A Single Comment — Permalink
© ICCforum.com, 2010–2023. All rights reserved. Policies | Guidelines
- roccosan: Premise The uniqueness among the Judicial Systems of ICC is a challenge for the application of statistics to measurement about its activities. This is for two reasons: the absence of a reasonable term of comparison; the self-referentiality of the system of measurement. Both the features provide the occasion for a reflection about the meaning of measurement of an object that is strictly qualitative and hold an ontology bereft of... (more)
- chrisjlin: Prosecutorial Discretion in Investigations: A Balance Between Politicization and Independence Abstract I examine the possibility of enforcing a balance between discretion and independence, seeing as how the International Criminal Court (“ICC”) Prosecutor’s decision to investigate a specific country, individual or group is necessarily political, given the ICC’s method of functioning. Despite the occurrence of... (more)
- cgsanchez: The Al Mahdi Case Study: Establishing a Media Bias Baseline to Support Future Research Regarding how ICC’s Operations Affects Public Perception International media reaction to the case The Prosecution v. Ahmad Al Faqi Al Mahdi heard in the International Criminal Court reveals that the case’s timeline, a country’s governance structure, and whether or not the country is an ICC... (more)
- Hanni Maoz: Evaluation of the Court Performance: A Critical View of the International Criminal Court Indicators for Security Introduction In November 2015, the International Criminal Court (the ICC or the Court) released Report of the Court on the development of performance indicators for the International Criminal Court.1 This First Report contained qualitative and quantitative indicators that were supposed to allow... (more)
- Sebastian Barrios... Evaluating the performance of the ICC: the value of and challenges associated with measuring the expeditiousness of ICC’s proceedings I. Introduction One of the most persistent and often repeated criticisms of all international criminal tribunals has been that they cost too much money and take too long.1 After having been in operation for more than ten years, the International Criminal Court... (more)
- kbanafshe: Evaluating the Performance of the Court: To What Extent have the Actions of the ICC Transformed the Politics and Fostered Peace Within Central and Eastern Africa? The International Criminal Court (“ICC” or “the Court”) was established in 1998 to “exercise its jurisdiction over the most serious crimes of international concern.”1 The main mandate of the court is to bring wrongdoers to justice, however... (more)
- Mehrunisa Ranjh: Measuring Victim Access to the International Criminal Court: Peace as the Ultimate Goal of International Justice Introduction The creation of the International Criminal Court (“ICC”) was an attempt to traverse previously uncharted territory by setting up a permanent, truly international court that would remain impartial, expeditious, and transparent in the face of huge and often conflicting external pressures. The court was envisioned... (more)
- emrenslo: The Performance Indicator “Expeditiousness of Proceedings” Will Cause Unintended Negative Consequences Using “Expeditiousness of Proceedings” as a performance indicator, as currently envisioned by the ICC, has unintended negative consequences for the prosecutorial, judicial, and management aspects of the Court. I. Introduction The ICC released a... (more)
- pgsojo: Measuring Performance on Arrests and Visualizing a More Effective Way in Procuring Them Performance indicators to evaluate the success or failure of the International Criminal Court (ICC) in terms of its mandate of arresting suspects. It is clear how the world has always been in desperate need of a worldwide ruling court, where criminals of great atrocities would face justice internationally known and accepted. The ICC was... (more)
- aaacosta09: Measuring Performance: A Case Study of Positive Complementarity Catalyzed During the Preliminary Examination Stage in Colombia An effective way to evaluate the performance of the ICC is to measure the positive complementarity catalyzed by the Court during the preliminary examination stage in Colombia. Introduction The International Criminal Court (“ICC” or “the Court”) was... (more)
Comment on the Performance Question: “The ICC has established four key goals regarding, broadly, its proceedings, leadership, witness security, and victim access. What are the appropriate ways to measure the ICC’s progress towards those stated goals? How can the performance of the ICC as a whole be properly assessed?”
Prosecutorial Discretion in Investigations: A Balance Between Politicization and Independence
I examine the possibility of enforcing a balance between discretion and independence, seeing as how the International Criminal Court (“ICC”) Prosecutor’s decision to investigate a specific country, individual or group is necessarily political, given the ICC’s method of functioning. Despite the occurrence of crimes that merit prosecution, the Prosecutor often must take into consideration the interests of States Parties and other international organizations, such as the North Atlantic Treaty Organization (“NATO”). Because the Prosecutor cannot avoid a degree of politicization, I recommend that the Prosecutor publish additional guidelines, in addition to the Rome Statute and the Rules of Procedure and Evidence (“RPE”), to create a degree of transparency in the decision-making process. In examining this issue, I look towards the controversies in investigations that occurred with the NATO bombings in Yugoslavia, the Rwandan genocide, and the alleged focus on investigating African countries.
