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Comment on the Gravity Question: “What is the universe of cases upon which the ICC should focus? What should be the threshold for the gravity that warrants investigation of a situation or prosecution of those most responsible?”

Reversing the ICC’s Case Selection Process

I. Introduction

The International Criminal Court (ICC) is constantly in a state of struggle to prove that it is an effective, legitimate institution. Because there are literally hundreds of situations of grave crimes to choose from, which cases the Office of the Prosecutor (OTP) decides to select signals to the broader international community how it is acting on its mandate as a legitimate international institution. This legitimacy depends largely on the perception of the ICC’s audiences, particularly the perception of the community affected by the crime, that the Court is selecting the right cases, crimes, and defendants.1 In the past, the ICC has largely been disconnected from meaningful partnerships with these communities, which hurts the reputation of the Court in the long run as it ends up advancing interests that are not in line with what the actual victims of the crimes prefer. In order to ensure the ICC’s continued legitimacy, the “aperture” of the OTP should be guided by the priorities of communities affected by grave crimes.

II. History of Victims and the ICC

When the Rome Statute was ratified in 2002, one of the reasons it was applauded as a progressive achievement in international criminal law was that, for the first time, victims were designed to be “actors of international justice” instead of simply “passive subjects.”2 In the Preamble, the Statute recalls that “during the last century, millions of children, women, and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.”3 By directly tying the mandate for the ICC to the lived experiences of millions of victims, the Court centered itself from the start around victims.

In order to ensure that victims remain a part of the Court’s functioning, the Rome Statute also provides several avenues for victim engagement with the Court, such as though participation in trials and the collection of reparations. Specifically, Article 68(3) requires the Court to incorporate the “views and concerns” of victims “at stages of the proceedings” that it determines to be appropriate.4 This clear directive to work for the rights of victims, combined with the flexibility of giving the Court discretion in how to do so, makes it clear that the Rome Statute wanted a framework where victims could actively engage when their interests are affected, regardless of the context.

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This passion for inclusion of victims did not fizzle out with the founding of the Court: since its conception, the ICC has continuously strived to work alongside victims, as evidenced by the multitude of offices within the Court working for victims5 and their publications outlining the Court’s objectives and procedures to ensure that victims are active participants in their work. For example, the Victims Participation and Reparations Section (VPRS) published a booklet specifically for victims looking to participate at the ICC;6 the ICC website has a specific section dedicated to victims, inviting them to participate; the OTP has published policy papers related to victim’s rights;7 and the Court maintains a webpage on “Interacting with communities affected by crimes” where it published Outreach Reports for four years.8 ICC Prosecutor Fatou Bensouda even remarked on the BBC’s HARDtalk broadcast that to prosecute is to “stand up for the victims and affected communities.”9

Beyond simply engaging in victim-centered rhetoric, the ICC has actively included victims in its proceedings, further establishing its commitment to be a court centered around victims. Even in the first two cases before the ICC, several hundreds of victims participated in either the criminal or reparations proceedings.10 By 2016, over five thousand victims had participated in just the Bemba case.11

III. Perception from Affected Communities

It is undeniable that the ICC is under constant pressure to establish its legitimacy, partly due to the negative perceptions of the Court in the affected communities. Because it is a global court that depends on contributions and enforcement from States, the ICC is constantly striving to show that it is effective in what it does, which is difficult to do when many victims themselves are unaware of the ICC’s work or do not approve of the Court’s priorities.12 Because of this, many critics label the Court as “unstable” or “ineffective” in achieving its stated goals of deterring future crimes.13

Although the Court does interact with victims and communities affected by crime, it does so mainly after key decisions have been made with regard to proceedings, and through the lens of “managing”14 or “educating” communities of victims, rather than viewing them as equal partners. If victims were to go to the ICC website section designated for them, they would first see calls for applications for opened cases where the Prosecutor has already made the decision to bring charges, guiding victims to submit applications describing their harm by that particular defendant in one particular location during one particular time frame.15 If, by some chance, they were to stumble upon the VPRS’ “Victim Booklet” designed to be “A guide for the participation of victims in the proceedings of the ICC,” they would again see that the booklet focuses on submitting applications for already opened cases or applying for reparations, limiting it to victims who want “help,” not those who want to actively contribute to key decisions being made about who to prosecute.16 Lastly, the ICC’s website has a section on interacting with communities affected by crimes, which could potentially shift the perception of these communities. The website even states:

