Argument Continued

Earlier efforts arose out of discussions on complementarity within the ICC Assembly of States Parties (ASP). In 2012, states parties called for greater attention to “exit strategies,” in the context of intercessional work carried out by the Assembly’s focal points on complementarity.5 In reporting to the ASP the following year, the Court set out an initial framework on completion strategies, tracking the three areas previously outlined by Kevin Jon Heller as components of such strategies: “completion issues,” “residual functions,” and “legacy issues.”6 These discussions highlighted a clear connection between international assistance to strengthen domestic jurisdictions—what has been termed “positive” complementarity—and the Court’s completion of its work in a given situation.7 This was because the prospect of enhanced national capacity could permit the Court to hand over some responsibilities to domestic authorities, allowing it to end certain activities. The clearest example developed in the Court’s reporting at the time was witness protection.8 Indeed, there are several lessons the ICC could learn from the experience of the Residual Special Court for Sierra Leone (RSCSL). While, as likely would be the case with the ICC, the RSCSL remains responsible for oversight of witness protection, it works together with a special unit within the Sierra Leonean police, which was created with the support of the Special Court for Sierra Leone (SCSL).9

States parties have included dialogue on completion strategies within the mandate of ASP-appointed focal points on complementarity since 2012. But as the topic of “positive” complementarity became more contentious in the Assembly, state party discussions on completion faded away for several years. The ASP’s Committee on Budget and Finance continued to raise the need for attention to completion,10 and from informal discussions with Court officials, it was clear to us that there remained a strong interest and appetite to explore completion in a more meaningful manner. In 2019, the topic was once again the focus of ASP discussions on complementarity. But these discussions, for the first time as far as we are aware, also included completion or closure mechanisms for preliminary examinations, and not only situations under investigation.11 Discussions on completion or closure of preliminary examination raise, in our view, a different set of issues, and we welcome the emphasis in this Forum on completion strategies for situations under investigation, given that the Court has twelve situations under investigation, many very advanced. Some aspects of the framing for this Forum offer yet another possibility—that completion could also be contemplated for a specific “investigation” within a situation, rather than on a situation-basis.

This history suggests that for real progress to be made in the design and implementation of completion strategies, there is a need for Court officials, its states parties, and other stakeholders to get on the same page as to why talking about situation-specific completion strategies are so important. It is not only about an instruction manual for completing the Court’s activities, as the prosecutor’s question for this Forum rightly acknowledges. Contemplating completion is also important for the reasons set out in her question: The Court does have limited resources that need to be purposefully directed and maximized—although, as we discuss below, it would be a mistake to think of completion strategies as a cost-savings tool. And providing closure to victims and survivors as to at least one part of what will be a broader accountability process,12 and certainty for persons of interest to an investigation, are key goals.

But completion strategies can do more, and the Prosecutor’s question seems to nod at this when it suggests they can “maximize the benefits […] of ICC action.” Done right, a situation-specific completion strategy reverse-engineers the Court’s mandate. That is, it seeks to define, on a situation-specific basis, what the Court seeks to achieve:

[W]hether [it] has achieved its mandate and under what conditions the Court will be able to say it has done so. This will primarily relate to whether the Court has delivered impartial, independent, and meaningful justice. However, a definition of completion should also consider fulfilment of the Court’s mandate as turning also on whether the domestic jurisdiction is ready to take over the Court’s ongoing responsibilities in the situation and resume their primary responsibilities to investigate and prosecute ICC crimes.13

Applying this broad concept to a specific situation will take deep consultation with affected communities and national authorities, a lesson learned from the ad hoc tribunals and SCSL.14

Contemplating completion in this way forces contemplating legacy. By legacy we mean a concern for maximizing the Court’s impact in affected communities, its most important stakeholders, “in terms of ending impunity, ensuring accountability and redress, strengthening the rule of law, and contributing to sustainable peace.”15 This concern should animate the Court’s work and it requires intentionality. In fact, our argument is that “completion” requires Rome Statute actors to pursue a range of actions from the very outset of an investigation—even in its planning and preparation—and carry right through the Court’s involvement in a situation. Again, the experience of other tribunals is instructive. Concern for the SCSL’s legacy received dedicated attention in the tribunal’s very first annual report, and motivated the Court’s approach to the developing the skills of Sierra Leonean staff members and the work of its Outreach Section.16 The ICTY, assisted by the OSCE, built in assessments to its outreach programming aimed at legacy.17

To be sure, as we noted in 2015, this expansive sense of completion is ambitious, particularly when it comes to conditioning completion of the Court’s mandate on the reassertion of national authorities of their primary responsibility for the investigation and prosecution of crimes. National justice efforts face many barriers. The Court may fall short in many situations, and may have to conclude that completion will ultimately be premised on moving the goalposts. But setting the goal is essential if we want to take legacy seriously and seek to capitalize on the potentially tremendously influential role of the Court in the situations in which it acts and will be present for a sustained period of time.18 The Court should be able to rely on its Assembly of States Parties to broker assistance between states parties and other international actors to support these efforts.19

The necessity of completion strategies approached from this perspective has become even more acute, as well as provided fresh opportunities.

