Accountability mechanisms to challenge prosecutorial discretion

As discussed earlier, the Prosecutor preserves a significant amount of discretion in his or her investigatory, screening, charging, and admissibility determinations. Therefore, the importance of the prosecutor’s decision and their application of procedural mechanisms raise some important issues such as prosecutorial accountability for the use of discretion, how the ICC should assert its judicial authority, especially in relation to non-states parties, and how this will affect the struggle for political legitimacy.184

178

Draft Policy Paper on Preliminary Examination, 4th October 2010, para.42 www.icc-

cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Policies+and+Strategies/

179

Stahn, Op.cit., p. 215.

180

Danner, The American Journal of International Law, Op, cit., p. 550.

181

Barnett, M. N. and M. Finnemore (1999). "The Politics, Power, and Pathologies of International Organizations." International Organization 53(4): 699-732. p. 707.

182

Ciampi, A. (2008). "The Proceedings against President Al Bashir and the Prospects of their

Suspension underArticle 16 ICC Statute." Journal of International Criminal Justice 6: 885-897. p. 892.

183

Case The Prosecutor v. Thomas Lubanga Dyilo, Public document, transcriptsICC-01/04-01/06-T-98- ENG ET WT 18-11-2008

184

The notion of accountability includes two functions: answerability and enforcement. There are different kinds of accountability to which the Prosecutor is subject in the context of international institutions. The accountability mechanisms can be formal or informal; ranging from hierarchical budgetary constraints, to internal office policies. Before a domestic judge, different actors such as defendants or victims can challenge prosecutorial discretion.185 By contrast, international institutions are not generally accountable to any particular state. In many cases, member states have been unable to change the decision taken by international institutions.186 The Rome Statute grants the Prosecutor independence from state control in the identification and investigation of alleged perpetrators of international crimes. As such, based upon the ICC’s institutional structure, the Prosecutor may pose a danger to world order because of inadequate checks on his or her discretion.187 The most important check on prosecutorial authority would be in relation to proprio motu investigation, which needs the authorization of the Pre-Trial Chamber.188 However, there are no adequate checks on the Prosecutor’s discretion to determine how to conduct investigations and prosecutions in the situations which are referred by the Security Council or by the state.189

In the context of the ICC, formal accountability190 is exercised by the ICC judiciary and by the state representatives in the Assembly of States Parties (ASP). In other words, accountability is not available in the sense of electoral accountability or in the sense of a mechanism for determining formal legal responsibility or liability.191 The election of the Prosecutor is one of the important decisions made by the ASP. When the Rome Statute came into force on July 1, 2002, the ASP decided to elect the Prosecutor by consensus in February 2003. The nomination period was from September 9 to November 30, 2002.192 A number of states considered nominating a candidate for this post but by 30 November 2002 a candidate had still not been agreed.193 Accordingly, the ASP announced the extension of the deadline for the nomination of the Prosecutor, based

185

Stahn, Op, cit., p. 248.

186

Schedler, A., L. Diamond, et al. (1999). The Self-Restraining State: Power and Accountability in New Democracies Lynne Rienner. p. 14.

187

Danner, The American Journal of International Law, Op, cit., p. 511.

188

Wouters, Op, cit., p. 283.

189

Danner, Op, cit., p. 522.

190

Reinisch, A. (2001). "Securing the Accountability of International Organizations." Global Governance

7(2): 131- 149. p. 140. 191

Danner, Op, cit., p. 525.

192

untreaty.un.org/cod/icc/elections/prosecutor/prosecutor_nominations.htm [accessed on 10th September 2011]

193

fra.controlarms.org/library/Index/ENGIOR400012003?open&of=ENG-2AM [accessed on 10th September 2011]

upon its Resolution ICC-ASP/1/Res.2 on the procedure for the nomination and election of judges, the Prosecutor and Deputy Prosecutor. However, no nominations for the Prosecutor were made for the attention of the ASP.194 Therefore, the President of the Assembly encouraged states to continue ‘to consult informally first on suitable candidate(s) in order to ensure that any nominations for this post command the support of as many interested states as possible.’195 Subsequently, on March 24, 2003, the President of the Assembly announced that the States Parties to the Rome Statute ‘agreed informally, and on the basis of consensus, to elect at the forthcoming resumed session of the Assembly of States Parties, Mr. Luis Moreno Ocampo, of Argentina, as prosecutor of the International Criminal Court.’ He was officially selected on April 21, 2003 in New York.196 This informal process was not conducted by the more transparent method as with the ICC’s judiciary. Thus, the lack of transparency of the method by which the Prosecutor was appointed has had a deleterious effect on the independent regime of the prosecution.197 Therefore, the Prosecutor should make every effort to facilitate a transparent decision-making process in the future.198

