UNITED STATES INTERNATIONAL UNIVERSITY -AFRICA

PROGRAMME: PHD INTERNATIONAL RELATIONS

COURSE: IRL 7013: INTERNATIONAL LAW

STUDENT NAME: LOMOYWARA KORIR MESHACK

ID NO. 624087

PAPER: Prosecutorial Discretion within the International Criminal Court

(ICC): A Critical Legal Analysis and Preliminary Reflections on ICC

intervention into Kenya

Lecturer: Dr. THOMAS OBEL HANSEN

Date of Submission: 27th November 2014

TABLE OF CONTENTS

1.0 INTRODUCTION.....................................................................................................................2

2.0 PROSECUTORIAL DISCRETION WITHIN THE INTERNATIONAL CRIMINAL COURT (ICC): LEGAL & POLICY ISSUES................................................................................3

3.0 ICC PROSECUTORIAL DISCRETION IN CONTEXT.........................................................6

3.1 Initiating Investigations: Trigger Mechanisms......................................................................7

3.2 Proprio Motu powers: History & Context..............................................................................9

3.3 Jurisdiction and Admissibility.............................................................................................12

3.4 The Gravity Criterion and OTP Interpretation.....................................................................16

3.5 Selectivity of ICC prosecutions...........................................................................................18

4.0 CONCLUSION........................................................................................................................20

BIBLIOGRAPHY..........................................................................................................................21

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1.0 INTRODUCTIONThe Prosecutor of the International Criminal Court (ICC), Louis Moreno Ocampo, exercised the

first ever proprio motu powers in the Republic of Kenya. He decided to pursue six suspects for

crimes committed during the post-election violence that engulfed the country following the

disputed presidential elections in 2007. In the past, the ICC has secured situations through self-

referrals and Security Council referrals. However, as the Office of Prosecutor (OTP) continues in

the execution of its mandate, there is a sharp dilemma on how the Prosecutor should apply the

legal criteria established by the Rome Statute especially when assessing complementarity,

gravity and interest of justice requirements before initiating investigations and prosecutions.

Moreover, both legal and procedural difficulties have emerged in the Court s first ever proprio

motu trigger mechanism which has revealed a number of practical legal challenges in the OTP’s

practice.

This paper examines prosecutorial discretion within the ICC by employing ICC intervention into

Kenya as a case study because the current criteria that guides the Prosecutor in deciding on

which situations, which persons and which charges to pursue as things stand remain difficult to

decipher.. The conclusion of this analysis is that prosecutorial discretion within the ICC and the

international criminal justice system in general is characterised by uncertainty, selectivity and is

even more enigmatic. It appears that there is still need for additional guidelines for the exercise

of the ICC prosecutorial discretion especially on which situations to investigate and who to

prosecute, this is despite the fact that the OTP has made efforts to come up with guidelines.

2

2.0 PROSECUTORIAL DISCRETION WITHIN THE INTERNATIONAL CRIMINAL COURT (ICC): LEGAL & POLICY ISSUESIn almost all national criminal justice systems, prosecutors employ discretion to choose whether

to instigate investigations or not, whether to bring charges or not and to decide on which crimes

and which persons to charge.1 In most cases discretion is employed mainly to rationalise the

inadequate funds and also to ensure flexibility.2 This in essence guarantees investigation and

prosecution of crimes of the highest primacy and also ensures that public interest is factored in

the decision making process. The same is applicable at the international level and it is worth

noting that prosecutorial discretion to decide on whom to prosecute and for which criminal

conduct has been an important feature of the international criminal justice system since its origin

at Nuremberg.3

Successive international criminal tribunals, ever since, have had to contend with the challenge of

institutional architecture of the office of the prosecutor in search of a better way of guaranteeing

prosecutorial independence.4 The international criminal justice system has subsequently

developed moving from military and ad hoc tribunals, giving impetus to the establishment of the

International Criminal Court (ICC or the Court), an independent, permanent and treaty based

1 See Nsereko DDN, 'Prosecutorial Discretion before National Courts and International Tribunals1' (2005) 3(1) JICJ 125. See also Ely AN, 'Prosecutorial Discretion as an Ethical Necessity: The Ashcroft Memorandum's Curtailment of the Prosecutor's Duty to Seek Justice' (2004) 90 CLR 242-243.

