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?”

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

The ICTY and the ICTR further interpreted the provisions above in their subsequent decisions granting or denying referrals. First, regarding the substantive aspect of the case, “the level of responsibility” is interpreted to include both military rank and the accused’s actual role in the commission of crimes.8 Second, in determining the appropriate State receiving a referral, the ICTY and the ICTR have further read a general competency requirement into the requirements for national jurisdiction,9 requiring that the transfer State has a legal framework which “criminalizes the alleged conduct of the accused and provides an adequate sentencing structure.”10 The State must criminalize the alleged conduct as an international crime rather than an “ordinary” crime11 —the international crimes in the State’s legal framework need not be identical to those listed in the ICTY and the ICTR, but should be “similar in substance.”12 The State’s penalty structure must also provide “an appropriate punishment for the offense for which the accused is charged, and conditions of detention must accord with internationally recognized standards.”13 Third, if the transfer State meets the competency requirement, the Trial Chamber must then satisfy itself that “the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out.”14 The “fair trial” element turns on whether the accused will be accorded the rights set out in Article 20 of the ICTY and the ICTR Statutes,15 which lists the defendant’s rights.16 Equal access to and the protection of witnesses are also relevant factors to be considered.17 Finally, regarding the monitoring mechanism after a case has been transferred, the ICTY Referral Bench sees the monitoring mechanism as “primarily created to ensure that a case would be diligently prosecuted once it had been referred.”18

B. Application of the Rules

Although the ICTY and the ICTR have very similar referral requirements, the two tribunals’ application of these requirements has been quite different. In the Rwanda context, from 1994 to 2009, the ICTR did not grant a single referral despite Rwanda’s repeated efforts of legal reform.19 In November 2010, the Prosecutor launched a second round of referral requests, and the ICTR finally approved the requests in the last two years of its operation.20 In contrast, the ICTY granted case referrals to Bosnia and Herzegovina (BiH) right after the War Crimes Chamber was created, with the earliest one issued in September 2005.21

1. The Case of Rwanda

The Rwanda government created several new laws related to accepting case referrals from the ICTR to the Rwanda national courts. Most notably, Rwanda implemented Organic Law No. 11/2007 (Transfer Law) and Organic Law No. 31/2007 (Death Penalty Abolition Law) in 2007, which encouraged the Prosecutor to make the first attempt at requesting case referrals to Rwanda.22

However, despite the Rwanda government’s efforts, the ICTR remained doubtful about the reforms’ practical effects, particularly their implications for the defendant’s fair trial rights, for a long time. All five case referral requests initiated by the Prosecutor in 2007 were subsequently denied.23 The decisions were largely based on concerns regarding the practical application of the new laws,24 even though prior jurisprudence from ICTY Referral and Appeals Chambers established that referrals to national courts were permissible so long as the legal framework protecting the defendant’s fair trial rights existed in the referral state.25

In response to the ICTR’s denials and its concern about the law in practice, the Rwanda government continued to implement deeper and more comprehensive reforms. With regard to legislative reform, Rwanda amended the Transfer Law and the Abolition of the Death Penalty Law in 2008 and 2009 respectively, addressing specifically the concerns expressed by the ICTR about solitary confinement, immunity and protection for witnesses and defense teams, and alternatives to live testimony.26 Rwanda also took substantial steps to modify its Penal Code, Code of Criminal Procedure, and Genocide Ideology Law.27 These revisions greatly modernized Rwanda’s criminal laws, reduced the range of criminal sentences, enhanced witness protections, and gave the High Court in Rwanda the discretion to allow foreign and international judges to sit on the panel of any referred cases.28

Legislative reforms were also accompanied by institutional infrastructure improvements. Rwanda established a new witness protection unit, state-of-the-art detention facilities, video-link units, and legal assistance programs that better facilitated foreign lawyers’ secure admission to the Rwandan bar and appear as defense counsel before domestic courts.29

In the process, Rwanda engaged in extensive interactions with the ICTR Prosecutor, Registry, and Chambers to adopt best practices.30 The ICTR provided training to Rwandan legal professionals and shared information about its cases with both the Rwanda government and the public in general.31 Many Rwandans who worked at the ICTR also returned to Rwanda over the years and assumed posts in the national government, bringing in ICTR experience and practices to further promote integration of international standards into Rwanda’s practice.32

With these reforms, the Prosecutor launched a second round of referral requests in November 2010, and all eight requests were subsequently approved.33 In these requests, the Prosecutor employed an evidence-based approach and presented objective evidence of Rwanda’s practical ability to receive the cases.34 The evidence was obtained primarily through and cross-checked among interviews with responsible officials, reviews of records in domestic and other international cases, official interactions between Rwanda and the ICTR and between Rwanda and other countries, and reports from third-party observers and the media.35 The Prosecutor also appreciated and overcame differences between the civil (Rwandan) and common (ICTR) law systems in crafting his approach.36 Additionally, the Prosecutor took into account the post-referral monitoring mechanism before he launched his second round of referral requests. He identified a well-recognized regional commission that possessed all of the attributes to serve as the monitor in any referred cases, and the ICTR subsequently agreed to let this organization serve as the ICTR’s monitor.37 As such, the ICTR was satisfied with the capacity of the Rwanda national courts in trying war crimes and granted the Prosecutor’s second round of referral requests in the last two years of its operation.38

2. The Case of Bosnia and Herzegovina

Similar to Rwanda, BiH adopted new laws and created new institutions to build its capacity to receive cases transferred from the ICTY. Initially, BiH did not have a functioning judiciary at the State level.39 In 2000, the Law on the Court of Bosnia and Herzegovina created the State Court of Bosnia and Herzegovina (SCBiH) which became operational in 2003.40 A new criminal code and a new criminal procedure code were also introduced in 2003.41 However, at the time, the SCBiH only had limited criminal jurisdiction that did not include jurisdiction over war crimes.42 In an effort to open up State-level prosecution of war crimes and in response to the ICTY’s Completion Strategy, BiH amended the criminal code and the criminal procedure code and established a hybrid court, the War Crimes Chamber (WCC), as a branch of the SCBiH.43

The WCC was originally staffed with both international and domestic prosecutors, judges (some provided by the ICTY), and administrative personnel, and gradually transitioned to a completely domestic court with only national personnel over the course of seven years.44 For instance, from 2005 to 2008, each of the WCC’s trial panels and the appellate panel had two international judges and one national judge.45 Afterward, the composition was reversed, with two national judges and one international judge.46 Since 2009, all WCC trial panel judges were BiH nationals, and only four international judges remained in the appellate division in 2012.47 Today, the WCC judges are all BiH nationals.48

The WCC also directly benefited from the work of the ICTY. The WCC was allowed to use evidence gathered and facts adjudicated by the ICTY, which saved a lot of judicial time and resources.49 The WCC also relied on ICTY jurisprudence regarding issues of substantive law and referred to ICTY decisions to justify procedural decisions.50 The ICTY also provided training and legal assistance.51

When referring cases to such a hybrid national court, the ICTY did not seem particularly concerned about the practical application of BiH ’s laws related to domestic prosecution of war crimes and mostly focused only on BiH ’s legal framework on paper. For instance, with regard to fair trial rights and the defendant’s access to witnesses, the ICTY held that the laws of BiH conformed with the requirements of Rule 11 bis, and the ICTY did not have an obligation to investigate whether the defendant’s access to witnesses was in fact guaranteed in practice.52 Moreover, the ICTY held that, in addition to other findings regarding fair trial protections, the monitoring and revocation provisions can constitute part of the guarantee of a defendant’s fair trial rights.53 Hence, it is observed that:

[W]hile defendants have repeatedly made allegations that Bosnia’s laws are not implemented in practice, that they would risk receiving victor’s justice, and that monitoring and revocation are insufficient safeguards due to the fact that only the Prosecutor can recommend monitoring and revocation, the Tribunal has only thus far implemented a strict procedural application of the 11 bis ICTY transfer rule.54

3. The Reason for the Discrepancies between the Practices of the ICTR and ICTY

The seemingly disparate practices between the ICTR and the ICTY likely stem from the differences between the post-conflict situations in Rwanda and BiH, particularly from the different statuses of national institutions and justice systems and the different prospects of domestic peace and stability.

In the wake of the 1994 genocide, Rwanda’s legal system was severely insufficient to prosecute war crimes.55 Only fifty-three judges were available for the prosecution of serious crimes, and the numbers of prosecutors, police officers, registrars, and defense lawyers were similarly scarce.56 Meanwhile, there were more than 120 thousand people detained and accused of war crimes.57 Moreover, before the ICTR’s denials of the Prosecutor’s first round of requests, Rwanda did not receive much international support for developing its judicial capacity regarding war crimes; strong partnerships with other States, international and regional authorities, and NGOs did not occur until after the setback of the first round of referrals.58 Despite Rwanda’s initial legal reforms, it would clearly take some time to rebuild an adequate justice system that could ably process the vast number of cases.

More generally, the prospect of peace and reconciliation was very uncertain, especially during the first decade after the genocide. The United Nations and other States did not provide much help throughout the conflict, and the conflict was largely resolved by internal forces—the genocide in Rwanda mostly ended because the Rwandan Patriotic Front (RPF) eventually defeated the government forces.59 Yet, even then, casualties continued to increase as RPF also killed many people, and génocidaires regrouped along the Rwandan border in Congo, resulting in the First (1996–1997) and Second (1998–2003) Congo Wars.60 With ethnic divide still a serious problem, the risk of selective prosecution was high, and referring cases to Rwanda’s domestic courts may further inflame domestic conflicts, jeopardizing both domestic stability and the safety of individual national judges and other legal professionals. Therefore, the ICTR was initially reserved about the Rwandan national courts’ ability to properly prosecute war crimes.

In contrast, as described above, the WCC in BiH received a lot of international support in building its judicial capacity and preserving the uniformity of national and international jurisprudence and norms.61 The WCC saw extensive international collaboration since its genesis. Support for substantive legal practices as well as administrative infrastructure and organization was provided.62 Transfer of knowledge was further expanded through regular communication between the ICTY and the WCC.63 Moreover, the hybrid nature of the BiH justice system extended beyond the WCC to other key institutions including other SCBiH chambers, the High Judicial and Prosecutorial Council (in charge of appointing and disciplining judges and prosecutors), the Constitutional Court, and the now-extinct Human Rights Commission.64 This approach of creating and enhancing national institutions with initial hybrid composition greatly facilitated the development of national judicial capacity.65 It also ensured greater ownership over the “rule of law” reform process.66

Additionally, the military presence of the EUFOR multinational force,67 the drive towards membership in the European Union,68 and the Office of High Representative’s additional source of international presence69 all created strong incentives for State cooperation. Therefore, the ICTY was much more trusting in referring cases to the WCC and started doing so shortly after the WCC was established.

In sum, the seeming discrepancy between the ICTR and the ICTY actually stems from similar concerns about a State’s judicial capacity in prosecuting war crimes and the prospects of domestic peace and stability. The ICC should also consider these elements in its decisions regarding case referrals because they are directly connected to fair trial issues and the sustainability of ensuring fair trials. Specific suggestions are discussed in Part IV.

It should be noted, however, that these concerns are not an exhaustive list. The ICC may encounter new challenges and problems in future conflict situations. The lesson here is that each situation is different, and the ICC should stay attuned to the particularities of each situation and act accordingly.

III. The Logistics of a Transfer

While the substantive determination of whether to refer a case to national courts is the primary concern of international tribunals and courts regarding case referrals, the logistic part also plays an important role in the delivery of justice. Past experiences of the ICTR and the ICTY show that legal professionals encountered difficulties in the transfer of case files and other information after a referral had been approved, which bogged down domestic prosecutions and led to unnecessarily repetitive work and inefficiencies.

While the interaction between the ICTY and the WCC had been relatively smooth, the process was hindered by problems related to the access of confidential information. For example, ICTY trial records can be important for the WCC in investigating facts and identifying witnesses for prosecution at the WCC. However, many of the written ICTY trial records were not in Bosnian, Croatian, and Serbian languages and must be transcribed through audio recordings.70 Oftentimes, the audio recordings failed to redact confidential information and can be obtained only through an additional layer of special request requirements.71 The inability to directly access these records inevitably delays the process at the WCC.72

A similar problem exists in witness protection. The WCC did not necessarily know whether the witnesses it sought to interview was under any protective measures by the ICTY.73 In order to obtain such information, the WCC needed to take the time to check with the ICTY regarding each individual witness, which again caused serious delays.74 Moreover, upon obtaining information about protective measures, the WCC had to then apply for variances or rescissions of such measures every time the WCC found a need to do so, thus creating another source of substantial delay.75

Moreover, certain information not used in ICTY investigations and trials can be hard to obtain. For example, evidence and witness statements held by the ICTY Prosecutor and not used in ICTY proceedings were not inherently open to the WCC.76 Protected materials provided by third party States were also not readily available to national courts outside those States.77

At the domestic level, BiH courts also suffered from difficult evidence sharing and duplicated investigation because of the great amount of information and because of the disorganized nature of information collection and storage.78 Repetitive investigation not only wasted resources but also undermined the prosecutors’ credibility with witnesses, survivors, and investigators.79

In sum, the logistics of case transfers still have room for improvement, and this is worth the ICC’s attention and consideration because the flow of case-relevant information is also important to effective prosecutions and the delivery of justice.

IV. Lessons from the ICTY and the ICTR

As evidenced by the ICTY and the ICTR experiences, the issue of referring cases to national courts is two-fold. The ICC needs to:

  1. make the substantive determination of whether to refer a case and

  2. facilitate the flow of relevant information from the international tribunals to domestic courts after a case is referred.

Regarding the first prong, the ICC should set out a well-established strategy early on for building domestic judicial capacity in post-conflict situations. Although the task of building domestic judicial capacity was not the first and foremost mission of the two international tribunals and was largely prompted by the pressing need to close the tribunals several years after the conflict, the fact that international tribunals had to close—and, for the ICC, that prosecution has to stop—at some point means capacity-building efforts cannot be spared. Moreover, international assistance and support are particularly important in the context of conflicts and war crimes, because most domestic courts are either completely non-existent after a conflict or very inexperienced in the prosecution of war crimes, thus very much in need of international guidance. Additionally, the strategy should be set out at the very beginning: because judicial-capacity building is largely inevitable and takes time to complete, it is more in the interest of the ICC to take this task into consideration early on, rather than dodging it in the beginning and scrambling in reaction to the need to cease international prosecution much later.

In crafting this strategy, the ICC could examine the national judicial systems in question and identify areas that need improvements or reform. This can be very helpful to domestic authorities and other sources of international assistance as it enables them to focus strategically on certain aspects, as evidenced by the experience of the ICTR and ICTY. For instance, the ICTR Prosecutor mentioned that his work in helping Rwanda meet the ICTR’s referral standards was “somewhat lightened because Article 20 of the ICTR Statute identified particular areas of national practice that needed to be assessed and evaluated.”80

In the strategy, the ICC could also set out specific forms of assistance to national courts in building their capacity to try war crimes and establishing standards that conform to international requirements. Articulating these plans in detail can help the ICC coordinate with national courts and facilitate the sharing of expert knowledge. As some have observed, the close and early interaction between the ICTY and the WCC had been sustainable mostly due to the existence of a detailed vision and plan of transition that greatly facilitated an effective exchange of knowledge between international and national experts.81

Although being addressed and described in detail early on, judicial capacity building strategies should stay flexible to the practical changes and be adjusted along the way if needed. Both the Prosecutor and the national courts can be informed by the ICC’s case referral decisions and further sharpen or shift their focus. For instance, the ICTR Prosecutor made use of the first round of referral decisions and identified issues of particular concern.82 With a more targeted focus, the ICTR Prosecutor, as well as other actors, was able to better plan training programs that addressed specific areas of need.83 The ICTY and the WCC also modified their strategy and extended the duration of having international legal professionals in the WCC from five to seven years, because further international assistance was needed.84 The ICC and the national courts could similarly stay flexible and adapt to changes in focus areas and new, emerging needs.

