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Comment on the Africa Question: “Is the International Criminal Court targeting Africa inappropriately?”

jessicapeake673
1193
March 26, 2013
8:53 am

Does the Application of the Institutional Framework Adopted by the Office of the Prosecutor Lead to a Conclusion of Bias?

I. Introduction

Since the establishment of the International Criminal Court (ICC) in 2002 the Office of the Prosecutor (OTP) has been accused of a bias against African nations due to its exclusive indictment of individuals of African nationality.1 There are many theories posited as to the possible reasons for this alleged bias and the failure of the OTP to proceed with investigations of any non-African situations. As the first permanent court prosecuting international crimes, the ICC has the remit to ensure that “the most serious crimes of concern to the international community as a whole [do] not go unpunished,”2 and faced with this monumental task the OTP has developed an “institutional framework capable of ensuring the proper exercise of its functions.”3 This comment will look at this framework and examine potential institutional reasons for the alleged bias against African nations, by looking at the internal rules and policies adopted by the OTP being utilized in determining when to proceed with an preliminary examination and investigation.

II. Determining Prosecutions: The ‘Most Serious Crimes’ and the ‘Greatest Responsibility’

Under the Rome Statute, the “most serious crimes” encompass genocide, war crimes and crimes against humanity, however the Statute is silent on the issue of who should be held accountable for the commission of this level of crime. Consequently it has been left to the Chief Prosecutor and OTP to determine which alleged perpetrators to focus their investigations upon. In response to this lacuna the Prosecutor has concentrated on prosecuting those bearing the “greatest responsibility” for international crimes.4 While this distinction is not found in the Statute it has been accepted as a necessary and justified policy, particularly given the large number of perpetrators for crimes that the Court is mandated to investigate.5

In furtherance of its stated policy of targeting those bearing the greatest responsibility, during its first three years of operation the OTP adopted a Prosecutorial Strategy based around three “essential principles”: positive complementarity, focused investigations and prosecutions, and maximizing the impact.6 All three have impacted upon the decision making process in the OTP with regard to what investigations to pursue. Of particular relevance to this comment is the second principle: focused investigations and prosecutions.

Under this principle the OTP has developed a number of indicia to adjudge when to proceed with an investigation, expounding criteria for determining the most serious crimes and identifying those individuals who bear the greatest responsibility. The Office is keen to underline that this determination of individuals “is done according to, and dependent on, the evidence that emerges in the course of an investigation.”7 In selecting cases in a particular situation before the OTP they have “adopted a “sequenced” approach… whereby cases inside the situation are selected according to their gravity.”8 This was a proactive choice by the Office to assist it in eliminating cases of insufficient gravity and has led to the OTP focusing on a “sample” of the crimes committed in any situation in order to limit the extent of prosecutions and to avoid the situation seen at the ad hoc tribunals of including lengthy indictments charging numerous crimes at multiple crime bases.9

III. Articulating the ‘Gravity’ Test

In determining what are the ‘most serious crimes’ one guiding principle offered by the Rome Statute is that of ‘gravity’ found in Article 17. This provides that a case will be inadmissible where it “is not of sufficient gravity to justify further action by the court.” In an internal policy paper in 2003, the OTP made clear that “the concept of gravity should not be exclusively attached to the act that constituted the crime but also to the degree of participation in its commission.”10 In the same policy paper, the OTP further asserted that it should “focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organization allegedly responsible for those crimes.”11 The OTP has been keen to emphasize that “it would be an error of law to inject rigid requirements into the legal standard for ‘sufficient gravity’ in Article 17(1)(d),” and that ‘gravity’ is intended as a jurisdictional barrier “intended to establish a basic standard for gravity, excluding offenders and crimes that do not warrant the exercise of jurisdiction.”12

The criteria that the OTP has adopted in Regulation 29(2) to assist it in making its determination of gravity include “the scale of the crimes; the nature of the crimes; the manner of commission of the crimes; and the impact of the crimes.”13 These are both “quantitative and qualitative considerations based on the prevailing facts and circumstances.”14

The OTP have expanded upon these criteria in its Draft Policy Paper on Preliminary Examinations.15 With regard to the first criteria—scale of crime—the OTP looks to the “number of direct and indirect victims, the extend of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, and their geographical or temporal spread.” In determining the nature of the crimes the Office examines the specific elements of each offense committed, while they assesses the manner of commission of the crimes in a number of ways, including:

(T)he means employed to execute the crime, the degree of participation and intent in its commission, the extent to which the crimes were systematic or result from a plan or organized policy or otherwise resulted from the abuse of power or official capacity, and elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination, or the use of rape and sexual violence as a means of destroying communities.

Finally, in evaluating the impact of the crimes, the Office looks to the consequences of the crimes on the local or international community, whether the crimes in question were committed with the aim or consequence of increasing the vulnerability of civilians, and whether the primary purpose of the acts was to spread terror among the civilian population.16

In articulating this ‘sequenced’ approach to selection of cases and in adopting a ‘gravity’ test, the OTP has applied the above criteria flexibly, making case-by-case determinations. Understandably, there is no minimum requirement of X number of killings, rapes or forced disappearances to meet the gravity test. Indeed, the Appeals Chamber of the ICC has recognized that “the role of persons or groups may vary considerably depending on the circumstances of the case and therefore should not be exclusively assessed or predetermined on excessively formulistic grounds.”17 That there is no hardline quantitative requirement is a fact to be applauded, as putting a figure on the amount of human suffering required to be considered of ‘sufficient gravity’ for the crimes to come before the court would be callous and not allow for the ever-changing face of conflicts and situations in which the commissions of the ‘most serious crimes’ take place.