2 See Goldston JA, 'More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court' (2010) 8(2) JICJ 389.

3 See Ferencz BB, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int'l L. Rev. 203 (1998) Available at: http://digitalcommons.pace.edu/pilr/vol10/iss1/9(Accessed 25 May 2012). See also Schabas WA, 'Prosecutorial Discretion v. Judicial Activism at the International Criminal Court' (2008) 6(4) JICJ 731-732.

4 Ohlin, Jean David, 'Peace, Security, and Prosecutorial Discretion' (11September 2008); C. Stahn & G. Sluiter (eds), The Emerging Practice of the International Criminal Court (2008). Available at<SSRN: http://ssrn.com/abstract=1266685(Accessed 26 May 2012) 1, 2.

3

Court to deal with the most atrocious crimes.

The power to decide on whether to prosecute or not and who to prosecute is and remains a

critical feature for every prosecuting agency in any criminal justice system and is even more

important at the international level.5 It is not astounding that the ICC prosecutor’s powers

dominated the Rome Conference with states articulating two opposed views on how such powers

should be exercised.6

The problem of how the prosecutor of the ICC should exercise discretion in choosing situations

and cases, since the official codification of the Rome Statute, up and until now, remains

mysterious and continues to receive significant attention among scholars.7 For instance,

interpreting complementarity, gravity and interest of justice requirements remain inexplicable

due to the difficulties in navigating between legal and political considerations. Generally,

concerns of inconsistency and selectivity have been raised pointing towards the broad discretion

enjoyed by the ICC prosecutor.

This paper traces the history of the debate revolving around proprio motu powers during the

negotiations of the Rome Statute, the necessary compromise and the safeguards while at the

5 See e.g. Côté L, 'International criminal justice: tightening up the rules of the game' (2006) 88(861) International Review-Red Cross-New Series-134-135. Because of the political implication of such a decision, at the international level it is more sensitive and complicated.

6 See for example Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution , (2000)88 GEO. L.J. 381, 400 (The debate on whether the ICC prosecutor should have powers to initiate prosecutions on his own motion was highly controversial in the negotiations leading to the adoption of the Rome Statute).

7 See for example Brubacher MR, 'Prosecutorial Discretion within the International Criminal Court' (2004) 2(1) JICJ 71;

4

same time putting the Kenyan cases into perspective.8 It is the purpose of this paper therefore and

it intends to interrogate whether the Rome Statute and the regulations developed by the OTP

provide sufficient guidance for the exercise of ICC prosecutorial discretion. This is done by

using ICC intervention into Kenya as a case study.

8 See for example Sadat LN and Carden SR, 'The New International Criminal Court: An Uneasy Revolution' (2000) 88 Geo. LJ 400- 401;

5

3.0 ICC PROSECUTORIAL DISCRETION IN CONTEXTThe Rome Statute borrowed significantly from the ad hoc tribunals. It assigns to the Office of

the Prosecutor (OTP) the duty of receiving referrals and any substantiated information on crimes

within the Court s jurisdiction.9The Statute tasks the Prosecutor with conducting investigations

and prosecutions before the Court.10 The Prosecutor is however not under any obligation to

initiate proceedings once a situation has been referred to the OTP. The Statute uses the word may

as opposed to shall removing any obligations and depicting broad discretion.11The ICC

prosecutor is required to act independently of the Court and this extends to members of his office

who are also forbidden from seeking or acting on instructions from any external source.12

There are distinct features in the ICC when compared to the ad hoc tribunals. First, the ICC is a

permanent treaty based court with jurisdiction to charge the most serious crimes of international

concern.13 Although the ICC is treaty based, it can have jurisdiction over non-party states

through a Security Council referral, a mandate closely tied with the UN powers to maintain

peace and security under chapter seven of the UN Charter.14 Secondly, the ICC is complementary

to national criminal institutions, instead of having supremacy over them.15Thirdly, the ICC

prosecutor can initiate investigations on his own motion (proprio motu) into situations but

9 Art. 42 (1) of the ICCst.

10 Ibid.

11 Nsereko (n 8)177.

12 See Brubacher (n 8) 138, external sources would also include the court itself.

13 ibid14See Oosthuizen GH, 'Some preliminary remarks on the relationship between the envisaged International Criminal Court and the UN Security Council' (1999) 46(3) NILR 313.