First, new needs. In 2015, we argued for completion strategies in order to help secure the financial resources the Court needs to robustly carry out its mandate. Making a compelling case for the necessary resources, we thought, would be assisted by a specific definition of the ICC’s mission in a given country and a strategy for completing that mission.20 Since then, the number of situations pending before the ICC has only grown, while state party negotiations on the budget remain distorted by the demand of some governments for zero growth in the Court’s resources. This mismatch is forcing a continued over-prioritization of the work of the Office of the Prosecutor—that is, too few cases in each situation—with significant legitimacy costs. Completion strategies alone will not solve this mismatch. And they should not be approached as directed at financial savings, that is, forcing completion in order for the Court’s resources to be reallocated to new situations. But, if communicated to all stakeholders, they could provide a framework around which a shared vision of the Court’s mission could be built, deepening dialogue between the Court and states parties as to the resources truly needed for the Court to complete that mission responsibly. They could also help direct the Court’s resources toward clearly articulated and agreed goals, increasing the efficiency of the use of those resources.

Second, new opportunities. Changes in court practice have provided new opportunities. First, the Office of the Prosecutor has relatively recently begun referring to its “prosecutorial program” for a given situation, providing a metric against which to measure progress towards completion (as the Office itself indicates in setting out initial ideas regarding completion strategies in its 2019–2021 Strategic Plan).21 Second, strengthened country offices in some ICC situation countries and a Country Analysis Unit within the Court’s Registry following reorganization of the organ in 2015 provide new opportunities to root the ICC’s work nationally and contribute to legacy-sensitive approaches.22

These are challenging times for the Court, amidst setbacks for the prosecutor’s office in key cases and hostile actions by the United States government. And an ongoing “Independent Expert Review”—which may touch on completion strategies, but has a much broader mandate addressed to strengthening the Court’s effective delivery of justice23 —and elections later this year of the next prosecutor, as well as six new judges, will rightfully dominate discourse around the Court, in what could prove to be a monumental year. It may be tempting to think that serious discussion of completion strategies should be shelved in favor of attention to shorter-term priorities. To the contrary, the opportunity should be seized. In defining what the Court seeks to achieve and how it will get there, situation-specific completion strategies can animate court action and partners around a shared vision, increasing the Rome Statute system’s resilience and legitimacy.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Elizabeth Evenson & Alison A. Smith, Completion, Legacy, and Complementarity at the ICC, in The Law and Practice of the International Criminal Court 1259, 1261 ( Carsten Stahn ed., May 1, 2015), available online.

   (The chapter is an open access chapter distributed under the terms of a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 International license). ↩

2. 2.

   Id. at 1267. ↩

3. 3.

   See Office of the Prosecutor, ICC, Strategic Plan 2019–2021, ¶¶ 19, 23 (Jul. 17, 2019), available online; International Criminal Court, Strategic Plan 2019–2021, 11–12 (Jul. 17, 2019), available online. ↩

4. 4.

   See Evenson & Smith, supra note 1, at 1260–65 (citing Kevin Jon Heller, Completion Strategies and the Office of the Prosecutor (Jun. 26, 2009), in International Prosecutors 887 (Luc Reydams, Jan Wouters & Cedric Ryngaert, eds., 2012), available online.)

   (Heller’s comprehensive study was drawn upon to describe how the development of completion strategies for the ad hoc tribunals and the SCSL took place as a “by-product of the pressure on these tribunals—largely budgetary—to accelerate their conclusion.”). ↩

5. 5.

   See Complementarity, ASP Resolution ICC-ASP /11/Res.6, ¶ 7 (Nov. 12, 2012), available online. ↩

6. 6.

   See Assembly of State Parties, Report of the Court on Complementarity: Completion of ICC Activities in a Situation Country, ICC-ASP /12/13, ¶ 17 (Oct. 15, 2013), available online; Kevin Jon Heller, Completion Strategies, LCGGS (Aug. 5, 2009), available online.

   (The ASP adapted definitions from Heller’s article). ↩

7. 7.

   (“Positive” complementarity is generally understood to mean initiatives by a range of actors to encourage national prosecutions of international crimes, ranging from legislative assistance to capacity building to political dialogue to counter obstruction. The Court is only one actor in this landscape, which also includes assistance between states, international organizations, and civil society). ↩

8. 8.

   Assembly of States Parties, supra note 6, ¶ 35. ↩

9. 9.

   Evenson & Smith, supra note 1, at 1271 (citing Open Society Justice Initiative, Legacy: Completing the Work of the Special Court for Sierra Leone 12–13 (2011), available online ); see also The Special Court for Sierra Leone and the Residual Special Court for Sierra Leone, RSCSL, available online (last visited Feb. 20, 2020)

   (describing the National Witness Protection and Assistance Program). ↩

10. 10.

    See, e.g., Assembly of States Parties, Report of the Committee on Budget and Finance on the Work of Its Thirty-First Session, ICC-ASP /17/15, ¶ 59 (Oct. 29, 2018), available online. ↩

11. 11.

    See, e.g., Secretariat of the Assembly of States Parties, Complementarity: Seminar on Completion Strategies Across the ICC’s Activities (Apr. 4, 2019), available online. ↩

12. 12.

    Evenson & Smith, supra note 1, at 1261. ↩

13. 13.

    Id. at 1267. ↩

14. 14.

    Id. at 1267–68 (citing Heller, supra note 4, at 911)

    (terming the failure to consult with victims regarding the ICTR’s closure as “a critical oversight, even if the victim’s desires would not have affected the completion strategy: although victim satisfaction may not be a sufficient condition of a tribunal’s legitimacy, it is certainly one of its necessary conditions. A tribunal that is not seen as legitimate by the victims of a conflict is unlikely to be seen as legitimate by anyone else.”). ↩

15. 15.