The debate between promoting discretion versus politicization of the Office of the Prosecutor can be understood through the controversies that occurred in the investigations of Yugoslavia, Rwanda, and various African States Parties. In each of the three scenarios, the prosecutors of an international court were perceived to either have failed to investigate serious atrocities or have been overly zealous in targeting a specific group for investigation. When confronted with legal issues that affected the NATO, a humanitarian intervenor, the prosecutor of the International Criminal Tribunal for the former Yugoslavia declined to investigate possible war crimes. Similarly, the prosecutor of the International Criminal Tribunal for Rwanda declined to investigate Tutsi war crimes against the Hutus, because of the fear that the tribunal would lose Tutsi cooperation. Lastly, the International Criminal Court (“ICC”) Prosecutor attempted to move away from investigating African individuals after African States parties complained of an implicit bias in the ICC against African States Parties and threatened to withdraw from the ICC’s jurisdiction.
Given the dispute surrounding prosecutorial discretion, the ICC Prosecutor can create a balance between politicization and independence through publicizing guidelines that create greater transparency into the decision-making process of investigations. Indeed, in addition to using the available guidelines, such as the Rome Statute, the Prosecutor can provide a draft of specific factors to consider, given the ambiguity in the current guidelines. The Prosecutor may also consider additional factors, such as accounting for States Parties’ interests to a degree, to ensure continued legitimacy of the ICC.
Part II begins with a background discussion of prosecutorial controversies present in the NATO intervention in Yugoslavia, the Rwandan genocide, and the persistent scrutiny of African States Parties. Part III provides a possible framework on striking a balance between prosecutorial discretion and a degree of politicization, in which outside parties can influence the Prosecutor’s decisions. Finally, I will conclude the comment with thoughts on relevant prospective research.
II. Conceptual Framework
With respect to the investigations in Yugoslavia, Rwanda, and the African States Parties, the prosecutors of international courts all had to make decisions that involved a degree of politicization, demonstrating that true independence may not be viable within the framework of internationally created courts.
A. Relevant Literature
1. NATO Bombing of Yugoslavia
The International Criminal Tribunal for the former Yugoslavia (“ICTY”) was established to investigate the NATO bombing campaign in Yugoslavia that occurred from March to June of 1999. While NATO’s bombing campaign was supposed to deter Serbian attacks on Albanians in Kosovar, the campaign resulted in numerous civilian casualties and controversy over the types of buildings targeted. Despite establishing a committee to initiate a preliminary investigation, the ICTY prosecutor ultimately declined to investigate the NATO bombings, likely due to the sensitivity involved in prosecuting NATO and the need to resolve complex issues, such as whether third party intervenors in humanitarian missions were bound by international criminal law.
Both Serbs and Albanians claim to have historic ties to Kosovo, and nationalistic sentiments would rise throughout the two World Wars due to shifts in territorial control of the region. Indeed, Kosovo was at the center of the first Serbian state, founded in the early 12th century, and held religious connotations to the Serbs, because the Serbian Orthodox Church’s Patriarchate relocated to the area in 1346.1 Simultaneously, Albanians believe that their ancestors resided in the area before the 6th century, thus predating the Serbs’ arrival.2 During World War I, Serbs consolidated and formed the Kingdom of Serbs, Croats, and Slovenes; the newly combined territories included Kosovo and would later be known as Yugoslavia.3 At this time, Serbs encouraged Albanians to emigrate to Turkey and often expropriated the lands of Albanians residing in Kosovo.4 After World War II, Serbia became one of Yugoslavia’s six federal republics and held control over Kosovo, which maintained a substantial Albanian population.5 As Kosovo eventually became a Socialist Autonomous Province of Yugoslav in 1974, effectively gaining a status equal to the other six republics with respect to economic decision-making and foreign policy, Serbs felt that they were losing control over Kosovo, especially since Albanians constituted the majority of the Kosovo population.6
Serbian nationalism dramatically escalated in the 1980s, culminating in outright conflict between the Serbs and Albanian Kosovars. Slobodan Milosevic, a Serbian politician, called for Serbian reunification with Kosovo and successfully revoked Kosovo’s newfound autonomy through political maneuvering in 1989.7 Thereafter, the Serbs claimed that Kosovo fully reintegrated into Serbia.8 In response to the Serbian assertion of control, a group of Albanian Kosovars established the Kosovo Liberation Army (“KLA”) by mid-1993 to stage guerrilla operations against the Serbs.9 After international intervention and a failed attempt at normalizing relations between the Serbs and Albanians through the Dayton Agreement in 1995, KLA violence against the Serbs in Kosovo continued to intensify.10 The KLA began assassinating Serbian officials in 1997 and 1998, while the Serbs viewed this as an opportunity to enforce order on the insurgent Albanian Kosovars, resulting in the deaths of over 1,500 Albanian Kosovars in 1998 alone.11
