Selectivity has been a difficult issue for all international criminal courts and tribunals: when presented with situations of mass victimisation, how should a prosecuting body determine which incidents and which individuals to single out for investigation and prosecution from the wide spectrum of incidents and persons potentially involved in the crimes? Should it focus only on the gravest incidents and aim fundamentally at macro-criminality, for instance the massive displacement of the civilian population or the massive destruction of groups of people? Or, should it delve into the microcosm of victimisation and zoom in so as to best capture the individual suffering of the victims? Should it focus only on those holding leadership positions in the groups involved in the crimes? Or should it start “low” and move upwards in the chain of command once it has established a firm evidentiary base in its first cases? Other considerations also come into play: should the prosecution use its limited resources to try to cover as many cases as possible, even if it risks not being able to deliver at the desired level, or should it rather focus on putting together a few high-quality exemplary cases?
These and other decisions that any international prosecution office must take have a number of ramifications. For instance, focusing on those persons deemed “most responsible” will usually lead to cases that tell a wider narrative of the facts and may better contribute to forming an historical record; but this approach may fail to adequately reflect the real scope of victimisation or to explain how otherwise abstract concepts such as “ethnic cleansing” are effectively implemented and what they mean from the perspective of the affected communities and victims. These consequences should be acknowledged and factored into any analysis of which cases to select for investigation and prosecution.
Ultimately, every international prosecution office must make choices and define the type of investigations and prosecutions that it will conduct, and it is essential that those choices stem from informed and careful consideration. A noticeable development can be discerned in the area of defining criteria for the selection of international cases—going from a paucity of readily identifiable criteria in the Nüremberg and Tokyo trials, moving to the “small fish vs. big fish” debate in the early years of the ICTY and ICTR, through to a commitment to target “the most responsible” at the SCSL and ECCC, and to the initial practice of the ICC, where from the outset selectivity was acknowledged as key to the Court’s effective functioning and potential success.
In 2006, the ICC Office of the Prosecutor (OTP) produced a draft paper on the selection of situations and cases. This draft policy included features which guided the OTP’s approach to selecting cases in the following decade of its work, namely: the governing principles of independence, impartiality, and independence; the legal criteria of jurisdiction, admissibility, gravity, and interests of justice; the threshold standard of persons “most responsible”; the emphasis on gravity as an overarching consideration; and the notion of using a “representative sample” of crimes, victims, and perpetrators to form the basis of charges. Subsequently, in 2013 the OTP published its formal Policy Paper on Preliminary Examinations to guide the OTP in the conduct of preliminary examinations (in particular, its application of the factors of jurisdiction, admissibility, gravity, and interests of justice in Article 53(1)(a)-(c)) of the Rome Statute and thereby to decide whether to open an investigation into any given situation.
Against this background, this year the OTP published its Policy Paper on Case Selection and Prioritisation, an internal document that sets out a number of criteria to assist the Prosecutor in exercising her discretion to select and prioritise cases for investigation and prosecution. In other words, the policy paper is intended to guide the Prosecutor on which incidents, persons, and conduct to investigate and prosecute. In this regard, the OTP has a Herculean task: from the large pool of situations presently open—currently ten, with the potential for many more once further situations are opened for investigation—there are literally hundreds of potential cases the OTP could conceivably bring, with the possibility of many more in the future. But the Office’s resources are limited and it must inevitably make tough choices as to how best to expend its efforts. With its new case selection policy, the OTP has articulated the fundamental considerations that guide its decisions to open cases in a consistent and transparent way aimed at promoting better accountability and understanding about its choices.
The main challenge in writing such a policy was ensuring sufficiently flexible so that it may apply to all potential situations and cases—taking account their numerous and different fact patterns and practical challenges—while at the same time ensuring that it set out sufficiently identifiable criteria to genuinely assist this process. The policy must be capable of dynamic application so that the OTP can make appropriate choices both across situations and within situations, taking into account the various stages of development of investigations, case hypotheses, and evidentiary considerations.
The policy distinguishes between two broad sets of criteria—those guiding the selection of cases and those guiding their prioritisation. The Office will select cases for investigation and prosecution using three key criteria: the gravity of the crimes, the degree of responsibility of alleged perpetrators, and the potential charges. From among the cases selected within any given situation and across the various situations, the Office will prioritise those cases in which it appears that it can conduct an effective and successful investigation leading to a prosecution with a reasonable prospect of conviction. This is done on the basis of identified strategic and operational criteria.
