ICC Forum

The Completion Strategy Question — Comments

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Comment on the Completion Strategy Question: “What might be some elements of an ICC completion strategy for situations under investigation?”

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Transferring Cases to National Courts: Lessons from the ICTY and the ICTR

I. Introduction

In deciding when and how to extract from a situation, the ICC may consider transferring its cases and materials to national courts as part of the ICC’s completion strategy.1 The question, then, is what factors should play into the ICC’s case referral decisions. This Comment looks to the seemingly discrepant and even contradictory experiences of the ICTR and the ICTY and explores how they actually address the same concerns that help inform the ICC’s approach. This comment argues that the ICC should develop comprehensive strategies early on to help domestic courts build their judicial capacities in war crimes prosecutions and stay attuned to the implications of case referrals for domestic stability; the ICC should also pay attention to the logistics of case transfers to ensure effective domestic prosecutions.

Part II of this comment examines the ICTR and the ICTY case referral rules and their applications and observes that the ICTR and the ICTY were primarily concerned about domestic judicial capacities in war crimes prosecutions, as well as the prospects of domestic stability and the potential disruptive effects that immature transfers of cases may have on peace and justice. Part III looks at the problems at the ICTR and the ICTY in terms of the logistics of case transfers and their effect on the efficacy of domestic prosecutions and the delivery of justice. With these in mind, Part IV of this comment proposes specific measures related to case referrals that the ICC could adopt.

II. The Transfer Criteria—the Substantive Determination of Case Referrals2

A. The Rules on Paper

Both the ICTY’s and the ICTR’s Rules of Procedure and Evidence provide several requirements for transferring cases to national courts, ranging from conditions for a case’s procedural status and substantive gravity to the appropriate State receiving the referral. First, case referrals must be made after indictment but before the commencement of trial, and may be initiated by the Referral Bench or at the request of the Prosecutor.3 Second, when deciding whether to transfer a case upon its own initiative or the Prosecutor’s request, the Referral Bench shall consider both the gravity of crimes charged and the level of responsibility of the accused.4 Third, to determine the appropriate State receiving a referral, the State needs to satisfy one of the three requirements:

  1. the crime was committed in its territory;

  2. the accused was arrested in its territory; or

  3. the State has jurisdiction and is “willing and adequately prepared” to accept such a case.5

Finally, after a transfer, the Prosecutor may “send observers to monitor the proceedings in the courts of the State concerned,”6 and the ICTY or the ICTR, upon request by the Prosecutor, may “revoke the transfer order at any time before the State court reaches a verdict.”7

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Completion Strategy: Is the Referral Process Effective?

I. Introduction

One of the major issues which has been faced by almost all the international tribunals, including the International Criminal Tribunal for former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), has been the question of when to stop an investigation. The nature of the crimes under the preview of international tribunals is such that they involve a lot of victims and perpetrators. And given the sheer volume, tribunals generally tend to focus on prosecuting the most responsible. In order to accomplish this goal both the ICTY and the ICTR devised their completion strategies. An important part of the completion strategy was the provision for referring cases to national jurisdictions and the provision was incorporated in the respective Rules of Procedure and Evidence of the ICTY and the ICTR via an amendment—Rule 11 bis for both the tribunals.1 This amendment incorporated in the rules, with regards to referral process, is similar but the practical experience of both the tribunals are in contrast.

The International Criminal Court (ICC), too, has been grappling with the issue of completion of investigations and they are looking to develop a clear completion strategy for situations under investigation.2 In this comment, I will review the experience of the ICTR in referring the cases to domestic jurisdictions as part of the completion strategy and try to come up with lessons that the ICC can learn from the ICTR’s completion strategy.