Moreover, the ICC could bring in other sources of international assistance to restore judicial capacity in post-conflict regions. In the ICTR context, the Prosecutor facilitated the formation of partnerships between Rwanda and other States, international and regional authorities, and NGOs. In the ICTY context, some international judges in the WCC were brought in from other States. The ICC could also function as a referral point and invite other parties to work closely with the targeted national justice systems. As the ICTR Prosecutor observed, “embedded teams or co-locations whereby international and national staff work side-by-side” can greatly further knowledge transfer,85 and bringing in additional resources outside the ICC could help achieve this, especially when the ICC does not alone have the human and financial resources to do so.

Finally, the ICC strategy may need to pay special attention to certain aspects. For one, the departure of international assistance should be taken into account when forming capacity-building strategies. In the ICTY context, the departure of international personnel and funding put pressure on the WCC —when the international staff and funding first extracted, BiH legislative failed to approve the necessary budget, and the entire SCBiH had to operate on interim funding;86 investigations, witness support, criminal defense, and daily operations were the most affected areas.87 The WCC struggled in adjusting to the new situation in part because a strategy regarding this aspect was not thought out in advance. The ICC should learn from this experience and pay attention to getting domestic financial and personnel support that can ensure the quality and quantity of work after international assistance leaves. It is true that domestic support partly depends on the political will of national authorities, and the ICC may not alone be able to incentivize national authorities to generate that will. Still, taking such factors into consideration can inform the ICC’s strategic planning and help identify possible solutions to solve or at least mitigate the problem of the lack of domestic support. To do so, the ICC could bring in other international resources to help national authorities reconcile ethnic divides or overcome other difficulties. Particularly regarding referral cases, the ICC could also make use of the monitoring and revocation mechanism to ensure fair trials and can sometimes appoint other trusted, impartial regional organizations to act as the monitoring organ on behalf of the ICC. For instance, the ICTR, in its first decision granting a referral to Rwanda, appointed the African Commission on Human and People’s Rights as the monitoring organ.88

Another important aspect of consideration is to avoid creating double standards for war crimes cases originated in domestic courts and those referred from international courts. Rwanda’s reforms started from laws specifically governing transferred cases from the ICTR but later successfully expanded the improvements to all domestic cases. The WCC, as a branch specifically created for the domestic prosecution of war crimes, applied the same standards to both domestic and ICTY referral cases and has continued to prosecute war crimes domestically under these standards after the ICTY closed.89 While initial reforms may be motivated by transferred cases, the ICC should also encourage the extension of these reforms to all domestic cases.

Regarding the second prong, systematic compilation and storage of data is critical for ensuring smooth case transfers and efficient prosecutions, and the ICC should adopt multiple measures to facilitate the flow of information. For example, the ICC should make sure that written records in languages of the accused are available, or at least that the audio records in those languages are properly redacted, so that they can be easily accessed, transcribed, and used locally. Similarly, a centralized confidential database of protected witness information and other evidence not used in ICC trials should also be in place.90 As for third-party materials, a mechanism for acquiring release consents swiftly may be needed.

More specifically, in compiling data, the ICC could learn from the experience of David Schwendiman, the head of the WCC prosecutor office in 2007. Schwendiman undertook a detailed inventory task and developed a policy based on a “situation-event-act-actor approach.” Instead of compiling files on a case-by-case basis focusing on individual complaints:

This policy encouraged prosecutors to broadly look at situations that occurred during the war and progressively narrow it down to events within the situation, criminal acts as a result of the events and actors involved.91

Schwendiman also set up a digital archive to “recover and digitally capture all the records held by different authorities throughout BiH related to the forensic aspects of the location and identification of mortal remains.”92 These measures aimed at avoiding repetitive investigations in different jurisdictions and increased the efficiency of prosecution at different levels.93 This idea of centralizing and sharing data and making use of digital technology could be used by the ICC in future situations. The ICC could set up digital databases compiling evidence it gathered and similarly organize the information based on broader situations and events that can be narrowed down to the actors involved. The ICC could then grant access to national courts through secured channels. Data sharing across domestic courts could adopt a similar approach as well.

V. Conclusion

The experience of the ICTR and the ICTY shows that transferring cases to national courts has two prongs. The first one is the substantive determination of whether to grant transfers. In making this determination, the ICTR and the ICTY were primarily concerned about whether the national justice systems have the willingness and competence to ensure effective prosecutions and fair trials. They also took into account the prospects of domestic stability and the potential disruptive effects that immature transfers of cases may have on peace and justice. The ICC should similarly consider these factors and address them early on through comprehensive and flexible strategies that help build domestic judicial capacities. The second prong is the logistics of case transfers. The ICC should pay attention to the way data is compiled and shared, and how it could best facilitate information sharing and effective prosecutions.

In addition, the ICC should stay alert to new challenges that were not presented to the ICTR and the ICTY, because each conflict situation is different. New risks may require new solutions, and the ICC should stay open and adaptable.

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

  1. 1.

    (This comment primarily focuses on the national courts in States where the conflict happened).

  2. 2.

    See Jesse Melman, The Possibility of Transfer(?): A Comprehensive Approach to the International Criminal Tribunal For Rwanda’s Rules 11 bis to Permit Transfer to Rwandan Domestic Courts, 79 Fordham L. Rev. 1271, 1298–99 (2010), available online;

    (“[T]he ICTY and ICTR share an Appeals Chamber and, importantly, the ICTR’s Rule 11 bis was taken virtually verbatim from the Yugoslav Tribunal’s Rules of Procedure and Evidence. Further, UN Security Council Resolution 1503 urges the ICTR to model its completion strategy on that of the ICTY, specifically in facilitating the transfer of cases to national jurisdictions.”).

    (The ICTY and the ICTR are grouped together because the two tribunals largely operated on the same rules).

  3. 3.

    See The International Tribunal for Former Yugoslavia, Rules of Procedure and Evidence, IT/32/Rev.50, Rule 11 bis (Jul. 8, 2015), available online, archived; The International Tribunal for Rwanda, Rules of Procedure and Evidence, UN Doc. ITR/3/Rev.23, Rule 11 bis (May 13, 2015) [hereinafter ICTR Rule 11 bis], available online; Erik Møse, President of the ICTR, Completion Strategy of the International Criminal Tribunal for Rwanda, delivered to UN Security Council, UN Doc. S/2006/358, ¶ 39 (Jun. 1, 2006), available online

    (“The decision to transfer cases to national jurisdictions is a judicial one in cases where indictments exist”.).

    Erik Møse, The International Criminal Tribunal for Rwanda, in International Criminal Justice: Law and Practice from the Rome Statute to Its Review 79, 97 (Roberto Bellelli ed., Nov. 18, 2016), available online;

    (“Such transfers [of non-indicted suspects] depend on prosecutorial discretion and are administrative in nature, based on cooperation between the ICTR Prosecutor and national prosecuting authorities.”).

  4. 4.

    ICTR Rule 11 bis, supra note 3, at art. (C).

  5. 5.

    Id. at art. (A)(i-iii).

  6. 6.

    Id. at art. (D)(iv).

  7. 7.

    Id. at art. (F).

  8. 8.

    The Prosecutor v. Rahim Ademi and Mirko Norac, IT-04-78-PT, Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11 bis, ¶ 29 (ICTY RB, Sep. 14, 2005), available online.

  9. 9.

    See The Prosecutor v. Ildephonse Hategekimana, ICTR-00-55B-R11 bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11 bis, ¶ 4 (ICTR AC, Dec. 4, 2008), available online

    (“Rule 11 bis of the Rules allows a designated Trial Chamber to refer a case to a competent national jurisdiction for trial”).

    The Prosecutor v. Gaspard Kanyarukiga, ICTR-2002-78-R11 bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11 bis ¶ 4 (ICTR AC, Oct. 30, 2008), available online; The Prosecutor v. Yussuf Munyakazi, ICTR-97-36-R11 bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11 bis, ¶ 4 (ICTR AC, Oct. 8, 2008), available online.

  10. 10.

    The Prosecutor v. Laurent Bucyibaruta, ICTR-2005-85-I, Decision on the Prosecutor’s Request for the Referral of Laurent Bucyibaruta’s Indictment to France, ¶ 8 (ICTR TC, Nov. 20, 2007), available online; The Prosecutor v. Wenceslas Munyeshyaka, ICTR-2005-87-I, Decision on the Prosecutor’s Request for the Referral of Wenceslas Munyeshyaka’s Indictment to France, ¶ 8 (ICTR TC, Nov. 20, 2007), available online; The Prosecutor v. Michel Bagaragaza, ICTR-2005-86-11 bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, ¶¶ 9–12 (ICTR TC III, Apr. 13, 2007), available online; Prosecutor v. Hategekimana, supra note 9, ¶ 4; Prosecutor v. Kanyarukiga, supra note 9, ¶ 4; Prosecutor v. Munyakazi, supra note 9, ¶ 4;

    (Courts apply the same general competency test to analyze whether states have jurisdiction and are “adequately prepared” for the purposes of Rule 11 bis (A)(iii)).

  11. 11.

    See Prosecutor v. Bucyibaruta, supra note 10, ¶ 8.

    (“A case can be referred to the national courts of a State only where the State concerned will charge and convict the persons responsible for those international crimes listed in the Statute as opposed to ordinary law crimes.”).

    Prosecutor v. Bagaragaza, supra note 10, ¶ 11.

    (“The Tribunal only has authority to refer cases where the State ‘will charge and convict [or acquit] only for those international crimes listed in its Statute’ as opposed to ‘ordinary crimes’ such as homicide.”).

    Prosecutor v. Hategekimana, supra note 9, ¶¶ 6–12

    (analyzing whether Rwandan law adequately criminalizes the charged crimes in accordance with Rule 11 bis).

  12. 12.

    The Prosecutor v. Jean-Baptiste Gatete, ICTR-2000-61-R11 bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, ¶ 21 (ICTR TC, Nov. 17, 2008), available online

    (finding Rwandan law sufficiently similar to the Statute’s definition of criminal responsibility).

  13. 13.

    Prosecutor v. Hategekimana, supra note 9, ¶ 4; Prosecutor v. Kanyarukiga, supra note 9, ¶ 4; Prosecutor v. Munyakazi, supra note 9, ¶ 4.

  14. 14.

    ICTR Rule 11 bis, supra note 3, at art. (C).

  15. 15.

    Prosecutor v. Hategekimana, supra note 9, ¶ 4.

    (“The Trial Chamber must also consider whether the accused will receive a fair trial”).

    Prosecutor v. Kanyarukiga, supra note 9, ¶ 4; Prosecutor v. Munyakazi, supra note 9, ¶ 4.

  16. 16.

    Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, UN Doc. S/RES/955, Art. 20 (Nov. 8, 1994) [hereinafter ICTR Statute], available online;

    (In its entirety, Article 20 provides for the equality of all persons before the Tribunal; the right to a fair and public hearing; the presumption of innocence; the right to be informed of the nature and cause of the charges; adequate time and access to facilities to prepare a defense; the right to communicate with an attorney of one’s own choosing; the right to be tried without undue delay; the right to be tried in one’s own presence; the right to representation of an attorney, to be informed of this right, and, if indigent, to be provided with one free of charge; the right to examine and cross-examine witnesses for the prosecution and defense under equal conditions; the provision of an interpreter free of charge; and the right not to testify against oneself or be compelled to confess guilt).

  17. 17.

    Id. at arts. 20(4)(e), 21.

    (“The [ICTR] shall provide […] for the protection of victims and witnesses.”).

  18. 18.

    Prosecutor v. Ademi and Norac, supra note 8, ¶ 57.

  19. 19.

    See Hassan B. Jallow, ICTR Prosecutor, Statement to United Nations Security Council (Jun. 3, 2015), available online;

    (The ICTR Prosecutor, under his independent authority to transfer non-indicted suspects, has successfully referred fifty suspects to Rwanda and one to Belgium. However, with regard to the referral of indicted suspects, which need the ICTR’s approval, all requests were denied).

    International Federation for Human Rights, The Issues at Stake in the Closure of the International Criminal Tribunals for the Former Yugoslavia and Rwanda 6–7 (Apr. 2009), available online

    (mentioning that the Prosecutor submitted five cases to the Trial Chambers for consideration for transfer to Rwanda, that all requests were denied, and that three of those five were subsequently heard and denied on appeal).

    Møse, supra note 3, at 672; Dennis Byron, President of the ICTR, Report on the Completion Strategy of the International Criminal Tribunal for Rwanda, delivered to UN Security Council, UN Doc. S/2009/247, ¶ 50 (May 14, 2009), available online.

  20. 20.

    Office of the Prosecutor, ICTR, Complementarity in Action: Lessons Learned from the ICTR Prosecutor’s Referral of International Criminal Cases to National Jurisdictions for Trial 2, 27–28 (Feb. 2015) [hereinafter Complementarity in Action], available online.

  21. 21.

    Court of Bosnia and Herzegovina, 10th Anniversary of Section I for War Crimes at the Court of Bosnia and Herzegovina 20 (Dec. 2, 2015) [hereinafter 10th Anniversary], available online.

  22. 22.

    Complementarity in Action, supra note 20, at 14.

  23. 23.

    Id. at 16.

  24. 24.

    Id. at 16; see Melman, supra note 2, at 1293–98, 1303–05

    (detailing Rwanda’s legal reform and the ICTR’s denial of referrals).

  25. 25.

    See e.g., The Prosecutor v. Željko Mejakić, Momčilo Gruban, Dušan Fuštar, and Duško Knežević, IT-02-65-AR11 bis.1, Decision on Joint Defence Appeal Against Decision on Referral Under Rule 11 bis, ¶ 69 (ICTY AC, Apr. 7, 2006), available online.

    (“The Referral Bench correctly considered whether it was satisfied that the Appellants would receive a fair trial by establishing that the legislation in BiH allows for adequate time and facilities for the preparation of their defence. That was all it is required to do pursuant to Rule 11 bis of the Rules.”).

    (This seems to mean that, if the legal framework existed, there was no need for a referral chamber to look further by considering, for instance, how the rights were implemented in practice).

  26. 26.

    Complementarity in Action, supra note 20, at 18–21.

  27. 27.

    Id. at 22–23.

  28. 28.

    Id.

  29. 29.

    Id. at 23–24.

  30. 30.

    Id. at 24.

  31. 31.

    Id. at 24–25.

  32. 32.

    Id. at 25.

  33. 33.

    Id. at 27.

  34. 34.

    Id. at 32.

  35. 35.

    Id. at 32–43.

  36. 36.

    Id. at 28–29.

  37. 37.

    Id. at 49.

    (“Considering that an independent monitor could not serve both the prosecutor and chambers at the same time, the prosecutor thereafter decided to appoint a respected national judge, with substantial criminal law experience in the region, as his own monitor.”).

    (Before this appointment, however, due to the lack of funding, the ICTR appointed its staff as interim monitors while a lengthy process was undertaken to find pro bono monitoring services for the ICTR).

  38. 38.

    Id. at 2.

  39. 39.

    See Organization for Security and Cooperation in Europe, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles 3, 85 (Mar. 2005) [hereinafter OSCE Report], available online.

    (The 1995 Dayton Peace Agreement provided for a territorial settlement between the Muslim-Croat Federation of Bosnia and Herzegovina (FBiH) and the Serb-dominant Republika Srpska (RS). These two entities together form a federation (i.e., a State), but each entity has its own independent justice ministry and court systems. In the FBiH and the RS, there are multi-tiered court systems. Municipal courts in the FBiH and Basic Courts in the RS are the courts of first instance. Cantonal courts in the FBiH and District Courts in the RS are at the middle tier and Entity Constitutional Courts provide final appellate review. In addition, both entities have a series of minor offense courts outside the normal judiciary. The criminal laws of these two entities are also different. For example, basic Courts in the RS have jurisdiction in criminal cases up to a maximum 20-year sentence and Cantonal courts in the FBiH have criminal jurisdiction up to a 10-year sentence).

  40. 40.

    Law on Court of Bosnia and Herzegovina, Official Gazette of BiH, No. 29/00, art. 13(1) (Nov. 12, 2000), available online.

  41. 41.

