular, it is necessary to look at the means by which the ICC gains jurisdiction over a case. First, a state may refer a matter to the court of its own volition. Second, the Security Counsel can refer the case. Third, the prosecutor can initiate an investigation proprio motu for violations in the territory of a state party. At present 122 states have ratified the Rome Statute, meaning that just under two-thirds of the world’s states are within the jurisdiction of the court.41 African countries, as is well known, were among the earliest supporters of the ICC,42 and at present 33 African states have ratified the treaty, more than a quarter of the total.43 By way of contrast, 27 are from Latin America and the Caribbean, 25 are from Western Europe / Western States (including Australia, Canada and New Zealand), 18 are from Asia-Pacific States, and 18 from Eastern Europe.44
Given the incidence of conflict globally and the jurisdictional limits imposed by the Rome Statute, the options for the OTP outside of Africa are limited. Of the obvious cases in recent years, most notably Sri Lanka, a non state party, few fall within the clear-cut jurisdiction of the court. The prosecutor cannot simply initiate investigations in countries that have not ratified or acceded to the Rome Statute without a state or Security Council referral, irrespective of the objective merits of the case. It is also worth noting that the OTP is in fact conducting preliminary examinations in non-African conflicts, including in Afghanistan, Colombia, Georgia, Honduras and South Korea (Guinea and Nigeria are also under preliminary examination, the former to monitor its domestic proceedings under the complementarity principle). Several of these non-African situations should become formal investigations, and should reasonably result in indictments, notwithstanding the political issues apparent in several. But perhaps the most glaring problem is the lack of action over the extensive rendition network that was built by the United States and its allies. A recent study by the Open Societies Institute uncovered a massive network engaged in the disappearance and torture of individuals, implicating 53 states, of which 31 are states parties to the Rome Statute.45 The failure to pursue this very public issue is a problem, and addressing it in some capacity would placate concerns among the Court’s critics. However, these critics must also realize that doing so carries with it its own risks, as many of these states hold significant power in the international system and could significantly undercut the capacity of the court to operate anywhere. There are realpolitik issues implicit in the prosecutor’s work, and while we should object to them it is not as if they are minor impediments to universal justice or that they do not seriously constrain the capacity of the prosecutor to act.
It is beyond question that a criminal tribunal with global scope should not restrict itself to just one continent. All the same, this does not mean that conflicts in Africa are any less deserving of international justice than they are now, and by extension that investigations and prosecutions in Africa should be curtailed until there is a truly global sampling of cases. The question should rather be one of generating effective means of expanding the scope of the ICC. Certainly given the geography of conflict, new cases in Africa should not be avoided.46
Finally, there is an important political and practical aspect to this issue. Any serious analysis must ask what else could or should have been done by Moreno-Ocampo over the last ten years. No serious claim has been made that the situations under investigation by the ICC are not within the subject matter jurisdiction of the Court, or that they do not require attention of some sort. Moreover, they have played an essential role in facilitating the Court’s development and allowed it to move foreward. It is worth noting that the ICTY and ICTR started off with comparatively simple cases before moving on to more complex ones. The ICTY issued its first indictment against Dragan Nikolić on November 7, 1994, and the following day requested that Germany surrender Duško Tadić, the latter of whom would be the first individual to go on trial in 1996.47 Neither was a high-ranking official, and the two are more notable for being the first individuals indicted by the tribunal than the gravity of their crimes.48 At the ICTR the first case was against Jean-Paul Akayesu, who was found responsible for ordering and inciting violence that resulted in the deaths of 2,000 Tutsi. Akayesu was not originally a prime suspect for the ICTR’s prosecution, but was quickly indicted and prosecuted after he was apprehended in order to begin prosecutions.49
The analog at the ICC to these was the trial of Thomas Lubanga, who was charged with only a small number of crimes compared with what the evidence supported. His charges were clearly limited in order to facilitate the expeditious conclusion of the trial and serve as a test case for future prosecutions of more serious issues. Lubanga was certainly not the most significant indictee of the tribunal,50 but given his availability and the necessity of beginning the work of the ICC, his prosecution served as an invaluable first step. The Lubanga prosecution was clearly a case of opportunism on the part of Moreno-Ocampo, and rightly so: he deserved to be prosecuted and the ICC had to start prosecuting. As the old saying goes, a journey of a thousand miles begins with a single step.