    Evenson & Smith, supra note 1, at 1260–61. ↩

16. 16.

    Id. at 1270 (citing Exploring the Legacy of the Special Court for Sierra Leone, ICTJ, available online (last visited Feb. 20, 2020))

    (an overview of SCSL’s legacy activities). ↩

17. 17.

    Evenson & Smith, supra note 1, at 1270 (citing Fausto Pocar, Completion or Continuation Strategy? Appraising Problems and Possible Developments in Building the Legacy of the ICTY, 6 J. Int’l Crim. Just. 655, 663 (Sep. 2008), paywall, doi). ↩

18. 18.

    Evenson & Smith, supra note 1, at 1268 (citing Pocar, supra note 17, at 655). ↩

19. 19.

    Evenson & Smith, supra note 1, at 1273–75. ↩

20. 20.

    Id. at 1261. ↩

21. 21.

    See OTP Strategic Plan, supra note 3, ¶ 23.

    (“The Office will aim to identify a prosecutorial program to implement, which will allow it to assess its progress and the obstacles encountered during the implementation.”). ↩

22. 22.

    See The Registry, ICC, Comprehensive Report on the Reorganisation of the Registry of the International Criminal Court (Aug. 2016), available online. ↩

23. 23.

    Assembly of States Parties, Terms of Reference for the Independent Expert Review of the International Criminal Court, Annex I to Review of the International Criminal Court and the Rome Statute System, Resolution ICC-ASP /18/Res.7 (Dec. 6, 2019), available online. ↩

24. Suggested Citation for this Comment:

    Elizabeth Evenson & Alison A. Smith, It’s a Journey, Not a Destination: Court-Wide Completion Strategies in ICC Situations Under Investigation Can Promote a Shared Vision of the Court’s Mandate, Guiding Its Exercise and Bringing on Board Support From Other Actors, ICC Forum (Feb. 24, 2020), available at https://iccforum.com/completion#Evenson.

    Suggested Citation for this Issue Generally:

    What Might Be Some Elements of an ICC Completion Strategy for Situations Under Investigation?, ICC Forum (Feb. 24, 2020), available at https://iccforum.com/completion.

Argument

Why Completion Strategies are Essential

For the Court to be anywhere on a de facto permanent basis undermines the principle of complementarity that lies at the heart of the Rome Statute. Designed as a “court of last resort” the Court only enters into situations where the domestic system is “unable or unwilling” to conduct its own genuine investigations or prosecutions.2 But by staying in situations for well over a decade, the Court has now fostered a moral hazard problem, undermining any incentive for the domestic systems in those situations to become able and willing to undertake prosecutions themselves.3

Beyond concerns about the negative impact that such de facto permanency has on the ethos of complementarity, there are also practical reasons why the Court should not remain in a situation without a completion strategy in place. First and foremost, such endless engagements take their toll on victims and witnesses. The concern is related but distinct from the psychological toll incurred by the often slow speed of international criminal justice in general. Here, it is not just the victims and witnesses involved in a particular slow-moving case that are affected, but also the many victims and witnesses to crimes that are not part of any current case but, because the Court is still formally engaged with the situation, either hope or fear they will be in the future. With no clarity on if, or when, the Court’s engagement will end, those most affected are placed in a permanent state of limbo.

In addition, endless engagements further the perception of international criminal justice as inefficient. Indeed, by staying in a situation without developing a completion strategy, the Court may, in fact, be fostering inefficiency. Without any sense of an end point, there is little incentive for the Court’s staff to increase the speed of their operations, even when they have the capacity to do so.

Finally, there is the pressing problem of resource constraints. The Court’s budget has not grown in proportion to the number of situations it has entered, and is unlikely to do so in the future. In a world of limited resources, staying in one situation means not entering another. This then brings us back to the spirit of the Rome Statute. The vision was never to create a court with a quasi-permanent presence in a handful of African nations, but to be a backstop for domestic criminal systems globally.

Sources of Guidance on Exit

Recognizing the need for a completion strategy is a necessary first step. But designing such a strategy is a complex endeavor. It is easy enough to say that the ICC should conclude its work in a given situation once it has succeeded in fulfilling its mandate there. But when one’s (sweeping) mandate is to “end impunity,” any workable definition of success requires significant refinement. And while the Rome Statute provides guidance on when the Court can enter a situation, it provides no such direction regarding when the Court should leave.

The Statute is not, however, irrelevant when thinking through the parameters of a completion strategy. Hypothetically, if the OTP prosecuted all the crimes that rose to an Article 17(d) level of gravity within a given situation, then the Court should consider its work complete. Likewise, if the only reason to stay in a situation was to pursue additional prosecutions on account of the perpetrators’ ethnicity or gender, for instance, then the requirement of impartiality in Article 21(3) may well counsel in favor of exit. But such scenarios are so unlikely to arise that, for most practical purposes, any such statutory basis will almost certainly be under-determinative, and so it becomes helpful to also look to the policy guidance that has grown up around the Statute.

As articulated in the OTP’s 2016 document on Case Selection and Prioritization, the Prosecution strives to charge those “most responsible” for “a representative sample of [crimes that reflect] the main types of victimization and of the communities which have been affected by the crimes in that situation.”4 This policy guidance is instructive when thinking about a working definition of success. The Court may never “end impunity,” but, in a best-case scenario, it could ensure that those most responsible for the main types of victimization in a given situation were prosecuted. And, consistent with the principle of complementarity, success would be as, or even more, meaningful if those prosecutions were undertaken by domestic systems.

