The exercise of prosecutorial discretion within the ICC structure:

The issue of prosecutorial discretion and when and how it can and should be exercised is one of the deepest and most difficult questions facing the Court.101 It is important to consider the principles according to which the Prosecutor should perform his or her moral obligation in multi-cultural world. In practice, national courts may be in a better position to initiate proceedings; otherwise, the Prosecutor must intervene and prosecute cases based on code of prosecutorial ethics. In this sense, ‘the Prosecutor’s unique brand of discretion’ is a new issue for international criminal justice and the question of prosecutorial discretion at the ICC has been criticized in the early years of its work.102 A key concern relates to the extent to which the Prosecutor should develop his or her own prosecutorial guidelines and whether or not the Judges should direct the Prosecutor through their judicial interpretation of the Rome Statute.103 In fact, the Prosecutor must consider a range of policy and strategy matters in executing his or her ethical duty which will have an impact on the framework of international criminal justice. These include normative requirements and guidelines for admissibility assessment, the selection of cases for preliminary examination or investigation, and the criteria for determining whether states are unwilling or genuinely unable to investigate or prosecute crimes.104

Given that the prosecution of everyone responsible for international crimes is not possible, selective prosecution is accepted in all legal systems and is consistent with

99

Jacobs, D. and N. Arajarvi (2008). "The International Criminal Court." the Law and Practice of International Courts and Tribunals 7: 115-160. p. 128.

100

Wouters, J. (2008). "The OTP: Accountability and independenc." International Criminal Law Review

8: 273-318. p. 289. 101

Greenawalt, Op, cit., p. 600.

102

Stahn, Op, cit., p. 185.

103

Mcdonald, A. & Haveman, R. Op, cit.,

104

general principles of law.105 The Prosecutor must also consider the development of guidelines for prosecution and policy with respect to requests by the UN Security Council or the state referral of a situation.106 In addition, it is important to take into account to what extent the Prosecutor should limit investigations and indictments to situations that fit the standard contexts associated with international criminal prosecution.107 As mentioned earlier, making decisions over whether to investigate or to prosecute is one of the prosecutorial discretion issues. The timing of indictments is the other relevant discretionary issue. This is because the nature of the ICC allows the Court to issue indictments during an ongoing conflict. However, the question arises as to whether the Prosecutor should investigate and bring charges in situations where the conflict is still on-going. Arguably, an investigation into an ongoing conflict makes the political consequences of that investigation more sensitive. This is particularly pertinent as all of the ICC’s ongoing investigations, notably in the Darfur region of the Sudan and the DRC, are taking place in the midst of ongoing conflict. Thus, a question may be raised here as to what effect the prosecutorial process may have on efforts to end violent conflicts and achieve peace.108 The Rome Statute is silent about the time limit of charging within which the Prosecutor can make a decision to initiate an investigation into an ongoing conflict. This issue may raise another question about the operation of the complementarity regime in terms of the extent to which the Prosecutor can seek indictments at times of conflict, especially when states are highly unlikely to be both willing and able to pursue prosecutions.109

It should be noted that the political role of the Prosecutor plays an important part in the administration of international criminal justice. Knowledge of the legal framework and the operational dynamics of the military and political structures of the concerned situation are crucial to determining the individual responsibility of the accused and to establish the chains of command. Thus, knowledge for this purpose should not be based only upon secondary sources, particularly when there is a parallel mechanism of decision-making based upon individuals in their personal capacity and their official

105

Bassiouni, C. M., Ed. (2002). Post-Conflict Justice. International and Comparative Criminal Law Series, Martinus Nijhoff. p. 79.

106

Hall, Op, cit.,

107

Greenawalt, Op, cit., p. 634.

108

Ibid., p. 641.

109

position in the chain of command.110 As has been mentioned already, the issue of who to prosecute is one of the most important considerations in prosecutorial decision- making. The international criminal Prosecutor must also consider how far they should focus on higher level accused and/or low ranking perpetrators (the logic oftargeting so- called big fish versus small fish).111 Article 1 of the Rome Statute declares that the Court ‘shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.’112 However, selected cases in current situations at the ICC have met this criterion in different ways. For instance, in the DRC situation, the first case selected concerned recruiting child soldiers. In contrast, in the situation of Darfur it was announced that the preference will be for ‘big fish’ in investigating crimes.113 Therefore, the question that arises here is why the prosecutor is seeking Al- Bashir’s arrest for genocide, the most serious crime with which he can be charged and the most difficult to prove.114

The other key question is whether the Prosecutor should worry about the risks of destabilizing delicate political situations through the publicizing of investigations or the bringing of charges. The Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), Louis Arbour, was faced with this question when she decided to indict Slobodan Milosevic in 1999.115 Although many observers criticized her decision, the ICTY Prosecutor maintained that she had decided independently to indict Milosevic from the fear of granting him amnesty by the North Atlantic Treaty Organization (NATO).116 These criticisms and reactions to the Milosevic indictment indicate the importance of guidelines when the Prosecutor is exercising his or her discretion in controversial cases. Similarly, the ICC Prosecutor encountered this issue in relation to the Darfur situation when the request for the issue of a warrant of arrest against the president of the Sudan, Al-Bashir, was announced in July 2008. The case of

110

Cayley, A. T. (2005). Senior Trial Attorney’s Advice on Darfur Case Strategy Internal Memorandum of Law. the Hague, p. 9.

