The lack of consistency and transparency of Prosecutorial decisions

Both the consistency of procedure and the adherence to due process standards are crucial in the fact-finding process.165 There are many possible criteria that the Prosecutor may use to guide him or her in deciding: (1) whether to initiate an investigation and (2) whether to actually prosecute. The complementarity criterion of inability and unwillingness are mentioned in the ICC Statute.166 The principle of complementarity seems to provide some answers to the question of which cases to investigate and prosecute where national jurisdictions are unable or unwilling to do so. However, many other factors may be considered when deciding on whether or not an investigation should be started.167 The primary role of the Prosecutor in the early stages of proceedings is to make a decision as to whether or not the ICC gets involved in different situations. Although in the early stages of proceedings the Prosecutor does not have the power to investigate, he or she can conduct a fact-finding inquiry. As a senior ICC officer asserted:

‘In preliminary examination, the Prosecutor does not exercise any investigation power. The Prosecution conducts a fact-finding inquiry to assess the situation’.168

The Prosecutor is entrusted with the first screening of investigations at the national level.169 As such, the criteria under which the Prosecutor must select the situations and 163 Ibid., 164 Ibid., 165

Fionda, Op, cit., p. 175.

166

McDonald and Haveman, Op, cit.,

167

Ibid.,

168

cases for investigation and prosecution are crucial. The selection criteria were explained by the Prosecution in a Draft Paper in 2006.170 It was declared that the selection process in the practice of the ICC Prosecution is based upon four guiding principles, including independence, impartiality, objectivity and non-discrimination.171 Among these guiding principles, it seems that the duties of independence and objectivity have an important impact on the selection process. These guiding principles are also highlighted in the Draft Policy Paper on Preliminary Examination of 4th October 2010, which explained the procedures applied by the Prosecution in the conduct of its preliminary examination.172 Although the manner in which the Prosecution selects cases was not elaborated in this draft policy paper, it declared pursuant to Article 14 (1) of the Rome Statute that ‘the Office of the Prosecutor shall act independently of instructions from any external source.’173 It should be noted here that the selection process is independent of the cooperation-seeking process, and is conducted exclusively on the available information and evidence and in accordance with the Statute criteria and the policies of the Prosecutor.174 However, Rozenberg has claimed that in the selection process there are instructions from the NGOs, in some cases even demanding the publicising of information in relation to the ICC proceedings. There are also prosecutorial problems in respect of NGOs; for instance, the trouble of the ICC in the case of Lubanga.175

The principle of objectivity, which flows from Article 54 (1) of the Rome Statute, means that the Prosecutor will consider ‘incriminating and exonerating circumstances equally, in order to establish the truth.’176 This has to be applied during the preliminary examination phase of situation selection as well as the investigation stage.177 It must be stressed here that at the preliminary examination stage, information may be obtained from external sources rather than the Prosecutor’s own evidence-gathering powers and

169

Olasolo, International Criminal Law Review, Op, cit., p. 90.

170

OTP, Draft Paper, Criteria for selection of situations and cases (2006). which the OTP distributed in July 2006 in the course of a meeting with NGO representatives. www.icc-cpi.int

171 Ibid., 172 www.icc- cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Policies+and+Strategies 173

Article 42 (1) (2) of the Rome Statute

174

Stahn, Op, cit., pp. 209-217. The word ‘information’ refers to selection processes for the opening of an investigation under Article 53(1) of the Rome Statute. The word ‘evidence’ is used to refer to cases addressed under Article 53(2)

175

Rozenberg, J. (2008). "Courting Controversy." www.lawgazette.co.uk/opinion/columnists/courting- controversy [accessed on 10th September2011].

176

OTP, Draft Paper, Criteria for selection of situations and cases (2006). which the OTP distributed in July 2006 in the course of a meeting with NGO representatives.

177

will be assessed in terms of its relevance, credibility, and reliability.178 Moreover, the selection of cases is ‘an evidence-driven process, also governed by the principle of objectivity.’179 Gathering sufficient information and evaluating evidence is the other important aspect of prosecutorial decision-making policy. In some cases, sensitive information may be provided to the Prosecutor by different entities. Under those circumstances, acting in secrecy would have an impact on the legitimacy of the ICC.180 Therefore, the Prosecutor should not rely on this rationale and refuse to circulate prosecutorial guidelines altogether.181 It is argued that this has already caused some troubles, some ‘legal battles’, for the ICC, in particular in the first case arising from the DRC situation.182 One of the problems in the case of Thomas Lubanga Dyilo is related to the wide interpretation of Article 54 (3) (e) of the Statute by the Prosecutor regarding gathering considerable information on a confidential basis. Although the Prosecutor has the power to decide whether to disclose these documents and information, in this case the prosecution approach and the existence of confidentiality agreements with information providers led to complex problems. A single judge in 2006 indicated that this approach would be problematic; the Prosecution reconsidered its approach in May 2008.183