After another failed peace conference between the Serbs and Kosovars at Rambouillet in France, due to Serbian rejection of the proposed “Interim Agreement for Peace and Self-Government in Kosovo,” NATO was forced to exercise military force in deterring Serbian actions against Albanian Kosovars.12 From March 24 to June 10, 1999, NATO initiated a bombing campaign in Yugoslavia, which ultimately resulted in 500 civilian deaths and 800 injuries.13 Additionally, the air strikes did not immediately deter Serbian attacks on Albanian Kosovars; during NATO’s intervention, Serbs killed at least 4,400 Albanian Kosovars.14 Another 830,000 civilians fled Kosovo, resulting in the largest exodus of European refugees since World War II.15 Lastly, NATO had at least ninety incidents involving questionable choice of targets and means of attack, including bombing media buildings and the use of cluster bombs in areas of high population density.16
The ICTY initiated a preliminary investigation into the NATO intervention but ultimately declined to proceed with the investigation. In 1999, Louise Arbour, the ICTY prosecutor at the time, established a committee to determine whether to investigate controversial incidents pertaining to NATO’s bombing campaign of Yugoslavia.17 Arbour then refused to conduct an investigation, despite having the power to proceed with an investigation regardless of the committee’s findings.18 If Arbour had proceeded with the investigation, she would have needed to resolve issues such as whether international criminal law governed third party intervenors in humanitarian missions and whether radio stations can be considered military targets.19 Consequently, Arbour likely declined to investigate the bombings as a direct result of the legal and political ramifications NATO would face.20 Indeed, the outcome would likely be different if NATO forces were not the subject of the investigation; for example, the ICTY indicted Serbian leaders in 1995 for the bombing of Sarajevo, which resulted in a number of civilian casualties similar to NATO’s bombing of the Radio-Television Station.21
2. Rwandan Genocide
In 1995, the International Criminal Tribunal for Rwanda (“ICTR”) was established to investigate and prosecute the Hutu genocide of Tutsis in Rwanda, which systematically occurred beginning in April 1994. However, with the Tutsi counterattack, which culminated in the overthrow of the Hutu regime in Rwanda in July 1994, evidence also existed of alleged Tutsi atrocities against Hutus, which included mass executions and assassinations. However, the ICTR’s chief prosecutor declined to investigate possible Tutsi crimes, because he needed Tutsi cooperation in order to prosecute the Hutus, who arguably committed greater atrocities; investigating both sides of the Rwandan genocide would only obstruct the legal process, due to diminished cooperation by both the Tutsis and the Hutus.
While the Tutsis and Hutus in Rwanda always differed in phenotypes, leading to conflict between the two ethnic groups, such conflict was greatly exacerbated due to colonization in the early 20th century. After arriving in Rwanda in 1916, Belgian colonists created classifications of varying ethnic groups using identity cards and considered the Tutsis to be ethnically superior to the Hutus.22 Under Belgian rule, the Tutsis’ job and educational opportunities far surpassed the Hutus’, ultimately resulting in Hutu riots against the Tutsis in 1959, during which over 20,000 Tutsis were killed.23 Conflict between the Hutus and Tutsis continued, even after Rwanda achieved independence from Belgium in 1962, as the Hutus gained power in the absence of the Belgians and framed the Tutsis as scapegoats responsible for issues within the country.24
The deterioration of Rwanda’s economy and subsequent blame on the minority Tutsi population would ultimately lead to Hutu-propagated genocide. Rwanda entered a trade deficit as coffee prices fell beginning in 1986, and the economic crisis was blamed on the Tutsis.25 Simultaneously the Rwandan Patriotic Front (“RPF”), consisting mostly of Tutsi refugees, formed in Uganda; the RPF’s goal was to overthrow Juvenal Habyarimana, the incumbent Hutu president of Rwanda, and return to their homeland.26 In response, the Habyarimana regime framed all Tutsis as allies of the RPF and as enemies of the Rwandan state through systematically spreading anti-Tutsi propaganda.27 The downing of Habyarimana’s plane in April 1994 was the catalyst of the Tutsi massacre, though it remains unclear as to who was responsible for shooting down the aircraft.28 The presidential guard immediately authorized retribution against the Tutsis in the form of mass murders.29 Indeed, civilians were encouraged to take part in the annihilation of Tutsis and were even given incentives, such as land or money, to kill.30 Simultaneously, RPF forces continued their assault on Rwandan governmental forces, allegedly through methods including various assassinations of political figures, mass murders, and killing prisoners of war.31 The RPF finally achieved victory in July 1994 and declared a ceasefire after the Rwandan government collapsed, with Hutu forces stateless and scattered into the Zaire region (modern day Democratic Republic of the Congo).32