The role of the ASP in assessing the scope of prosecutorial discretion and carrying out judicial review of discretionary prosecutorial decision-making - as formal accountability mechanisms - is an important aspect of the accountability of the Prosecutor’s actions.199 It was supposed that the ASP would act as a strong check on the Prosecutor.200 However, Danner has claimed that the ASP is not a sufficient mechanism of accountability since the jurisdiction of the Court extends to nationals of non-states parties of the Rome Statute and they do not have a representative in the ASP.201 They may only send observers to the ASP.202

The assertion of the ICC’s jurisdiction over nationals of non-states parties, and the prosecutor’s determination of what situation and which accused, ensure the political sensitivity of the jurisdiction of the Court. An important question may arise as to whether the judicial review should apply at every level of prosecutorial decision-

194

untreaty.un.org/cod/icc/elections/prosecutor/prosecutor_nominations.htm [accessed on 10th September 2011]

195

fra.controlarms.org/library/Index/ENGIOR400012003?open&of=ENG-2AM [accessed on 10th September 2011]

196

www.icc-cpi.int/Menus/ASP/Press+Releases/Press+Releases+2003 [accessed on 10th September 2011]

197

Danner, Op, cit., Stanford Law Review, p. 1660.

198

Ibid.,

199

Ibid.,

200

Danner, The American Journal of International Law, Op, cit., p. 524.

201

Ibid.,

202

making.203 As mentioned above, formal accountability, including judicial and electoral review by the ASP, is specifically described in the Rome Statute. Apart from that, there is only an informal or pragmatic accountability for the Prosecutor’s discretionary decisions.204 Based upon this kind of accountability, the Prosecutor might be accountable to other entities such as NGOs and non-states parties regarding the effectiveness of his or her work. However, ‘there is no one controlling the on/off switch to the Office of the Prosecutor.’205 In terms of pragmatic accountability, the complementarity regime contains admissibility provisions and may provide state control over the Prosecutor’s decision to pursue particular investigations and prosecutions. However, some states and NGOs might support the Prosecutor in pursuing specific cases. The formal and pragmatic accountability mechanisms of the Rome Statute are not sufficient to guarantee the quality of the Prosecutor’s decision- making. The formal accountability mechanisms - provided by the ASP and the judiciary - will not necessarily cause fewer misjudgements. The regime of pragmatic accountability, while more sensitive to individual decisions, is ‘dependent on whether or not a state or an NGO that wishes to protest against a prosecutorial decision has some leverage to use against the Prosecutor at that time’.206

In this context, a consideration of the procedural limitations on the ICC Prosecutor is important to understand how the ICC deals with the prospects of an abusive Prosecutor or an imbalance of power that might affect its fairness and legitimacy.207 The Court faces difficult and critical challenges in establishing its credibility. It is vitally important for the Court to provide the balance between the necessary requirements of fairness and the high expectations of victims and the international community208 but the ICC Prosecutor’s decisions are only subject to limited control by the Pre-Trial and Appeal Chambers of the Court.209 The recent stay of proceedings in the Lubanga case is an illustration of this challenge and the difficulty in finding a balance. On the whole, it is arguable that one noticeable feature in the working of the ICC until now is ‘the ongoing struggle between the Prosecutor and the pre-trial chambers for control over

203

Danner, The American Journal of International Law, Op, cit., p. 525.

204 Ibid., 205 Ibid., p. 534. 206 Ibid., p. 536. 207

Roach, Op, cit., p. 54.

208

Jacobs & Arajarvi, Op, cit., p. 130.

209

the pre-trial phase.’210 The Pre-Trial Chamber could also be responsible for assessing the information provided by non-state actors. Given the influential role played by NGOs in the ICTY, the NGOs provide a substantial amount of information or eyewitness testimony to the Office of the Prosecutor. But much of this evidence may not meet the strict evidential requirements of the ICC.211 For instance, the prosecutor’s position in the Lubanga case, according to the Court, amounted to ‘a wholesale and serious abuse’ of an exception that allows prosecutors to receive evidence which is not in itself admissible, but which could lead in turn to usable evidence.212

3.4 The scope of judicial supervision of prosecutorial investigation in the