Notwithstanding the appropriateness of the prosecution of Lubanga and the OTP’s existing focus on conflicts in Africa, the question remains what next? Clearly the ICC has established itself and found a working rhythm. The issue now is how to quicken its pace and expand its scope. As identified above, there are a number of situations that deserve the attention of the ICC. Hopefully under the direction of Fatou Bensouda, the new ICC prosecutor since June 2012, the court will take a more assertive position vis-à-vis conflicts around the globe and act assertively in the pursuit of its mandate. To do so, she needs to be strengthened with political, NGO and academic support, and pressured to be more assertive in investigating situations around the globe while not backtracking on Africa.
After eleven years of existence the ICC is well placed to move ahead, having worked out many of its practical and procedural kinks, developed internal policies and established a case law upon which to build. The ultimate point, then, is not that the ICC needs to stop investigating and prosecuting crimes in Africa, but that it needs to also investigate and prosecute crimes elsewhere. It is clear that international crimes are prevalent and unlikely to be ended in the foreseeable future and that the ICC is a needed institution. Yet the ICC has not received the needed support from the Security Council, which has yet to back-up its referrals to the Court with further action or provide financial support for the cases it has refereed. The ICC’s operations have also been hampered by the UN system and its rules and procedures that hamper the Court’s effectiveness and cost-efficiency. Finally, state cooperation has been limited and at times obstructionist.51 Complementary has yet to work if for no other reason than that states have yet to adopt the necessary legislation or develop the capacity to take on cases themselves.52
As to the future of the ICC, what can we predict? If allowed to operate and grow, it is likely that it will have an impact like many of the courts that have preceded it. Consider, for example, the European Court of Human Rights.53 When it was established in 1954 there were questions as to whether European state would accept its decisions, and what impact the court would have on human rights compliance. Only a few years later no one could seriously ask such questions. The credibility, respectability and gravitas of the Court commanded the respect and observance of all European states.
A similar analog can be found in the history of the U.S. Supreme Court. Without delving into the merits and legitimacy of judicial review prior to Marbury v. Madison, it is clear that the practice has evolved from shaky beginnings to the point where the judiciary’s authority “to say what the law is” goes without question. Similarly, after the Supreme Court’s 1832 decision in Worcester v. Georgia an outraged President Andrew Jackson is reported to have said “John Marshall has made his decision; now let him enforce it!” That sentiment is unimaginable today. Just as the legal authority of the Court is unquestionable today, so too is its prescriptive authority. The idea of a contemporary Orval Faubus calling out the National Guard to resist a Court order seems almost absurd.54 Hopefully, the same will be said in the not-to-distant future for the ICC.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Staff professionalism, sound management, available resources, political support among state parties, and international credibility are all factors that bear upon the institution’s public perception. What is also required is the existence of internal correction mechanisms to ensure an institution’s proper functioning, including management and ethical control mechanisms, as well as transparency. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], art. 1. The Rome Statute, which was opened for signature on 17 July 1998. Id. at art. 125. Ten states signed the Statute on 17 July 1998, namely Bolivia, Bosnia and Herzegovina, Congo, Liberia, Mali, Malta, Niger, Samoa, South Africa, and Zambia. An additional 15 states ratified the Statute on 18 July. By the terms of the Statute it entered into force six days after the deposit of the 60th instrument of ratification. Id. at art. 126. Senegal was the first state to ratify the Rome Statute on 2 February 1999, and ten countries—Democratic Republic of the Congo, Niger, Jordan, Mongolia, Cambodia, Bosnia and Herzegovina, Slovakia, Bulgaria, Romania, and Ireland—submitted their ratifications jointly on 11 April 2002 to overcome the 60 state threshold. See States Parties—Chronological list, International Criminal Court, available online.