    Lilian A. Barria & Steven D. Roper, Judicial Capacity Building in Bosnia and Herzegovina: Understanding Legal Reform Beyond the Completion Strategy of the ICTY, 9 Hum. Rts. Rev. 317, 324 (Jan. 8, 2008), available online, doi.

  42. 42.

    See Law on Court of Bosnia & Herzegovina, Official Gazette of BiH, No. 16/02, arts. 13–15 (Jun. 25, 2002), available online.

  43. 43.

    See Agreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Establishment of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Division of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia & Herzegovina, Official Gazette of BiH, No. 16/02 (Dec. 1, 2004), available online.

  44. 44.

    William W. Burke-White, The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina, 46 Colum. J. Transnat’l L. 279, 338–41 (2008), available online; Olga Martin-Ortega, Prosecuting War Crimes at Home: Lessons from the War Crimes Chamber in the State Court of Bosnia and Herzegovina, 12 Int’l Crim. L. Rev. 589, 594 (2012), available online, doi.

  45. 45.

    Bogdan Ivanišević, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court, ICTJ, 7 (2008) [hereinafter From Hybrid to Domestic Court], available online.

  46. 46.

    Id.

  47. 47.

    Martin-Ortega, supra note 44, at 596.

  48. 48.

    Background Information, Court of Bosnia and Herzegovina, available online (last visited Feb. 16, 2020).

  49. 49.

    Organization for Security and Cooperation in Europe, The Processing of ICTY Rule 11 bis Cases in Bosnia and Herzegovina: Reflections on Findings from Five Years of OSCE Monitoring 25 (Jan. 2010), available online; Tarik Abdulhak, Building Sustainable Capacities—From an International Tribunal to a Domestic War Crimes Chamber for Bosnia and Herzegovina, 9 Int’l Crim. L. Rev. 333, 350 (2009), paywall, doi.

  50. 50.

    From Hybrid to Domestic Court, supra note 45, at 25.

  51. 51.

    Burke-White, supra note 44, at 341–42.

  52. 52.

    See e.g., The Prosecutor v. Mitar Rašević and Savo Todović, IT-97-25/1-AR11 bis.1, IT-97-25/1-AR11 bis.2, Decision on Savo Todović’s Appeals Against Decisions on Referral Under Rule 11 bis, ¶ 63 (ICTY AC, Sep. 4, 2006), available online.

    (“The Referral Bench was only required to ascertain whether the provisions concerning the measures which may be ordered by the State Court of [Bosnia and Herzegovina] for the protection of witnesses, do not unfairly impinge upon the Appellant’s right to a fair trial.”).

  53. 53.

    See id. ¶¶ 82–84.

    (“[The Referral Bench did not err in] satisfying itself that the appellants would receive a fair trial in part on the basis of Rule 11 bis (D)(iv) monitoring and the Rule 11 bis (F) revocation mechanisms”).

    The Prosecutor v. Gojko Janković, IT-96-23/2-AR11 bis.2, Decision on Rule 11 bis Referral, ¶¶ 55–57 (ICTY AC, Nov. 15, 2005), available online; The Prosecutor v. Radovan Stanković, IT-96-23/2-AR11 bis.1, Decision on Rule 11 bis Referral, ¶ 52 (ICTY AC, Sep. 1, 2005), available online.

    (“The Appellant is […] wrong to suggest that it was improper for the Referral Bench to have satisfied itself that the Appellant would receive a fair trial in part on the basis [of the] monitoring and the […] revocation mechanism.”).

    (In contrast, the ICTR held that the monitoring and revocation mechanism was not necessarily enough).

    See Prosecutor v. Hategekimana, supra note 9, ¶ 29

    (failing to consider certain monitoring mechanisms was inconsequential because “these procedures and remedies would not necessarily solve the current problems related to the availability and protection of witnesses” and that monitoring and revocation “lie within the sole discretion of the Prosecution”).

    Prosecutor v. Kanyarukiga, supra note 9, ¶ 38.

    (“[T]hese procedures and remedies would not necessarily solve the current problems related to the availability and protection of witnesses [and] the decision to send monitors and the right to request […] revocation lie within the sole discretion of the Prosecution.”).

    Prosecutor v. Gatete, supra note 12, ¶ 94.

    ([A]lthough the monitoring system in place “has led to the rejection of some of the objections against transfer […] monitoring will not […] solve the problems relating to availability and protection of witnesses”).

  54. 54.

    Melman supra note 2, at 1299–300.

  55. 55.

    Complementarity in Action, supra note 20, at 2.

  56. 56.

    Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda 12 (Jul. 25, 2008), available online.

  57. 57.

    Background Information on the Justice and Reconciliation Process in Rwanda, UN, available online (last visited Feb. 16, 2020).

  58. 58.

    Complementarity in Action, supra note 20, at 18.

  59. 59.

    Rwandan Genocide, History (Sep. 30, 2019), available online (last visited Feb. 16, 2020).

  60. 60.

    See United Nations High Commissioner for Refugees, The Rwandan Genocide and Its Aftermath in The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action 245 (Oct. 6, 2000), available online.

  61. 61.

    Burke-White, supra note 44, at 338–44.

  62. 62.

    Id. at 339.

  63. 63.

    From Hybrid to Domestic Court, supra note 45, at 26.

    (“Judges have traveled on two occasions to The Hague and discussed concrete matters of substantive and procedural law with ICTY counterparts. Not surprisingly there is regular communication between the ICTY prosecutor and the Special Department for War Crimes, mainly in relation to the Rule 11 bis and Category II cases transferred to Bosnia.”).

  64. 64.

    Martin-Ortega, supra note 44, at 594.

  65. 65.

    Id. at 594.

  66. 66.

    Id. at 594.

  67. 67.

    From Hybrid to Domestic Court, supra note 45, at 39.

  68. 68.

    Id. at 4.

  69. 69.

    Id. at 39.

  70. 70.

    Abdulhak, supra note 49, at 351.

  71. 71.

    Id. at 351–52.

  72. 72.

    Id.

  73. 73.

    Id. at 352.

  74. 74.

    Id.

  75. 75.

    Id. at 353

    (explaining that, until 2007, the ICTY did not have provisions for national courts’ requests for variance or rescission of ICTY witness protection orders, and the later amended rule requires application to the ICTY to have the protective measures varied).

  76. 76.

    Id. at 354.

  77. 77.

    Id. at 355.

  78. 78.

    Martin-Ortega, supra note 44, at 612.

  79. 79.

    Id. at 613.

  80. 80.

    Complementarity in Action, supra note 20, at 27.

  81. 81.

    Abdulhak, supra note 49, at 346.

  82. 82.

    Complementarity in Action, supra note 20, at 57.

  83. 83.

    Id.

  84. 84.

    Martin-Ortega, supra note 44, at 595–96.

  85. 85.

    Complementarity in Action, supra note 20, at 57.

  86. 86.

    Martin-Ortega, supra note 44, at 596.

  87. 87.

    Id.

  88. 88.

    The Prosecutor v. Jean-Bosco Uwinkindi, ICTR-2001-75-R11 bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, ¶ 35 (ICTY RC, Jun. 28, 2011), available online.

  89. 89.

    See generally 10th Anniversary, supra note 21; OSCE Report, supra note 39, at 6; See also Organization of Security and Cooperation in Europe, Moving Towards a Harmonized Application of the Law: Applicable in War Crimes Cases Before the Courts of Bosnia and Herzegovina 8, 14–20 (Aug. 2008), available online;

    (In BiH, domestic prosecution of war crimes at the entity level remains problematic. The political and judiciary structure was such that prosecutors at the entity level were mostly of the same ethnicity and had jurisdiction only over those of their own ethnicity, thus there was little incentive to prosecute “one of their own.” The unusual institution structure of the BiH also made it difficult to unify judiciary practice at the entity level because there are multiple different sets of criminal law, entity courts do not have specialized personnel or resources in prosecuting and adjudicating war crimes, and there is no hierarchy between the State and the entity level institutions. The ethnic divides, political pressure, and institutional tension between the State and the entities are beyond the scope of this comment, but this does not mean that it is not important for the ICC, as well as other international entities and organizations, to further explore solutions to reconcile post-conflict domestic divisions and minimize their effect on war crimes prosecution and adjudication).

  90. 90.

    Abdulhak, supra note 49, at 352–53.

  91. 91.

    Martin-Ortega, supra note 44, at 613.

  92. 92.

    Id.

  93. 93.

    Id. at 612–14.

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.

III. Challenges Faced by ICTR

After the conflict ended, Rwanda was in a state of disarray with law enforcement and judicial structure had been reduced to a fraction of its former self. To put things into perspective, it has been reported that in 1994, the number of judges decreased from 600 to 237 between April and August. Further, out of these 237, only 53 judges were posted to courts with jurisdiction over serious crimes.4

Given this state of disarray, Rwanda called upon the international community to aid it in prosecuting the persons responsible, and the international community responded by setting up the ICTR.5

[The ICTR was set up] for the sole purpose of prosecuting persons responsible for genocide and other serious violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring states, between 1 January 1994 and 31 December 1994.6

However, the purpose of the ICTR was not to prosecute each and every individual accused of these crimes and accordingly the UN Security Council started pressuring the ICTR to transfer the cases of intermediate and lower-level accused to competent national courts. Given this mandate, the Office of the Prosecutor (OTP) of the ICTR started to scour for and then negotiate with states that are “willing and able”7 to accept and prosecute cases in accordance with Rule 11 bis of the ICTR. According to Rule 11 bis, the chamber has to be first satisfied that the “accused will receive a fair trial in the courts of the states concerned and that the death penalty will not be imposed or carried out”8 if the prosecutor is seeking to refer an indicted case to a “willing and adequately prepared”9 state.

In the prosecutor’s hunt for national jurisdictions to refer cases, only four countries (France, Norway, the Netherlands, and Rwanda) agreed to accept cases referred by the ICTR. However, different jurisdictions posed different challenges and, at the end, the prosecutor was able to transfer cases only to France and Rwanda. These challenges are briefly discussed below.

A. Norway

The prosecutor first attempted to transfer the Bagaragaza case10 to Norway but Norway’s domestic law did not have specific provisions to prosecute the crime of genocide and it suggested that the case be prosecuted as a homicide.11 The referral application of this case was subsequently rejected by the chamber as it held that “Norway did not have jurisdiction ratione materiae over the crimes charged in the indictment.”12

B. The Netherlands

The Prosecutor then attempted to refer Bagaragaza to the Netherlands and it was able to secure a referral order from the ICTR chamber. However, the prosecutor had to cancel this referral for two reasons. The first was a judgment by the Dutch court which held that “[t]he Netherlands lacked jurisdiction over the crime of genocide for acts committed in Rwanda in 1994.”13 The second was the inability to satisfy the plus-factor as the accused were not voluntarily present in the Netherlands when the case was initiated.14 Many courts require the accused to satisfy the criteria of “plus-factor” which basically translates into the voluntary presence of the accused in the country before the initiation of the proceedings.15

C. Rwanda

Given that crimes under the ICTR’s purview were mainly committed in Rwanda, it was an obvious choice for referral of cases. However, Rwanda’s legal framework did not satisfy the conditions for fairness of the trial laid out in Article 20 of the ICTR Statute. In order to rectify this, Rwanda enacted a series of legal reforms which also included abolition of death penalty.16

The OTP of the ICTR, being satisfied that the legal reforms enacted by Rwanda were enough to fulfill the conditions of Article 20 of the ICTR Statute, attempted to refer five indicted cases to Rwanda for trial. However, this attempt failed in the face of defense arguments questioning the effectiveness of the legal reforms in order provide free and fair trial.17 In the hearing of these applications, it became apparent that the judges were interested in evaluating the practical aspects of trial in Rwanda as many questions were raised relating to witness protection, independence of judiciary, legal aid, and so forth.18 Accordingly, all five applications were rejected on similar grounds.19

D. France

Two cases were referred to France after the accused persons, Laurent Bucyibaruta and Wenceslas Munyeshyaka, were detained in France. The application to refer these cases were approved by the referral chambers relying on the legal framework and willingness of France to prosecute the accused persons.

There was very little challenge in terms of referring the cases to France, but even after more than a decade past the referral of these cases, there has been very little progress in the trial.20 This is due to the fact that there have been a lot of practical difficulties in gathering evidence, getting witnesses, etc. Any foreign nations trying to prosecute cases of some distant state will encounter these difficulties and this is what it makes it impractical.

IV. Overcoming the Challenges

After rejection of all the five referral applications to Rwanda, the ICTR’s OTP had to reconsider its strategy and it entered into a series of consultations with the Rwandan administration.21 The goal was to strengthen the Rwanda’s justice sector.22 The Reforms that came about due to the ICTR’s partnership with Rwanda are described below.

A. Legislative Reform

The first step towards improving the justice system of Rwanda, and making it on par with that of the ICTR’s, started with legislative reforms in the criminal structure. The process had already started by abolishing the death penalty and now moved on to abolish solitary confinement.

This was necessary because when the death penalty was abolished, as per the Abolition of Death Penalty Law,23 Article 4 of the same law provided for imprisonment with special conditions including solitary confinement. As per the international law norms, solitary confinement is only permitted for very limited time, and in very exceptional and rare circumstances. Accordingly, Rwanda adopted new legislation clarifying that the special conditions to imprisonment, including solitary confinement, would not be applicable to cases transferred by the ICTR.24

Rwanda also made changes to its Penal Code and Code of Criminal Procedure to modernize its “provisions and substantially reduce the range of criminal sentences.”25 Changes were further made to the Genocide Ideology Law because the existing law covered a very broad scope of acts under genocide. The changes resulted in:

  1. establishment of a more direct nexus between the law’s legitimate purposes and its scope,

  2. clarification of vague or overboard terminology,

  3. specifically identify prohibited conduct and impose an intent element and

  4. reformulate the sentencing structure.26

In countries like Rwanda, where the memory of genocide is still fresh in people’s mind, it has often been observed that very few people would want to defend the accused due to threat of their own prosecution or threats from victims and their families. Neither would anyone want to volunteer themselves as defense witness. Therefore, it became imperative to have some sort of protection to the defense teams and defense witnesses. Rwanda addressed such protection via Article 14 of the Transfer Law which states that “without prejudice to the relevant laws of contempt of court and perjury, no person shall be criminally liable for anything said or done in the course of a trial.”27

Last, but not least, Rwanda’s legislative reforms included providing witnesses, residing outside the country who do not want to be physically present in court, an alternative to live testimony. As per Article 16 of the Transfer Law, three alternatives were provided to live testimony. These are:

  1. by deposition in Rwanda or in foreign jurisdiction before a presiding officer, magistrate or other judicial officer,

  2. by video link hearing taken by judge at trial and

  3. by Rwandan judge sitting in a foreign jurisdiction.28

B. Infrastructure Improvements

Infrastructure improvements were necessary for proper functions of the judicial mechanism as the Rwandan infrastructure was tattered after genocide. These improvements included construction of an internationally compliant detention center in Kigali and a prison in Mpanga,29 establishment of a Witness Protection Unit within the judiciary, and setting up better video link capacity.30

C. Knowledge and Experience Sharing

The ICTR Prosecutor and other officials started conducting workshops in order to train the Rwandan officials and many Rwandans also worked at the ICTR in order to get better experience of the judicial structure. An information center and ten regional centers were also set up, with support from European Union, in order to share information regarding major developments at the ICTR.31

V. Effects of Reforms.

In addition to the obvious effect of successful transfer of cases from the ICTR to domestic Rwandan courts, it was also observed that some reforms, such as abolition of death penalty, also provided renewed vigor towards reconciliation among the different communities of Rwanda who were at odds after the civil war and genocide. Horovitz, in her paper, notes that around 1300 prisoners had received death penalty and approximately 12,000 who were awaiting trial were eligible for death penalty by 2007 for crimes related to genocide.32 After the abolition of the death penalty, all those already sentenced were commuted to life. This obviously provided a certain relief to the prisoners and their relatives.

