The Prosecutor’s Approach to Gravity

Under Moreno Ocampo, the OTP’s understanding was that gravity ‘should not be exclusively attached to the act that constituted the crime but also to the degree of participation in its commission’.519 _{Consequently, the stated policy was that:}

as a general rule, the Office of the Prosecutor should focus its investigations and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes.520

Although recognising that this strategy ‘will leave an impunity gap unless national authorities, the international community and the Court work together to ensure that all appropriate means for bringing other perpetrators to justice are used’, no concrete action was proposed apart from stating that in some cases the focus ‘may go wider than high-ranking officers’ and that for other offenders ‘alternative means for resolving the situation may be necessary’.521

The 2006 Report of Prosecutorial Strategy also mentioned the idea of ‘focused investigations’, reinforcing the understanding of gravity as the need to focus the OTP’s efforts ‘on the most serious crimes and on those who bear the greatest responsibility for these crimes’.522 Developing further the scenario of impunity that may result from such an approach to gravity, it stressed the need to encourage ‘national measures against other offenders’.523 _{It further explained}

that the OTP had adopted a ‘sequenced’ approach to the selection of cases within a situation, in accordance with which cases were selected on account of their gravity. It clarified that the factors relevant in assessing gravity are the scale, nature, manner of commission, and impact of the crimes.524 The OTP, moreover, explained that the policy of ‘focused investigations’ also entails the

519 _{OTP, Policy Paper September 2003 7.} 520 _{Ibid [emphasis in the original].} 521 _Ibid.

522 _{OTP, Prosecutorial Strategy 2006 5.} 523 _Ibid.

selection of a limited number of incidents with a small number of witnesses called to testify, in order to carry out ‘short investigations and propose expeditious trials while aiming to represent the entire range of criminality’.525

Incidents were to be selected which were ‘reflective of the gravest incidents and the main types of victimization’.526 The same approach was repeated in the Report published in 2010.527

The approach to gravity adopted by the first Chief Prosecutor has been strongly criticised as being ‘invoked not so much as a justification for the selection of cases on which to proceed [but] as a justification for refusing to undertake other cases’.528 Indeed, the first Prosecutor originally used gravity to justify not opening an investigation into the crimes allegedly committed by British troops in Iraq.529 _{However, the strictly numerical argument used by him appears flawed}

when compared with other situations or cases that were undertaken by the OTP. The approach to gravity under Moreno Ocampo has also been criticised in the context of the lack of meaningful control by the PTC, particularly in relation to the refusal to investigate in Iraq and the lack of investigation beyond the child soldiers charge in the Lubanga case.530

Under Fatou Bensouda, in a clear departure from the policy of her predecessor, the OTP completely transformed its approach to gravity. In its Strategic Plan published in 2013, it recognised the need for a change of approach in light of the

525 _Ibid. 526 _{Ibid 5-6.}

527 _{OTP, Prosecutorial Strategy 2009 - 2012 paras 18-21.}

528 _{(n 518) Schabas, 'Prosecutorial Discretion v. Judicial Activism at the International Criminal}

Court' 740.

529 _{OTP, ‘Response to Communications Received Concerning Iraq’ (International Criminal Court,}

9 February 2006) <http://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77- 4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf> accessed 24 June 2014. It should be noted, however, that the new Prosecutor has recently reopened the preliminary examination of the situation in Iraq, see OTP, ‘Prosecutor of the International Criminal Court, Fatou Bensouda, re-opens the preliminary examination of the situation in Iraq’ (International Criminal Court, 13 May 2014) <http://www.icc- cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-statement-iraq-13-05- 2014.aspx> accessed 24 June 2014. It will be interesting to see how the new Prosecutor deals with the situation now.

530 _{See, inter alia, (n 518) Schabas, 'Prosecutorial Discretion v. Judicial Activism at the}

International Criminal Court' 741-745; William A. Schabas, ‘Prosecutorial discretion and gravity’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal

Court (Martinus Nijhoff Publishers 2009); Ignaz Stegmiller, ‘The Gravity Threshold under the ICC

Statute: Gravity Back and Forth in Lubanga and Ntaganda’ (2009) 9 IntCLR 547; (n 516) El Zeidy, 'The Gravity Threshold under the Statute of the International Criminal Court' 40-41.

required evidentiary standards to prove the criminal responsibility of the ‘most responsible perpetrators’ and due to limitations in investigative possibilities and/or lack of cooperation.531 _{It further stated the OTP’s decision to abandon}

the notion of ‘focused investigations’, replacing it with the ‘principle of in- depth, open ended investigations’.532 In its new approach, the OTP acknowledges that a different strategy ‘of gradually building upwards’ might be needed, in the sense of ‘first investigate and prosecute a limited number of mid- and high-level perpetrators in order to ultimately have a reasonable chance to convict the most responsible’.533 In addition, the new policy also includes ‘prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety’.534

Apparently addressing some of the abovementioned criticism, in the Policy Paper issued in November 2013, the OTP explained its approach to gravity in its preliminary examinations.535 _{It stated that impartiality in the selection of cases,}

which depends crucially on the gravity assessment, ‘does not mean an “equivalence of blame” between different persons and groups within a situation or that the Office must necessarily prosecute all sides’.536 _{It further argued that}

the OTP would focus its efforts ‘objectively on those most responsible for the most serious crimes within a situation (…) irrespective of the States or parties involved’.537