The exercise of prosecutorial discretion with regard to the investigation of criminal conduct and the institution of judicial proceedings is a necessary and fundamental concept in the administration of criminal justice. Its necessity springs from the practical need for a selective, rather than automatic approach to the institution of criminal proceeding, thus avoiding the overburdening and perhaps clogging of the machinery of justice. Somebody somewhere thus has to decide whether or not to institute proceedings and for what offence or offences (Hassan B. Jallow, Chief Prosecutor, International Criminal Tribunal for Rwanda, 145).
The overall purpose of this chapter is to provide the historical, legal and institutional background to the establishment of the ICC with an independent Prosecutor. In order to satisfy this purpose, first, the work of the Prosecutor – and with it, the corporate identity of the Office of the Prosecutor (OTP) as an organ of the Court – will be described via an exposition of the basic structure of the relevant parts of the Rome Statute, the ICC in its organizational forms, as well as the OTP itself. Here special attention will be placed on the ways in which the OTP, from an institutional point of view, and the Prosecutor, from a statutory point of view, are independent actors within the Court. In order to locate the discussion in the international and legal and political context, this chapter will then describe and show the qualitative difference in the independence of the Prosecutor of the ICC and his/her international predecessors. The debate over the ‘independence’ of prosecutorial discretion is quite extensive in the legal and – to a lesser extent, political – literature. Some attention will be paid to this debate as well. However, approaching the notion of independence from a political and international relations point of view, the central claim of this chapter is that the ‘independence’ bestowed on the Prosecutor of the ICC – by virtue of the Court’s mandate as a permanent international criminal court, along with its key statutory provisions – has made the Court fundamentally different from
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its predecessors. Politically, the exercise of independent decision-making and discretion of the Prosecutor of the ICC is fundamentally different than those of earlier ad hoc tribunals.
The ICC itself is one of the most innovative, yet controversial, international institutions that emerged in the late 20th century. It is a permanent international criminal court which is responsible to prosecute individuals who have committed crimes against humanity, war crimes or genocide in conflicts which are deemed “the most serious conflicts of international concern” (Rome Statute, Article 1). It is also ‘complementary to national criminal jurisdictions,’ so the Court is restricted to operate in situations where the state is either incapacitated or is unwilling to prosecute (Rome Statute, Article 1). With respect to its jurisdiction, the reach of the Court is not restricted to only signatory states, or states that have signed the Rome Statute. As the Statute outlines, the Court may exercise jurisdiction if the crime committed occurred within “the State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; b) the State of which the person accused of the crime is a national” (Rome Statute, Article 12). Therefore, nationals of non-party states may also be brought in front of the Court if they have committed crimes on the territory of a signatory state.
Before embarking on an exposition of the Court and the role of the Prosecutor within the Court, it is important to place the forthcoming discussion within the statutory framework of the Rome Statute. In this section, particular attention will be paid to the provisions in the RS that directly address the role and work of the Prosecutor within the Court.