The ICTR was tasked with investigating the Rwandan genocide in 1995, though chief prosecutor Richard Goldstone refused to investigate alleged RPF crimes due to a need to preserve the legitimacy of the ICTR through eliciting cooperation from the Tutsi-governed Rwanda. Goldstone declined to investigate the alleged RPF crimes, because he believed that the United Nations Security Council created the ICTR to investigate and prosecute the Hutu genocide of Tutsis.33 Further, Goldstone contended that the ICTR had little, if any, sufficient evidence of the RPF crimes, though, in actuality, concrete evidence did exist from 1994 onwards.34 Goldstone’s decision to abstain from initiating an investigation was likely due to his awareness that Rwanda under the Tutsi rule may cease cooperation with the ICTR if he chose to commence with the investigation.35 By investigating both sides of the Rwandan conflict, Goldstone would likely fail to make progress in prosecutions, because, as subjects of investigations, neither side would have an incentive to cooperate with the ICTR.36 Indeed, when the ICTR finally decided to investigate RPF crimes in December 2000, led by prosecutor Carla Del Ponte, the Rwandan government successfully undermined the investigation and credibility of the ICTR by criticizing the ICTR’s failure to timely prosecute perpetrators of the Tutsi genocide.37
3. African Bias
Given the ICC’s history of investigating and indicting African individuals in the past two decades, many critics of the ICC assert that the Court has an implicit bias against Africans and is simply an extension of Western imperialism. Such accusations have prompted the ICC to attempt to move away from continued prosecution of African crimes and individuals, though serious atrocities are nevertheless investigated. For example, the ICC chief prosecutor called for an investigation of Burundi president Pierre Nkurunziza because of Nkurunziza’s alleged crimes in eliminating political opponents. However, in response to the investigation, Burundi voted to withdraw from the ICC, thus threatening to undermine the ICC’s legitimacy and potentially setting a precedent of countries withdrawing from the Court’s jurisdiction when faced with an adverse investigation.
Since the ICC began operating in 2002, the Court made thirty-one indictments against African individuals, despite how African states only constitute thirty-four out of the one hundred twenty-four States Parties.38 The focus on Africa has partly resulted from the ICC’s jurisdictional limitations; the ICC can only investigate crimes that occurred in or were perpetrated by countries that ratified the Rome Statute, which established the ICC.39 The ICC cannot investigate other countries without a referral by the United Nations Security Council.40 Additionally, the ICC often cannot investigate or prosecute major nonmember countries, such as the United States or China, because of their ability to veto Security Council referrals.41 Consequently, given such limitations, the ICC is often forced scrutinize only African countries, creating a perceived bias against African States Parties. To combat the sentiments of unfairness, ICC prosecutors have already begun moving away from African investigations and prosecuting specific types of war crimes that were typical in atrocities that occurred in Africa.42
In April 2015, Pierre Nkurunziza, Burundi’s incumbent president, planned to run for an unprecedented and unconstitutional third term as president, sparking violent protests within the country.43 After Nkurunziza’s reelection in July 2015, violence continued, with security forces killing approximately 80 protestors and over 170,000 Burundian refugees fleeing the country.44 Prominent political individuals from both the ruling party and the opposition, such as General Adolphe Nshimirimana, the country’s security chief, and Pierre Claver, human rights activist, were killed in attacks that continued through August 2015.45 Numerous political dissidents were detained or executed by the ruling party, and journalists who were critical of the regime became targets as well.46 As the death toll approached 430, with 300,000 displaced Burundians, ICC’s chief prosecutor Fatou Bensouda decided to proceed with an investigation into the events surrounding Nkurunziza’s bid for reelection in April 2015.47 In response to the ICC investigation into possible genocide and crimes against humanity, amongst other alleged crimes, Burundi’s lower house of parliament voted to withdraw from the ICC in October 2016.48 While Bensouda may have a legitimate reason and need to investigate the crimes perpetrated by the ruling party, other African countries and critics view the investigation to be a continuation in the ICC’s bias against African countries, which may lead to more withdrawals by African countries.49
B. Proposed Contribution
Prosecutorial independence is a significant issue for the ICC, because of the contrasting viewpoints regarding independence and politicization. While a degree of politicization is necessary in the decision-making process with respect to investigations, critics of the Court believe that such political undertones within investigations lead to a lack of legitimacy and a view that the ICC is merely a tool for Western powers to exert influence over countries without significant international influence.
The theory of balancing prosecutorial discretion provides the view that the Prosecutor can navigate between independence and politicization to the benefit of the ICC. In addition to using the Rome Statute and the Rules of Procedure and Evidence, the Prosecutor can draft its own guidelines to ensure transparency and uniformity in investigating cases. Additionally, given the inherently political nature of the ICC, the Prosecutor may need to take into account the legal merits of the case and ensure cooperation by considering the interests of outside parties to an extent allowed by goals of promoting international peace.