II. Why ICTR?

Although both the ICTY and the ICTR have worked on completion strategies, I review only the ICTR’s experience here because I believe that the lack of interference of foreign powers in the resolution of Rwanda’s conflict led to a rise in far greater challenges in the implementation of the referral process of the ICTR. Rwanda’s conflict was resolved after victory of one of the parties in the conflict and therefore the sentiment, and more importantly the willingness, to ensure justice to the victims was very much alive in the internal political structure of Rwanda. Rwanda’s sentiment and resolve to ensure justice can be understood from the below quote:

The 1994 genocide affected the entire world, but the scars are borne by the people of Rwanda alone. The crimes were perpetrated by Rwandans on Rwandan soil. The vast majority of victims were Rwandans. And those Rwandans who survived have suffered and will continue to suffer the pain of loss from now until the end of their lives.3

Rwanda’s willingness proved crucial for them and motivated them to reform their judicial structure and overcome the barriers to referral of cases from the ICTR. I am considering the ICTR’s experience also because of the fact that majority of the conflicts are resolved without international presence and, therefore, the ICC would be in a better position to deal with them if their completion strategy is based more on the ICTR and less on the ICTY.

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The Tiers of ICC Referrals and Strengths of a Unified Referral

I. Introduction

The International Criminal Court obtains referrals from three different entities, but they do vary in degree and scope from the grantor of originating authority. This comment will propose that a balancing factor test shall be deployed and fulfilled in order for a conclusion of an investigation to be warranted. There should be, however, a considerable amount of weight attached to whether the investigation was based on a Security Council or State referral, or initiated under the prosecutor’s proprio motu authority, the legitimacy of a given conflict, and the backers of the situational response.

II. Referral Authorities

The International Criminal Court (ICC) was created to prosecute and seek justice for the most heinous of crimes committed from all countries within the ICC statutory framework. The Rome Statute was codified and placed in action in 2002, after being adopted at a conference of 160 nations in 1999.1 Although the number of countries endorsing membership into this Statute has diminished, the vast majority of countries around the world are a part of this elite judicial forum. Pursuant to Article 1 of the Rome Statute, the ICC has the power to exercise its police jurisdictional authority over folks who are deemed to be most responsible for the atrocities committed within the international arena, or if a member state is a signatory to the Rome Statute.

Articles 12 and 13 of the Rome Statute set out the criteria that must be fulfilled in order for the Office of the Prosecutor to investigate and prosecute accusations of criminal misconduct.2 The prosecutor may open an investigation into a grave criminal situation under the following options:

  1. the United Nations Security Council refers the situation to the Prosecutor;

  2. a State Party to the Rome Statute refers the situation to the Prosecutor; or

  3. the Prosecutor initiates a proprio motu mandate.

All of these possibilities are outlined per the strict requirements of Article 15 of the Rome Statute.

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Continuing Victim Protection Should be an Integral Part of a Comprehensive ICC Completion Strategy

I. Introduction

The Rome Statute’s failure to set forth conditions that the ICC must follow when suspending an investigation is a significant hinderance in the international tribunal’s attempt to strengthen the rule of law and enforce lasting respect for international justice.1 Without a comprehensive strategy in place that preemptively considers victim safety and protection before the ICC decides to initiate or withdraw from an investigation, victims of atrocities are left more exposed than before the ICC’s initial involvement. A completion strategy must install safeguards to ensure victims that engage with the Court are not subject to further abuses once the Court ceases to investigate; a failure to do so would be detrimental to the ICC’s mandate to ensure justice is enforced around the globe.

A look at the most prominent human rights conventions in effect around the world shows a long-held acknowledgement of a victim’s rights to protection and an effective remedy in the face of the most egregious human rights abuses. For example, Article 2 of the International Covenant on Civil and Political Rights recognizes:

Each State Party to the present Covenant undertakes: […] to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy […]2

Article 8 of the Universal Declaration of Human Rights similarly guarantees the right to an effective remedy by “competent national tribunals.”3 While the United Nations has made a promise to affirm and recognize remedies and reparations for victims of international human rights violations, ensuring “the international community keeps faith with the plight of victims, survivors and future human generations”.4