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At the outset, it is important to mention that some observers and scholars note that “[T]he Rome Statute…[is] one of the most complex international treaties ever drafted…” (Olasolo 2003, 87). Substantively, the final version of the RS accepted by state delegations in Rome in 1998, had two earlier incarnations, one originating from the International Law Commission (ILC), and the other emerging from the Preparatory Committee negotiations16 leading up to the Rome Conference in 1998. The ILC draft originating from 1994 only gave states and the UNSC the power to refer cases to the Court. The fear was that an independent Prosecutor would only encourage politically- charged prosecutions. Overall, the ILC reasoned that “affording the Prosecutor the power to initiate investigations on his own – what has come to be known as his proprio motu
powers – was not advisable ‘at the present stage of development of the international legal system” (Fernandez de Gurmendi in Danner 2003, 513). During the Preparatory
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The article describing the role of the Prosecutor as it appeared in the Preparatory Commission’s Draft – Article 12 – in preparation for the Rome Conference: “The Prosecutor [may] [shall] initiate investigations [ex officio][proprio motu] [or] on the basis of information [obtained] [he may seek] from any source, in particular from Governments, United Nations organs [and intergovernmental and non-governmental organizations]. The Prosecutor shall assess the information received or obtained and decide whether there insufficient basis to proceed. [The Prosecutor may, for the purpose of initiating an investigation, receive information on alleged crimes under article 5,paragraphs (a) to (d), from Governments, intergovernmental and non-governmental organizations, victims and associations representing them, or other reliable sources.]36”(Report of the Preparatory Committee on the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Cours United Nations Conference Records, Addition , A/Conf.183/2/Add.1, Page 37)
In comparison, the Draft Statute originating from the ILC in 1994 reads as follows: Article 12
The Procuracy; (1.) The Procuracy is an independent organ of the Court responsible for the investigation of complaints brought in accordance with this Statute and for the conduct of prosecutions. A member of the Procuracy shall not seek or act on instructions from any external source. (2.) The Procuracy shall be headed by the Prosecutor, assisted by one or more Deputy Prosecutors, who may act in place of the Prosecutor in the event that the Prosecutor is unavailable. The Prosecutor and the Deputy Prosecutors shall be of different nationalities. The Prosecutor may appoint such other qualified staff as may be required. (3.) The Prosecutor and Deputy Prosecutors shall be persons of high moral character and have high competence and experience in the prosecution of criminal cases. They shall be elected by secret ballot by an absolute majority of the States Parties, from among candidates nominated by States Parties. Unless a shorter term is otherwise decided on at the time of their election, they shall hold office for a term of five years and are eligible for re-election. (4.) The States Parties may elect the Prosecutor and Deputy Prosecutors on the basis that they are willing to serve as required. (5.) The Prosecutor and Deputy Prosecutors shall not act in relation to a complaint involving a person of their own nationality. (6.) The Presidency may excuse the Prosecutor or a Deputy Prosecutor at their request from acting in a particular case, and shall decide any question raised in a particular case as to the disqualification of the Prosecutor or a Deputy Prosecutor. (7.) The staff of the Procuracy shall be subject to Staff Regulations drawn up by the Prosecutor (Draft Statute for an international criminal court, United Nations, 2005).
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Committee meetings however, delegations began suggesting that the Prosecutor should be able to receive information from ‘nonstate sources’, including NGOs (Danner, 2003, 513). As a result then the notions of an independent Prosecutor became one of the most contentious issues addressed throughout the negotiations (Danner 2003, 513).
The final version of the RS which “was adopted by 120 states on July 18th, 1998,” is “composed of a preamble and thirteen parts, including 128 articles” (Arsanjani, 24) Overall, the RS is a document which is an ‘instrument’ establishing an international organization, it contains a ‘penal code’ and a ‘criminal procedure code’ (Olasolo 2003, 87-88). Arsanjani notes that the Statute itself is underpinned by three pillars: first, the principle of ‘complimentarity’ ensures that national jurisdictions are necessarily prior to the jurisdiction of the Court. The Court is ‘complementary’ to national jurisdictions, and not the other way around (Arsanjani, 24-25). There are two particular reasons for the inclusion of complementarity in the RS. First, “the majority of participating states … had a vital interest in remaining responsible and accountable for prosecuting violations of their laws. The international community had a comparable interest, inasmuch as national systems are expected to maintain and enforce adherence to international standards” (Arsanjani, 25). The second pillar of the Statute is that it is designed to address the ‘most serious crimes’ that “affected the selection of crimes, as well as the determination of their threshold application” (Arsajnani, 25). The thought behind this perspective was that “this principle would promote broad acceptance of the court by states and consequently enhance its credibility, moral authority and effectiveness. In addition, it would avoid overloading the court with cases that could be dealt with adequately by national courts, at the same time limiting the financial burden imposed on the international community”
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(Arsanjani, 25). The third pillar is the pillar of ‘customary international law’. The intent behind this pillar was that states wanted the statute to be acceptable by as many states as possible (Arsanjani, 25).