III. Theory of Balancing Prosecutorial Discretion
At the core of the debate regarding prosecutorial discretion lies the issue in which, the ICC Prosecutor should have discretion in the interest of justice, but simultaneously, an equally valid argument exists that the Prosecutor should maintain true neutrality by declining to consider the interests of outside parties.
A. The Necessity of Politicization
The ICC Prosecutor’s decisions are inherently political based on the establishment of the Court and the interactions between the Office of the Prosecutor and various States Parties. Though States Parties agreed to subject themselves to the Court’s jurisdiction, they can also withdraw support from the Court, thus gaining leverage against the Prosecutor’s selection of crimes to investigate. Importantly, self-referrals and referrals by the United Nations Security Council also constitute the necessity of prosecutorial politicization because of the interplay between soliciting cooperation from States Parties and the aspiration to proceed with impartiality.
The ICC’s legitimacy and continued survival depends largely on its reception within the international community subjected to the ICC’s rulings, which often need to be made based on the sociopolitical nuances within each region of the world. States Parties, nongovernmental organizations, and other international actors are all evaluators of the ICC’s selection of cases and decisions to proceed with investigations.50 With respect to granting the ICC legitimacy, States Parties are particularly relevant, because they can withdraw support from the Court and perhaps even seek the Court’s destruction.51 States Parties are additionally crucial, because, by subjecting themselves to the Court’s jurisdiction through ratifying the Rome Statute, they provide both evidence and defendants to prosecute.52 Indeed, the ICC may also need to take into account regional differences in the process of successfully prosecuting a case. Advocates of the ICC typically believe in the merits of enforcing human rights law based on a universal baseline of legal justice.53 However, critics believe that such universalism ignores regional values and autonomy in resolving domestic issues.54 Notably, African leaders who once supported the ICC now believe that the ICC’s continued focus on investigating crimes in Africa has prohibited African states from resolving such crimes on their own.55
The ICC generally allows self-referrals, which the Court views as a sign of commitment to justice, to initiate investigations; however, the Court has a tendency to grant immunity to the referring party due to concerns of facilitating cooperation.56 In 2003, the ICC accepted Uganda’s self-referral regarding a conflict between the Lord’s Resistance Army (“LRA”) and the Uganda People’s Defense Forces (“UPDF”), the government’s military forces.57 The ICC then indicted five LRA leaders for various crimes, such as rape and using child soldiers.58 However, the ICC’s Office of the Prosecutor has not indicted any individuals within the Ugandan government, which committed similar atrocities.59 Prosecutor Luis Moreno Ocampo contended that UPDF’s crimes were less severe in comparison to LRA’s crimes, despite how the UPDF’s actions of forced population displacement and use of child soldiers clearly violated international law.60 Prosecutors in the ICC appear to grant immunity to the referring party, particularly when their crimes are relatively less severe than the defendants’.61 Though detrimental to its legitimacy, the Court fears that prosecuting the referring party would chill cooperation and impede prosecutorial efficiency.62
Simultaneously, the United Nations Security Council can refer cases to the ICC for investigation, though the two organizations working together presents an image of an assertion of Western political strength against less-powerful states. The Security Council referred Sudan to the ICC in 2005, since the ICC did not have jurisdiction over the country; Sudan did not ratify the Rome Statute to join the ICC as a State Party.63 The ICC subsequently investigated senior politicians, such as President Omar al-Bashir, within the Sudanese regime for perpetrating crimes in Darfur.64 Critics view the ICC and the Security Council as tools that powerful countries use to initiate regime change, under the guise of addressing atrocities including genocide.65 As African countries pushed back against the ICC’s willingness to investigate African regime elites by withdrawing cooperation, the Security Council has been hesitant to pressure the ICC to investigate African atrocities.66
B. The Necessity of Independence
Conversely, prosecutorial independence is necessary based on budgetary restrictions within the ICC as well as an overarching concern for fairness in investigations. Prosecutors should be able to select and determine whether to proceed with investigations without the influence of outside political interests. Further, independent selection is a crucial tool for the Prosecutor to have, because of the limited funds in prosecuting a case. Such independence will lend credibility to the court by ensuring that the Prosecutor is not bound by the interests of any third-party group or institution.
