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

Timely, But Is It Enough?

by Ottilia Anna Maunganidze, and Max du Plessis

On 15 September, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, released her office’s much-anticipated Policy Paper on Case Selection and Prioritisation.

The policy is a vital moment in the court’s history: it provides the standards by which the Prosecutor will select cases, manage priorities, and – perhaps most importantly – manage expectations, and dispel notions of bias.

The policy responds to outsiders’ legitimate desire to understand better the Office of the Prosecutor’s (OTP) approach to its casework. Specifically, it opens a window on how the OTP proceeds in selecting cases within a particular situation, and how the cases are prioritised once selected.

This policy will stand alongside the other policies and strategies of the OTP – including those on preliminary examinations, children and armed conflict, sexual and gender-based crimes, victims’ participation and on the interests of justice. In this regard, it adds to the OTP’s arsenal on how it deals with specific issues.

Another reason for the importance of the policy is its timing. Criticisms levelled against the ICC – both institutionally and at the Prosecutor specifically – regarding the choice of cases have reached a crescendo. It is thus vital, as the Prosecutor knows, to ensure that the public is informed and properly understands how decisions are made to pursue certain cases over others.

A full assessment on the merits of the policy is beyond the scope of this short piece, but certain key issues are worth underscoring. First, the accusations related to bias of the ICC are directed broadly (and cuttingly) at the situations before the court; not just specific cases arising in those situations. The decisions on which situations come before the court precede the selection of cases. The repeated refrain is that the ICC focuses predominantly on African situations and is – as a project of neo-colonialism, or worse, racism – ‘targeting’ Africa.

Second – and sometimes overlapping with criticism about the predominance of African situations before the Court – is the attack about what cases are brought before the ICC, how, and when.

In this regard, complaints have been wide-ranging. Some are concerned with the indictment of heads of state (particularly African leaders in the situations in Sudan, Libya, and Kenya). Others have raised the age-old international justice concern of ‘victors’ justice’ – where those indicted are predominantly, if not only, from one side of the conflict.

How does the policy paper address these concerns, if at all?

On the issue of the selection of situations, the policy is silent. Since identifying situations for investigation by the ICC is a vital prelude to case selection, it would be beneficial for the ICC Prosecutor to articulate a clearer policy on how situations are selected to provide insight and determine guidelines. This is particularly important given the role that preliminary examinations (for which the OTP has a complementary policy) play in determining situations and subsequently, the cases.

It is true that the Court has no control over situations referred to it by the United Nations Security Council (as in the case of Libya and Sudan) or by states parties (as was the case in the referrals by Uganda, the Central African Republic (twice), the Democratic Republic of Congo, and Mali). It is also true that other organs of the court, such as Chambers and the Registry, play various roles in this process.

However, by having the option to act proprio motu (as happened in relation to the situations in Côte d’Ivoire and Kenya), the Prosecutor is able to contribute to the situations before the Court. It is therefore important for the Prosecutor to consider supplementing this policy paper with one that covers – at the very least – the selection of situations by the Prosecutor herself.

The Prosecutor’s willingness to tackle any one particular situation over others still deserves attention, particularly where critics have queried the lack of action in bringing crimes committed in certain situations (for instance, Palestine) to the ICC. As noted by John Dugard, a South African professor on international law, such inaction by the OTP (as opposed to swift action in Kenya, by contrast) raises serious questions about institutional failure, potential bias, and the uneven political landscape of international justice.

The second issue, of victors’ justice, is identified directly as a concern in the policy paper – and rightly so. Criticism of selective and victors’ justice in deciding which cases to pursue has arisen in all of the current situations before the ICC.

Illustrative of perceptions of victors’ justice in the court’s case selection is the widely held view that the referral of the situation in Northern Uganda by Museveni’s government was an effort to ‘target’ the Lord’s Resistance Army (LRA) specifically, and that the OTP allowed itself to be used for this selective purpose.

The result is one-sided justice at the expense of ensuring accountability also for crimes committed by other parties. In the Uganda referral, it means that the ICC does not address crimes committed during the rebellion by parties other than the LRA.