The overall Statute is composed of thirteen different parts, of which Part 2 dealing with “Jurisdiction, Admissibility and Applicable Law” is the most important for the ensuing discussion. Part 2 “is the heart of the statute and was the most difficult to negotiate. This part deals with the list and the definition of crimes, the trigger mechanisms, admissibility and applicable law. The text of part 2 was negotiated until the penultimate day of the conference” (Arsanjani, 25). Overall, the jurisdictional regime of the Court holds that the Court has jurisdiction over crimes enumerated in the statute if the Court has consent to prosecute from the territorial state where the crime occurred, or if the accused is a national of a state which ratified the statute (Arsanjani, 26). The jurisdictional regime of the Court with respect to the UNSC is different, however. In the case that the UNSC refers a situation to the court, the Court would have a wider jurisdiction which would be exercised even if the accused is a national of a non-party state, and without the explicit consent of the territorial state or the state of which the accused is a national (Arsajani, 26). Further, at Rome, the P5 of the UNSC voiced further concerns over the possibility that the jurisdictional regime of the Court would interfere with the work of the UNSC. At issue was the possibility that an investigation by the Court would coincide with the work of the Council in regards to resolving a conflict (Arsanjani, 26). According to Arsanjani, as a compromise, the UNSC could ask the Court to defer the investigation for a renewable 12 months (Arsanjani, 27).
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In essence either a state party or the UNSC acting under Chapter VII of the UN Charter may refer a ‘situation’ to the Court.17 In addition, the Prosecutor may authorize an investigation on his or her own accord – or proprio motu (Arsanjani, 27). In this case, the Prosecutor would have to inform all stakeholders of her or his decision in advance. If any state has proceeded with an investigation, the Prosecutor then would have to defer the investigation. The Prosecutor may ask for periodic updates in regards to the investigation. Further, the Prosecutor may even review the state investigation if there has been a large-scale change in the particular state’s “unwillingness or inability genuinely to carry out the investigation” (Arsanjani, 27).
Organizationally, the ICC is comprised of four main organs: the Presidency, the Judiciary, the Office of the Prosecutor and the Registry. The office of the Presidency is entrusted with the overall administration of the Court, except for the Office of the Prosecutor. The Presidency is headed by three judges who are elected by their fellow jurists at the Court for a term of three years. The presiding judge of the Court is assisted by a first Vice-President and a second Vice-President.18 The role of the Judiciary consists of the judges of the Court – eighteen in total – who serve in one of three judicial divisions: Pre-Trial, Trial and Appeals division. The assignment of judges to the different divisions is based on the ‘function’ of the different division as well as the ‘qualifications and expertise’ of the judges. In terms of qualification, it is ascertained that the personnel have ‘expertise in criminal law and procedure and international law.’ The office of the Registry “is responsible for the non-judicial aspects of the administration
17 Including the word ‘situation’ as opposed to ‘case’ meant to “minimize politicization of the court by naming
individuals” (Arsanjani, 27).
18
International Criminal Court. Chambers. http://www.icc-
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and servicing of the Court.” This organ is headed by a Registrar who is under the supervision of the President of the Court. The Registrar is elected by the judges of the Court for a five year term. Lastly, the Court also contains three other so-called ‘semi- autonomous’ offices that fall under the administration of the Registry, though these offices operate autonomously. These are the Office of Public Counsel for Victims, Office of Public Counsel for Defense, and the Trust Funds office. The Office of the Prosecutor (OTP) is an autonomous and independent organ of the Court. It is not administered by the Presidency of the Court nor any other international organ, including the United Nations and the United Nations Security Council. The OTP is headed by the Prosecutor. The Prosecutor is elected for a non-renewable nine years by the Assembly of State Parties. She is assisted by the Deputy Prosecutor who is in charge of the three sub- divisions within the OTP: the Prosecution division, the Jurisdiction, Complementarity and Cooperation Division, and the Investigation Division. The latter two divisions are headed by a Director and a Head respectively.19
In order to show the distinctiveness and uniqueness of the proprio motu powers of the Prosecutor of the ICC, one must provide at least a cursory exposition of the independence – or lack thereof – bestowed on the Prosecutors of the institutions dealing with international criminal justice which preceded the ICC, namely the Nuremberg and Tokyo trials, and the ad hoc tribunals dealing with atrocities in the former Yugoslavia and Rwanda.