The International Law Commission’s draft treaty, which would later be known as the Rome Statute, provided prosecutors with proprio motu powers, which allowed for broad prosecutorial discretion in initiating investigations.67 During the Rome Statute’s negotiations, nongovernmental organizations and delegates fought to support prosecutorial discretion, because they believed that a prosecutor subordinate to other political institutions would undermine the legitimacy and independence of the ICC.68 The ultimate goal of the ICC is to guarantee that all States Parties are entitled to a fair and impartial tribunal, and that the Prosecutor is not bound by the interests of any outside parties.69
Case investigation under limited budgetary circumstances additionally demonstrate the need for prosecutorial discretion in investigations. In theory, the Prosecutor should not engage in discrimination and selective prosecution under a system in which defendants are equally-bound by international criminal law.70 However, because of the heavy caseload that courts often face, prosecutors with discretion can choose to be selective in their investigations to facilitate efficiency in the legal system.71 Indeed, restraints on resources, logistics, and diplomacy place an immediate limit on the Prosecutor’s ability to investigate all meritorious cases.72 While the Rome Statute calls for the ICC Prosecutor to “investigate incriminating and exonerating circumstances equally,” prosecutorial discretion provides a buffer against the directive to investigate, which likely cannot be achieved given the aforementioned restraints.73 Further, the Prosecutor’s selection of cases are achieved through an application of four factors: scale, nature, manner of commission, and impact of crimes; such malleable factors strengthen the Court’s legitimacy by allowing the Prosecutor to investigate cases based on the interests of justice rather than by a universal standard of Western justice.74 The Prosecutor thus has the power to influence policy and the overall direction of the ICC, based on the ability to selectively screen and investigate crimes.
C. Striking a Balance Between Politicization and Independence
A balanced approach to investigation can entail specific prosecutorial guidelines in addition to the guidelines set forth by the Rome Statute and the Rules of Procedure and Evidence. Moreover, the ICC Prosecutor can consider additional factors, including investigating cases likely to win on legal merits and investigating crimes at all levels of responsibility (e.g., scrutinizing subordinates as well as top-level leaders who committed atrocities under international law).
1. Specificity in Prosecutorial Guidelines
The Rome Statute and the Rules of Procedure and Evidence provides guidance in investigating and prosecuting cases, which frames the Prosecutor’s proprio motu powers.75 Specifically, when initiating investigations, the Prosecutor must consider the interest of justice alongside the gravity of the crime and the victims’ interests. The concept of interest of justice, however, remains elusive and can be construed in a variety of ways, from retributive justice to restorative justice.76 Further, neither the Rome Statute nor the RPE enumerates an exhaustive list of factors to consider when deciding whether to proceed with an investigation.77 To counter the inherent ambiguity in the official guidelines, the Prosecutor may draft and publicize a set of prosecutorial guidelines to be applied to every investigation; for example, the Prosecutor can enumerate the specific factors to be considered when initiating an investigation. The publicized guidelines would consequently provide a level of transparency and uniformity in arriving at a decision.
The Prosecutor can also consider complementarity, in which national courts have priority in prosecuting crimes.78 Under Article 17 of the Rome Statute, the International Criminal Court will assume responsibility to investigate and prosecute based on factors such as an unwillingness of the national court to prosecute; a collapse of the judiciary or unjustified delays all constitute unwillingness or inability to prosecute.79 However, complementarity remains an ambiguous consideration, because the Rome Statute and other guidelines do not provide for a specific guidance or timeline as to when national jurisdiction fails.80 For example, it remains unclear whether a States Party’s promise to investigate a crime can constitute a bar against ICC intervention.81 To resolve this issue, the Prosecutor can, similarly, propose specific criteria to determine whether national courts have truly failed to investigate; such criteria would also involve a determination of whether promises to investigate are sufficient.
2. Additional Considerations
In addition to drafting prosecutorial guidelines and considerations for complementarity, the Prosecutor can account for less tangible issues, such as focusing on cases likely to win on legal merits and facilitating cooperation with States Parties, as needed for investigations.
When choosing to conduct investigations and issue indictments, the ICC Prosecutor should take a reasonable amount of time and focus on crimes that can succeed on legal merits. Rather than serving as a political tool for immediately responding to global atrocities, the Prosecutor should focus on using time to deliberate appropriately and investigate legal grounds for indictment.82 By having an investigation rooted in legal principles, the Court will have a better chance of defending its decisions against critics who contend that the Prosecutor was tainted by outside political interests.83 Further, sufficient investigation will allow the Court to bring a strong case against actors truly responsible for the crimes.84 Indeed, a legally sound decision accomplished through exhaustive deliberation is preferable to an immediate one driven by international outrage calling for punitive measures.