No matter how far victims might be from the Court, the ICC endeavours to reach out and engage with them and their communities. People most affected by the crimes have the right to understand, to participate in, and to have a sense of ownership in the justice process.17

Despite this sincere introduction, the page goes on to highlight information and education sessions for the communities, as well as local and regional seminars for legal practitioners in the country, thereby maintaining a top-down flow of information instead of truly engaging as reciprocal partners who “have a sense of ownership in the justice process.”18

The OTP’s limited engagement with victims during the preliminary examination and investigation period also affects the perception of the Court by affected communities. The applications that exist on the ICC website for participation of victims are first only for opened cases. Although a more general application is posted as well, it is only available in the languages of the Court and those of already opened investigations: English, French, Arabic, Hebrew, Dari, Pashto, Burmese. Even on the website, victims are strongly discouraged from submitting the application without legal help or advice from the VPRS, who they are supposed to contact on their own. These layers of barriers will both discourage and limit the number of victims who are truly able to engage with the OTP during the early stages of proceedings. Although the ICC operates field offices in situation countries, even if a potential victim travels to the office to report a crime, they are not allowed on the premises for security reasons.19 Victims’ organizations have also commented on the fact that, during the investigation stage, the OTP’s contacts are with the most convenient and accessible victims, and in many affected areas, people do not even know that such an investigation is occurring.20

As a result of this limited engagement, the priorities of the ICC have not always aligned with that of victims, despite the historical and institutional structures designed to center the Court around victims. For example, when former ICC Prosecutor Luis Moreno Ocampo visited Uganda nearly ten years after indicting notorious LRA leader Joseph Kony on thirteen counts of crimes against humanity and war crimes, he was met with frustration and apathy by the members of the Acholi tribe, who were the victims of some of Kony’s most atrocious acts.21 As the Paramount Chief of the Acholi tribe politely explained, he and his people had never supported opening a investigation in the first place, since, according to their traditions, justice is achieved by mutual understanding and dialogue, not prosecution.22

This has an enormous effect on the legitimacy of the Court, because it expended much effort in investigating and prosecuting an individual when even those most directly affected did not wish for ICC intervention. If the victims themselves do not feel that justice would be served after a comprehensive investigation, it is highly unlikely that external actors would feel that the ICC was effectively fulfilling its mandate in that situation. As M.R. Damaška describes:

Disillusionment stemming from unfulfilled expectations and inconsistencies that spring from disorientation are harmful to any system of justice, and especially to an evolving one whose legitimacy in the communities affected by international crime is still as delicate as the wings of a butterfly.23

IV. Reversing the Case Selection Strategy

By reversing the case selection strategy to a bottom-up approach that aligns case selection explicitly with the priorities of the victims through a comprehensive field consultation process during the preliminary examination and investigative stage, the Court can maximize its impact and contribute to rebuilding peaceful societies, which will in turn improve the view of the ICC and its legitimacy around the world.

A. A Bottom-Up Case Selection Strategy

A bottom-up case selection strategy that is centered around victims will have strengthened consultations with victims on the field through partnerships with first responders during the preliminary examination and investigative stage followed by a prosecution of a diverse range of actors, crimes, and communities that responds to the experiences of victims.

First, the OTP must expand its field presence in the early stages of an investigation in order to spread awareness about the investigation and be accessible to victims. Victims who do not have the access or resources to submit online applications to the Court need to both know that an investigation is ongoing and that they can reasonably access OTP staff to report crimes and voice their priorities to the Court. By increasing the duration and quality of field visits to collect first-hand data from victims, the Court can gain a comprehensive picture as to the crimes that occurred and the types of individuals responsible in order to decide whether the case can be selected to bring charges in front of the Court.