Horovitz conducted interviews with the prisoners, their relatives, survivors of genocide, and certain elite members of Rwanda. In her interviews with prisoners whose death sentences had been commuted and their families, she notes that mostly all of them were overjoyed, relieved, and believed that this step would bring reconciliation amongst the communities. She further notes that these people were so gratified that it would definitely help in forgetting the past and letting go of bitterness. One of the prisoners was so relieved that he confessed to his crimes and apologized in the hope of being released from prison someday.33

In her interviews with survivors, she notes that it was unexpected that survivors would accept and support the abolition of the death penalty. The summary for this unexpected result can be found in excerpts from one of the survivor’s interview mentioned below.

We were backing up this idea of death penalty but our government abolished it…In the first place we were angry, very sad with a lot of sorrow, and we wanted these people to die. But as life goes on, as we get healed, then we can accept and live with what happened to us, and we realized that death [penalty] is not the solution34.

The change in views of the public regarding the abolition of death penalty has largely been attributed to Tharcisse Karugarama’s public campaign.35 Karugarama was Rwanda’s Justice Minister and he led a public campaign to educate the masses about the virtues of forgiveness and garner support for abolition of death penalty.36

VI. Conclusion

In conclusion, I would only like to point out the fact that the main purpose of the ICC or any such criminal tribunal should not be limited to prosecution of cases. Rather, such tribunals should be used as a tool for the development of the criminal justice system in countries affected by conflict. Countries which are already going through or have recently gone through major conflict will most probably be on the path to restructure and regrow. The ICC should act as a catalyst in this process and should be part of the reconstruction process of the judicial system.

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

  1. 1.

    Navanethem Pillay, President of ICTR, Seventh Annual Report of the ICTR for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994, UN Doc. A/57/163—S/2002/733, ¶ 10 (Jul. 2, 2002), available online.

  2. 2.

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

  3. 3.

    Office of the Prosecutor, ICTR, Complementarity in Action: Lessons Learned from the ICTR Prosecutor’s Referral of International Criminal Cases to National Jurisdictions for Trial ¶ 38 (Feb. 2015) [hereinafter Complementarity in Action], available online.

  4. 4.

    Id. ¶ 13.

  5. 5.

    Manzi Bakuramutsa, Permanent Representative of Rwanda to United Nations, Statement on the Question of Refugees and Security in Rwanda, UN Doc. S/1994/1115 Annex, 4 (Sep. 29, 1994), available online, archived.

  6. 6.

    Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, UN Doc. S/RES/955, Art. 20 (Nov. 8, 1994) [hereinafter ICTR Statute], available online.

  7. 7.

    Complementarity in Action, supra note 3, ¶ 17.

  8. 8.

    ICTR Statute, supra note 6, at Art. 11 bis.

  9. 9.

    Id.

  10. 10.

    The Prosecutor v. Michel Bagaragaza, ICTR-05-86-S, Sentencing Judgement, ¶ 4 (ICTR TC III, Nov. 17, 2009), available online.

  11. 11.

    Complementarity in Action, supra note 3, ¶ 25.

  12. 12.

    Id. ¶ 30.

  13. 13.

    Id. ¶ 33.

  14. 14.

    Id. ¶ 34.

  15. 15.

    Id. ¶ 31.

  16. 16.

    Id. ¶ 43.

  17. 17.

    Id. ¶ 48.

  18. 18.

    Id. ¶ 49.

  19. 19.

    Id. ¶ 43.

  20. 20.

    The Collectif des Parties Civiles pour le Rwanda, CPCR’s Submission to the UN Human Rights Council, 29th Session of the Working Group on the Universal Periodic Review, ¶ II(B)(7) (Jun. 28, 2017), available online.

  21. 21.

    Id. ¶ 46.

  22. 22.

    Id. ¶ 47.

  23. 23.

    Organic Law n° 31/2007 Relating to the Abolition of the Death Penalty (Rwanda) (Jul. 25, 2007), available online.

  24. 24.

    Id.

  25. 25.

    Complementarity in Action, supra note 3, ¶ 60.

  26. 26.

    Id. ¶ 65.

  27. 27.

    Organic Law n° 47/2013 Relating to Transfer of Cases to Republic of Rwanda (Jun. 16, 2013), available online.

  28. 28.

    Id.

  29. 29.

    Complementarity in Action, supra note 3, ¶ 65.

  30. 30.

    Id. ¶ 64.

  31. 31.

    Id. ¶ 71.

  32. 32.

    See Sigall Horovitz, International Criminal Courts in Action: The ICTR’s Effect on Death Penalty and Reconciliation in Rwanda, 48 Geo. Wash. Int’l L. Rev. 505, 513 (2016), available online, paywall, doi.

  33. 33.

    Id. ¶ 531.

  34. 34.

    Id. ¶ 535.

  35. 35.

    Id. ¶ 524.

  36. 36.

    Id.

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.

The ICC is enslaved to the frameworks of third parties in order for it to function well. Unfortunately, political connotations linger and do play a frequent role in the decisions that the ICC often makes. This comment highlights why the Security Council referral process is of utmost importance in the factor-based analysis: this weighty prong is needed in order for one to secure an overall just result. Each prong will also use a case study for the proposition of enhancement or defeat. This comment argues that the entity that refers the situation to the ICC will have a huge factor on the endgame outcome and will argue that the two other factors will also play a major role in the adjudication of the criminal referral. For example, one is to consider the monetary budget associated with each referral, the investigatory forces and their expertise, and of course, the backing of powerful military groups.

A. Security Council Referral

Pursuant to Article 13(b) of the Rome Statute, the Security Council may refer a criminal situation to the ICC for investigation and adjudication per its Chapter VII resolution power, if it is likely that one or more crimes were committed within the confines of the Court’s jurisdiction, or if authorized per their sovereign power of referral.3 The Rome Statute under the header of Article 13(b) reads:

[A] situation in which a crime or crimes appears to have been committed can be referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter.4

This powerful mechanism allows the Security Council to activate agents that would compel assistance, for example, per Article 41 of the Charter, this body could “impose an arms embargo, a travel ban, and an asset freeze.”5 Essentially, this bylaw gives the United Nations body, through its members, the ability to extend jurisdiction of the ICC to any criminal conduct that occurred anywhere in the world. The most famous case of this practice was that of Libya.

1. Libya Case Study

In Libya, the situational enforcement arm was dispatched due to a referral from the United Nations Security Council Resolution. These situations are limited to when there has been deemed a presence of a threat against the peace, breach of the peace, and acts of aggression.6 Of note, it has been argued internationally that this power of international dominance in an area of criminal concern can subject non-parties to the jurisdiction of the ICC, but at the same time, a way that can bar three of the five permanent member countries from obtaining jurisdiction of criminal offenses; essentially, it was called a political tool to advance the interests of the Security Council’s permanent members.7

Libya was widely seen as an exemplar of how political dominance among the powerful permanent members can steer power by their influence into supreme superiority. For example, it was widely reported that the only reason the United States supported the resolution to refer the situation in Libya to the ICC was because of their attempt to secure a government friendlier to the United States.8 Others were inclined to refer the situation due to the alarm of violent attacks on innocent bystanders and civilian protestors by the Gaddafi regime. Many scholars have attempted to grasp the idea that the same folks who undermine the ICC by not accepting their jurisdiction, are then allowed to refer cases to the very same institution that they do not want to be a part of.9

Many economists have spread the philosophy that money runs the world. This childhood story can be replicated in the provisions of the United Nations. When the UN Security Council refers something to the ICC, this weighty body has some force behind it due to the five great powers’ symbolic blessing. Not only is legitimacy and monetary contributions at the forefront of these referrals, but also the weight of Chapter VII of the UN Security Council. For example, the Libyan situation was encountered in paragraph five of Resolution 1970 with the powerful command of “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” Moreover, when the Security Council acts per its resolution authority, the “duty to cooperate by executing arrest warrants, extends to all UN Member States, regardless of whether or not they are a Party to the Statute.”10 Finally, the Libya situation was resolved in a steadfast fashion due to the “outstanding [Western] support” and “substantial cooperation” as “a critical component of the fast progress of the Libya investigation.”11

i. The Legitimacy of a Given Conflict

Although it is within the purview of the Security Council to refer situations to the ICC, it has been strongly disfavored and seldom used due to the permanent member’s opposition to such sovereign interference. Each permanent member has a veto power to council resolutions, so it is to be expected that the world powers that are not part of the ICC would be inclined to veto most of these resolutions.12 The great powers of this body enhance these resolutions and they are super important because they are legally binding on all UN member countries, so this would give a boost of morale and of international support for the mission at hand.13 The other consideration that the ICC Prosecutor must weigh is the overwhelming violence on the ground of a given situation and its investigatory force’s expertise on a matter of adjudication. If violence is on-going, the Prosecutor should seek urgent assistance to try to persuade others that a massive response is required in order to avoid continued bloodshed.

ii. Backers of the Situational Response

Although the ICC has vast amounts of resources and monetary will from supporting member states, the institution itself suffers dearly due to its very own constraints. The ICC lacks the all-too-important enforcement police force and is extremely dependent on the respect and will from the sovereign entities that make up this organ, through the investigations and prosecution evidence-gathering stages of the process.14 The enforcement dependence has made the Prosecutor vulnerable to manipulation and exploitation of goodwill law enforcement independence. With this insight, it is expected to comprehend that justice is more likely to prevail when the Security Council does indeed provide continuous support. With this support behind it, the ICC Prosecutor is advised to continue an investigation for as long as it has the powerful backing of the Security Council, and that is because of the unified support rooted behind an act of criminal wrongdoing within a certain region. The investigation should only conclude if adjudications are underway or if the Security Council defers ICC interference, after all, they are the body that protects international humanity from the evils of governments and mankind.

B. State Referral

A State party to the ICC’s Rome Statute can call upon the Prosecutor to investigate a situation, via their referral power mechanism embedded within Article 14:

State Part[ies] may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.15

This referral power has been manipulated, abused, and stripped of its integrity due to the many governmental actors who use it as a plot to remain in power. It has been noted that countries such as Uganda, have been implicit in the weaponizing of such power for their own survival, and for their own standing of political motivational purposes.16

1. Uganda Case Study

Uganda has been mocked for being a celebrity-famous example of this weaponizing doctrine highlighted within. The ICC appreciates self-referrals from member countries, and that is due to the facilitation of situational preparation and on-the-ground support, but unfortunately, the ICC has also used favoritism in conducting their investigations.17 For example, it was widely known that both the power holding government and the various rebel groups were responsible for criminal acts of international jurisdiction offenses. In this context, the ICC made very clear that it would investigate the Lord’s Resistance Army (LRA) activities, and essentially, give a get out of jail card to the holding government.18 This can be seen as a tactical maneuver, as the holding government was itself immune from punishment and rewarded for calling upon the International Prosecutor for help.19 In this sense, the ICC failed at its main judicial purpose, and instead provided a reward system for defendants or perpetrators who become informants; this tactic has been too widely exploited. This practice is seen as a dangerous tool due to the legitimate stake that this Court has for many developing and undeveloped countries who hold rule of law within the hands of this international tribunal, and if these malicious actors come and depict themselves as friends of the Court, then they might not get held to account for their conduct. Ironically, the very own government that sought the ICC for international prosecution reversed course with Uganda’s President Mouseveni, who then shamelessly called for all African Union member states to “get out of that Court of the West” and leave the westerners “with their court.”20

The ICC Prosecutor must be judicially impartial in looking at dual sides of the conflicts and must avoid the reward bonus associated with the government or rebel actor that self-referred the situation to their attention. Donn R. Fudo, Hawaii’s Department of the Prosecuting Attorney for the City and County of Honolulu said “prosecutors are impartial units, and should always see the totality of a situation, and not be seen as persecutors, as this is not the system of justice in this country.” Fudo emphasizes that the moment the Prosecutor steps into the shoes of a side-choosing jurist, then his or her professional attributes to the judicial system are expired.

i. The Legitimacy of a Given Conflict

This prong consideration under this context should be given hefty weight due to the lapse of on-going disputes, and the potential of resolution through the tribunal’s powerful threat of punishment. Although, the ICC Prosecutor should use common sense in dispatching aid, for example, if rebel groups have publicly stated “ICC, you come, millions die” then the ICC is better poised at seeking assistance from the Security Council rather than dispatching with the sole support of the hosting country.

ii. Backers of the Situational Response

With shock, one could imagine a situation in which the Prosecutor would enjoy such referrals. For example, it is perceived that success comes when the support of the State body which has a situation within its geographical region assists the ICC body with their army troops. That is because the very own governmental force would aid in the intelligence and evidence gathering phase, which would result to greater compliance and would ensure fulfillment of its mandate, but ulterior motives might be lingering in the backdrop, so it wise to plan out beforehand any issues of impartiality that might be grey.21 With this in consideration, it is advised that the ICC Prosecutor use time, place, and manner analysis to determine if the special timing warrants a successful completion of an investigation. Also, the ICC Prosecutor should analyze the referring entities’ power to evaluate if conclusion of an investigation is warranted or aggressive pursuit of an investigation is better positioned.

C. Prosecutor’s Proprio Motu Authority

The Prosecutor is a very powerful international law enforcement officer. She is in a position of trust and in a position to create international peace through the sanction of criminal punishment. Per the ICC’s Rome Statute, the Prosecutor has a duty to investigate a criminal query if she believes that there is a reasonable belief that a criminal offense was indeed committed within her territorial boundaries.22 The word that corresponds is shall so therefore eliminating the permissive discretion and mandating the bounds of her office. The Prosecutor’s authority has been controversial, in gentle terms. This authority to investigate can only be launched if the accused actor is a State Party national, or the crime/s took place within the territory of a State Party.23 The first proprio motu investigation was launched in the year 2010, and the subject of this investigation was a violent act referencing the post-2007 election dilemma in Kenya.24

Although at first sight one might be inclined to deem this prosecutorial tool as one with less teeth in the sense of ultimate judicial weight, one should consider the upsides to this powerful tool. For example, one should consider that this initiation process can be a good step when it might be to the targeting of powerful nations, who many times are in the status of permanent membership and deemed to have a veto power. This veto power essentially allows them to get away with criminal offenses without proper justice to follow. This extraordinary power does not impose the Prosecutor with unfettered discretion. For example, the Prosecutor must inform the Security Council about any pending investigations that she initiates, such as crimes of aggression, which then the Security Council has six months’ time to determine if an act of aggression indeed occurred.25 In this context, if the UN Security Council makes no determination, then the Prosecutor may only proceed if authorized by the Court’s Pre-Trial Division judges.26

1. Kenyan Case Study

The country of Kenya has had various turbulent violent situations in the last few decades. On November 26, 2009, the Honorable Prosecutor pleaded with the ICC’s Pre-Trial Chamber to grant him the standing authority to open a query investigation into the post-election violence in Kenya, pursuant to its proprio motu powers found in Article 15 of the Rome Statute.27 Unfortunately, this study resulted in a fiasco of bomb-fires, and this was due to the lack of evidence collection, the lack of enforcement powers, the lack of international support, and the lack of political pressure from powerful ICC-friendly countries.28 With great dismay, this self-initiated power comes with great weaknesses, as it is only used in the absence of a UN Security Council referral, or that of a State equivalent, so this power hinges upon less international support, and is deemed to be viewed as less weighty in the sense of justice driven solutions to mass atrocities. This study has been widely seen as a fiasco due to the Kenyan government’s tampering and evading of “critical information” and due to their tactics of “failing to execute the Office of the Prosecutor’s most important requests for documentary evidence.”29

i. The Legitimacy of a Given Conflict

The ICC Prosecutor should consider irreparable injuries to other innocent parties, continuing evils committed within a regional area, and the systematic exclusions of killings or other ICC related criminal offenses in the weighing of such bold power. Although, it is puzzling that the ICC Prosecutor has weighed peace building vs. justice building in stating, “discretion for short term political goals are inconsistent with the Rome Statute.”30 This flawed criterion has essentially given the party seeking peace-building an incentive to continue an all-war rebellion; something the author is explicitly against. Peace-building, while it lasts, should be a reinforcement of the ICC doing its job in maintaining international world order and peace, and hence subject to a healthy conclusion of a situational investigation.

ii. Backers of the Situational Response

Although the Security Council weight should matter a great deal in the sense of securing judicial accountability, the international organs must be inclined to work together to obtain a prosperous solution. It is within the Security Council’s power to defer or halt a lawful investigation or prosecution for twelve months by its Chapter VII resolution powers.31 This power can help undermine legitimate investigations, and it can help sideswipe the independence of this law enforcement body. George Fletcher and Jens David Ohlin have both cleverly stated that the ICC is “two courts in one,” a criminal court marked by its institutional independence and a “security court,” when called to action by the Security Council.32 This mentality must be deleted from our imaginations, and that is because these bodies work best when they have each other’s positions in referral situations, and not a “you-vs-me” dilemma. Of course, the UN Security Council referral scenario is much stronger because of the Charter-centered hierarchy of hegemonic dominance among its pyramid force. The prime example is the International Criminal Tribunal for the Former Yugoslavia (ICTY), here, the Court had the backing of the Security Council and the assistance of monetary relief and strong Western State’s cooperation. This was largely credited for its wide successes.33 The pressure that the World Powers placed on economic aid and on cooperation with the ICTY led to the arrest of high-ranking military and government officials.34 However, one must be hopeful that these member countries, especially those within the elite sphere of permanent should not only speak with their votes, but should speak with their pockets. These elite referrals have so much potential for success, but this success comes at a price: a price that is not paid by many who are committed to ending the mass array of atrocity criminal offenses.