The ICC is hardly the first institution with the need to develop a completion strategy. The comparison that most readily comes to mind is from the ad hoc tribunals, and certainly there is a body of literature that has emerged around their completion strategies.5 But, despite the commonality of being an international criminal justice mechanism, the analogy to these tribunals is somewhat attenuated when it comes to exit because the ICC is a permanent institution.

Unlike the ICC, the ad hoc tribunals have not had to factor in the impact of their exit on ongoing or future situations. A more apt analogy, then, may be to UN peacekeeping operations, and within this realm there is extensive literature to mine.6 Some of the key takeaways from work on completion strategies for peacekeeping are instructive as the ICC develops it approach:

1. The most likely scenario involves leaving under conditions short of total success, and the reasons for partial or complete failure should inform a completion strategy.7

2. A completion strategy must be flexible enough to respond to changing circumstances. Thus, exiting a situation is a process driven by benchmarks, not an event driven by dates on a calendar.8

3. The support of other actors, and in particular, states, are essential to the exit process.9

Drawing these sources together in The ICC’s Exit Problem, I offered the following framework as a starting point for discussions on how the ICC might develop a completion strategy.10

Figure 1 Exit Decision Making

Completion as Opportunity

The development of a completion strategy, especially under circumstances of partial success or failure, should be seen as a moment of opportunity. First, by publicly articulating the benchmarks guiding its completion strategy, the Court can refocus and rally external actors around the forms of support it needs to fulfill its mandate. Second, a completion strategy can facilitate planning to strengthen domestic systems, where willing, to undertake their own prosecutions.

In terms of having domestic systems take on remaining investigations and prosecutions in a situation, the experience of the International Criminal Tribunal for the former Yugoslavia (ICTY) is useful. As with that tribunal, it is likely that when planning to leave a situation, there will be two basic types of uncompleted cases for the Court to consider. First, there will be those where the Court has charged a defendant and then the domestic system takes the case forward to prosecution once the ICC leaves. Much like the 11 bis cases at the ICTY, the Court likely has some responsibility to ensure that the defendant’s rights receive the same degree of protection in a subsequent domestic prosecution as they would have if the ICC had completed the case.11 Second, there will be situations where the ICC has developed an investigative file but not yet filed any charges. Here, the domestic system will take over the investigation. As the OTP’s latest strategic document notes, Article 93(10) of the Statute provides a mechanism for interested domestic authorities to request access to information including, presumably, an investigative file that it intends to use for a domestic level prosecution.12 Akin to the ICTY’s “category two” cases, the case for the ICC’s responsibility toward any future defendant is more attenuated in such a scenario.13 But, again, if these possibilities are laid out in a completion strategy document, it will facilitate planning by other actors who can provide oversight and help ensure the domestic system has the training and resources needed to conduct a fair trial.

The OTP’s 2019–2021 strategic document provided a welcome acknowledgement of the need to start work on completion strategies. But there is no reason for the Court to undertake this daunting task on its own. Both scholars and justice activists, who were actively engaged in helping the Court think through a framework for deciding when to enter a situation, have routinely ignored the parallel question of exit. Hopefully this Forum will kick-start these necessary discussions.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Office of the Prosecutor, ICC, Strategic Plan 2019–2021 1, 18–19 (Jul. 17, 2019), available online. ↩

2. 2.

   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 Rome Statute], Art. 17, available online. ↩

3. 3.

   See Rebecca J. Hamilton, The ICC’s Exit Problem, 47 N.Y.U. J. Int’l L. & Pol. 1, 11–14 (Mar. 15, 2014), paywall, paywall ↩

4. 4.

   Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritization, 1, 15 (Sep. 15, 2016), available online. ↩

5. 5.

   See, e.g., Fausto Pocar, Completion or Continuation Strategy? Appraising Problems and Possible Developments in Building the Legacy of the ICTY, 6 J. Int’l Crim. Just. 655 (Sep. 2008), paywall, doi ↩

6. 6.

   See, e.g., Report of the Secretary-General, No Exit Without Strategy: Security Council Decision-Making and the Closure or Transition of United Nations Peacekeeping Operations, UN Doc. S/2001/394 (Apr. 20, 2001) [hereinafter No Exit Without Strategy], available online. ↩

7. 7.

   See, e.g., Richard Caplan, Exit Strategies and State Building 3, 8 (2012), paywall, doi. ↩

8. 8.

   See e.g., No Exit Without Strategy, supra note 6. ↩

9. 9.

   Id. ¶ 55. ↩

10. 10.

    Hamilton, supra note 3, at 49. ↩

11. 11.

    International Criminal Tribunal for the former Yugoslavia, Rules of Procedure and Evidence, UN Doc. IT/32/Rev.50, Rule 11 bis (C) (Jul. 8, 2015), available online, archived; See also Rome Statute, supra note 2, at art. 21(3).

    (Once a defendant is brought to the ICC, he or she can rely on “internationally recognized human rights” standards to protect his or her rights). ↩

12. 12.

    See Strategic Plan, supra note 1, at 29–30. ↩

13. 13.

    Frédéric Mégret, Too Much of a Good Thing: Implementation and the Uses of Complementarity, in The International Criminal Court and Complementarity: From Theory to Practice 422 ( Carsten Stahn & Mohamed M. El Zeidy eds., 2011), available online, doi. ↩

14. Suggested Citation for this Comment:

    Rebecca J. Hamilton, Articulating a Completion Strategy for Each Situation Will Help the Court Fulfill Its Mandate, and Could Catalyze Support to Domestic Criminal Justice Systems., ICC Forum (Feb. 24, 2020), available at https://iccforum.com/completion#Hamilton.

