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


A Good Working Document of the Office of the Prosecutor


by Honorable Ekaterina Trendafilova

The Paper on Case Selection and Prioritisation (Paper) of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) was published on 15 September 2016. The Paper is an important document on a core aspect of the prosecutorial powers, i.e. the selection of cases for investigation and prosecution. The publication of the Paper is commendable as it provides insight into important developments, enhances transparency, and promotes confidence in the operations of the institution. The case selection policy has an important impact on the work of the ICC, its image, and legitimacy. It therefore deserves attention and consideration.

The Paper draws on previous policy documents and reports, and incorporates lessons learned from both successful and less successful prosecutions. It also relies on the jurisprudence of the ICC Chambers, practices of other international tribunals and national jurisdictions, and pays heed to critical comments from the international community, academia, and affected communities.

The Paper follows a sound structure starting with a concise description of the “Case Selection Document”, which will be regularly updated to help the Prosecutor select those to be pursued, continued, or closed. The Paper expands on the selection policy by describing its distinct elements: starting with the general principles of independence, impartiality and objectivity; proceeding with the legal criteria of jurisdiction, admissibility (in its two limbs - complementarity and gravity) and interests of justice; and finally focusing on the specific case selection and prioritisation criteria.

SELECTION

The OTP’s selection of situations and cases has attracted vigorous criticism of late. The OTP has been accused of playing favourites by not investigating all parties to a conflict, applying double standards of justice, being motivated by political considerations, or overlooking the expectations of affected communities. The Paper suggests that the Prosecutor has considered such concerns and criticism, and endeavours to remedy shortcomings in the selection policy.

General Principles

Independence

As outlined by the Rome Statute, the Prosecutor retains independence of judgment and discretion in selecting situations and cases for investigation and prosecution. This power of the Prosecutor is not in dispute; it is crucial for resolving the tension between, on the one hand, the global nature of the ICC, its growing popularity, and increasing expectations of justice of the international community, and on the other hand, capacity constraints. However, the Prosecutor’s exercise of discretion is a challenge. If the Prosecutor is perceived as being biased, the legitimacy of the OTP and of the ICC will be seriously affected. In this respect, several questions arise; on what basis should cases be selected? What crimes should be investigated and who should be prosecuted? Why are particular cases selected over others?

Impartiality; Objectivity

The Paper demonstrates that case selection is largely an evidence-driven process whereby both incriminating and exonerating evidence is evaluated. A further manifestation of this approach is the statement that the Office will examine all parties to a conflict and all groups within a particular situation. The Prosecutor, however, stipulates that cases will not be selected merely to create the appearance of parity between rival parties. Accordingly, while the Paper notes that “the Office will apply the same processes, methods, criteria and thresholds for members of all groups”, it is underscored that “[t]his may in fact lead to different outcomes for different groups.” The Prosecutor makes clear that “[c]ases against specific persons will only be brought if they meet the case selection and prioritisation criteria identified in this policy paper.” While the logic of this statement is clear, its genuinity will be tested in the actual performance of the OTP’s functions.

Case Selection Criteria

Gravity of Crime(s)

The gravity of crime(s) criterion is rich in substance. This is scarcely surprising, given the importance of said criterion in the selection of cases under investigation. As stipulated in the Regulations of the OTP and elaborated by ICC Chambers, the assessment of gravity is guided by factors like the scale, nature, manner of commission, and impact of the crimes. These factors are consecutively expounded in the Paper in light of the experience of the OTP in its daily operation during preliminary examinations, investigations, and prosecutions. Logically, as the predominant selection criterion, gravity also plays a central role in determining the degree of responsibility of alleged perpetrators and what charges to bring.

Degree of Responsibility of Alleged Perpetrators

Regarding perpetrators selected for prosecution, in principle, the Prosecutor goes after those who are allegedly “the most responsible” for the crime(s) committed. Relevant factors for assessing the extent of responsibility are “the nature of the unlawful behaviour; the degree of [the person’s] participation and intent; the existence of any motive involving discrimination; and any abuse of power or official capacity.” Worth noting is the emphasis in the Paper that de jure hierarchical status cannot be equated with “most responsible.” This is in line with well settled jurisprudence of the ICC, including the recent Bemba trial judgment, that an individual’s de facto status at the time of the commission of the alleged crime(s) is the relevant factor to be considered in bringing to book the responsible individuals. The Paper also advances that, in view of some practical considerations, mid- and high-level perpetrators could also be prosecuted for the purpose of “[building] the evidentiary foundations for case(s) against those most responsible.” Further, there may be instances when the Prosecutor decides to go after “lower-level perpetrators where their conduct has been particularly grave or notorious”.

Charges

The Paper makes clear that the Prosecutor will not bring charges for all crimes falling under ICC jurisdiction. Instead, charges brought will be a representative sample of the main type of victimisation of affected communities, with particular attention given to crimes that have been traditionally under-prosecuted, i.e. crimes affecting children, rape and other gender and sexually based crimes. This reflects the OTP’s goal to put an end to such crimes and to build a culture of intolerance towards said criminality. The OTP is to be commended for prioritizing these issues.