In order to safely and effectively work with victims, the OTP should redesign their partnerships with first responder organizations who can provide the crucial access to victims during a preliminary examination. Such organizations working on the ground currently have a “problematic dynamic” with the Court that rests more on compliance with the Court’s requests than a genuine process of working together as substantive equals, despite the fact that such organizations often have crucial information and links to victims:

As it was explained to the Court in Lubanga, intermediaries “were not supposed to know the objectives of the investigation team,” and their role was apparently “limited, in the sense that [they] were excluded from the decision-making process.” Pascal Kambale, a Congolese human rights lawyer, notes that local NGOs and activists “had more raw intelligence on the crimes than any other entity, [but] were deliberately sidelined and their invaluable expertise not fully integrated into the investigative process.” In a similar vein, Phil Clark has argued that, “Evidence from the ground […] suggests that the ICC has […] often perceived itself as the lead organisation to which all others are answerable.24

If the OTP drastically redesigns its partnership with such “intermediary” organizations to guide information collection for the case selection process, it can immediately spread awareness about its activities and truly act on behalf of the victims it seeks to represent.

Second, a bottom-up case selection strategy will require prosecution of a diverse range of actors, crimes, and communities in order to be centered around the experiences of victims. Currently, the OTP Policy Paper on Case Selection Strategy states that the prosecutor will choose charges that are “a representative sample of the main types of victimisation and of the communities which have been affected by the crimes in that situation,” but does not expand on how it will go about that beyond paying “particular attention to crimes that have been traditionally under-prosecuted.” Once the OTP compiles an extensive collection of crimes reported by victims and first responders, it should choose a representative sample both of types of victims and communities of victims. This acknowledgement of various identities and the intersection of those identities with the experience of violence will help the OTP to properly execute its “aim to highlight the gravity of these crimes, thereby helping to end impunity for, and contributing to the prevention of, such crimes.” Such a commitment to bring representative charges will have particular importance in responding to the experience of victims25 and ensure that new victims are not created by the OTP’s exclusion of certain types of victims.26

B. Effects of a Bottom-Up Case Selection Strategy

Choosing a bottom-up case selection strategy will help to maximize OTP resources; contribute to one of the key aims of the Court of creating stable, peaceful societies; and improve the long-term legitimacy of the Court.

A victim-centered case strategy will ensure efficient and effective use of OTP resources. One of the main constraints of the OTP is the limited resources it possesses. Any case selection strategy chosen should seek to maximize the impact from the resources that are available so that the perception of the effectiveness of the Court can improve, thereby potentially paving the way for increased resources. By focusing on collecting information from victims and first responder organizations who have often already collected relevant data, the Court will avoid replicating efforts that have already been taken, thereby preserving its own resources. A bottom-up case selection strategy will also ensure that the OTP avoids choosing cases in which even after successful prosecution, as in the case of the Acholi people in Uganda, victims do not feel that proper justice was served.

The bottom-up case selection strategy will also effectively contribute to rebuilding a stable, peaceful society, which is a key aim of the Court. As seen in the case of Yugoslavia, the process of justice can best create a context for stable society when it establishes individual responsibility and denies collective guilt, dismantles the institutions and leaders responsible for commission of crimes, establishes an accurate historical record, provides victim catharsis, and promotes deterrence.27 A victim-centered strategy enhances all of these functions of justice. By spending more time spreading awareness of the investigation and collecting information from victims, the strategy ensures that a wider percentage of the population knows that such crimes are being brought to justice and hence deters such crimes in the future. It also widens the scope of crimes reported, minimizing the risk of a biased historical record. Creating genuine opportunities for victims to report, even if their particular case is not chosen, facilitates victim catharsis, as not all victims can reasonably serve as witnesses in the actual proceedings. Working with first responder organizations instead of independently asking for permission through government structures will increase the opportunity for victims to speak out against leaders who are currently in power, who are often silenced in the current case strategy.28 Prosecution of a wide variety of victims and crimes will also establish individual responsibility on various levels and ensure that all types of individuals, from low-ranking officers to politicians, understand that they cannot commit future crimes or interfere with the peace-building process.29

Lastly, the victim centered case selection strategy will improve the view of the Court around the world, thereby enhancing its legitimacy. The relevant “international community” that the Court should be concerned about during selection are the persons affected; if victims they feel that justice was served, then the Court will be perceived as more legitimate.

V. Conclusion

Since its founding, the ICC has struggled with numerous complaints about its case selection process.30 By reversing the case selection strategy to a bottom-up approach that prioritizes the rights of victims, the OTP can make its process more transparent and legitimate as well as aligning it with the clear victim-centered design of the Court.

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

  1. 1.

    Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 276 (2012), available online. ↩

  2. 2.

    Office of the Prosecutor, ICC, Policy Paper on Victims Participation (Apr. 2010) [hereinafter Victims Participation Policy], available online. ↩

  3. 3.