    Suggested Citation for this Issue Generally:

    What Might Be Some Elements of an ICC Completion Strategy for Situations Under Investigation?, ICC Forum (Feb. 24, 2020), available at https://iccforum.com/completion.

These differences, however, do not mean that there cannot be any similarities between elements of an ICC completion strategy and elements of the ad hoc Tribunals completion strategies. In particular, a common feature is the referral of cases to domestic jurisdictions under the principle of complementarity, although such a principle is described in the Rome Statute as conferring primary jurisdiction to national courts while it is described in the Statutes of the ad hoc Tribunals as giving priority to international over domestic jurisdiction.1 It was the ICTY that came to the conclusion that an effective completion strategy had to rely on domestic judiciaries and aimed at transferring cases to them after having ensured that they had become able and ready to deal with such cases, with a view to a continuation of the work of the Tribunal after its closing.2 In spite of the reasons that may have contributed to its adoption, such a conclusion is not much different from the view expressed by the drafters of the Rome Statute that cases concerning crimes under international law should be prosecuted by domestic jurisdictions unless those jurisdictions are unable or unwilling to genuinely prosecute them.3

Which are, then, the elements that should guide a completion strategy of the ICC for situations under investigation? Which are strictly connected, as stated earlier, with the prosecutorial policy of the Court? External elements substantially affected the ad hoc Tribunals completion strategies by imposing deadlines—in particular, the Security Council resolution that called on the ICTY to take all possible measures to complete investigations by the end of 20044 —which allowed for no flexibility in terms of prosecutorial policy. The ICC, by contrast, is free to adapt its prosecutorial policy with respect to the completion of pending cases, subject of course to the observance of the provisions of the Rome Statute, and especially of Article 53 concerning the initiation of investigations.

It goes without saying that when it appears during an investigation that any of the required conditions allowing the Prosecutor to initiate an investigation under Article 53 of the Rome Statute have not been met, the investigation should be discontinued. Should it be apparent from a pending investigation that there is no reasonable basis to believe that a crime exists, or that an existing crime belongs to the jurisdiction of the Court, the Prosecutor cannot initiate an investigation and, if it was already initiated, must abandon it. This is just a matter of law, not of prosecutorial policy.

Different situations arise when the Rome Statute allows for a certain flexibility either in the appreciation of the conditions of admissibility of a case or in deciding whether a case over which the Court has jurisdiction should be prosecuted, or rather abandoned, by the prosecutor.

The first situation concerns the assessment of the admissibility of a case when the State that would be competent to adjudicate it is unable or unwilling to prosecute it. This ground of admissibility is normally characterized as strictly legal and binding on the prosecutor,5 and frequently it is so if the inability of a domestic judiciary is manifest or the unwillingness of the State concerned is declared. There are, however, cases where a decision on admissibility on the basis of this ground may imply a margin of discretion.

I do not intend to expressly mention here any specific situation currently investigated by the ICC Prosecutor, but let’s imagine a case of a country torn by a domestic conflict where war crimes and crimes against humanity were committed both by armed groups fighting against the State and by State officials in repressing the activity of those armed groups. Let’s also assume that, at the end of the conflict, the State adopts a peace plan which provides for the establishment of an independent court to prosecute the crimes committed during the conflict, though setting a regime of sentencing that, in most cases, will be somewhat more lenient than the one the ICC will be likely to apply. In such a case, if the local independent court is actually established and starts working, should the ICC Prosecutor continue the investigations or rather yield to the domestic jurisdiction in application of the principle of complementarity? Would the mere likelihood that a prosecution of the crimes by the ICC would lead to more severe punishment of the perpetrators justify the continuation of the investigations with a view to ensuring the retrial of cases already heard be the domestic court, when such retrial would probably lead to the increase by a few years of detention the sentence imposed by the domestic court? In my view, in a case of this kind, it would be wiser for the Prosecutor to drop or at least to suspend the investigations; their continuation should be reserved to the case in which the Government’s intent is manifestly to shield the accused from prosecution.

Unlike the just mentioned situation, which is partly a matter of interpretation of legal provisions, in particular of Article 17 of the Statute, the second situation described above is essentially a matter of prosecutorial policy. It arises when the jurisdiction of the Court over pending cases is well established and the Prosecutor has to decide how to proceed in prioritizing the cases to be submitted to the Chambers. The issue is delicate because a prioritization may determine not just the sequence of the cases, but also that some of them may eventually be dropped due to an excessive lapse of time before they may be heard. Hence, a decision should take that possibility also into account, and suspend or drop cases when such possibility is close to be a likelihood. In that sense, the prosecutorial policy may also include abandoning investigations which do not deserve to be prioritized.

The Rome Statute itself gives but a limited guidance for such a decision. There are, however, some provisions that may assist. First, there is the general indication in Article 5 that the jurisdiction conferred upon the Court “shall be limited to the most serious crimes of concern to the international community as a whole,”6 and the specific indication in Article 17(1)(d) that jurisdiction should be declined when “the case is not of sufficient gravity to justify further action by the Court.” Second, in a given case, the Prosecutor may conclude under Article 53(2)(c) that there is not a sufficient basis for a prosecution because “a prosecution is not in the interests of justice.” All these provisions offer the Prosecutor some margin of discretion in deciding whether to continue with an investigation or set it aside, although that margin has different degrees and weight.