For a comprehensive overview of the Rome Statute and its provisions, see 1–3 The Legislative History of the International Criminal Court: Introduction, Analysis, and Integrated Text (2005). ↩
While the ICC came into existence in July 2002, the judges were elected in February 2003 and empanelled in March, the prosecutor was elected in April and sworn in in June, and the registrar, who within the framework of the Rome Statute and the Rules of Procedure and Evidence, is responsible for the administration of the Court including the supervision of the Office of Public Counsel for the Defense and the Office of Public Counsel for Victims, was not elected until June 2003. ↩
In 2011, his last full year as prosecutor, the OTP had a budget of €26.598 million and a staff of 218. See Programme budget for 2011, the Working Capital Fund for 2011, scale of assessments for the apportionment of expenses of the International Criminal Court, financing appropriations for 2011 and the Contingency Fund, Res. ICC-ASP/9/Res.4 (Dec. 10, 2010), available online. ↩
These challenges ranged from satisfying the high expectations of NGOs and some state parties, to the logistical, practical, and management problems presented by a UN system that is not well suited for such an institution. ↩
Assembly of State Parties, Programme Budget for 2013, ¶ 27, Doc. ICC-ASP/11/20 (Nov. 21, 2012). The appropriated staff level of the ICC for 2013 is 766, in addition to its 18 judges in the pre-Trial, Trial, and Appeals Divisions. Of the staff, 48 are within the judicial chambers, 217 in the Office of the Prosecutor, 480 in the Registry (which includes the court’s administrative staff, the Office of Public Counsel for the Defence, Office of Public Counsel for Victims, clerks, etc.), 9 in the Secretariat of the Assembly of States Parties, 7 in the Secretariat of the Trust Fund for Victims, 3 in the Project Director’s Office (which is tasked with overseeing the development of the court’s permanent premises), and 2 in the Independent Oversight Mechanism. ↩
Id. at ¶ 1. Over the 12 years since it came into being, the ICC has been allocated approximately €942.8 million (or approximately $1.27 billion). The annual budgets have been: 2002–03: €30,893,500; 2004: €53,071,846; 2005: €66,784,200; 2006: €80,417,200; 2007: €88,871,800; 2008: €90,382,100; 2009: €101,229,900; 2010: €103,623,300; 2011: €103,607,900; 2012: €108,800,000; 2013: €115,120,300. The total is €942,802,046, which equals $1,227,666,506.59. Exchange calculated by XE.com on Mar. 7, 2013. ↩
There is no clear distinction between an investigation and a preliminary examination in the Rome Statute, and the OTP uses the terms interchangeably: when announcing a probe into a particular situation the office uses “investigation” but its annual reports and website refer to them as “preliminary examinations”. The statute is also unclear: article 15(1) refers to “investigations”, but in article 15(6) the treaty refers to the procedure in 15(1) as a “preliminary examination”. Article 15(3) indicates that if certain basic pre-conditions have been met the Prosecutor must submit a request for an investigation to the Pre-Trial Chamber (PTC), a process that is detailed in Part V of the Rome Statute. This article uses “preliminary examinations” to refer to any investigation prior to seeking formal approval from the PTC, which appears to be the practice of the OTP. Investigations are those that have received PTC approval. ↩
Uganda, Sudan (Darfur), Democratic Republic of the Congo, Central African Republic, Kenya, Libya, Côte d’Ivoire, and Mali. ↩