It makes sense to apply the criteria of gravity as the most important governing criteria for her selection of cases; indeed this is mandated by the Rome Statute. The Case Selection Policy provides sufficient detail as to how the Office should approach this exercise: by considering the scale of the crimes (quantitatively in terms of the number of victims, qualitatively in terms of the nature of the damage caused, geographically and temporally); the nature of the crimes (examining whether they involve such serious crimes as genocide, extermination, rape and other sexual and gender-based crimes, crimes against children, and persecution); the manner in which crimes were committed (considering whether they were systematic, resulted from a plan or policy or from abuse of power or official capacity, feature elements of particular cruelty or vulnerability of victims, involve discriminatory motives or result in destruction of the environment or protected objects); and the impact of the crimes (including increased vulnerability and terror for the victims, and the social, economic, and environmental damage inflicted on the affected communities). In relation to the latter consideration, the Prosecution commits to give particular consideration to Rome Statute crimes committed by means of, or that result in, the destruction of the environment, illegal exploitation of natural resources, or illegal dispossession of land. In this way, the OTP does not add new crimes to its mandate but rather acknowledges that it should consider these factual aspects of crimes within its pre-existing mandate when deciding on whom to prosecute and for what incidents and conduct.
The policy paper likewise gives appropriate guidance on the second criterion to be considered in selecting cases: the degree of responsibility of alleged perpetrators. In this respect, it is more nuanced than previous incarnations of the “most responsible” standard. It encourages the OTP to focus on persons who appear to be the most responsible for identified crimes but also acknowledges that it may be necessary to consider prosecuting mid- and high-level perpetrators, or even lower level perpetrators whose conduct is particularly notorious, to “build up” cases to those most responsible.
In some ways the most interesting criterion guiding the Prosecutor in selecting cases for investigation and prosecution is the third one—“the charges”. This reflects two different considerations. First, the Office aims to represent as much as possible the true extent of the criminality which has occurred in a given situation, preferring charges that offer a representative sample of the main types of victimisation and the communities affected by the crimes in a situation. But the Office also commits itself to paying particular attention to crimes that have been traditionally under-prosecuted—namely, crimes against or affecting children; rape and other sexual and gender-based crimes; attacks against cultural, religious, historical and other protected objects; and attacks against humanitarian and peacekeeping personnel. Preference for such “priority crimes” can already be seen in some of the OTP’s previous case selection choices: Lubanga, Ntaganda, and Ongwen involving child soldiers; Bemba, Ntaganda, and Ongwen involving rapes and other sexual violence crimes; Al Mahdi involving the destruction of religious, historical, and cultural property; and Banda involving the targeting of AU peacekeepers. The articulation of these types of victimisation as priority crimes helps to highlight their gravity and thereby help contribute to their prevention.
Finally, the case prioritisation criteria set out in the policy paper take into account the practical realities faced by the Office in its work. Considering the vast scale, nature, and complexity of its work, and comparing the ICC OTP to many national criminal justice prosecution offices, the OTP operates on a circumscribed budget and with limited resources. Accordingly, the case selection policy paper identifies strategic criteria to consider when prioritising cases. These include whether a person (or members of the same group) have already been prosecuted by the Office or a State for another serious crime; the impact of bringing a case on the victims of the crimes or affected communities and on any on-going criminality and crime prevention; and the impact of and the Office’s ability to prosecute opposing parties simultaneously or sequentially. Further, operational prioritisation criteria ensure that the Office considers the availability of evidence; prospects for international cooperation; the capacity to conduct necessary investigations within a reasonable time period taking account of the security situation in the area and the ability to protect persons at risk arising from interactions with the Office; and the potential to secure the arrest and surrender of suspects. Such strategic and pragmatic considerations will enable the OTP to prioritise cases in which it appears that it can conduct an effective and successful investigation leading to a prosecution with a reasonable prospect of conviction.
The OTP’s Case Selection and Prioritisation Policy Paper strives to provide a careful balance between acknowledging the Prosecutor’s broad discretion in deciding which cases to pursue while also providing clear and transparent criteria that are essential to such choices. The policy paper amply sets out the key factors that the Prosecutor must consider when choosing which cases to select and prioritise—both across the various situations and within each one. It provides sensible criteria and sufficient detail to guide the Prosecutor in making appropriate case choices but without acting as an unnecessary straight-jacket on her broad discretion or imposing a mechanical list of criteria to be applied. And finally, it should be recalled that the ICC does not operate as an isolated island of international criminal justice but rather exists in a sea of complementarity, as part of a wider archipelago of international criminal justice actors on the international, regional, and State level. It is only through combining the Office’s choices of which cases to investigate and prosecute with the pursuit of such cases by national criminal justice systems that the ICC’s goals of combatting impunity and preventing the recurrence of violence will be properly achieved.