In particular, the language of the reference to the most serious crimes of concern to the international community in Article 5 of the Rome Statute does not appear to introduce any hierarchy among the crimes listed in the subsequent provisions, but simply to indicate that the listed crimes are indeed the most serious crimes over which the Court has jurisdiction. Nevertheless, that provision has been interpreted as permitting the identification of categories of crimes within those mentioned in the list. As of the beginning of its activity, the first Prosecutor of the ICC wrote in his 2003 Policy Paper that, the Court being an institution with limited resources, it should confine prosecutions to the leaders who bear most responsibility for the crimes.7 As to lower-ranking perpetrators, the Court should encourage national prosecutions, where possible, or work with the international community to ensure that the offenders are brought to justice by some other means.8

Therefore, the Prosecutor expressed the view that there should be a distribution of tasks between the Court and domestic jurisdictions, in terms of a so-called positive complementarity, based on the level of participation in the crimes under the Rome Statute. It is recognized in the Policy Paper that this distribution may leave an impunity gap if lower level perpetrators escape prosecution, but this issue should be left to national courts or to the international community to discover other means. However, since the Statute does not provide for this distribution and only refers to the seriousness of the crimes, the position of the Prosecutor did not simply reflect a legal interpretation but was, rather, the expression of a prosecutorial policy. Although this announced prosecutorial policy was not always followed later in the practice of the Court, it still is an important element for the selection of the cases to be brought before the ICC.9

Is this a sound prosecutorial policy when the Rome Statute only mentions the seriousness of the crimes? It certainly has some merits, but also some shortcomings. On one hand, it provides for an objective distribution of tasks between the Court and national jurisdictions, even if the assessment of the rank of the perpetrators may not always be a simple one. On the other hand, however, it fails to take into account the interests of the victims, who, in many cases, expect to get closure from the punishment of the individuals who materially committed the crime, rather than of a distant high rank person with whom they do not have any contact. Additionally, it fails to consider that the task of an international court, and in particular of a criminal court, is not only to pronounce on a specific case, but also to give guidance to domestic jurisdictions to pronounce on similar cases. Consequently, a primary responsibility for an international court is to interpret the law—in this case the Rome Statute, but also customary law when applicable under Article 21 of the Statute10 —in order to reach a common understanding of the rules governing crimes which are serious and widespread, even when they are rarely materially committed by high rank persons. The value of a judgment rendered by an international court in such a case may even be more significant, in terms of progress of the law and guidance given to domestic courts and to potential perpetrators, than the value that may have a judgment targeting a high rank State official.

The ICTY did not make a distinction based on the rank of the accused at the beginning of its work, although some investigations were also targeting high rank persons.11 Rather, some cases concerning lower level accused permitted the Tribunal to clarify a number of legal issues and even to render some decisions that remain as leading cases for further international and domestic prosecutions, thus marking a very significant step in the progressive evolution of international criminal law.12

It is surprising that the ICC, more than eighteen years after the entry into force of the Rome Statute, still does not record any judgment of this kind. Just to make an example, wouldn’t it have been more beneficial if the Court, instead of running after some heads of State, had worked for criminally defining slavery, as it is practiced in contemporary world, as a crime against humanity? Article 7(1) and 7(2)(c), dealing with “enslavement,” would certainly allow for that approach and a judgment of the Court on such a matter would concern millions of victims13 and would constitute a significant progress in international law, irrespective of the perpetrators being high rank officials or persons active in criminal organizations. I make this example here only to show that a sound prosecutorial policy should not exclusively, or even principally, rely on the distinction between high rank and lower rank perpetrators and that, consequently, it should not rely on that distinction at the stage of envisaging a completion strategy with respect to pending cases over which the ICC has jurisdiction.14

In light of the above considerations, the only provision on which the Prosecutor may correctly rely to decide whether there is a sufficient basis to continue an investigation with a view to prosecuting a case is Article 53(2)(c) of the Rome Statute which allows her/him to discontinue an investigation when a prosecution is not in the interests of justice. There, too, some elements have to be taken into account under the statutory provision, but additional elements may also play a role. Reference is made to “all the circumstances,” which include, but are not limited to, the gravity of the crime, the interests of victims, and the age or infirmity of the alleged perpetrator. The Prosecutor can therefore rely on any circumstances of the crime, which, of course, also includes the rank of the alleged perpetrator. The prosecutor could consider rank, balancing it against the elements expressly described in the statutory provision, as well as other elements as appropriate.

In conclusion, in shaping a completion strategy with respect to the pending cases under investigation with a view to reducing their number, and assuming these are cases over which the Court’s jurisdiction is undisputed, the Prosecutor should not rely specifically on the rank of the alleged perpetrator. He/she should instead stick to Article 53(2)(c) referring to the interests of justice. In light of the flexibility of the provision, it goes without saying that the Prosecutor should give an appropriate reasoning on a case by case basis. As it is intended to be part of prosecutorial policy, it is natural that the Prosecutor should enjoy a wide margin of flexibility in making a decision whether to discontinue an investigation, subject to the above mentioned applicable statutory provisions.