Secondly, the Prosecutor’s responsibility for investigating those responsible for atrocities under international law can focus on both top-level actors as well as subordinates on a secondary level. By casting a broader net to investigate potential indictees, the Prosecutor can minimize the appearance that the Court is simply encouraging regime change based on the preferences of Western powers. Additionally, the Prosecutors are likely able to solicit cooperation from top-level actors when investigating subordinates, while top-level actors may be unwilling to cooperating with an examination of their own possible crimes.85
Lastly, given the ICC’s need for cooperation to function, the Prosecutor should formulate decisions that do not actively oppose the interests of States Parties directly cooperating with the Prosecutor. The ICC itself was ratified by countries that agreed to subject themselves to the jurisdiction of the Court. Moreover, during investigations, the Court requires the cooperation of countries to furnish evidence. By disregarding the interests of the countries involved in the judicial process, countries may refuse to cooperate and, instead, withdraw support from the ICC to hinder the investigations. Indeed, African countries in recent years have already threatened withdrawal due to the belief that the Prosecutor has a bias against Africans, due to the high number of indictments and investigations against African individuals.
This comment explores the possible balance between discretion and politicization in the Office of the Prosecutor. Given the inherently political nature of the ICC, the Prosecutor must be political in its investigations to a certain extent by considering the interests of States Parties and other major world powers to ensure the survival of the ICC. However, the Prosecutor can also promote a degree of independence by publishing more specific guidelines pertaining to complementarity action and factors involving the interests of justice when initiating investigations.
However, the ongoing threats of withdrawals of African States Parties, along with actual withdrawals (i.e., Burundi), may generate a significant change in Prosecutorial discretion in the years to come. Indeed, this comment does not predict the trajectory of Prosecutorial discretion when faced with a lack of support from a significant number of States Parties.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Carole Rogel, Kosovo: Where It All Began, 17 Int’l J. Pol. Culture Soc. 167, 169 (2003), JSTOR paywall, SpringerLink paywall. ↩
Id. at 170. ↩
Id. at 171.
(Due to the Albanian population in the area, Kosovo was established as an “autonomous region,” which theoretically promoted equality between the different ethnic groups within Yugoslavia at a federal level). ↩
The Kosovo Conflict and International Law: An Analytical Documentation 1974–1999, 1 (Heike Krieger ed. 2001), [hereinafter Kosovo Conflict and International Law]; Rogel, supra note 1, at 171. ↩
Kosovo Conflict and International Law, supra note 6, at 522; Rogel, supra note 1, at 172.
(The Assembly of Kosovo met on March 23, 1989 to vote on amendments governing the Kosovo’s autonomy, granted in 1974. Despite how a majority of Kosovo Albanian delegates abstained from voting to deny the Assembly the necessary two-thirds majority, the President of the Assembly nevertheless declared that the amendments passed). ↩
Rogel, supra note 1, at 174. ↩
Id. at 175. ↩
Id. at 175; Edward Morgan-Jones, Neophytos Loizides & Djordje Stefanovic, 20 Years Later, This is What Bosnians Think About the Dayton Peace Accords, Wash. Post, Dec. 14, 2015, available online.
(The Dayton Agreement failed to effectively address the conflict in Kosovo. Indeed, the United Nations merely threatened to maintain sanctions against Belgrade unless Serbia directly established dialogue with Kosovars. The broader, primary focus of the Dayton Agreement was, instead, to address the ethnic cleansing perpetrated by the militaries of the Orthodox Bosnian Serbs, the Catholic Bosnian Croats, and the Muslim Bosniacs). ↩
Rogel, supra note 1, at 174; NATO’s Role in Relation to the Conflict in Kosovo, NATO, Jul. 15, 1999, available online, (last visited Jul. 21, 2017). ↩
Rogel, supra note 1, at 177. Mark Webber, The Kosovo War: A Recapitulation, 85 Int’l Aff. 447, 450 (Apr. 28, 2009), Oxford Academic paywall. ↩
Anne-Sophie Massa, NATO’s Intervention in Kosovo and the Decision of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia Not to Investigate: An Abusive Exercise of Prosecutorial Discretion?, 24 Berkeley J. Int’l L. 610, 611 (2006), available online. ↩
Webber, supra note 12, at 451. ↩
Massa, supra note 13, at 613–14. ↩
Id. at 633. ↩
Id. at 643. ↩
Id. at 644. ↩
Id. at 645. ↩
Rwanda: How the Genocide Happened, BBC, May 17, 2011, available online. ↩
Helen M. Hintjens, Explaining the 1994 Genocide in Rwanda, 37 J. Modern Afr. Stud. 241, 256 (1999), available online.
(The Tutsis often found employment as traders and merchants, occupations that the Hutus viewed as related to the economic meltdown). ↩
Rwanda: How the Genocide Happened, supra note 22. ↩
Hintjens, supra note 25, at 264–66.
(The Habyarimana regime effectively used media to propagate false reports of RPF plots and attacks on Hutus in Rwanda). ↩
Rwanda: How the Genocide Happened, supra note 22. ↩
Paul Rusesabagina, Compendium of RPF Crimes—October 1990 to Present: The Case for Overdue Prosecution (Nov. 2006), available online.
