Prosecuting international crimes at the International Criminal Court: is there a coherent and comprehensive prosecution strategy?

Kai Ambos,Ignaz Stegmiller

doi:10.1007/s10611-012-9384-z

Abstract

The authors analyze the so far published selection and strategy papers of the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) with a view to their consistency, coherence and comprehensiveness. Given the high number of communications and referrals to the ICC a focused strategy setting out the criteria for situation and case selection and prioritization should be one of the priorities of the Prosecutor. Thus far the Office has developed a strategic framework guided by four fundamental principles: focused investigations, positive complementarity, the interests of the victims and the impact of the OTP’s work. These four principles are critically evaluated by the authors in light of the ICC Statute and existing case law. In particular the positive complementarity approach, focusing on the cooperation with national jurisdictions and enhancing their own capacity to prosecute, is to be welcomed and reflects a realistic prosecutorial policy approach. The cooperation between the OTP and Germany in the prosecution of the leadership of the FDLR is a good case in point. Only such a close interaction with national jurisdictions enables the ICC to contribute to the further closing of the impunity gap. Yet, the OTP must still more precisely define its position with regard to the criteria used for the selection of situations and cases. Thus, a priority for the new Prosecutor should be the drafting of a more precise and comprehensive strategy, integrating the already existing policy and strategy papers as well as drawing on lessons learned.

Highlights

The selection and prioritization of cases to be prosecuted before the International Criminal Court (ICC), while necessary and legitimate given the existing capacity constraints and the goals of the Court to prosecute the “most serious crimes” of the “most responsible”, runs the risk to bring the Court into disrepute if not done properly, i.e., in a transparent and rational way
One must distinguish between the selection process of the Office of the Prosecutor (OTP) and the – lately very much criticised – referral procedure of the UN Security Council (SC) which so far has only been invoked with regard to Non-State Parties of the ICC (Darfur, Sudan and the Libyan Arab Jamahiriya)
This paper focuses primarily on the selection of cases, a core issue for prosecutorial coherence; yet it does not pretend to cover all questions that might arise during the complex selection process

Summary

Introduction

The selection and prioritization of cases to be prosecuted before the ICC, while necessary and legitimate given the existing capacity constraints and the goals of the Court to prosecute the “most serious crimes” of the “most responsible”, runs the risk to bring the Court into disrepute if not done properly, i.e., in a transparent and rational way. Even in the case of prima facie pre-defined situations, by way of a SC or State referral (see section), the ultimate decision whether to initiate a formal investigation rests upon the Prosecutor and the Judges, based on the criteria of articles 53 (1) ICC Statute (Draft Policy Paper on Preliminary Examinations, 2010, at 5 [15]; Stegmiller, 2011 at 113–4, [63]).

Results

Conclusion