15 ICCst (n 5) preamble.

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subject to Pre Trial Chamber (PTC) authorisation.16 Fourthly, unlike the ICTY and the ICTR, the

ICC lacks the urgency and is not subject to a deadline for case completion17 although there is a

convergence in that the ICC policy seeks to target those who bear the greatest responsibility.18

When it comes to exercise of discretion, the prosecutor’s powers seem to be much more

restricted than those exercised by a prosecutor in the national systems or ad hoc tribunals19

although some scholars insist that the ICC prosecutor still enjoys a broad discretion in certain

instances.20

3.1 Initiating Investigations: Trigger Mechanisms.

The ICC provides for a three approaches of trigger mechanism for attaining jurisdiction while at

the same time preserving state sovereignty in a ranked structure.21 The first approach is through a

Security Council referral,22 second through a State Party referral23 or third by the Prosecutor

16 Art. 15 of the ICCst.

17 O'Brien M, Prosecutorial Discretion as an Obstacle to Prosecution of United Nations Peacekeepers by the International Criminal Court The Big Fish/Small Fish Debate and the Gravity Threshold (2010) JICJ 525. 18 Paper on some policy issues before the Office of the Prosecutor, September 2003, available online at http://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/ 030905_Policy_Paper.pdf (Accessed 6 June 2012) (hereinafter OTP Policy Paper) 7.

19 Nsereko (n 8) 138.

20 Akande (n 12). See Arbour (n 8) 212, noting that prosecutorial discretion in the context of the ICC is considerably larger, and the criteria upon which such prosecutorial discretion is to be exercised is ill defined and complex. 21 G. Turone, Powers and Duties of the Prosecutor , in A. Cassese, P. Gaeta, and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 2 (Oxford: Oxford University Press,2002), 1144 22 Article 13(b) of the ICCst. Referrals by the Security Council are not subject to review by the Pre-Trial Chamber, are exempt from the Art. 18 duty to notify states that would normally exercise jurisdiction, and are logically unlikely to be subject to an Art. 16 deferral by the Security Council.

23 Arts 13(a) and 14 of the ICCst.

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himself after receiving a referral from any other source.24

Investigations launched by the prosecutor proprio motu are subject to a stricter procedural

safeguard, a compromise that was struck during the negotiation of the Rome Statute. McDonald

and Haveman notes that prosecutorial discretion to initiate investigations should be based on an

objective rather than a subjective test, although they too admit that it is often very difficult to

clearly distinguish the two tests.25An objective test would involve a scientific way of assessment

involving provable facts while a subjective test is one that has extraneous considerations

including emotions, bias and based on opinions.

Distinct from referrals by the Security Council or States, investigations initiated proprio motu go

through two stages. The first is a preliminary investigation, where the Prosecutor makes an initial

assessment as to whether a prima facie case exists.26 If the Prosecutor makes a determination that

there is a prima facie case, he shall submit the case to the Pre-Trial Chamber for authorisation

before launching a thorough investigation.27 It has been noted that this procedure slows

investigations initiated proprio motu, but in whichever way, it acts as a buffer by ensuring that in

the absence of political backing from a state or the Security Council, the prosecutor secures the

24 Arts 13(c) and 15 of the ICCst25

? McDonald A and Haveman R, 'Prosecutorial Discretion: Some Thoughts on Objectifying the Exercise of Prosecutorial Discretion by the Prosecutor of the ICC' (2003) Contribution to an Expert Consultation Process. Available at <http://www.icc- cpi.int/iccdocs/asp_docs/library/organs/otp/mcdonald_haveman.pdf.> (Accessed 22 June 2012). 26 Caban P, 'Preliminary Examinations by the Office of the Prosecutor of the International Criminal Court' (2011) CYIL 203. 27 Bergsmo M and P. Kruger, Article 54 , in O. Triffterer (ed.), Commentary on the ICC Statute of the International Criminal Court (Baden-Baden: Nomo Verlagsgesellschaft, 1999).