Afghanistan, Colombia, Georgia, Guinea, Honduras, Republic of Korea, and Nigeria. The OTP employs a four-stage process for conducting preliminary examinations before proceeding to full investigations. The first phase entails the basic evaluation of territorial jurisdiction, which is customarily in response to complaints submitted by individuals and organizations. The second phase determines whether a situation satisfies the jurisdictional requirements of Article 12 of the Rome Statute (i.e. territorial and active personality jurisdiction), and to establish whether there is a “reasonable basis to believe that the alleged crimes fall under the subject matter jurisdiction of the Court”. The third phase assess the gravity of the crimes for complementarity, in other words whether a state is willing and able to investigate and potentially prosecute the crimes in question on its own. Finally, the fourth phase assesses whether the “interests of justice” are satisfied by proceeding with the investigation. See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2012, ¶ 16 (Nov. 22, 2012), available online. ↩
Iraq, Palestine, and Venezuela. ↩
The situation in Mali has not yet resulted in individual indictments. ↩
The exact amount equals €27,589,391. ↩
These numbers exclude perjury trials. ↩
The International Criminal Tribunal for the former Yugoslavia has cost approximately $11.2 million per indictment and the International Criminal Tribunal for Rwanda approximately $18.5 million into 2012. For more information, see Introduction to International Criminal Law: Second Revised Edition 1058–75 (2d ed., 2013). ↩
African Union Says ICC Prosecutions Are Discriminatory, Voice of America, Jul. 4, 2011, available online. ↩,
Libya: Gaddafi ICC arrest warrant raises questions, BBC News, May 17, 2011, available online. ↩,
African ICC Members Mull Withdrawal Over Bashir Indictment, Voice of America, Nov. 2, 2009, available online (emphasis added). The Rwandan Prime Minister Bernard Makuza similarly expressed the opinion that African heads of state did not feel that they had been fairly treated by the ICC, further arguing that “We’re not promoting impunity, but we’re saying that Westerners who don’t understand anything about Africa should stop trying to import their solutions.” , African leaders denounce international court, Associated Press, Jul. 3, 2009, available online. ↩
Africa’s Fatou Bensouda is new ICC chief prosecutor, BBC, Dec. 12, 2011, available online. In some cases there has been the suggestion that the ICC is inappropriate for African conflicts and unable to address these problems in a helpful manner. For instance, Prime Minister Makuza argued that in objecting to the court, African heads of state were “not promoting impunity, but…saying that Westerners who don’t understand anything about Africa should stop trying to import their solutions.” Id. ↩,
Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-T, Transcript Mar. 9, 2011, at 49388, available online. ↩
The International Criminal Court is hurting Africa, The Telegraph, Jul. 3, 2012, available online. ↩,
19. See also African nations unite to defend Sudanese leader, Associated Press, Jul. 4, 2009, available online. ↩, supra note
This practice of course raises other salient questions of the Court’s unwitting complicity in internal political disputes. ↩
Id. at art. 17(1). The complementarity provision of the Rome Statute distinguishes it from the ICTY and ICTR, which operated on the principle of primacy, which gave those tribunals absolute authority to exercise jurisdiction over the wishes of domestic courts and tribunals. ↩
It should be noted that complementarity is based on the presumption that states will develop their domestic capacity in order to assume the functions of the ICC, and investigate and prosecute individuals fairly and expeditiously. In order to assume jurisdiction from the ICC, two fundamental components must be satisfied. First, states must develop their laws in order to gain subject matter jurisdiction over crimes contained in the Rome Statute. Second, states must develop the human, physical, and technological infrastructure needed to prosecute individuals. This requires, inter alia, training judges, prosecutors, defense attorneys, and investigators in international criminal law and fair trial procedures, investing in the technologies needed to collect and examine evidence, and developing the infrastructure and capacity to hold trials in ways that protect the rights of the accused, victims, and witnesses.