III. Conclusion

The authority who initiated the referral is crucial, but the two other considerations matter dearly. The legitimacy of a given conflict and the backers of the situational response should matter because this is a tripod relationship: all requirements are needed in order for a careful evaluation. As much as we all want a perfect world, we do not live in one. As for the ICC, the Prosecutor cannot function adequately if it does not have the support of the international community, or that of its equivalent state partners, as the ICC is vulnerable in the sense that it cannot obtain evidence, protect survivors, fund its overarching missions, secure peace, and, of course, arrest perpetrators without the assistance of these key players. Pursuant to Article 42(1), it highlights that the role of the Prosecutor is one of independence and true objectivity.35 This Prosecutorial discretion aspiration hones upon the factors of which crimes to investigate, the timing and careful scrutiny of cases, and the proper adjudication venue of charges. Unfortunately, the prosecutor is at its lowest point when it does not have the powerful backing from the international community, and when it does not have the golden blessing from the key ICC state signatories. That is due to its serious purse constraints,36 and of course, due to the on-the-ground considerations that are occurring. Political overtones do indeed affect its everyday operations, but this should not dominate the field of impartiality. In conclusion, the Prosecutor must either have the cooperation of the state under investigation, or of states strong enough to dominate the offending state to cooperate, such as through hardcore economic sanctions, in order for it to be triumphant in the fulfillment of its goal of completion criteria, and in its desire of concluding an intense and successful investigation.

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

  1. 1.

    International Criminal Court, Understanding the International Criminal Court 3 (Aug. 22, 2013) [hereinafter Understanding the ICC], available online.

  2. 2.

    See generally, 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], Arts. 12, 13, available online.

    (detailing the circumstances under which the ICC may exercise jurisdiction).

  3. 3.

    Id. Art. 12(2)

    (giving an explicit understanding that with regard to situations referred to the Court other than by the Security Council, the Court only has jurisdiction where the crime occurred within the territory of a state party or was committed by a national of a state party).

  4. 4.

    Id.

  5. 5.

    See generally, Security Council Resolution 1970, UN Doc. S/RES/1970 (Feb. 26, 2011), available online.

    (An asset freeze was done in Libya. It is essential to note that Libya was not a state party to the Rome Statute, so the Security Council referral was key in order to satisfy the legal preconditions to the exercise of the Court’s jurisdiction over the situation).

  6. 6.

    Gino Vlavonou, Africa: ICC-Does Politics Win Over Justice? All Africa, Oct. 17, 2013, available online.

  7. 7.

    Hemi Mistry & Deborah Ruiz Verduzco, The UN Security Council and the International Criminal Court 3 (Mar. 16, 2012), available online.

  8. 8.

    Michel Chossudovsky, When War Games Go Live? “Simulating World War III,” Global Res. (Jan. 8, 2012), available online

    (writing that military intervention in Syria and Iran was part of a larger Middle East strategy. Countries like Libya became US military targets because they refused to allow Anglo-American oil companies unlimited access to their oil resources. While a controversial theory, it seems consistent with the countries where the Security Council allowed the use of force to be used for humanitarian purposes. For example, there were similar criticisms launched at NATO’s actions in Libya when it allegedly exceeded the UN’s authorization to protect civilians by actively supporting the rebel movement and executing Gaddafi).

  9. 9.

    David Morrison, Referring Libya to the ICC is Blatant Hypocrisy, Personal Blog (Mar. 8, 2011), available online.

  10. 10.

    See generally, Understanding the ICC, supra note 1, ¶ 44.

  11. 11.

    Luis Moreno-Ocampo, ICC Prosecutor, First Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) ¶¶ 29–33 (May 4, 2011), available online.

  12. 12.

    Charter of the United Nations, Art. 23 ¶ 1 (as amended) (Jun. 26, 1945), available online

    (listing the Security Council’s permanent members and describing the implicit veto power of these members).

  13. 13.

    Rome Statute, supra note 2, at Art. 25.

  14. 14.

    See Office of the Prosecutor, ICC, Strategic Plan: June 2012–2015 ¶ 5 (Oct. 11, 2013), available online.

    (The Office of the Prosecutor is investigating increasingly complex organizational structures that do not fit the model of traditional, hierarchical organizations. It is doing so with more limited investigative tools than are at the disposal of national law enforcement agencies. It can only do so if there is full cooperation from States. Cooperation becomes more than ever before a critical success factor if the Office is to produce positive results).

  15. 15.

    Rome Statute, supra note 2, at Art. 14.

  16. 16.

    See Sarah M. H. Nouwen & Wouter G. Werner, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan, 21 EJIL Talk 941 (Nov. 1, 2010), available online, doi.

  17. 17.

    (By way of background, the Ugandan government wanted a Restorative Justice approach to punishment, such as their traditional mato oput process, which is a process that avoids prison time, but does require:

    1. that the suspect confess his/her crimes;
    2. that the suspect ask for forgiveness from the victim’s clan;
    3. that the suspect pay compensation to the victim’s clan, which is typically in animal transfers and child naming privileges).
  18. 18.

    Patrick Wegner, Self-Referrals and Lack of Transparency at the ICC —The Case of Northern Uganda, Just. in Conflict (Oct. 4, 2011), available online; See also Adam Branch, Uganda’s Civil War and the Politics of ICC Intervention, 21 Ethics & Int’l Aff. 179 (Jun. 12, 2007), available online, doi; Nouwen & Werner, supra note 16, at 948–49.

  19. 19.

    See Matthew Happold, The International Criminal Court and the Lord’s Resistance Army, 8 Melb. J. Int’l L. 159, 161 (2007), available online, paywall.

    (“The legality of self-referrals in the general has been questioned; whilst the form of the referral itself led to suspicions that the Ugandan Government was using the Court as a weapon in its conflict with the LRA.”).

    See also H. Abigail Moy, The International Criminal Court’s Arrest Warrants and Uganda’s Lord’s Resistance Army: Renewing the Debate over Amnesty and Complementarity, 19 Harv. Hum. Rts. J. 267, 273 (2006), available online.

  20. 20.

    Duncan Miriri, Uganda’s Museveni Calls on African Nations to Quit the ICC, Reuters, Dec. 12, 2014, available online.

    (Uganda’s President Museveni, who once requested ICC intervention in his own country, now perceives the institution as a “tool for oppressing Africa,” and has called for African States to withdraw from the Rome Statute, stating, “I want all of us to get out of that court of the West. Let them stay with their court.”).

  21. 21.

    See Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor, Annex ¶ D (Sep. 5, 2003), available online.

    (Where the Prosecutor receives a referral from the State in which a crime has been committed, the Prosecutor has the advantage of knowing that the State has the political will to provide her Office with all the cooperation within the country that is required to give under the Statute. Because the State, of its own volition, has requested the exercise of the Court’s jurisdiction, the Prosecutor can be confident that the national authorities will assist the investigation, and will be anxious to provide if possible and appropriate the necessary level of protection to investigators and witnesses).

  22. 22.

    Rome Statute, supra note 2, at Art. 53.

  23. 23.

    Id. Arts. 12, 13(c), 15.

  24. 24.

    See Situations Under Investigation, ICC, available online (last visited Feb. 17, 2020); See generally, Situation in the Republic of Kenya, ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (ICC PTC II, Mar. 31, 2010), available online.

  25. 25.

    The ICC and the UN Security Council, The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, available online (last visited Feb. 17, 2020).

  26. 26.

    Id.

  27. 27.

    The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-11, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute (ICC PTC II, May 30, 2011), available online.

  28. 28.

    See Anna Holligan, Uhuru Kenyatta Case: Most High-Profile Collapse at ICC, BBC News, Dec. 5, 2014, available online.

  29. 29.

    The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Prosecution response to the “Government of Kenya’s Submissions on the Status of Cooperation with the International Criminal Court, or, in the alternative, Application for Leave to file Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence,”¶¶ 1–5 (ICC TC V, May 10, 2013), available online.

  30. 30.

    See, e.g., Luis Moreno-Ocampo, ICC Prosecutor, Building a Future on Peace and Justice (Nuremberg, Jun. 24, 2007), available online.

  31. 31.

    Rome Statute, supra note 2, at Art. 16.

  32. 32.

    Jens David Ohlin, International Law and Prosecutorial Discretion, 8 Whitehead J. of Dipl. & Int’l Rel. 146 (Oct. 1, 2007), available online.

  33. 33.

    Wesley K. Clark, Waging Modern War: Bosnia, Kosovo, and the Future of Combat ¶¶ 73, 92 (May 2001), paywall; Carla Del Ponte, Chief Prosecutor of the ICTY and the ICTR, Address at the Policy Briefing, European Policy Centre, Brussels (Jul. 3, 2007), available online.

  34. 34.

    R. Jeffrey Smith, Serb Leaders Hand over Milosevic for Trial by War Crimes Tribunal, Wash. Post, Jun. 29, 2001, available online.

  35. 35.

    Rome Statute, supra note 2, at Arts. 41(1), 42.

    (“The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source.”).

  36. 36.

    See U.S. Constitution, Art. 1, § 7, Art. 1, § 9 (Sep. 17, 1787), available online.

    (This is borrowed from the United States House of Representatives’ “power of the purse,” or the ability to tax and spend public money for the national government. In other words, the ability to control the actions of a given group through the withholding of funding).

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

In this comment, I seek to expand on previous recommendations for the ICC to adopt residual mechanisms for victim protection in the Court’s development of a completion strategy. In articulating a completion strategy, the Court should have a duty to ensure—to a reasonable degree—the stability and safety of victims whose abuses are not remedied by the international tribunal as a result of a suspended investigation. The Court should acknowledge possibilities that suspected abusers will retaliate against victims once the Court suspends an investigation and should therefore have a means to transfer all relevant information confidentially to capable local or national jurisdiction that has proven competent to support victims, or to a non-governmental organization (NGO) with the resources and initiative to fill gaps in the ICC’s victim protection measures.

It must be noted that addressing this problem is extraordinarily difficult due to the limited financial and personnel resources available to the ICC, the principle of complementarity that presupposes whether some national or local jurisdictions will even have a willingness or capability to assist with victim protection after the withdrawal of the ICC, and the possibility that requiring the ICC to assume some measure of victim protection after an investigation will result in indefinite responsibility in conflicts they are unable to prosecute. Thus, it is unlikely that any one recommendation for an ICC completion strategy will be adequate in ensuring the Court sufficiently stands for a victim’s right to protection during, and in the aftermath of, a suspended investigation. Rather, it is more likely that the Court must undertake a combination of strategies and assistance tailored to each unique situation in order to empower victims and instill safety and security, while simultaneously fostering ongoing trust in the ICC within the international community.

In assessing models of completion strategies that have prioritized victim safety, this comment looks at the examples set by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), as well as the mistakes and lessons learned from the truth commissions established following the human rights abuses in Timor-Leste. Though none of these models have been perfect, a desirable completion strategy should effectively include elements of all four.

A. Challenges in Installing Victim Safeguards After a Suspended Investigation

There are several challenges facing any attempt to prolong care and protection to victims once the Court engages in a completion procedure and ceases to move forward with an investigation. The period of time after the Court decides not to proceed in an investigation is likely filled with persistent anger, fear, and resentment among victims at an international system that was supposed to prioritize and give a voice to survivors of egregious abuses. A primary challenge facing the ICC is a lack of resources and personnel to oversee a transition of victim care from the Court to another capable body; a scarcity of resources compounds any potential solution that would mandate the Court undertake responsibilities to victims that could wind up being indefinite. Second, the principle of complementarity, ensuring the Court cedes jurisdiction to domestic bodies before stepping on nations’ sovereignty, further complicates the ICC’s ability to simply hand-off the responsibility of victim protection to national or local jurisdictions that did not stand against the human rights abuses occurring within their borders in the first place.7 Finally, in drafting a strategy for victim protection, the ICC must be wary of a strategy that gives the Court too much responsibility for victims once the Court chooses to engage in an investigation, lest the Court risks deterring investigators from opening an investigation to begin with. Any potential deterrence effect resulting from a complex completion strategy may be counterintuitive to the ICC’s mandate of enforcing international justice.

II. Case Studies

A. The ICTY, ICTR, and SCSL’s Residual Mechanisms

The ICTY and the ICTR, established after the mass brutalities suffered in former Yugoslavia and Rwanda respectively, were temporary ad hoc international criminal courts.8 In 2010, a UN Security Council Resolution established the International Residual Mechanism for Criminal Tribunals (Mechanism) with branches for both the ICTY and the ICTR.9 The Mechanism was created largely with the forward vision of maintaining the legacies of the ICTY and the ICTR and contains sections tasked with assuming victim and witness protective measures in order to supplement the ICTY and the ICTR’s development of “long-term plans for witnesses afraid of retaliation.”10 The UN gave the Mechanism the ongoing prerogative:

[To have a] small, temporary and efficient structure, whose functions and size will diminish over time, with a small number of staff commensurate with its reduced functions[…]11

The Mechanism’s commitment to victims includes procedures to ensure non-disclosure of witness identities and the ability to assist with temporary or permanent victim relocations.12 While neither the ICTY nor the ICTR instituted proactive completion strategies before the investigations in their respective jurisdictions began, they did allow the Mechanism to begin operating before the tribunals closed in anticipation of the victim and witness assistance that would be needed and better-off in the face of a seamless transition.13

A second example of residual mechanisms connected to a tribunal’s completion strategy can be seen in the SCSL. Established in 2002 following pervasive and methodical human rights abuses by the Revolutionary United Front within Sierra Leone, the SCSL was a short-term tribunal initiated with long-term goals, including the need to provide some measure of support to victims.14 The formation of the SCSL’s “Legacy Phase Working Group,” at the outset of the tribunal’s creation, prioritized the public legacy of a court that was always intended to be temporary. The Residual Special Court for Sierra Leone (RSCSL) was likewise established to create a smooth transition from the SCSL to a second body comprised of individuals representing different organs of the tribunal and focused on the remaining moving parts upon conclusion of the SCSL’s mandate.15

B. Lessons From the Timor-Leste Truth Commissions

Timor-Leste’s inability to prosecute suspects from the violence that culminated from 1974 to 1999 is a paradigmatic example of an instance where a prosecutorial investigation for atrocious human rights abuses was stalled, leaving victims without legal redress.16 In Timor-Leste, the individuals responsible for the mass atrocities—which included aerial bombings, forced displacements, torture and the disappearances and mass killings of over 18,600 people—fled to Indonesia and out of reach of Timor-Leste’s legal arm and ability to extradite suspects.17 In 2002, the Commission for Reception, Truth and Reconciliation in East Timor (CAVR) was formed and tasked with disclosing the truth about the human rights violations that occurred in Timor-Leste within the aforementioned twenty year period, including recommending and responding to the continuing needs of victims. CAVR’s work, which culminated with a report in 2004, sought to identify victims and engage survivors in “healing workshops” and other reconciliation services.18 In theory, the attention paid to victims in Timor-Leste is a valuable example, but the establishment of such a truth commission is far from a faultless model for the ICC to emulate. In 2005, the governments of both Timor-Leste and Indonesia formed another commission, the Commission for Truth and Friendship (CTF), in an attempt to accelerate the recovery process between the two governments. However, as a result of this unique process, files that were held and made available by the Special Crimes Unit, exposed victims’ confidential information without preemptively ensuring witness protection systems were in place to guarantee witness and victim safety.19 Groups such as Amnesty International have since further emphasized holes in attempts to assist victims in Timor-Leste by calling out the Timor-Leste and Indonesian governments for failing to even institute the victim assistance recommendations put forward by CAVR, CTF, and other fact-finding commissions.20

III. Recommendations

This comment acknowledges the mere impossibility of creating a one-size-fits-all solution to address how the ICC should assist victims after an investigation is suspended. While one recommendation on its own may not be sufficient in creating a successful completion strategy that prioritizes victim safety, this comment takes the position that several of the following recommendations taken together should be considered necessary. First, the ICC should only undertake investigations if there is a post-involvement procedure in place to deal with the aftermath of any ICC engagement with a witness or a victim. In order to avoid deterring the Court from speaking with victims in the first place, the post-involvement procedure should only be as detailed as necessary based on the special circumstances and the particular vulnerability and exposure of victims due to any engagement with the Court. Investigations that are stalled or suspended before heavily involving victims would therefore not require as comprehensive a completion strategy compared to an investigation where extraordinary amounts of confidential information have been disclosed and recorded.