8

judicial backing of the Court.28

3.2 Proprio Motu powers: History & Context.

The debate on whether the prosecutor of the ICC should have powers to initiate investigation on

his own motion was highly mooted in the negotiations leading to the adoption of the Rome

Statute.29 Brubacher narrows down the debate that shaped the Preparatory Committees into two

opposing schools of thought.30 These two schools were parallel to each other and composed

either of the liberalists or the realists.31 All through the debate the liberalists championed for the

idea of an independent prosecutor with powers to initiate proceedings ex officio. This they saw as

a condition sin quo non to creating an institution with tentacles to hold all persons to account for

committing crimes within the Court s jurisdiction regardless of their position in society.32 The

liberalist s consisted majorly of NGOs which lobbied using various methods to ensure that the

Prosecutor was provided with proprio motu powers.33 The liberalists equated the ICC to a legal

institution intended to aid in the regulation of mutual obligations between states and thus capable

of promoting due process and the rule of law.34

28 Gurmendi (n 20) 56.

29 See generally Kirsch P and Holmes JT, 'The Rome Conference on an International Criminal Court: The Negotiating Process' (1999) 93(1) The American journal of international law 2. 30 See also Roy S.L (ed.), the International Criminal Court, the Making of the ICC Statute: Issues, Negotiations Results (London: Kluwer Law International, 1999). (For a comprehensive study of the negotiating history).

31 Brubacher (n 8) 72.

32 ICRC, Establishing an International Criminal Court: Towards the End of Impunity , available online at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList320/3479A9BCD756A7D4C1256B66005B6966 (Accessed 14 June 2012). 33 See for example Pearson Z, 'Non-governmental organizations and the international criminal court: Changing landscapes of international law' (2006) 39 Cornell Int'l LJ 243.

34 Brubacher (n 8) 73. 9

The second school, led by the United States comprised of the realists who opposed any provision

that would allow the Prosecutor to exercise proprio motu powers.35 In essence, the US and

likeminded states in this school took a stance that the complementarity regime established by the

Statute did not sufficiently limit the Court s ability to intervene with respect to matters properly

within a State's jurisdiction.36 Stated differently, a Court with proprio motu arrangement was not

suitably deferential to national criminal jurisdictions.37 This was buttressed by the argument that

the primary obligation of states as international actors is to their citizens rather than to the

international community. Accordingly, it meant that the obligation to citizens would outweigh

that which accrues to the international community as far as prosecution of criminal cases at the

international level is concerned. This was seen in the subsequent US sponsorship of bilateral

non-surrender agreements and other activities in an attempt to exempt its citizens from the

jurisdiction of the Court.38

It suffices to say that according to the realists, independent prosecutorial discretion within the

ICC is despicable as it attempts to create a non-state actor, capable of independently modifying

35 See generally Gurule J, 'United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court's Jurisdiction Truly Complementary to National Criminal Jurisdictions' (2001) 35 Cornell Int'l LJ 1. See also Scheffer DJ, 'The United States and the International Criminal Court' (1999) 93(1) AJIL 12. 36 For US opposition to the ICC see Benzing M, 'US Bilateral Non-Surrender Agreements and Article 98 of the Statute of the International Criminal Court' (2005) 8 Max Planck Yearbook of United Nations Law 185-186.

37 Gurule (n 169) 6.

38 Eubany C, 'Justice for Some-US Efforts under Article 98 to Escape the Jurisdiction of the International Criminal Court' (2003) 27 Hastings Int'l & Comp. L.Rev. 103. Tan Jr CJ, 'Proliferation of Bilateral Non-Surrender Agreements among Non-Ratifiers of the Rome Statute of the International Criminal Court, (2003) 19 Am.U.Int'l L.Rev. 1115.