In particular, no special treatment should necessarily be given to the consideration that the investigation was based on a Security Council referral. It is true that the Security Council may have important political motives to refer a situation to the ICC, but, from a legal point of view, its referral simply removes an obstacle to the jurisdiction of the Court by permitting the Prosecutor to investigate alleged crimes connected with a State that has not ratified the Rome Statute. However, in terms of the prosecutorial policy of the Court, no priority is attached to a Security Council referral as such. In the two referrals made by the Security Council so far, the ICC Prosecutor has given those situations priority even beyond the scope of the Security Council resolutions which referred country situations and did not contain a mandate to immediately issue indictments against the two Heads of State. This may show an inclination of the Prosecutor to insert the referrals into the Court’s prosecution schedule with priority, but it does not constitute a binding precedent per se.

In light of the consideration that discontinuing an investigation forms part of the prosecutorial policy, and of the freedom enjoyed by the Prosecutor in shaping such a policy, the Prosecutor should be also free to decide whether abandoning an investigation should be final or temporary. In other terms, an investigation may be suspended if more urgent or compelling cases so require, or if the prospect of arresting alleged perpetrators of the crime or witnesses thereof is limited because the circumstances surrounding the crime so indicate. In any event, it is clear that the discontinuation of an investigation is never absolutely final until there is a final decision concerning the crime alleged.

Should the Prosecutor issue a public report on the decisions taken on a completion strategy concerning cases over which the Court has jurisdiction? There is no obligation to do so, except for what is required under Article 53(2)(c), which provides that the Prosecutor shall inform the Pre-Trial Chamber, and the State making a self-referral or the Security Council when a situation has been referred by it, of his or her conclusion and the reasons for such conclusion. If the reasons for a decision to discontinue an investigation is because a prosecution is not in the interests of justice, a public report would be desirable. However, any report should be confidential if it may affect further investigations on the same crime, or on related crimes, or if it may have an impact on the security of witnesses or on the interests of victims, which must also be given priority.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See, respectively, 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, as amended [hereinafter Rome Statute], Art. 17(1), available online; Establishment of the International Criminal Tribunal for the Former Yugoslavia, Security Council Resolution 827 at Art. 9 (May 25, 1993), available online; Establishment of the International Criminal Tribunal for Rwanda, Security Council Resolution 955 at Art. 8(2) (Nov. 8, 1994), available online. ↩

2. 2.

   See, e.g., Fausto Pocar, Completion or Continuation Strategy? Appraising Problems and Possible Developments in Building the Legacy of the ICTY, 6 J. Int’l Crim. Just. 655 (Sep. 2008), paywall, doi. ↩

3. 3.

   See Rome Statute, supra note 1, at Art. 17. ↩

4. 4.

   Resolution 1503 (2003), UNSC Res. 1503, UN Doc S/RES/1503 (Aug. 28, 2003), available online. ↩

5. 5.

   See, e.g., Giuliano Turone, Powers and Duties of the Prosecutor, in The Rome Statute of the International Criminal Court: A Commentary 1151 (Antonio Cassese, Paola Gaeta, John R.W.D. Jones eds., Jul. 25, 2002), paywall. ↩

6. 6.

   See also, respectively, Rome Statute, supra note 1, at Preamble ¶ 4, Art. 1.

   (The two sections employ equivalent expressions to define the jurisdiction of the ICC). ↩

7. 7.

   See Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor, ¶ 2.1. (Sep. 2003), available online.

   (According to the Prosecutor, “the concept of gravity should not be exclusively attached to the act that constituted the crime but also to the degree of participation in its commission”). ↩

8. 8.

   See id. ¶ 2.2. ↩

9. 9.

   See Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritization, ¶¶ 34–46, 47–55 (Sep. 15, 2016), available online.

   (Now, though, there is more flexibility in assessing the gravity of a crime. And there is also an indication of the criteria to be followed for the prioritization of cases). ↩

10. 10.

    See Fausto Pocar, Transformation of Customary Law through ICC Practice, 112 Am. J. Int’l L. Unbound 182 (2018), available online, archived, doi. ↩

11. 11.

    (In particular, high rank targets included the president and the general of the armed forces of the Republika Srpska, Radovan Karadžić and Ratko Mladić, whose arrest warrants were issued in 1996). ↩

12. 12.

    The Prosecutor v. Duško Tadić, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (ICTY AC, Oct. 2, 1995), available online; The Prosecutor v. Duško Tadić, IT-94-1-A, Judgement (ICTY AC, Jul. 15, 1999), available online; The Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, IT-96-23-T, Judgement (ICTY TC, Feb. 22, 2001), available online.

    (It is sufficient to mention in that respect the Tadić jurisdiction decision and the Tadić judgment, which settled the interpretation of the notion of “international armed conflict” in criminal matters and the applicability of a grave breaches regime in non-international armed conflicts or, with respect to specific crimes, the Kunarac Trial judgment, that defined the elements of the crime of rape as a self-standing crime under customary international law). ↩

13. 13.

    International Labor Office, Global Estimates of Modern Slavery: Forced Labour and Forced Marriage (Sep. 19, 2017), available online.

    (This matter is of public awareness and concern, and it is sufficient to cast a glance at the reports of the ILO to have a better knowledge of its size. According to the ILO report, there are 40 million people in modern slavery and 152 million in child labour around the world). ↩

14. 14.

    See International Criminal Tribunal for the former Yugoslavia, Rules of Procedure and Evidence, UN Doc. IT/32/Rev.50, Rule 11 bis (C) (Jul. 8, 2015), available online, archived; Resolution 1534 (2004), UNSC Res. 1534, UN Doc S/RES/1534 (Mar. 26, 2004), available online.