In developing these non-exhaustive criteria the OTP have been sufficiently vague to allow broad application and interpretation of the factors to the situation under consideration. The question is, therefore, how this approach has led to the exclusive indictment of African leaders: have other situations failed to meet the gravity test or has there been a biased application of the gravity test to African situations? Why has an application of this test led only to the indictment of African leaders?

IV. Applying the Gravity Test

In its Draft Policy Paper on Preliminary Examinations the OTP outlined the application of the gravity test in the situations in Kenya and Iraq. Obviously, in the Situation in the Republic of Kenya an application of the gravity test led to a decision to proceed with the prosecution, whereas the OTP has decided not to proceed in the Situation in Iraq.

In the situation of Kenya, relevant factors to making a determination of sufficient gravity included the scale of the crimes “(1,200 persons allegedly killed, at least 1000 reported rapes and 450,000 persons displaced) and the nature of the post-election violence, which resulted in large scale killings of civilians, rape and other forms of sexual violence, serious injury and forcible displacement; while there occurred widespread looting and wanton destruction of residential and commercial areas in six out of eight Kenyan regions, including the country’s most populated areas.” In reference to the manner of the commission of the crimes, the Office highlighted that “in many instances, the crimes were organized and planned within the context of a widespread and systematic attack against selected segments of the Kenyan civilian population, based on ethnicity and/or presumed political affiliation [and] Perpetrators often displayed particular cruelty by cutting off body parts, hacking or burning civilians to death, or using gang rape and general mutilation.” In looking at the impact of the crimes the OTP emphasized an array of results including “infection with HIV/AIDS and other sexually transmitted diseases,” the fact that “many displaced persons lost both their home and means of subsistence,” and that “the crimes also hand an impact on local communities in terms of security, social structure, economy and persistence of impunity.”18

Conversely, regarding Iraq, the OTP has concluded “the available information in relation to crimes allegedly committed by state Party nationals revealed a limited scale of conduct constituting war crimes of willful killing and inhumane treatment by members of national armed forces.” The Office has indicated that while it was declining to open an investigation, it “could revisit its assessment in the light of new facts or evidence.”19

V. Conclusion

An interpretation and application of the criteria for determining ‘gravity’ does not prima facie lead to the inevitable conclusion that only investigations against African nationals will proceed before the ICC. Of course, application of these criteria doesn’t exclude Africa nationals, but neither should it exclude nationals from other States. The fundamental issue is the level of information and evidence available to the OTP in making their determination of the ‘gravity’ of crimes within a given situation. Without sufficient evidence, the Office is unable to make a determination on whether there is a reasonable basis to proceed with an investigation and for the Court to determine that an arrest warrant should be issued under Article 58.

In conclusion, an analysis of the internal policies of the OTP does not give rise to allegations of overt bias towards Africa, rather the Office is confined to working within the scope of evidence available to it. In order dispel the allegation of bias States Parties and other actors should work together in assisting the OTP in its evidence gathering to allow it to proceed with investigations outside of the African continent.

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

1.
The ICC is currently dealing with 18 cases in 8 situations. Those situations are all in the African continent: Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic; the Republic of Kenya; Libya; Côte d’Ivoire; Mali. ↩
2.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9, Preamble. The Statute entered into force on 1 July 2002. ↩
3.
ICC OTP, Paper on some policy issues before the Office of the Prosecutor (September 2003), available online. Archived, [hereinafter Policy Issues]. ↩
4.
Id. at 7. ↩
5.
FIDH, The Office of the Prosecutor of the ICC—9 Years On: Analysis of the Prosecutorial Strategy and Policies of the Office of the Prosecutor (2003-2011), Recommendations to the Next ICC Prosecutor (December 2011), available online. Archived. ↩
6.
ICC OTP, Report on Prosecutorial Strategy 4 (September 14, 2006), available online. Archived, [hereinafter Prosecutor Report]. ↩
7.
Id. at 5. ↩
8.
Id. ↩
9.
FIDH Report, supra note 5, at 10; “This policy also means that the Office selects a limited number of incidents and as few witnesses as possible are called to testify. This allows the Office to carry out short investigations and propose expeditious trials while aiming to represent the entire range of criminality.” Prosecutor Report, supra note 6. ↩
10.
Policy Issues, supra note 3, at 7. ↩
11.
Id. ↩
12.
ICC OTP, Policy Paper on Preliminary Examinations, Draft 7 (October 4, 2010), available online. Archived. [hereinafter Policy Paper]. ↩
13.
Prosecutor Report, supra note 6, at 5. ↩
14.
Policy Paper, supra note 12, at ¶ 70. ↩
15.
Id. ↩
16.
Id. at ¶ 70. ↩
17.
Id. at ¶ 69. ↩
18.
Id. at ¶ 71. ↩
19.
Id. at ¶ 72. ↩

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