Legal Criteria

Jurisdiction; Admissibility

The Paper endorses and further develops the jurisdiction and admissibility criterions as set out in previous documents of the OTP and jurisprudence of the ICC. Importantly, the Paper acknowledges that the OTP is only one of the mechanisms of a broader comprehensive strategy for combating atrocity crimes, which concern all mankind. This perception derives from, and is in line with, the principle of complementarity – the cornerstone of the establishment and functioning of the Court. Specifically, complementarity is “burden-sharing” – an approach promulgated in the Paper whereby the Prosecutor can share casework with nations that also have jurisdiction. The Paper also notes that the OTP could contribute to domestic investigations and prosecutions by sharing relevant information and evidence with national authorities. As such, complementarity and cooperation are fostered by budgetary resources allocated to other cases where ICC intervention is justified and compelling.

Interests of Justice

Unlike other portions of the Paper, the coverage the “interests of justice” criterion is  scant and underdeveloped. Said criterion has yet to be employed by the OTP and the Paper merely reitterates what has been stated in previous documents, namely that “[the] decision not to proceed on the basis of the interests of justice should be understood as a course of last resort.” This legal criterion deserves elaboration, not solely for judicial necessity, but to provide guidance to interested States or other actors as to when and under what conditions the interests of justice scenario could be a relevant point of discussion.

PRIORITISATION

The prioritisation of selected cases is another vital issue that is within the Prosecutor’s powers. The Paper advocates a thorough analysis of all pending or potential cases so that an informed decision on prioritisation can be taken. The Paper outlines two additional prioritisation criteria – strategic and operational – which facilitate the Prosecutors prioritization of cases. Strategically, the OTP will consider factors, such as: whether a person has already been investigated or prosecuted; the impact of investigations and prosecutions on victims and affected communities; the impact on ongoing criminality and its prevention; the ability of the OTP to prosecute parallel or sequentially rival parties.

It is exigent that the OTP evaluate in more detail operational considerations that are conducive to the enhanced likelihood of conviction. Specifically, the Prosecutor will consider, inter alia: the evidence (incriminating and exonerating), with its strengths and weaknesses; the specific situation in the country/region where the cases stem from (i.e. ongoing conflict); the level of State cooperation; whether the government is hostile or supportive; security issues; the protection of those cooperating with the OTP; the potential for arrest and surrender of suspects; and the prospects of conviction. As highlighted in the Paper, this assessment is a constant exercise, subject to change of circumstances with no one factor being more important than another. Logically, as the Prosecutor herself notes, this could lead to the prosecution of some cases being postponed.

The Paper stipulates that the OTP may seek to amend or withdraw charges if the evidence available does not support the requisite elements of the charges, or supports different charge(s). The Prosecutor may also submit the matter to the relevant Trial Chamber for legal re-characterisation pursuant to the Court’s regulations. This is a warranted policy, but its efficiency requires the close supervison of ongoing investigations so the Prosecutor can give concrete instructions, monitor the advancement of evidence gathering, and assess its quantity, quality, relevance, and links (direct or indirect) to the contextual and/or specific elements of the crime(s). Early management of investigations, together with consistent oversight, should reveal any cases where charges are unsubstantiated, thus allowing for shortcomings to be remedied or charges dropped, and for more efficient use of the OTP’s finite resources.

CONCLUSION

In conclusion, the Paper is a comprehensive working document that can help develop long-term policy and assist in resolving short-term challenges faced by the OTP. It promises to be a useful tool in the Prosecutor’s case selection responsibilities. Yet, it is of paramount importance that the Paper face regular review in light of developing practices and emerging challenges. Likewise, the Prosecutor should be flexible and ready to constantly improve these processes through critical evaluation and external consultations . What remains to be seen is how the policy will be implemented by the OTP, which will determine whether the Paper is a meaningful contribution to the core objective of the ICC: end impunity for the worst international crimes.

Honorable Ekaterina Trendafilova

In December 2016, Judge Trendafilova was appointedthe first President of the Kosovo Specialist Chambers based in The Hague, The Netherlands. As a Judge at the International Criminal Court (2006-2015), Judge Trendafilova was Presiding Judge in the Pre-Trial Division in the cases stemming from the situations in the Republic of Uganda, the Central African Republic, Republic of Kenya, the Democratic Republic of the Congo, Sudan (Darfur), Cote d’Ivoire, Mali. She has also served as President of the Pre-Trial Division. Judge Trendafilova sat as a Judge of the Appeals Chamber on the first final appeals in the cases of the Prosecutor v. Thomas Lubanga Dilyo and the Prosecutor v.  Mathieu Ngudjolo Chui.

Judge Trendafilova has extensive experience in criminal law, criminal procedural law, evidence law, international and comparative criminal law, criminal justice and human rights. She has been a Professor of Criminal Justice and International Criminal Justice at Sofia University since completing her PhD in 1984 as well as a deputy district attorney at Sofia District Court (1985-1989) and a barrister (1995-2005). She was the representative of Bulgaria to the UN Commission for Crime and Criminal Justice (1992-1994). Judge Trendafilova chaired the working group on the reform of the Bulgarian criminal procedure in line with European and international standards for efficient administration of justice and protection of human rights (1998-2000). She chaired the Criminal Division of the Legislative Consultative Council with the President of the Parliament of Bulgaria (2001-2006). Judge Trendafilova has been granted Alexander von Humboldt (1993-1994) and Fulbright (1997) scholarships. She has publications in the field of international criminal justice, comparative criminal law and procedure and human rights. Judge Trendafilova has been awarded by the Government of Bulgaria and non-governmental organizations for her contribution to the legal reform, the administration of justice and the rule of law.