The OTP has come out to say that they have not received any evidence of crimes allegedly committed by the Uganda People’s Defence Force, explaining why there are still no cases against government troops. Focusing on the LRA likely ensures some continued cooperation from the Ugandan government – although this is limited, given that the Ugandan government has since announced that they will no longer pursue the LRA in the Central African Republic. It could lend credence, however, to arguments that there is partiality in case selection. The OTP policy lists ‘international cooperation and judicial assistance’ as one of the operational criteria that the office will consider in case prioritisation.

Also worth citing are criticisms leveled against the OTP for only indicting those affiliated with the government of ousted Ivorian president Laurent Gbagbo in the Côte d’Ivoire situation. The OTP has been at pains to explain that it is still looking into the matter and examining ‘both sides’ to the post-election violence that ravaged the country in 2010 and 2011.

Ironically, in the Kenyan situation the OTP attempted balance by indicting equal numbers of perpetrators from across the political divide. This too can be criticised as ‘too neat’ and attempting to show lack of bias, rather than pursuing accused based on conduct and following the evidence – wherever it may lead.

One of the general principles listed in the OTP policy paper is ‘impartiality’. In this regard, the OTP underscores that it will examine allegations against all groups or parties in a particular situation. However, and rightly so, the policy explains that the OTP will not seek to create an appearance of parity and further that impartiality does not mean ‘equivalence of blame.’

The policy states that cases will only be brought if they meet the substantive selection criteria. However, beyond stating how it views impartiality, the OTP does not clearly respond to concerns raised about victors’ justice and the OTP’s practice to date. By doing this, the OTP sidesteps giving greater clarity on how its practice will reflect equitable justice that is not driven by ‘the victors.’ While the policy does not articulate this, in practice the OTP ought to develop ways to ensure equal justice and guard against one-sided justice. This would involve finding innovative ways to continue work with cooperating entities (e.g. the government, a rebel group, or any other group) to get evidence, but simultaneously gather evidence against them.

The policy provides insight into how the OTP intends to select cases and thereafter prioritise them, which is useful in clarifying the Office’s stance. However, it does little to address concerns about current operations.

There are other ways that the OTP can address these concerns beyond issuing policies such as clear communication, transparency, and effective action.

The policy is just a broad framework that commits the Prosecutor to general guiding principles, but not much else. Ultimately then, as with all policies, the test is not just what the policy commits the Prosecutor and her office to doing, but rather what they do and how.

Of course, these are not tasks for the OTP alone. Other organs of the Court should also play their part.

***The original version of this article was published on the Institute for Security Studies website on September 28, 2016. This version of the article includes additional material and was re-published for International Criminal Justice Today.

Ottilia Anna Maunganidze

Ms. Ottilia Anna Maunganidze is the acting Programme Head and Senior Researcher at the Institute for Security Studies (ISS) with a focus on emerging threats. At ISS, she helps to inform institutional strategy, and also undertakes research and provides technical assistance support to the Transnational Threats and International Crime (TTIC) division of the ISS. Her areas of interest are international criminal justice, international human rights law, and criminal justice responses to complex crimes and transnational threats.

Max du Plessis

Max du Plessis is an associate professor of law at the University of KwaZulu-Natal and a senior research associate at the International Crimes in Africa Programme at the Institute for Security Studies.

In addition to his academic and research work, Max is practising barrister in South Africa with an expertise in international and constitutional law. He has appeared in numerous cases in the South African Constitutional Court, is representing Professor Kenneth Good (who was expelled from Botswana for criticizing the President) before the African Commission on Human and Peoples Rights, and has represented NGOs in South Africa in utilizing South Africa’s Implementation of the Rome Statute of the International Criminal Court Act in pursuing cases against individuals accused of international crimes in Zimbabwe and Gaza. Most recently he successfully represented the applicants in a High Court review of the South African Prosecuting and Police officials’ failure to investigate torture as a crime against humanity in Zimbabwe, a case brought under South Africa’s ICC implementation legislation.

He has written widely in the field of international and international criminal law and spent a month in the International Criminal Court in 2007 as a visiting expert. He holds the degrees: B.Iuris (University of South Africa), LL.B (University of Natal), LL.M (Cambridge University), PhD (University of KwaZulu-Natal).