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What are your thoughts on the ICC Office of Prosecutor's Policy on Case Selection and Prioritisation?

Feeding Time at the Office of the Prosecutor

by Professor William A. Schabas

The following document was recently issued by the Office of the Prosecutor of the International Criminal Court:

Policy Paper on Meal Selection and Prioritisation

In selecting menu items when they eat in restaurants, members of the Office of the Prosecutor make a selection, using a focused approach, and applying a standard analytical methodology. This should not be confused with the choice of restaurant and the style of food, a subject addressed in the Policy Paper on Situations. Generally, members of the Office of the Prosecutor proceed in a sequential manner, selecting from categories and usually choosing a starter, a main and a desert. Although the order in selection of courses is generally followed, it should not be viewed as necessary in all cases, and the Office reserves the right to select components of the meal in a different order consistent with the Regulations of the Office, as amended.

When selecting within a category, members of the Office take into account the following factors: (a) appearance; (b) the name of the dish; (c) anticipated taste and texture; (d) availability; (e) variety; (f) cost; (g) caloric intake. There is no hierarchy, however, and one or more of these factors may be of particular importance, depending upon the circumstances.

In selecting wine to accompany the meal, members of the Office apply the same criteria. The Appeals Chamber has cautioned against an overly restrictive approach.* This is borne in mind by the Office, which reserves its right not to select the most expensive bottle.

The Office of the Prosecutor recalls that every meal and wine selected must be available at the time, at the price advertised in the menu. In addition, members of the Office will not order certain food products if issues of possible allergic reaction, religious prohibition, gastric reflux or ideological conviction are present. Although there is no prioritisation suggested by the Rome Statute, members of the Office may attribute particular importance to gender-related issues as well as credible reports from intermediaries that particular cruelty was involved in the preparation of certain foods.

*Prosecutor v. Haut-Brion and Bandol (ICC-03/05-01/15), Appeal Decision on Prosecutor’s Decision to Decant, with confidential annex, 29 February 2015.

No, the Prosecutor did not recently issue a Policy Paper on Meal Selection and Prioritisation,” whatever benefits such a document might offer. But like the “Policy Paper on Case Selection and Prioritisation” released on 15 September 2016 (the Policy Paper), this supposed Meal Section policy paper presents a very thorough and ostensibly comprehensive overview of the factors involved in the exercise of prosecutorial discretion at the dining table. But can one tell, from reading the text, whether the Prosecutor, when she has lunch in the Court’s canteen, will be eating fish, chicken, or beef, or drinking still water, sparkling water or diet Coke? Both policy papers, the official one issued late in 2016 and the contrived one above, fail to tell us anything we don’t already know.

The Policy Paper recalls the obvious: cases will only be selected when they fall within the jurisdiction of the Court, when they are admissible, when the evidence is available, when the crimes are very serious, when the suspect bears significant responsibility for the criminal acts, and so on. It also reminds us that the Prosecutor will act impartially, and with independence and objectivity. We would not expect anything less. As such, is such an explication really necessary? After all, judges don’t regularly remind us in their judgments that they are acting impartially, with independence and objectivity.

As is the case with the selection of situations, the Office’s Policy Paper on case selection provides ample justification for its practice over the past decade in the choice of past and current cases. All of the charges that have been filed to date are properly explained by the Policy Paper. But just as the Policy Paper on selection of food adequately accounts for the choice of chicken or beef, it is incapable of explaining why the Prosecutor did not pick the fish. Or why, if the Prosecutor chose beef, she made that choice among the available options. The same can be said of case selection: the cases already selected fit the scheme, but what about the others that fit the scheme and were not selected? At present, there are ten situations ‘under investigation’, with cases already identified in most of them. Within those ten situations are many thousands of eligible cases, all of them capable of being explained by the Policy Paper if the Office were to decide to pursue them. Why were they not chosen?  And why were these cases, among the ones that could have been selected, the ones that have been selected?

The first arrest warrants sought and obtained by the Prosecutor concerned the situation in Uganda. The choice of Joseph Kony and some of his associates seemed obvious enough, given the notoriety of the Lord’s Resistance Army (LRA). The then-Prosecutor was nevertheless challenged by major NGOs for failing to charge officials in the Ugandan People’s Defence Forces (UPDF). He explained that the Office had analysed “the gravity of all crimes in Northern Uganda committed by the LRA and Ugandan forces. Crimes committed by the LRA were much more numerous and of much higher gravity than alleged crimes committed by the UPDF. We therefore started with an investigation of the LRA.” Started? And finished. Because the atrocities attributable to the Ugandan People’s Defence Force have remained unpunished at the International Criminal Court, although many would easily fit within the four corners of the Policy Paper.

The Policy Paper states that “the Office will not seek to create the appearance of parity within a situation between rival parties by selecting cases that would not otherwise meet the criteria set out herein. Impartiality does not mean ‘equivalence of blame’ within a situation.” That statement is unimpeachable, at least in theory. In practice, however, it will do nothing to quell suspicions that criteria other than those in the Policy Paper are at work. Could it be that the Prosecutor promised Uganda’s President Museveni a “get out of jail free card” when he encouraged the Court’s first “self-referral”?

There has been much agitation in the media and in blogs about a solitary sentence in the Policy Paper indicating that the Prosecutor’s exercise of discretion may be influenced by such factors as “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.” One recalls the excitement when, thirteen years ago, the Prosecutor indicated that he would be looking at the business connections to war crimes and other atrocities. Did anything happen? To read the pundits who have seized upon this rather isolated reference in the recent Policy Paper, one would think that a major amendment to the Rome Statute had been adopted.

The Office of the Prosecutor of the International Criminal Court stands out by comparison with other prosecutorial teams at international criminal tribunals for its efforts at transparency. Matters left shrouded in mystery by the other bodies benefit from lengthy explanation by the Office of the Prosecutor in the form of policy papers on such issues as selection of situations, the conduct of preliminary examinations (a sui generis stage in the prosecutorial process), and “interests of justice.” Yet all of this ultimately seems to reinforce the myth that the exercise of prosecutorial discretion can be reduced to a series of formulae, as if there is an iPhone app to tell us that one case merits prosecution while another does not. In fact, the selection of cases is about as opaque as explaining why, given a choice, the hungry diner selects chicken and not fish, Bordeaux and not Burgundy. The Policy Paper pretends to clarify and inform but in reality it only serves to obscure things, perpetuating the fiction that the process is fundamentally objective rather than one that is inevitably steeped in subjectivity.

Professor William A. Schabas

William A. Schabas is professor of international law at Middlesex University London, professor of international criminal law and human rights at Leiden University and emeritus professor of human rights law at the National University of Ireland Galway. He is the author of many books and articles on the abolition of capital punishment, genocide, human rights and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission and Chairman of the UN Commission of Inquiry on the 2014 Gaza Conflict. He is an Officer of the Order of Canada, a member of the Royal Irish Academy, and holds several honorary doctorates