The Rome Statute, as it stands, certainly cares for and accords a victim’s right to protection within the four walls of an investigative proceeding; but the Statute does not articulate the Court’s responsibility toward and acknowledgment of that right should an investigation be suspended due to either a dearth of evidence or the Prosecutor’s inability or lack of jurisdiction to proceed. Article 68 of the Rome Statute instructs the Court to appropriately care for the “safety, physical and psychological well-being, dignity and privacy of victims and witnesses,” finding the “Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes.”5 While Article 75 of the Statute asks the Court to establish “principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation” and allows the Court to order convicted persons to make such specified and appropriate reparations; Article 75, however, instructs that such reparations must be linked to actual criminal proceedings and not suspended investigations.6

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The ICC’s Afghanistan Decision: An Unlikely Blueprint for an Investigation Completion Strategy?

I. Introduction

In December 2014, many international legal commentators declared that Fatou Bensouda, the Chief Prosecutor of the International Criminal Court (ICC) had admitted defeat1 when she announced to the United Nations Security Council (UNSC) that she was “left with no choice but to hibernate investigative activities” into the situation in Darfur, in order to “shift resources to other urgent cases, especially those in which trial is approaching.”2 The following day, Sudanese President Omar al-Bashir, the first sitting head of state to be indicted by the ICC, triumphantly responded:

The ICC raised its hands and admitted that it had failed. The Sudanese people have defeated the ICC and have refused to hand over any Sudanese to the colonialist courts.3

At the time, al-Bashir had eluded arrest while openly traveling internationally to several ICC member states—despite the ICC’s issue of a warrant for his arrest for crimes of genocide, crimes against humanity, and war crimes in Darfur.4 Today, over ten years after the ICC issued the first warrant for his arrest, and after openly traveling to over thirty-three states,5 al-Bashir remains outside the custody of the ICC.6

Similarly, just days before the Prosecutor announced the “hibernation” of the Darfur investigation, she also admitted defeat in a separate case, withdrawing charges against Kenyan President Uhuru Kenyatta for lack of sufficient evidence.7 In a statement on her withdrawal of the charges, Bensouda lamented the Kenyan government’s interference and lack of cooperation with the Court, noting that witnesses had died, disappeared, recanted their accounts, and were otherwise “too terrified to testify.”8 Kenyatta remains the sitting President of Kenya, winning reelection in 2017.9 Meanwhile, in its seventeen-year existence, the ICC has achieved only four convictions for core international crimes.10 The failure of the al-Bashir and Kenyatta cases have underscored the ICC’s difficulty in bringing powerful, high-level suspects to justice, raising questions about the Court’s effectiveness given its limited resources and inability to investigate or arrest suspects without the cooperation of sovereign states.11

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in the statutes of ICC there is nothing said about completion of investigation. so i use Indian law to answer this question. my jurisdiction is India and i use its law so that i can give a direction from well established procedure of india which will work actually.

  1. how final is the completion ?

final should mean a suspension of investigation and the revival of the investigation would take place if the pre-trial chamber deems fit.

here in India as per section 173 (8) crpc " Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed;"

  1. what marks the end of investigation ?

the findings of satisfactory answer to all the items of final report that should be submitted after investigation, is the mark of completion of investigation.

according to section 173(2) crpc , the police must submit a final report before magistrate after completion of investigation. in that report the following items are mentioned.
(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, weather with or without sureties;

(g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

https://indiankanoon.org/doc/461024/ 

now as long as all the above mentioned items are not clearly determined, investigation is not thought to be complete. so as long as you cannot submit an answer to all these items of final report, your investigation is not complete.