10

state behaviour.39 This is because the realists perceived international law as emanating from the

interrelationship between states that consent to be bound by clear rules and to allow an

independent prosecutor to exercise jurisdiction, circumnavigating states would be creating an

international body capable of detracting from the perfect equality of state sovereignty.40

It is noteworthy that both sides had genuine concerns that pointed towards creating an

independent Court that is untangled from the political world.41 The liberals wanted to remove the

Court from the meddling of the UNSC and possibility of inaction either by UNSC or state

parties.42 The realists on the other hand thought that granting powers to the Prosecutor to initiate

prosecutions deficient of a State or Security Council referral would be politicising the office.

Those who subscribed to the legal realism were apprehensive that the Prosecutor would be a lone

ranger running wild targeting highly sensitive political situations through manipulations by

NGOs and other interested parties.43 The liberalists thought that granting proprio motu powers

was the best way of guaranteeing the independence and credibility of the Court as a whole. 44

Ultimately a deal was struck when Germany and Argentina presented a proposal breaking the

impasse, resulting in the adoption of proprio motu powers but with a system of checks and

39 See Faulhaber LV, 'American Service members' Protection Act of 2002' (2003) 40 Harv.J.on Legis. 537. See also Brubacher (n 8) 73.

40 See Koskenniemi M, The Politics of International Law , (1990) 1 European Journal of International Law (EJIL) 4.41

? Bassiouni MC, The Statuteof the International Criminal Court, A DocumentaryHistory (1998) (Transnational Publisher Inc) 408.

42 See Galvin RJ, 'ICC Prosecutor, Collateral Damage, and NGOs: Evaluating the Risk of a Politicized Prosecution, (2005) 1343

? See Silvia A. Fernández de Gurmendi, The Role of the Prosecutor, in The Rome Statute of the International Criminal Court: A Challenge to Impunity 55 (Mauro Politi & Giuseppe Nesi eds., 2001) 181.

44 Ibid 181.

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balances.45 Thus, in the absence of a State Party or UNSC, the Statute requires the Prosecutor to

obtain the approval of the Pre-Trial Chamber to proceed with an investigation.46

3.3 Jurisdiction and Admissibility.

The first and most important decision to be made before any action is taken is the establishment

of whether the Court has jurisdiction.47 Only crimes committed by a national of or in the territory

of a Member State will attract the Court's jurisdiction.48 The Court will also have jurisdiction if a

State makes a declaration accepting the jurisdiction of the Court.49

The ICC has jurisdiction over crimes against humanity, genocide, war crimes and aggression

which can only be tried starting from 2017.50 For the Prosecutor to exercise proprio motu

powers, the crimes must have been committed after the entry into force of the Rome Statute or

after the date of accession by the state concerned.51Determining whether the ICC has jurisdiction

or not may appear easy but if compounded with controversial in the Kenyan situation as to

45 Proposal available in http://untreaty.un.org/cod/icc/rome/proceedings/E/Rome%20Proceedings_v3_e.pdf (25 July 2012)

46 Gurmendi (n 20) 181.

47 Arts 15 (4) and 19 (1) of the ICCst.

48 Art. 12 of the ICCst.

49 Under Art. 12 (3) See for example cote d'ivoires Declaration Under Article 12 (3) of the Rome Statute <http://www.icc-cpi.int/NR/rdonlyres/CBE1F16B-5712-4452-87E7-4FDDE5DD70D9/279779/ICDE.pdf> (Accessed 23 July 2012) 50 Art. 5 of the ICCSt, apart from aggression the other crimes must have occurred after the entry into force of the Statute on 1 July 2002 (See Preamble and Art 1 of the ICCSt. 51 Unless the state makes an express declaration accepting the Courts jurisdiction over crimes which occurred before that date Art 11 (2) of the ICCst. It is however not clear if such a retrospective move would be legal and further there would be difficulties in collection and production of evidence.