(The RPF allegedly used similar methods throughout the early 1990s against the Habyarimana regime). ↩
Rwanda: How the Genocide Happened, supra note 22. ↩
Victor Peskin, Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 4 J. Hum. Rts. 213, 222 (2005), available online. ↩
Id. at 223. ↩
Id. at 224. ↩
Thierry Cruvellier, The ICC, Out of Africa, N.Y. Times, Nov. 6, 2016, available online. ↩
Alexandra Zavis & Robyn Dixon, Only Africans Have Been Tried at the Court for the Worst Crimes on Earth, L.A. Times, Oct. 23, 2016, available online. ↩
Cruvellier, supra note 38. ↩
Patricia Daley & Rowan Popplewell, The Appeal of Third Termism and Militarism in Burundi, 43 Rev. Afr. Pol. Econ. 648, 648 (2016), Taylor Francis paywall. ↩
Press Release, UN Office of the High Commissioner for Human Rights, Burundi: UN Investigation Urges Strong Action in Light of Gross, Widespread and Systematic Human Rights Violations (Sep. 20, 2016), [hereinafter Burundi 2016 OHCHR], available online; Yolande Bouka, The True Price of Nkurunziza’s Third Term, Inst. Sec. Studies , Aug. 24, 2015, available online; Conor Gaffey, After Burundi, Which Other African States Could Abandon the ICC?, Newsweek, Oct. 19, 2015, available online.
(Burundi 2016 OHCHR noted that the Imbonerakure, the ruling party’s youth wing, committed mass executions alongside the country’s security forces. Most of the victims were individuals opposed to Nkurunziza. The Nkurunziza regime additionally torture of political dissidents and were subject to “attachment of weights to victims’ testicles, the crushing of fingers and toes with pliers, progressive burning with a blow torch, and being forced to sit in acid or on broken glass or nails.”). ↩
Burundi 2016 OHCHR, supra note 41. ↩
Gaffey, supra note 41. ↩
Burundi moves to quit the International Criminal Court, Al Jazeera, Oct. 12, 2016, available online.
(94 out of 110 legislators were in favor of withdrawing from the ICC, with 2 opposing and 14 abstaining). ↩
Gaffey, supra note 41.
(Sudan has already asserted that it is not under ICC jurisdiction, because the country never ratified the Rome Statute, despite signing the statute in 2000. Moreover, Ugandan president Yoweri Museveni has threatened withdrawal, while voicing concerns that the ICC was merely a Western “tool to target” Africa). ↩
Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 268 (2012), available online. ↩
Tatiana E. Sainati, Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts, 49 Vand. J. Transnat’l L. 191, 209 (2016), available online, archived. ↩
Id. at 210. ↩
Id. at 213. ↩
Alana Tiemessen, The International Criminal Court and the Politics of Prosecutions, 18 Int’l J. of Hum. Rts. 444, 444 (2014), Taylor Francis paywall ↩
Id. at 451. ↩
Id. at 454. ↩
Id. at 455. ↩
Id. at 456. ↩
Id. at 455. ↩
Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510, 512 (2003), available online. ↩
Id. at 514. ↩
Id. at 515. ↩
deGuzman, supra note 50, at 293. ↩
Danner, supra note 67, at 518. ↩
Id. at 519–20.
(ICC’s first budget provided only €3,961,200 to the Prosecutor, out of a total of €30,893,500). ↩
Id. at 519.
(A detriment to the Prosecutor’s denial to investigate, however, is the presumption that the defendant is an innocent party, even if the case is actually meritorious). ↩
deGuzman, supra note 50, at 295. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 15, available online.
(“If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.”)
International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 48 (2013), available online, archived.
(“In determining whether there is a reasonable basis to proceed with an investigation under article 15(3) the Prosecutor shall consider the factors set out in Article 53, paragraph 1(a) to (c) [whether a crime within the jurisdiction of the Court has been committed […] and whether an investigation would not be in the interests of justice].”)
Vincent Sarara Robi, Prosecutorial Discretion Within the International Criminal Court (ICC): A Critical Legal Analysis and Preliminary Reflections on ICC Intervention into Kenya, 1, 32–33 (undated, unpublished manuscript), available online. ↩
Robi, supra note 75, at 44. ↩
Id. at 36.
(“[The Office of the Prosecutor’s policy states:] ‘complementarity involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office, […] taking into consideration the Office’s policy to focus on those who appear to bear the greatest responsibility for the most serious crimes.’”). ↩
Id. at 37. ↩
Allen S. Weiner, Prudent Politics: The International Criminal Court, International Relations, and Prosecutorial Independence, 12 Wash. U. Global Stud. L. Rev. 545, 555 (2013), available online. ↩
Id. at 556. ↩