    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, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩

  4. 4.

    Id. Art. 68. ↩

  5. 5.

    (The Victims Participation and Reparations Section (VPRS) is focused on helping victims submit applications to the Court, organizing their legal representation, and educating them of their rights related to participation and reparations. Victims and Witnesses Section (VWS) supports and protects victims who appear before the Court. There are also two independent offices, the Office of Public Counsel for Victims (OPCV) and the Trust Fund for Victims (TFV). The OPCV assists with legal representation in court and the TFV helps to carry out orders of reparations on behalf of the victims). ↩

  6. 6.

    Victims Participation and Reparations Section, ICC, Victims Before the International Criminal Court: A Guide for the Participation of Victims in the Proceedings of the ICC (Dec. 4, 2018) [hereinafter Victim’s Booklet], available online. ↩

  7. 7.

    See Victims Participation Policy, supra note 2; see also Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice (Sep. 2007), available online. ↩

  8. 8.

    Interacting With Communities Affected by Crimes, Int’l Crim. Ct., available online (last visited Jun. 24, 2021). ↩

  9. 9.

    HARDtalk, Zeinab Badawi Speaks to the Prosecutor at the International Criminal Court, Fatou Bensouda, BBC, Jul. 3, 2017, available online. ↩

  10. 10.

    Mariana Pena, Victim Participation in International Criminal Proceedings ¶ 16, MPEPIL (Apr. 2019), paywall (last visited Jun. 24, 2021). ↩

  11. 11.

    Id. ↩

  12. 12.

    Sarah Hibbert, The Bemba Acquittal: A Blow to the ICC’s Legitimacy in a Time of Crisis, 34 Temp. Int’l & Comp. L.J. 95 (2019), available online. ↩

  13. 13.

    Id. at 95–96. ↩

  14. 14.

    REDRESS Victims’ Central Role in Fulfilling the ICC’s Mandate (Nov. 20, 2009) [hereinafter Victim’s Role], available online. ↩

  15. 15.

    Victims, Int’l Crim. Ct., available online (last visited Jun. 24, 2021). ↩

  16. 16.

    Victim’s Booklet, supra note 6. ↩

  17. 17.

    Interacting With Communities Affected by Crimes, supra note 8. ↩

  18. 18.

    Id. ↩

  19. 19.

    Victim’s Role, supra note 14, at 4. ↩

  20. 20.

    Id. ↩

  21. 21.

    Benjy Steinberg, The Prosecutor and the Paramount Chief, Vimeo, at 5:51 (Mar. 26, 2015), available online (no longer available). ↩

  22. 22.

    Id. ↩

  23. 23.

    Mirjan R. Damaška, What is the Point of International Criminal Justice?, 83 Chi.-Kent. L. Rev. 329, 347–49 (2008), available online. ↩

  24. 24.

    Christian De Vos & Betsy Apple, Securing Better Cooperation for Sexual and Gender-Based Crimes Begins by Redefining Cooperation, ICC Forum (Apr. 12, 2016), available online. ↩

  25. 25.

    Human Rights Watch, Comments on the ICC Office of the Prosecutor Draft Policy Paper on Case Selection and Prioritisation (May 3, 2016) [hereinafter Comments], available online. ↩

  26. 26.

    Charles P. Trumbull IV, The Victims of Victim Participation in International Criminal Proceedings, 29 Mich. J. Int’l L. 777 (2008), available online. ↩

  27. 27.

    Paul Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia 16–22 (Aug. 27, 2002), paywall. ↩

  28. 28.

    Yvonne M. Dutton, Bridging the Legitimacy Divide: The International Criminal Court’s Domestic Perception Challenge, 56 Colum. J. Transnat’l L. 71, 84–87 (Dec. 2017), available online.

    (“Without significant and pervasive in-person outreach, the ICC will probably not be able to overcome any propaganda campaign government leaders wage against it to protect themselves and their cohort from being held accountable to the victims of violence.”). ↩

  29. 29.

    See Comments, supra note 25.

    (“Prosecuting lower-ranking commanders is necessary to undercut a pervasive culture of impunity, achieve greater impact for victims, or for the implementation of an effective prosecutorial strategy in a particular country situation.”). ↩

  30. 30.

    deGuzman, supra note 1, at 276. ↩

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