Second, the ICC must learn from the ICTY, the ICTR, and the SCSL, and the ways in which these temporary tribunals engaged with affected communities in a unique and targeted manner. Simply increasing the ICC’s field presence and/or field offices is idealistic given the ICC’s lack of financial resources to send personnel to whatever region of the world the ICC has chosen to involve itself. Developing partnerships with local NGOs at the start of an investigation would be beneficial in two ways: for one, an investigation can likely benefit from local knowledge and resources from on-the-ground organizational staff with institutional experience, and second, such partnerships would allow the ICC to immediately engage with and hand-hold victims should the Prosecutor decide to suspend an investigation altogether. Fostering trust and familiarity between victims and a local NGO as an investigation proceeds would likely streamline a transfer of confidential information and protective services from the Court to local communities in a safer and more efficient way. As seen by the SCSL, residual mechanisms that take place locally are much more likely to be seen and utilized by victims.21 Moreover, in instances where suspected aggressors flee the reach of the ICC, as in the case of the abuses suffered in Timor-Leste, the ICC should have the fluency to assist victims in finding healing workshops or other easily facilitated support programs that can thrive in locations where a threat may no longer be present despite the ICC’s withdrawal. Other support systems the ICC should institute include: witness protection programs, developing partnerships with states that may help with victim relocation, keeping victims apprised of the whereabouts of their accusers if they are being tried in a local or different jurisdiction, and means by which the ICC or a state or non-state actor can remain as a point of contact for victims who wish to be kept aware of any changes that occur after the suspension of an investigation or the transfer or release of confidential information that may leave them exposed and vulnerable. In the transferring of confidential victim or witness information, the ICC should specifically inform such individuals of the process and protections in place to ensure the security of such information. A blanket policy to hand-off sensitive information to a domestic tribunal, for example, could prove to be plainly inadequate.

IV. Conclusion

The ICC must prioritize the protection of victims whenever an investigation is suspended. A failure to do so will likely effectuate long-term consequences for an international tribunal that depends on victim participation in order to carry out its directive. It may be argued that the mandate of the ICC is to prosecute international crimes—not care for victims—and therefore, a lingering responsibility for victims detracts from the ICC’s role and responsibility in enforcing international justice. However, this narrow view ignores the fact that victims are the ones who are most heavily invested in the ICC’s success and should not be punished or further exposed as a result of a stalled investigation into abuses that they have suffered. A completion strategy that includes victim protective measures is essential if the ICC truly values incentivizing victims to come forward and participate in investigations. Deterring victims from speaking out about the violence and abuses they have suffered will only create setbacks for the Court rather than make the international tribunal a safer and more responsive body of justice.

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

  1. 1.

    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], Preamble, available online.

  2. 2.

    International Covenant on Civil and Political Rights, UN G.A. Res. 2200A (XXI), 999 U.N.T.S. 171, Art. 2(3) (Dec. 19, 1966, entered into force Mar. 23, 1976), available online.

  3. 3.

    Universal Declaration of Human Rights, UN G.A. 217(A)(III) (Dec. 10, 1948), available online, archived.

  4. 4.

    Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, UN Doc. A/RES/60/147 (Dec. 16, 2005), available online.

  5. 5.

    Rome Statute, supra note 1, at Art. 68.

  6. 6.

    Id. at Art. 75.

  7. 7.

    Id. at Preamble.

  8. 8.

    Statute of the International Tribunal for the Former Yugoslavia, S.C. Res. 827 (1993), UN Doc. S/RES/827 (Sep. 2009), available online.

    Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, UN Doc. S/RES/955, Art. 20 (Nov. 8, 1994) [hereinafter ICTR Statute], available online.

  9. 9.

    Statute of the International Residual Mechanism for Criminal Tribunals, S.C. Res. 1966, UN Doc. S/Res/1966, Annex 1 (Dec. 22, 2010) [hereinafter IRMCT Statute], available online.

  10. 10.

    Id.

  11. 11.

    Id.

  12. 12.

    See Witnesses, IRMCT, available online (last visited Feb. 18, 2020).

  13. 13.

    IRMCT Statute, supra note 9; Kevin Jon Heller, Completion Strategies and the Office of the Prosecutor (Jun. 26, 2009), in International Prosecutors 886 ( Luc Reydams, Jan Wouters & Cedric Ryngaert eds., 2012), available online

  14. 14.

    Special Court of Sierra Leone, Ninth Annual Report of the President of the Special Court for Sierra Leone 37 (Oct. 3, 2012), [hereinafter SCSL Report], available online.

  15. 15.

    Id.; Dafna Gozani, Beginning to Learn How to End: Lessons on Completion Strategies, Residual Mechanisms, and Legacy Considerations from Ad Hoc International Criminal Tribunals to the International Criminal Court, 36 Loy. L.A. Int’l & Comp. L. Rev. 331 (Apr. 1, 2015), available online.

  16. 16.

    Dominique le Touze, Derrick Silove & Anthony Zwi, Can There Be Healing Without Justice? Lessons from the Commission for Reception, Truth and Reconciliation in East Timor, 3 Intervention 192, 192–97 (2005) [hereinafter Healing Without Justice?], available online.

  17. 17.

    Id. at 193; Amnesty International, ANTI & KontraS, Timor-Leste/Indonesia: Calls on Truth and Reparation Made by Bilateral Truth Commission “Ignored,” (Jul. 17, 2013), [hereinafter Calls Ignored], available online.

  18. 18.

    Healing Without Justice?, supra note 16, at 192–95.

  19. 19.

    Caitlin Reiger & Marieke Wierda, ICTJ, The Serious Crimes Process in Timor-Leste: In Retrospect (Mar. 2006), available online.

  20. 20.

    Calls Ignored, supra note 17.

  21. 21.

    SCSL Report, supra note 14.

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

Recently, the ICC’s Pre-Trial Chamber II acknowledged the Court’s limitations when it denied the prosecutor’s request to open a full investigation in Afghanistan after an eleven-year preliminary examination that the Prosecutor initiated proprio motu.12 Although the Pre-Trial Chamber found that the jurisdictional and admissibility requirements necessary to open an investigation had been met, the Chamber determined that because the prospects for a successful investigation and prosecution were extremely limited, it would not be in the interests of justice to allocate significant resources toward an investigation that was “doomed to failure.”13 The Pre-Trial Chamber highlighted three factors that were “particularly relevant” in its analysis of whether an investigation would have realistic prospects for success and therefore serve the interests of justice:

  1. the significant time elapsed between the alleged crimes and the Request;

  2. the scarce cooperation obtained by the Prosecutor throughout this time, even for the limited purposes of a preliminary examination, as such based on information rather than evidence;

  3. the likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts and activities at this stage.14

The Pre-Trial Chamber’s Afghanistan determination highlights the gap between the ICC’s ambitious mandate to “end impunity” and the court’s inability to assert authority over senior state officials.15 And increases in the number of investigations without significant increases in funding have only exacerbated the problem.16 In its first two years, the Office of the Prosecutor (OTP) had only opened investigations in two situations—Uganda and the Democratic Republic of Congo.17 Nearly fifteen years later, the ICC is now pursuing investigations in twelve situations and conducting preliminary examinations in nine situations.18 This increase in investigatory work has not been met with significant increases in funding and staffing.19 In fact, the OTP’s proposed budget for 2020 was only 0.4 percentage points over the inflation rate, making it “substantially zero real growth” compared to the previous year.20

Recognizing the need to prioritize amid the ICC’s growing number of situations under investigation and the Court’s comparatively limited resources, the OTP has made “developing a clear completion strategy for situations under investigation” one of its top strategic goals for the remainder of the current Prosecutor’s term.21 However, the OTP has not yet laid out the specific factors to be considered in determining when to complete a situation under investigation. Accordingly, drawing on the Pre-Trial Chamber’s decision to reject an investigation in Afghanistan, this comment proposes several factors that could be used to determine when to suspend an OTP investigation, arguing that if the court is to eventually succeed in bringing many perpetrators to justice, it must, for now, devote its limited resources to those cases most likely to result in convictions. Part II of this comment examines how the Rome Statute addresses the scope and timing of investigations. Part III examines how the Pre-Trial and Appeals Chambers have addressed the issue of investigation completion with respect to the timing and quality of investigations. Part IV analyzes the Pre-Trial Chamber’s Afghanistan decision in the context of the Court’s jurisprudence on investigation completion. Part V assesses the merits of using the factors highlighted in the Afghanistan decision to determine when to formally suspend investigations in which prospects of success are limited. Part VI concludes by suggesting the OTP set a three-year norm for considering investigation suspension, using the factors outlined in the Afghanistan decision as guideposts in a completion strategy.

II. The Rome Statute: The Prosecutor’s Investigative Powers and Duties

A. Article 53: Initiation of an Investigation

The OTP is responsible for determining whether a situation meets the Rome Statute’s criteria to warrant an investigation.22 A preliminary examination can be initiated on the basis of information sent by individuals, groups, states, nongovernmental organizations, and referrals from a state party or the UNSC.23 If jurisdiction is triggered by the Security Council or a State Party, the Prosecutor then decides whether to initiate an investigation.24 If the prosecutor seeks to initiate an investigation on her own, proprio motu per Article 15, the Pre-Trial Chamber must authorize the investigation, taking into account the Court’s jurisdiction and whether there is a reasonable basis to proceed.25 Article 53 governs this initiation of an investigation, giving the prosecutor broad powers to initiate or determine there is no basis to proceed with an investigation under the Statute. Article 53 provides that the prosecutor “shall” initiate an investigation unless she determines there is no reasonable basis to proceed under the Statute. The Statute provides that the prosecutor shall use the following factors to determine whether to proceed with an investigation:

  1. The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

  2. The case is or would be admissible under article 17; and

  3. Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.26

Similarly, upon investigation, the prosecutor may also use the following factors to determine there is not a sufficient basis for prosecution:

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

  2. The case is inadmissible under article 17; or

  3. 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 crime27

Notably, although the term “the interests of justice” appears six times in the Rome Statute and nine times in the ICC’s Rules of Evidence and Procedure, it is never defined. However, in a 2007 policy paper, the OTP wrote that the “interest of justice” in Article 53(1)(c) and 53(2)(c) is:

[E]xceptional in its nature and that there is a presumption in favour of investigation or prosecution wherever the criteria established in Article 53(1)(a) and (b) or Article 53(2)(a) and (b) have been met.28

In addition to the specific circumstances listed in Article 53(2)(c), the OTP also listed other justice mechanisms and peace processes as potential factors in the consideration of whether an investigation would serve the interests of justice.29

Article 53 also gives the Pre-Trial Chamber the power to review the prosecutor’s decision not to proceed and request that the prosecutor reconsider that decision.30 The prosecutor may also reconsider her decision to initiate or determine not to proceed with an investigation based on new information at any time, and nowhere in the Statute are there any time limits for opening or closing preliminary investigations. However, the OTP recently set the goal of creating:

[A] suitable ‘closure ratio’ by aiming to complete, where possible, as many preliminary examinations as it opens over each three-year period, while respecting the natural fluctuations of the OTP’s work.31

B. Article 54: Investigation Duties and Powers

Once an investigation has begun—whether authorized by the Pre-Trial Chamber after the prosecutor brings an investigation proprio motu or initiated by a State Party or the UNSC the prosecutor’s investigative duties are governed by Article 54. Article 54 provides the Prosecutor with both duties and powers when conducting an investigation. She must “cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute,” and “investigate incriminating and exonerating circumstances equally.”32 She must also respect the interests of victims and witnesses, taking into account the nature of the particular crime.33

Article 54 also appears to tie the relevance of evidence to the scope of the Prosecutor’s investigative obligations, as the investigation is only required to cover “facts and evidence relevant to an assessment of whether there is criminal responsibility” under the Rome Statute.34 However, because ICC proceedings involve three different standards of proof at three different stages of the proceedings, the required relevance of evidence sought in an investigation arguably shifts with the substantive standards of proof.35 That is, for an arrest warrant or summons, Article 58 requires “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the court,” but under Article 61, a confirmation of charges hearing requires “sufficient evidence to establish substantial grounds to believe that the person committed a crime within the jurisdiction of the court,” while under Article 66, the prosecutor must of course show at trial that the accused committed the crimes “beyond a reasonable doubt.”36 Accordingly, some commentators have questioned whether the Prosecutor should investigate until she has just enough proof to meet each standard at the time she arrives at the relevant stage of the proceedings, or whether the prosecutor should investigate until she has evidence sufficient to convict beyond a reasonable doubt before even seeking a warrant or summons.37 While the Rome Statute appears to provide that the Prosecutor must only investigate sufficiently to the required standard as she reaches each stage of the proceedings, in practice, the court has often required more, as discussed below.38 Nonetheless, the Rome Statute does not set temporal deadlines for concluding investigations or assessing when evidentiary burdens are met.39

C. The Rome Statute and State Cooperation: Key Investigatory Challenges

The Prosecutor’s powers during an investigation include examination of evidence and interviews of victims and witnesses, including those on the territory of a sovereign state.40 However, the Prosecutor relies on the cooperation of other actors—including States and international or non-governmental organizations—to conduct investigations, examine evidence, and interview witnesses on sovereign states’ territory.41 Although cooperation with the court is mandatory for States Parties, there is no effective enforcement mechanism for those that do not cooperate or merely cooperate, “in form but not in substance.”42 Nor are there ways to compel non-states parties to cooperate. In fact, the only recourse the Prosecutor has to deal with uncooperative states is to raise the issue with the Pre-Trial Chamber per Article 87.43 After finding a state non-cooperative, the Chamber can then refer the matter to the Assembly of States Parties (ASP) or UNSC.44 While referral to the ASP can encourage other states or actors to assert pressure on uncooperative parties, and referral to the UNSC could theoretically result in sanctions, neither of these have come to fruition to compel states to comply.45 For instance, the OTP referred Sudan to the UNSC for non-cooperation, but the UNSC has not taken concrete steps to compel the state to cooperate, given the veto powers of China, the United States, and Russia, all of whom are permanent members of the Security Council and, as non-parties to the Rome Statute, remain highly skeptical of the ICC.46

III. Pre-Trial and Appeals Chamber Jurisprudence on Investigation Completion

The ICC’s appeals and pre-trial chambers have provided conflicting interpretations of when an investigation should be completed and what a “completed” investigation might look like in practice.47 The relatively sparse caselaw has addressed the timing and substance of completed investigations most often as a tangential point in the context of a discussion of other issues. However, two rough principles have emerged from the court’s guidance regarding investigation completion:

  1. investigations should ideally be complete by the time a case reaches the confirmation of charges hearing, and

  2. an investigation may be considered complete when it has elicited enough high quality, probative evidence to have high prospects for success in a conviction at trial.