The first institutional approach pursued by the Allies at the end of World War II took place at the Palace of St. James in 1942, when the Allies established the United
19
Hector Olasolo notes that the “(a) Presidency; (b) the Appeals, Trials and Pre-Trial Divisions; and (c) The Registry,” along with the OTP are “the so-called four judicial organs of the Court provided for in the R.S, Art. 34...” On the other hand, the “political organs established by the R.S. [Art. 112] are “(a) The Assembly of States Parties; and (b) The Bureau of the Assembly of States Parties” (Olasolo 2003, 90).
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Nations War Crimes Commission (UNWCC). This commission essentially led to the establishment of the International Military Tribunal at Nuremberg (IMT) (Bassiouni, 21). The Commission was composed of 17 state representatives and it did amass 8172 dossiers of persons who were thought to have committed war crimes (Ibid., 22). However, between 1942 and 1945, the work of the commission did not progress as planned. The intention of the Allies to prosecute war criminals was further cemented at the signing of the Moscow Declaration in 1943, which was signed by Churchill, Roosevelt, and Stalin. At that point, there was less thought about an institutional approach, and more about capital punishment for the perpetrators. Nearly all three sides agreed to this course of action, with the only dissent coming from the United States (US), even after President Truman had replaced President Roosevelt. Following the work of the commission and the Declaration, the IMT was essentially established on August 8th, 1945 by way of the London Agreement. It was signed by the four major Allied powers as well as nineteen other states. The US did take the lead on logistics as well as personnel for the operation of the tribunal. Ironically, it was the efficiency of German record keeping that provided the Allies with most of their evidential ammunition (Bassiouni, 28).
The London agreement contained the charter of the new tribunal. The charter essentially reflected the 1907 Hague Convention and the 1929 Geneva Convention Relative to the Treatment of Prisoners of War (Bassiouni, 25 – 26). One additional Law – the Control Council Law No. 10 – further contributed to the codification of the prosecutions, as it allowed the Allies to prosecute German military personnel within their own respective zones (Bassiouni, 29). Of further note is the fact that the Kellogg-
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Briand Peace Pact of 1928 was used along with treaties that Germany had itself signed, such as the Locarno Treaties (King, 40). The aim was to prosecute i) crimes against peace; ii) war crimes; and iii) crimes against humanity. The type of crimes prosecuted will be important as it will become evident that crimes prosecuted by subsequent tribunals and institutions became more focused on individual criminal responsibility.
The purpose of the tribunal was to provide “for the just and prompt trial and punishment of the major war criminals of the European Axis” (IMT Statute). The jurisdiction of the IMT – as described in Article 6 of the IMT – was such that it had “the power to try and punish persons who, acting in the interests of the European Axis, whether as individuals or as members of organizations…” have committed ‘crimes against peace’, ‘war crimes’ and ‘crimes against humanity’.
In the IMT, the role ascribed to Chief Prosecutors was outlined in section III of the Statute called the “Committee for the Investigation and Prosecution of Major War Criminals” (IMT Statute). Article 14 of the Statute outlined that “[E]ach Signatory shall appoint a Chief Prosecutor for the investigation of the charges against and the prosecution of major war criminals” (IMT Statute). The Committee was then charged “a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff, b) to settle the final designation of major war criminals to be tried by the Tribunal; c) to improve the Indictment and the documents to be submitted therewith; d) to lodge the Indictment and the accompanying documents with the Tribunal; c) to draw up and recommend to the Tribunal for its approval draft rules of procedure…” (IMT Statute). Article 15 then outlined that each Chief Prosecutor will also be responsible for “a) investigation, collection, and production before or at the Trial of all necessary evidence;
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b) the preparation of the indictment for approval by the Committee in accordance with