It should also be noted, in the context of complementarity, that one of the great innovations of the Rome Statute is the inclusion of victims in the process, including rights of audience from the earliest stages of proceedings. It is unclear, as yet, how such victim participation can be reconciled with complementarity, as many domestic jurisdictions, and particularly common law jurisdictions, do not provide for any victim participation at all, much less rights of audience. (A parallel problem is the OTP’s interests vis-à-vis those of victims, as they do not always overlap and may in certain circumstances clash.) ↩
Admittedly, the Sudan has objected to the indictment of al-Bashir and others, but it has not challenged the admissibility of the case. Unlike Libya the Sudan has not expressed any willingness to conduct any domestic investigations or prosecutions at all, and therefore the case is not subject to complementarity. ↩
There are clearly serious questions arising out of the conduct of western forces in Iraq, Afghanistan, Pakistan, and Yemen, or the extensive network of states to disappear and torture individuals, most of which have the capacity to do something about the problem, as discussed below. ↩
Failed State Index, The Fund for Peace, available online. ↩
2012 Corruptions Perceptions Index, Transparency International, available online. ↩
See generally 2013 Freedom in the World, Freedom House, available online. ↩
Worldwide Governance Indicator, World Bank, available online. ↩
Press Freedom Index 2013, Reporters Without Borders, available online. ↩
To be fair, the ICTR has referred a number of cases to Rwanda over the last 18 months, most notably the case of Jean Uwinkindi. Rwanda itself does not receive universally high marks on these indicators but has been deemed sufficient for the purposes of the ICTR. Similarly, Guinea is under preliminary examination by the court to monitor its own investigations and prosecutions of individuals implicated in the death of protestors in 2009, but has been determined to be investigating these matters seriously and has therefore been left to its own processes. Nonetheless, there are serious questions about the capacity of these states to address these matters fully at present, which should raise alarm bells within the international community not simply over the ICC’s jurisdiction, but more fundamentally over the stability of these states and the general assistance they need to make sure that ordinary crimes are dealt with freely and fairly on an everyday basis. ↩
139 states have signed the Rome Statute. ↩
States Parties—Chronological list, International Criminal Court, (Jul. 13, 2012), available online. ↩
African States, International Criminal Court, available online. ↩
These categories have been established by the ICC itself. ↩
These states include Afghanistan, Albania, Australia, Austria, Belgium, Bosnia and Herzegovina, Canada, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Finland, Gambia, Georgia, Germany, Greece, Iceland, Ireland, Italy, Jordan, Kenya, Lithuania, Malawi, Poland, Portugal, Romania, South Africa, Spain, Sweden, and the United Kingdom. Open Society Justice Initiative, Globalizing Torture: CIA Secret Detention and Extraordinary Rendition (2013), available online. ↩
The ongoing conflict in Mali is a good example. ↩
The crimes of Tadić and his location had been identified by the UN’s Commission of Inquiry, of which one of us (Bassiouni) was the Chairman. ↩
Later in 1996 Dražen Erdemović, who was accused of participating in the killing of upwards of 1,000 Bosniaks, was the first to be sentenced by the trial chamber after pleading guilty. ↩
The Akayesu case did develop a number of significant areas of law, including the nature of rape in genocide. Jean Kambanda, the Rwandan Prime Minister during the genocide, was the first to plead guilty in 1998. ↩
The most significant indictees of the tribunal are likely al-Bashir or Joseph Kony. ↩
One of the most problematic examples of this are the so called article 98 agreements between the United States and various countries to block cooperation between those states and the ICC. ↩
The European Commission preceded the Court, which first came into existence in 1959 and was fully put in place in 1998. The two are considered together here as a single institution. The Court and Commission are the products of the European Convention on Human Rights, which was adopted in 1950. ↩
See , Beyond Little Rock: The Origins and Legacies of the Central High Crisis (2007); , Politics and Law in the Little Rock Crisis, 1954–1957, 66 Arkansas Historical Quarterly 145 (2007), JSTOR paywall. ↩
Suggested Citation for this Comment:
The Inevitable Practice of the Office of the Prosecutor, ICC Forum (Mar. 17, 2013), available at https://iccforum.com/africa#Bassiouni.& ,
Suggested Citation for this Issue Generally:
Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available at https://iccforum.com/africa.