111

Takemura, H. (2007). "Big fish and small fish debate- An Examination of the Prosecutorial Discretion." International Criminal Law Review 17: 677-685. p. 678.

112

Article 1 of the Rome Statute

113

Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno-Ocampo to the United Nations Security Council Pursuant to UNSCR 1593 (2005) (14 December 2006) 2.

114

Rozenberg, J. (2008). "Why the world's most powerful prosecutor should resign: Part 3." from www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/2700862/Why-the-worlds-most- powerful-prosecutor-should-resign-Part-3.html [accessed on 10th September 2011]

115

Chesterman, S. (2001). "No Justice Without Peace? International Criminal Law and the Decision to Prosecute ". from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117222.

116

Sisk, R. (1999). "A Rush to Indict Slobo: Prosecutor Feared U.S. Would Let Him off Hook." Daily News. from www.nydailynews.com/archives/news/1999/05/28/1999-05-

President Al-Bashir of Sudan is distinguishable from other national leaders who have been indicted by international courts such as Charles Taylor and Slobodan Milosevic, ‘on the basis that these prosecutions occurred after a transition to democracy in the context of a new national arrangement, and thus have little bearing on the Sudanese case.’117 Greenwalt has argued that Prosecutorial authority and its inconsistency with governing principles of case strategy for the prosecution at an early stage of the criminal justice process will challenge the legitimacy of prosecutorial discretion and complicate the work of the ICC.118

The fourth report of the Prosecutor to the United Nations Security Council declared that the Prosecutor ‘is required to focus on the most serious incidents and the individuals with the greatest responsibility for those incidents.’119 However, regarding the selection of the first suspect in the DRC situation before the ICC, one of the interviewees observed that:

‘Tomas Daylo Lubanga was the only person [for] whom the Prosecutor had sufficient evidence, although he charged only for child soldiers despite the fact that he was in jail because of different crimes.’120

According to the normative basis of the complementarity regime of the Court, the Prosecutor should consider law, evidence as well as moral obligations to fulfil his or her ethical and legal duty and not simply to win a case. In the DRC situation, the Lubanga

case seemed to be relatively simple; however it is entering its final phase after six years of proceedings. The legitimacy and accountability of the Prosecutor has been further criticized by commentators such as Rozenberg, who has claimed that ‘the move against Al-Bashir is intended to show that the ICC is willing to pursue difficult cases of high- ranking officials and to regain some of the legitimacy that the Court has lost in Uganda and the Democratic Republic of Congo.’121

In the Darfur situation, Prof. Bassiouni observed in relation to charging the head of state: ‘We cannot presume that a national legal system is going to be

considered unwilling, simply because it was the judgement of the

117

Public Document, ICC-02/05, 11 January 2009, Application on behalf of Citizens’ Organisations of The Sudan in relation to the Prosecutorʹs Applications for Arrest Warrants of 14 July 2008 and 20 November 2008. para.12.

118

Greenwalt, Op, cit., p. 662.

119

The Fourth Report of the Prosecutor of the ICC to the United Nations Security Council pursuant to the United Nations Security Council Resolution 1593 (14 December 2006)

120

Interview with Senior ICC officer A.

121

Prosecutor to decide to indict [the] head of state. I think this was a big jump.’122

Cayley, in relation to the prosecution of crimes committed in the Darfur region in the Sudan, has observed that the governing principles of the case strategy for this situation should be set ‘to target those most responsible for the crimes, to concentrate the investigation on senior military and political figures and then local level, to concentrate the investigation on a very limited number of criminal episodes, to cover all facts and evidence for the purpose of the establishment of the truth and to investigate incriminating and exonerating circumstances equally.’123 In the Pre-Trial phase, the Prosecutor must apply a consistent set of criteria to every case. Moreover, the Prosecutor will have to decide how many charges to bring and for what kinds of crime, and the reasons behind those choices. The decision as to whether or not to have a formal policy in this respect is an important one. This significantly affects the complexity, length, and character of the individual cases heard by the Court.124

It is therefore of critical importance that the Prosecutor should give long and careful thought to the issue of prosecutorial discretion and how it should be exercised, especially in the initiation of an investigation.125 Precise understanding of the Prosecutor’s discretion and its limits requires a review of the procedure by which a case makes its way through the Court.126 As such, internal prosecutorial policy can moderate the risk of politicized prosecution.127

3. The prosecutorial decision-making process in relation to the