  1. should the prosecutor file a final report ?

yes the prosecutor should file a final report and submit it to pre-trial chamber.

in India according to Section 173(2), CrPC (criminal procedure code), the police submit a final report after completion of investigation.this final report to be submitted before magistrate. this marks the end of investigation.

in its judgement the learned madrass high court of india directed that "Therefore, I set aside the order of the trial court convicting the accused, as it cannot be held to be a legal order and I direct the Superintendent of Police, Sivaganga District to appoint some other Deputy Superintendent of Police to conduct fresh investigation on the complaint of the petitioner dated 10.11.1997 under his direct supervision and after finishing the investigation, the Deputy Superintendent of Police shall file a report before the learned Judicial Magistrate Devakottai for the appropriate offences within there months from the date of communication of this order. "

P. Alagarsamy vs State Of Tamil Nadu Rep. By ... on 23 September, 1999

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article 53(2) said it clearly that :

If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:

(a) There is not a sufficient legal or factual basis to seek a warrant or summons under article 58;

(b) The case is inadmissible under article 17; or

(c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.

now lets answer the questions in the light of the above article

  1. how final is the completion ? the investigation will not be completed unless the prosecutor arrives at a conclusion enumerated in (a), (b) and (c) above. once there is enough data to arrive at the conclusions above, the investigation is then complete.

questions 2 and 3 should be dealt in detail. i am putting more detail manuals or handbooks prepared by competent authority here. you should go by them. there you find your answers.

Investigation Manual for War Crimes, Crimes Against Humanity and Genocide in Bosnia and Herzegovina prepared by organization for security and cooperation of europe. follow the link

https://www.osce.org/bih/281491 

there is an institute for international criminal investigations. you get their resources and publication. there you may get your answer. link is here

https://iici.global/publications/ 

there is this auswitz institute manual for prevention of genocide and mass atrocity in great lake region of africa. they have this training manual :

http://www.auschwitzinstitute.org/training-resource-manual/ 

there is a criminal investigation manual for international crime by folk bernadette institute. link is here 

international nuremburg principle academy published another resource  on investigation of international crime

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Transitional Justice: A Situation Specific Completion Strategy and Alternative to Investigation and Prosecution

I. Introduction

The International Criminal Court (ICC or the Court) could benefit from the development of situation specific completion strategies. Thirty-one cases have been brought before the Court and ten convictions have been issued in the twenty-one years since its inception.1 The average preliminary examination (PE) lasts between four and five years and eight of the twenty-eight PEs the ICC’s Office of the Prosecutor (OTP) has undertaken, were suspended.2 Thus, years and millions of euros are spent researching, gathering information, and investigating situations which are never even prosecuted by the Court.

The ICC oversimplifies the meaning of justice in a “one-size-fits-all and top-down” approach by presuming that criminal prosecution is the most fitting way to deliver justice to victims.3 However, this approach overlooks a viable alternative for delivering justice: transitional justice mechanisms. Transitional justice refers to the post-conflict processes societies employ to deal with human rights crimes “to achieve accountability, justice and reconciliation.”4 Since the 1970s, transitional justice mechanisms have been increasingly adopted in countries post dictatorship and civil war, 161 countries having implemented such mechanisms from 1970 to 2007.5 According to a study done by the Transitional Justice Data Base Project, when multiple types of transitional justice mechanisms are employed together, they improve human rights conditions and democracy measures.6

However, despite the literature supporting the use of transitional justice to promote justice and security in post-conflict societies, the ICC has not traditionally considered transitional justice mechanisms as part of a situation specific completion strategy and alternative to opening an investigation or pursuing prosecution. Section II of this comment discusses both how the Rome Statute’s Article 53 “interests of justice” admissibility requirement can and should be interpreted more broadly than the ICC interprets it, and also that transitional justice satisfies this broader interpretation.

Years often go by after the end of a conflict and before the ICC deems it safe to send investigators to collect evidence for cases. Thus, it is important for the OTP to consider that the needs of a situation may have changed in the time the country has spent rebuilding since the end of a conflict. There may be situations for which, at a certain point in their post-conflict rebuilding, transitional justice is more appropriate than criminal prosecution to deliver justice for the victims. Section III of this comment outlines a three-part factor test that the Prosecutor could use to determine whether transitional justice is a viable alternative to investigation and prosecution. This test would aid in avoiding the diversion of resources to investigations in cases where transitional justice is a viable alternative for delivering justice.

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