A. Timing of Investigations

In Prosecutor v. Lubanga, in a decision primarily addressing the rules for disclosure and redaction in a confirmation hearing, the Pre-Trial Chamber stated that the OTP’s investigation “must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation.”48 However, the Appeals Chamber later reversed this, finding that although it would “ideally be desirable” to complete an investigation by the time of the confirmation hearing, it is not a requirement of the Rome Statute.49 The Appeals Chamber also explicitly stated that the threshold for the confirmation of charges was lower than that for conviction and could be satisfied before the end of the investigation.50

However, six years later, in Prosecutor v. Mbarushimana, the Appeals Chamber addressed the issue of how evidence should be evaluated during confirmation of charges hearings, and in doing so, the Chamber touched upon the issues of both timing and availability of evidence regarding investigations.51 Instead of presuming the credibility of evidence at the confirmation stage, the Appeals Chamber held that the Pre-Trial Chamber should evaluate the evidence to draw conclusions where there are ambiguities or inconsistencies.52 In support of this conclusion, the Chamber explicitly tied investigation completion to availability of evidence:

As previously indicated by Appeals Chamber, the investigation should largely be completed at the stage of the confirmation of charges hearing. Most of the evidence should therefore be available, and it is up to the Prosecutor to submit this evidence to the Pre-Trial Chamber.53

The decision also noted that if the Prosecutor required more time to “complete” an investigation, she could postpone the date of the confirmation hearing or request another confirmation hearing on the basis of additional evidence if a confirmation hearing found the evidence to be insufficient.54 Notably, when citing the Appeals Chamber’s decision in Lubanga, the Mbarushimana Appeals Chamber substituted the word “ideally” with the word “should.”55

As a result, subsequent chamber decisions and commentators have interpreted the Mbarushimana decision to mean that “there exists a legally enforceable presumption that the prosecution’s investigation should be completed by the time of confirmation.”56 For example, in Prosecutor v. Kenyatta (Kenya II), the single judge in Pre-Trial Chamber II referred to both the Lubanga and Mbarushimana decisions when she held that:

[T]he principle approach is that the Prosecutor should be ready with the investigation during [confirmation of charges hearings] and any delay in doing so is exceptional and should be justified.57

B. Quality of Investigations

In Prosecutor v. Gbagbo, the Pre-Trial Chamber addressed both timing and evidentiary standards with respect to investigation completion while criticizing the relevance and lack of probative value of much of the evidence the Prosecutor brought to the confirmation of charges hearing.58 The decision extended the presumption that the Prosecutor “complete” her investigation before the confirmation of charges hearing by adding that the Chamber must assume the Prosecutor would bring her strongest possible case at the confirmation of charges:

Even though article 61(5) of the Statute only requires the Prosecutor to support each charge with “sufficient” evidence at the confirmation hearing, the Chamber must assume that the Prosecutor has presented her strongest possible case based on a largely completed investigation.59

The court then quoted the Appeals Chamber’s language in Mbarushimana, noting that completing investigations before confirmation of charges and making sure all evidence is available at that stage would help safeguard the rights of the accused, who should not be presented with a “wholly different evidentiary case at trial.”60 Commentators have noted that the Gbagbo decision may have therefore turned the confirmation of charges hearing into a “mini-trial” to predict whether an actual trial would succeed in convicting a suspect beyond a reasonable doubt, as opposed to merely a determination of whether there exist reasonable grounds to believe the suspect committed the crimes charged.61

Recognizing this critique, some chambers have emphasized that a confirmation is neither a “trial before the trial, nor a mini-trial.”62 For example, in Prosecutor v. Abu Garda the Pre-Trial Chamber took care to warn of the danger of using an overly high standard in evaluating the evidence:

Accordingly, at no point should Pre-Trial Chambers exceed their mandate by entering into a premature in-depth analysis of the guilt of the suspect. The Chamber, therefore, shall not evaluate whether the evidence is sufficient to sustain a future conviction. Such a high standard is not compatible with the standard under article 61(7) of the Statute.63

However, there is still uncertainty regarding when an investigation should be considered complete, and whether completion requires the Prosecutor to present her strongest case at confirmation of charges.64 For example, in his concurrence in Kenya II, Judge Eboe-Osuji, now the President of the ICC, asserted that the Mbarushimana Appeals Chamber’s normative statement that an investigation should be completed before the confirmation hearing was merely dicta.65 Further, he highlighted the difficulty of precisely defining a complete investigation in practice:

It is further to be considered, as a matter of policy and practicality, that a rule of limitation that engages the question whether the post-confirmation investigations in particular circumstances had resulted from what my esteemed colleagues describe as lack of ‘proper’ or ‘thorough’ or ‘full’ investigation is not easily implemented. Contrary to public policy, it will merely invite needless interlocutory litigation, especially as to what amounts to ‘proper’ or ‘thorough’ or ‘full’ investigation.66

The court has yet to provide conclusive guidance regarding the circumstances under which an investigation can or should be complete, and the lines between the three separate evidentiary standards set out in the Rome Statute remain blurry with respect to investigation completion. However, by indicating that investigations should be largely completed so that the prosecutor can present her strongest possible case at a confirmation of charges hearing, the court has appeared to indicate that accessible evidence and high prospects for a conviction might be two elements of a complete investigation.

IV. The Afghanistan Decision

In 2017, the Prosecutor requested authorization from the Pre-Trial Chamber to open an investigation into alleged war crimes and crimes against humanity related to armed conflict that had occurred in Afghanistan since May 2003, in addition to other crimes allegedly committed in the territory of Afghanistan and on other states party to the Rome Statute that had occurred after July 2002.67 The Prosecutor had undertaken a preliminary examination of the Afghanistan situation since 2006, examining alleged crimes carried out by the Taliban, Afghan government forces, and United States soldiers and CIA Officers.68 However, in April 2019, Pre-Trial Chamber II unanimously rejected the Prosecutor’s request to proceed to an investigation of the situation, determining that even though the crimes were within the court’s jurisdiction, proceeding with an investigation would not serve the interests of justice at this stage.69

Although the Pre-Trial Chamber addressed the discrete issue of whether an investigation into the situation in Afghanistan should proceed from the preliminary examination stage to a full situation under investigation, the OTP may be able to draw from this decision much broader lessons about when to advance or discontinue an investigation at any stage—whether a situation is in the early stages of a preliminary examination, or has already been under OTP investigation for several years. After determining that the Rome Statute’s admissibility and jurisdictional requirements were satisfied, the Chamber turned to the issue of whether a full investigation into the situation in Afghanistan would serve the interests of justice, in accordance with Article 53(1)(c).70 Noting the absence of a definition or further guidance in the Rome Statute regarding the meaning of “interests of justice,” the Chamber looked to the:

[O]verarching objectives underlying the Statute: the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities.71

The Chamber then went so far as to lay out what appears to be a rule regarding when an investigation serves the interests of justice:

All of these elements concur in suggesting that, at the very minimum, an investigation would only be in the interests of justice if prospectively it appears suitable to result in the effective investigation and subsequent prosecution of cases within a reasonable time frame.72

Noting that the Court was neither meant nor equipped to address all instances in which the world’s most serious crimes were committed, the Chamber then laid out three factors relevant to an analysis of an investigation’s prospects for success:

  1. the significant time elapsed between the alleged crimes and the Request;

  2. the scarce cooperation obtained by the Prosecutor throughout this time, even for the limited purposes of a preliminary examination, as such based on information rather than evidence;

  3. the likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts and activities at this stage.73

Many commentators were quick to decry the Pre-Trial Chamber’s examination of prospects for a successful investigation and use of the above factors in its “interests of justice” analysis.74 Some argued that the decision was “a shocking abandonment of the victims,” which would weaken the court’s credibility.75 Others argued that the court caved to political pressure from the United States in light of the U.S. government’s recent cancellation of the Prosecutor’s visa and threats to retaliate against the ICC if an Afghanistan investigation were to proceed.76 Others said the decision opened the doors to impunity and “handed states a playbook to insulate themselves from the law’s reach,”77 while others noted it could be the beginning of a broader effort of the court to focus resources on only the cases it was most likely to win.78

However, viewed in light of the court’s decisions requiring the prosecutor to largely complete her investigation before the Pre-Trial Chamber can confirm charges (as discussed in Part III ), the Pre-Trial Chamber’s decision not to authorize an investigation in Afghanistan can be seen as an extension of the court’s continued emphasis on the importance of bringing investigations that elicit enough high-quality evidence to succeed in a conviction at trial. Put differently, the Afghanistan decision is consistent with much of the court’s prior reasoning: given limited resources, it is prudent to suspend an investigation as soon as it becomes clear that further investigation will not reveal evidence sufficient to secure a conviction beyond a reasonable doubt. In the case of Afghanistan, the court has simply articulated this message at an earlier stage in the court’s processes—before an unsuccessful investigation even gets underway.

V. Criteria for Assessing Whether Prospects for a Successful Investigation Should Trigger Suspension

In holding that an investigation into Afghanistan would not serve the interests of justice because it would not be likely to succeed, the Pre-Trial Chamber articulated three criteria that were “particularly relevant” for determining when “prospects for a successful investigation and prosecution are extremely limited”:

  1. time elapsed since the alleged crimes took place,

  2. amount of cooperation obtained from states, and

  3. availability of evidence and/or suspects.79

Whether the analysis takes place before an investigation begins or after one is already underway, these factors remain relevant to predicting prospects for investigative success. Accordingly, the OTP should consider adopting the Afghanistan factors—in addition to others—as it develops a completion strategy for situations already under investigation.

Below are several factors that could be helpful in formulating a suspension strategy for investigations under investigation: the first three are those the Pre-Trial Chamber articulated as “particularly relevant” in its Afghanistan decision, and the others are considerations that the Pre-Trial Chamber or other commentators have addressed. Given the dynamic nature of situations under investigation and the competing priorities of the OTP, the factors below are neither an exhaustive list of variables to consider, nor should they be mechanically considered for each situation under investigation. Because of the OTP’s limited ability to control many aspects of an investigation, “an overly rigid and formalistic approach that insists that the investigation be ‘complete’ before arrest or confirmation is unwise.”80 Further, because the variables below are continuous rather than dichotomous, their application to individual situations may not always be straightforward. Thus, while the factors below might be weighted differently depending on the unique circumstances of each situation, they may serve as useful guideposts for the OTP as it assesses the wisdom of proceeding with or suspending an investigation.

A. Time Elapsed Between Alleged Crimes and Investigation

The first factor that the Pre-Trial Chamber listed as particularly relevant to a determination of whether an investigation’s prospects of success were “serious and substantive” is the amount of time elapsed between the crimes alleged and the request to open an investigation.81 This factor could be broadened to an examination of the time elapsed between the alleged crimes and any decision to continue or suspend an investigation at any point in the life cycle of an investigation. In its decision, the Chamber noted that “even by criminal justice standards, the preliminary examination in Afghanistan was particularly long.”82 The Chamber also noted that during the eleven years of the preliminary examination, the political situation in the area of investigation was particularly unstable, exacerbating the difficulty of investigating and properly preserving evidence.83

However, while keeping short the time elapsed since the alleged crimes occurred might seem wise at first glance, setting hard time limits on the closure of investigations could encourage states to obstruct OTP investigators’ efforts with the knowledge that if they just withhold cooperation or access to evidence long enough, the OTP will eventually abandon any investigation. Given this concern, it is imperative that the OTP set neither a hard time limit on all investigations, nor close any investigation fully, particularly given the fact that there are no statutes of limitation on the types of crimes the ICC prosecutes.84 Rather, the OTP should suspend an investigation and preserve evidence already collected with the goal of returning to the investigation once the circumstances in the situation under investigation change. The conviction of Bosco Ntaganda, after a seven-year gap between the issuance of an ICC warrant for his arrest and his surrender to the court in 2013 demonstrates that this suspension approach can work.85 Notably, after Ntaganda’s surrender, in an OTP Programme document, the Court began mentioning the need to have a plan to “hibernate investigations,” noting that:

[T]he Office has been forced to reassess its operational model for investigations, breaking it down into active investigations, cases awaiting arrest (investigations in hibernation) and trials.86

Therefore, if time elapsed is considered as a factor in prospects for a successful investigation, the OTP should have in place a system capable of keeping case files up to date and ready for trial should circumstances change. This will dispel the notion that suspension of an investigation would be tantamount to allowing perpetrators of the world’s worst crimes to commit them with impunity. The court’s conviction of Ntaganda after a seven-year delay in bringing him into custody is a harbinger of success for returning to similarly delayed investigations that may be temporarily suspended in the future.

B. Level of Cooperation with Investigators

The second factor the Pre-Trial Chamber examined in its analysis of the interests of justice was:

[T]he scarce cooperation obtained by the Prosecutor throughout [the preliminary examination], even for the limited purposes of a preliminary examination, as such based on information rather than evidence.87

The issue of lack of cooperation has become a significant obstacle in many of the prosecutor’s investigations, particularly in the other investigations that the prosecutor has opened on a proprio motu basis in Kenya, Georgia, and Burundi.88 In Kenya, none of the cases the prosecutor has brought to date has succeeded.89 In Georgia, the OTP undertook an eight-year preliminary examination and is currently in the third year of a formal investigation, yet no cases have been brought yet.90 And while the OTP opened the Burundi investigation in 2017, Burundi recently left the court, making prospects for success appear even slimmer.91 In addition, investigations into Libya and Sudan—the two situations that the Security Council has referred—have received virtually no support from the states themselves or the Security Council.92

In policy documents, the prosecutor has drawn attention to the lack of cooperation from states under investigation, other states parties to the Rome Statute, and the Security Council.93 For example, in 2016, the OTP released a policy document stating that in prioritizing investigations and selecting cases to pursue within open investigations, the prosecutor would consider, “the international cooperation and judicial assistance” as one of the factors “used to assess operational viability in a relative manner across all cases.”94 The paper noted that cases should be selected where there are reasonable prospects for conviction.95 The decision of the Pre-Trial Chamber to decline the prosecutor’s request to open an investigation in Afghanistan is therefore an extension of the idea that only cases with reasonable chances for success should be pursued. The OTP should therefore consider making international cooperation and judicial assistance a factor not only in determining which cases to bring to trial from open investigations, but also as a factor in determining which investigations to suspend or decline to open initially.

C. Availability of Evidence and Suspects

The third factor that the Pre-Trial Chamber examined in the Afghanistan decision was:

[T]he likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts and activities at this stage.96

The Pre-Trial Chamber noted that many of the alleged crimes took place when the Prosecutor was “not in a position to meaningfully act for the purposes of preserving evidence, or for the protection of witnesses.”97 From a pragmatic standpoint, it seems reasonable that an investigation that will not produce evidence or witnesses is an investigation that should not be allowed to proceed.

However, in spite of the Pre-Trial Chamber’s assertion that evidence and witnesses in Afghanistan would be unavailable, commentators and legal advocates have asserted that to the contrary, there are “well-documented atrocities” in the region.98 Therefore, some have argued that it is not the unavailability of evidence, witnesses, and suspects, but rather, the intense political pressure that has caused the Pre-Trial Chamber to reject the prosecutor’s request to open a full investigation.99 The Pre-Trial Chamber has acknowledged the connection between the factors of lack of cooperation and unavailability of evidence, noting in their decision that:

[C]hanges within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future, whether in respect of investigations or of surrender of suspects; suffice it to say that nothing in the present conjuncture gives any reason to believe such cooperation can be taken for granted.100

Commentators have called it “the ICC’s evidence problem,” in that the court has failed to secure sufficient evidence to convict suspects at trial, often due to the lack of cooperation and access to the suspects they pursue.101 Commentators have argued that part of this “evidence problem” stems from the OTP’s policy of pursuing just a few, high-profile suspects in each situation.102 This policy, they argue, assumes evidence against high-ranking, powerful suspects will eventually be found, instead of basing cases and arrest warrants on the evidence that is readily available, whether it is for the most high-profile cases or not.103 Given these concerns, it is worth considering whether investigations that have unearthed little evidence—whether because of lack of cooperation, time-elapsed, or other factors—should be suspended in favor of pursuing those where evidence is more readily available and thus convictions are more likely.