    (It is true that the ICTY completion strategy relied on the level of responsibility of the accused to refer pending cases to domestic jurisdictions. Rule 11 bis (C) refers to the gravity of the crimes charged and the level of responsibility of the accused. However, that rule did not belong to the prosecutorial policy of the Tribunal and was adopted in accordance with Resolution 1534 (2004)). ↩

15. Suggested Citation for this Comment:

    Fausto Pocar, ICC Completion Strategy and Prosecutorial Policy: Two Sides of the Same Coin, ICC Forum (Feb. 24, 2020), available at https://iccforum.com/completion#Pocar.

    Suggested Citation for this Issue Generally:

    What Might Be Some Elements of an ICC Completion Strategy for Situations Under Investigation?, ICC Forum (Feb. 24, 2020), available at https://iccforum.com/completion.

Argument Continued

Finally, another reason to bring some investigations to an end is for the sake of the institution itself. There is little prospect that the ICC will gain in resources or power anytime soon which means that if investigations continue to be opened while none are closed, the focus, energy, and authority of the Court could be dissipated. There may, however, be other ways to address this risk aside from terminating investigations by, for example, finding ways to focus the work of the Court.

These are some of the reasons to devise a policy on terminating investigations. What are the risks of closing down investigations? Given how few cases the ICC prosecutes in each situation, the Court will have to consider the risk of reputational harm if it announces that it is terminating an investigation into a particular situation. Victims and other interested parties will likely protest the inadequacy of the prosecutorial response. Further, circumstances can change. What happens if the investigation is closed and then new evidence of crimes suddenly becomes available? This scenario is not fanciful since critical evidence in atrocity investigations has often emerged only years after the events.6 Could the Prosecutor simply re-open the investigation, or would there need to be a new trigger to do so?

All of these considerations suggest a three-part OTP policy to manage open investigations. First, in a narrow set of circumstances, the OTP could close an investigation if it concluded that there was absolutely no possibility of ICC prosecutions arising from a situation. Such terminations would mirror decisions to close a preliminary examination without proceeding to investigation, for example if it were found that a jurisdictional element was missing (e.g. in an investigation of possible war crimes, insufficient evidence of an armed conflict) or the alleged crimes were deemed to be insufficiently grave to warrant ICC prosecution. Given the rigor with which potential situations are analyzed before an investigation is opened, it is expected that these kinds of terminations would occur very infrequently.

Second, the OTP could close an investigation if it assessed that any remaining potential cases would be prosecuted by national authorities. This could occur if the ICC prosecuted senior officials, leaving lower-level perpetrators to the state to prosecute, or if the ICC brought no prosecutions but was confident that the state would proceed against all alleged perpetrators, high and low. In this respect, such terminations would essentially be assessments that remaining cases were no longer “admissible” pursuant to Article 17 of the Rome Statute. The International Criminal Tribunal for the former Yugoslavia (ICTY), succeeded by the Residual Mechanism, is following this path: the alleged most senior perpetrators were prosecuted by the ICTY and the Residual Mechanism and the expectation is any and all remaining cases can be prosecuted by national authorities.

Third, the OTP could allow the remaining investigations to stay open, but devise a policy prioritizing them that would identify the three to five investigations that would be “active” at any given moment. The other remaining investigations would be put on the shelf, or made “inactive,” pending any new developments warranting them to be revisited. The criteria for determining which investigations would be prioritized could track those that the OTP relies upon for prioritizing cases within an open situation, as set out in the OTP’s Case Selection and Prioritization Policy.7 The OTP could assess the urgency of the investigation, the gravity of the situation, and the likelihood of cooperation and success, mindful that these factors are dynamic and that no one factor is necessarily dispositive.

This policy would address all of the concerns raised by the accumulating investigations at the ICC. It would signal to perpetrators and victims that there is no expiration date on justice. It would tell states that, to the extent they perceive the existence of an open ICC investigation as a black cloud, they can lift it by committing to prosecute any outstanding cases themselves. And it would focus the work of the ICC by concentrating its efforts on those investigations that are most pressing and promising. Investigations should be kept open as long as there are perpetrators roaming free, but they should be prioritized to ensure that the efforts of the ICC are effective.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Thomas Weber, Time Appears to Have Run Out on the Last Nazi War Crimes Trials. But There Are Other Roads to Justice, Time, Apr. 3, 2019, available online. ↩

2. 2.

   Home Page, IRMCT, available online (last visited Feb. 20, 2020). ↩

3. 3.

   Home Page, ECCC, available online (last visited Feb. 20, 2020). ↩

4. 4.

   Jason Burke, Sudan Signals It May Send Former Dictator Omar al-Bashir to ICC, The Guardian, Feb. 11, 2020, available online. ↩

5. 5.

   Emeric Rogier, The Ethos of “Positive Complementarity”, EJIL Talk (Dec. 11, 2018), available online. ↩

6. 6.

   Alex Whiting, In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered, 50 Harv. Int’l L.J. 323 (2009), available online. ↩

7. 7.

   Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩

8. Suggested Citation for this Comment:

   Alex Whiting, Prioritizing Investigations is Key, ICC Forum (Feb. 24, 2020), available at https://iccforum.com/completion#Whiting.

   Suggested Citation for this Issue Generally:

   What Might Be Some Elements of an ICC Completion Strategy for Situations Under Investigation?, ICC Forum (Feb. 24, 2020), available at https://iccforum.com/completion.