D. Resource Constraints

Although not highlighted in the Afghanistan decision as one of the three “particularly relevant” factors for determining prospects for a successful investigation, the Pre-Trial Chamber also addressed the issue of significant resource constraints within the OTP.104 The Pre-Trial Chamber found authorizing an investigation in Afghanistan would result in the reallocation of financial and human resources that would be siphoned from other OTP investigations, cases, or preliminary examinations that had more “realistic” prospects for success.105 The Pre-Trial Chamber reasoned that devoting resources to an investigation that was less likely to succeed than other investigations already underway was not in the interests of justice. Given the gap between the ICC’s sweeping mandate to “put an end to impunity” for the perpetrators of the world’s worst crimes, and its comparatively limited resources to investigate those perpetrators, examining available resources as a factor in the analysis of prospects for success may not only be practical, but also necessary for the court to see any success in convictions at all.

E. Justice for Victims

A final consideration that appeared in the Pre-Trial Chamber’s analysis of whether an Afghanistan investigation would be in the interests of justice was a discussion of victims’ expectations.106 Although 680 out of the 699 victim applications submitted to the Pre-Trial Chamber welcomed an investigation into Afghanistan, the Pre-Trial Chamber ultimately found that:

[I]t is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it.107

The court reasoned that raising victims’ “aspirations” by opening an investigation, only to frustrate them once an investigation failed could create:

[F]rustration and possibly hostility vis-à-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.108

F. Other Factors

The factors described above are not a finite list. They are merely suggestions of criteria the OTP might consider as it develops a comprehensive completion strategy for suspending investigations already underway. Other factors could include: potential for peace negotiations, security on the ground in the situation under investigation, and the ability to protect witnesses, for instance.109 As the ICC enters its third decade, the OTP should consider using the factors specifically highlighted in the Afghanistan decision as guideposts for shepherding investigations through the ICC process that are most likely to lead to convictions. More successes may ultimately build the political will and material support necessary to garner the investigative cooperation and access to evidence that have been so lacking within the past two decades of the court’s existence.

VI. Conclusion

The Pre-Trial Chamber’s decision not to authorize an investigation in Afghanistan is an extension of the Court’s prior investigation completion jurisprudence emphasizing the need for investigations that afford reasonable prospects for successful convictions at trial. The OTP should use the factors set out in the Afghanistan decision to assess when investigations—whether at the beginning stages of a preliminary examination or several years into a full investigation—should be suspended due to limited prospects for success for the moment. Given that the OTP has already set a goal of completing as many preliminary examinations as it opens in a three-year period,110 the OTP should also consider setting a three-year norm for completing situations under investigation. At the three-year mark, if after examining the factors discussed above, the OTP finds that there are limited prospects for success, it should suspend the investigation and devote resources to cases that are more likely to result in convictions.

This is not to say that the OTP should refrain from pursuing difficult cases. Rather, it should continue to pursue those cases that have prospects for success, while suspending investigations in those where success is less realistic given current circumstances. As the conviction in Ntaganda has shown, an investigation that does not proceed for several years can suddenly be reinvigorated when circumstances change.

As a relatively new institution, the court should initially build its legacy by pursuing cases where international support and resources are most likely to assist the court in securing convictions. More successful convictions will ultimately help garner the political will needed to encourage states parties, non-member states, and the UNSC to more readily cooperate and provide resources. This will further contribute to the court’s legitimacy and credibility in the eyes of the international community, the support of which is crucial if the court is to succeed in its mission of ending impunity.

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

  1. 1.

    See, e.g., David Smith, ICC Prosecutor Shelves Darfur War Crimes Probe, The Guardian, Dec. 14, 2014, available online; ICC Prosecutor Shelves Darfur War Crimes Inquiries, BBC News, Dec. 12, 2014, available online; Michele Kelemen, U.N. Whistleblower: International Community Has Failed Darfur, NPR, Dec. 30, 2014, available online.

  2. 2.

    Fatou Bensouda, ICC Prosecutor, Statement to the United Nations Security Council on the Situation in Darfur, Pursuant to UNSCR 1593 (2005) (Dec. 12, 2014), available online.

  3. 3.

    Smith, supra note 1.

  4. 4.

    James A. Goldston, Don’t Give Up on the ICC, Foreign Pol., Aug. 8, 2019, available online.

  5. 5.

    Tom White, States Failing to Seize Sudan’s Dictator Despite Genocide Charge, The Guardian, Oct. 21, 2018, available online.

  6. 6.

    Joseph Goldstein & Declan Walsh, Ousted Sudanese President Al-Bashir Moved to Prison, N.Y. Times, Apr. 17, 2019, available online.

    (In April 2019, al-Bashir was forced from power in Sudan and is being tried in Sudan on domestic corruption and money laundering charges. It is unclear if he will be extradited).

  7. 7.

    Fatou Bensouda, ICC, Statement on the Withdrawal of Charges Against Mr. Uhuru Muigai Kenyatta (Dec. 5, 2014), available online.

  8. 8.

    Id.

  9. 9.

    Jina Moore, Uhuru Kenyatta is Declared Winner of Kenya’s Repeat Election, N.Y. Times, Oct. 30, 2017, available online.

  10. 10.

    ICC in Numbers, CICC, available online (last visited Feb. 18, 2020).

    (Convictions include Thomas Lubanga Dyilo, Germain Katanga, Ahmad Al Faqi Al Mahdi, Jean-Pierre Bemba [acquitted on appeal], and Bosco Ntaganda [subject to appeal]).

  11. 11.

    See, e.g., Gwen Barnes, The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir, 34 Fordham Int’l L.J. 1584 (2011), available online; Adam Bower, Contesting the International Criminal Court: Bashir, Kenyatta, and the Status of the Nonimpunity Norm in World Politics, 4 J. Global Sec. Stud. 88 (2019), paywall.

  12. 12.

    Situation in Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ¶ 91 (ICC PTC II, Apr. 12, 2019) [hereinafter Afghanistan Decision], available online.

  13. 13.

    Id. ¶ 90.

  14. 14.

    Afghanistan Decision, supra note 12, ¶ 91.

  15. 15.

    See Bower, supra note 11.

  16. 16.

    See Rebecca J. Hamilton, Closing ICC Investigations: A Second Bite at the Cherry for Complementarity?, Harv. Hum. Rts. Prog. Working Paper Series (May 2012), available online.

  17. 17.

    See Situations Under Investigation, ICC, available online (last visited Feb. 18, 2020).

  18. 18.

    Id.

  19. 19.

    See Hamilton, supra note 16, at 2.

  20. 20.

    See Assembly of State Parties, ICC, Proposed Programme Budget for 2020 of the International Criminal Court, ICC-ASP /18/10 (Jul. 25, 2019), available online.

  21. 21.

    See Office of the Prosecutor, ICC, Strategic Plan 2019–2021 (Jul. 17, 2019) [hereinafter Strategic Plan], available online.

  22. 22.

    See Preliminary Examinations, ICC, available online (last visited Feb. 18, 2020).

  23. 23.

    Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations (Nov. 2013), available online.

  24. 24.

    William Schabas, An Introduction to the International Criminal Court 252 (4th ed. 2011); Office of the Prosecutor, ICC, Annex to “Paper on Some Policy Issues Before the Office of the Prosecutor”: Referrals and Communications (2004), available online.

  25. 25.

    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. 15, available online.

  26. 26.

    Id. at Art. 53.

  27. 27.

    Id. at Art. 53(2).

  28. 28.

    Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice (Sep. 2007), available online.

  29. 29.

    Id. at 7.

  30. 30.

    Id.

  31. 31.

    Strategic Plan, supra note 21, at 17.

  32. 32.

    Rome Statute, supra note 25, at Art. 54.

  33. 33.

    Id.

  34. 34.

    Alex Whiting, Dynamic Investigative Practice at the International Criminal Court, 76 Law & Contemp. Probs. 163, 165–66 (2014), available online.

  35. 35.

    Id. at 163.

  36. 36.

    Rome Statute, supra note 25, at Arts. 58, 61, 66.

  37. 37.

    Whiting, supra note 34, at 165; See also Triestino Mariniello, Questioning the Standard of Proof: The Purpose of the ICC Confirmation of Charges Procedure, 13 J. Int’l Crim. Just. 579 (Jul. 2015), paywall, doi.

  38. 38.

    See The Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11, Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ¶ 25 (ICC PTC I, Jun. 3, 2013), available online.

  39. 39.

    Whiting, supra note 34, at 165.

  40. 40.

    Rome Statute, supra note 25, at Art. 54.

  41. 41.

    Rome Statute, supra note 25, at Part 9.

  42. 42.

    Whiting, supra note 34, at 183.

  43. 43.

    Rome Statute, supra note 25, at Art. 87.

  44. 44.

    Id.

  45. 45.

    Schabas, supra note 24, at 268.

  46. 46.

    See Stuart Ford, The ICC and the Security Council: How Much Support Is There for Ending Impunity?, 26 Ind. Int’l & Comp. L. Rev. 33 (2016), available online; see also William Pace & Fadel Abdul Ghany, Curbing Security Council Vetoes, ICRtoP (Oct. 22, 2015), available online.

  47. 47.

    Mariniello, supra note 37, at 589–90; Whiting, supra note 34, at 167.

  48. 48.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence,” ¶ 49 (ICC AC, Oct. 13, 2006), available online.

  49. 49.

    Id.

  50. 50.

    Id. ¶ 56.

  51. 51.

    The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10 OA 4, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled “Decision on the confirmation of charges” (ICC AC, May 30, 2012), available online.

  52. 52.

    Id.

  53. 53.

    Id. ¶ 44.

  54. 54.

    Id.

  55. 55.

    Whiting, supra note 34, at 169.

  56. 56.

    Id.

  57. 57.

    The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigui Kenyatta, ICC-01/09-02/11, Decision Requesting Observations on the “Prosecution’s Request to Amend the Final Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute,” ¶ 9 (ICC PTC II, Jan. 29, 2013), available online.

  58. 58.

    Prosecutor v. Gbagbo, supra note 38, ¶¶ 15, 28–30.

  59. 59.

    Id. ¶ 25.

  60. 60.

    Id.

  61. 61.

    See, e.g. Mariniello, supra note 37; Whiting, supra note 34.

  62. 62.

    The Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09, Decision on the Confirmation of Charges, ¶ 39 (ICC PTC I, Feb. 8, 2010), available online.

  63. 63.

    Id. ¶ 40.

  64. 64.

    See, e.g., The Prosecutor v. Uhuru Muigui Kenyatta (Kenya II), ICC-01/09-02/11, Corrigendum of Concurring Separate Opinion of Judge Eboe-Osuji, Decision on Defence Application Pursuant to Article 64(4) and Related Requests, ¶ 90 (ICC TC V, May 2, 2013), available online.

  65. 65.

    Id. ¶ 88.

  66. 66.

    Id.

  67. 67.

    See Preliminary Examination, Afghanistan, ICC, available online (last visited Feb. 18, 2020).

  68. 68.

    Id.

  69. 69.

    Id.

  70. 70.

    Afghanistan Decision, supra note 12, ¶ 87.

  71. 71.

    Id. ¶ 89; see also Rome Statute, supra note 25, at Preamble.

  72. 72.

    Afghanistan Decision, supra note 12, ¶ 89.

  73. 73.

    Afghanistan Decision, supra note 12, ¶ 91.

  74. 74.

    See, e.g., Param-Preet Singh, In Afghanistan, the ICC Abandons the Field, HRW (Apr. 23, 2019), available online; Press Release, Amnesty Int’l, Afghanistan: ICC Refuses to Authorize Investigation, Caving to US Threats (Apr. 12, 2019) [hereinafter Amnesty International Press Release], available online; Press Release, CICC, ICC Prosecutor Granted Leave to Appeal the Decision Rejecting Afghanistan Investigation (Sep. 18, 2019), available online; Press Release, ACLU, ACLU Comment on ICC Decision Not to Investigate U.S. for War Crimes in Afghanistan (Apr. 12, 2019) [hereinafter ACLU Press Release], available online.

  75. 75.

    Amnesty International Press Release, supra note 74.

  76. 76.

    ACLU Press Release, supra note 74.

  77. 77.

    Singh, supra note 74.

  78. 78.

    Alex Whiting, The ICC’s Afghanistan Decision: Bending to U.S. or Focusing Court on Successful Investigations?, Just Security (Apr. 12, 2019), available online.

  79. 79.

    Afghanistan Decision, supra note 12, ¶ 96.

  80. 80.

    See Whiting, supra note 34.

  81. 81.

    Afghanistan Decision, supra note 12, ¶ 91.

  82. 82.

    Id. ¶ 92.

  83. 83.

    Id.

  84. 84.

    Rome Statute, supra note 25, at Art. 29.

  85. 85.

    Thomas Weatherall, The Evolution of Hibernation at the International Criminal Court: How the World Misunderstood Prosecutor Bensouda’s Darfur Announcement, 20 ASIL Insights (May 13, 2016), available online.

  86. 86.

    Assembly of State Parties, ICC, Proposed Programme Budget for 2014 of the International Criminal Court, ICC-ASP /12/10, ¶ 229 (Jul. 31, 2013), available online.

  87. 87.

    Afghanistan Decision, supra note 12, ¶ 92.

  88. 88.

    Whiting, supra note 78.

  89. 89.

    Id.; See also Situation in the Republic of Kenya, ICC, available online (last visited Feb. 18, 2020).

  90. 90.

    Whiting, supra note 78; See also Situation in Republic of Burundi, ICC, available online (last visited Feb. 18, 2020); Situation in Georgia, ICC, available online (last visited Feb. 18, 2020).

  91. 91.

    Situation in Burundi, supra note 90

  92. 92.

    See, e.g., Whiting, supra note 78; Michelle Nicols, ICC Complains of Lack of Cooperation, Wants more U.N. Support, Reuters, Oct. 17, 2012, available online.

  93. 93.

    Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritization, ¶ 51 (Sep. 15, 2016), available online

    (Similar to much of the language in the Pre-Trial Chamber’s Afghanistan Decision, other factors in the policy paper included the quality and quantity of evidence, the availability of evidence, the office’s capacity to conduct investigations in a reasonable amount of time, and the potential to secure appearance of suspects before the court).

  94. 94.

    Id. ¶ 51.

  95. 95.

    Id.

  96. 96.

    Afghanistan Decision, supra note 12, ¶ 92.

  97. 97.

    Id. ¶ 93.

  98. 98.

    ACLU Press Release, supra note 76.

  99. 99.

    Id.

  100. 100.

    Afghanistan Decision, supra note 12, ¶ 94.

  101. 101.

    See Patryk Labuda, The ICC’s Evidence Problem, Völkerrechtsblog (Jan. 18, 2019), available online; see also Christian M. De Vos, Investigating from Afar: The ICC’s Evidence Problem, 26 Leiden J. Int’l L. 1009 (2013), available online.

  102. 102.

    Labuda, supra note 101.

  103. 103.

    Id.

  104. 104.

    See Afghanistan Decision, supra note 12, ¶¶ 92, 95.

  105. 105.

    Id. ¶ 95.

  106. 106.

    Id. ¶ 96.

  107. 107.

    Id. ¶¶ 87, 96.

  108. 108.

    Id. ¶ 96.

  109. 109.

    See Dapo Akande & Talita de Souza Dias, A New Approach to the “Interests of Justice” in the Ten Years Ahead of the Rome Statute: Why and When Should the Prosecutor use her Discretion under Article 53(1)(c) and 2(c) of the Statute to Defer Investigations or Prosecutions in Situations of Active Armed Conflict in Favor of Peace Negotiations?, ICC Forum (Jun. 28, 2018), available online.

  110. 110.

    See Strategic Plan, supra note 21, § 21.