12

whether crimes against humanity as construed by Article 7 (2) were indeed committed especially

with regard to non-state actors and the policy requirement.52

Closely related to admissibility is the complementarity principle whereby national courts are

given precedence to prosecute international crimes.53 This principle remains the cornerstone of

the Rome Statute as it upholds the long standing principle of state sovereignty.54 It also

informally acts as a check to prosecutorial discretion since it requires the Prosecutor to defer

cases to the national jurisdictions unless the affected state is unwilling or unable to genuinely

prosecute.55 This topic remains unsettled among scholars.

Factors for determining unwillingness and inability to prosecute are stated in Article 17 (2) and

(3). Unwillingness may include national proceedings and decisions undertaken for the purpose of

shielding the person concerned from criminal responsibility for crimes within the jurisdiction of

the Court,56 unjustified delays in the proceedings,57 lack of independence and impartiality of the

proceedings. With regard to inability to investigate or prosecute the benchmarks include,

52 See dissenting opinion of Judge Kaul, supra note 30. See also Hansen, supra, note 40, policy requirements in crimes against humanity. 1-14.

53 Art 17. ICCst, See also the 10th paragraph of the Preamble to the ICCst.

54 Hansen, T.O, A Critical Review of the ICC's Recent Practice Concerning Admissibility Challenges and Complementarity (April 25, 2012). Melbourne Journal of International Law, Vol. 13, No. 1, 2012. Available at SSRN: http://ssrn.com/abstract=2046077 (Accessed 23 July 2012).

55 See Hunt D, 'International Criminal Court-High Hopes, Creative Ambiguity and an Unfortunate Mistrust in International Judges, (2004) 2 JICJ 56, 63. See also Darryl Robinson, The Mysterious Mysteriousness of Complementarity, 21 Crim. L.F. 67, 71 (2010) (citing Julie B. Martin, The International Criminal Court: Defining Complementarity and Divining Implications for the United States, 4 Loyola University Chicago International Law Review (2006). 107

56 Art. 17 (2) (a) of the ICCst.

57 Art 17 (2) (b) of the ICCst.

13

complete or substantial collapse or unavailability of the national judicial system and the resulting

inability of the State to carry out its proceedings.58

Complementarity remains difficult to assess particularly when the ICC prosecutor is exercising

proprio motu powers. While at the time an investigation is requested, the Prosecutor might not

have identified the potential suspects.59 Nevertheless, the PTC is required to give a determination

on admissibility in which complementarity and gravity under A. 53 (1) are key factors.60 It is not

clear whether prospective investigations or promises to investigate and conduct prosecutions can

bar admissibility.61 Furthermore, it appears that the ICC will only accept prosecutions and steps

such as traditional justice measures and fact finding commissions cannot pass as genuine

investigations or prosecutions.62 One other challenge concerns the lack of a time frame within

which the Prosecutor should grant the concerned State for which to initiate investigations and

prosecutions.

There is also an emerging concept pertaining to complementarity termed as positive

complementarity or what William Burke calls proactive complementarity,63 a mechanism

adopted by the OTP to encourage national jurisdictions to conduct genuine national

58 Arts 17 (3) of the ICCst.

59 Sriram and Brown (n 41) 228.

60 Ibid.

61 Ibid 229.

62 Greenawalt A, 'Complementarity in crisis: Uganda, alternative justice, and the International Criminal Court' (2009) Va.J.Int'l L. 107-162. 63 Burke-White W, 'Proactive complementarity: the international criminal court and national courts in the Rome system of justice' (2008). Harvard Journal of International law 53-108.

14

proceedings.64 In essence under this new principle the OTP will attempt to take positive measure

to ensure that national courts prosecute crimes rather than compete with them for jurisdiction.

This mechanism has received mixed reaction among scholars. Firstly, it is argued that the

mechanism was not contemplated by the Rome Statute65 and secondly, it might be used

negatively as a sword to delay or defeat the ICC process while disguising itself as being

genuine.66 It has however been lauded as a means of ending impunity and if well-tailored and

implemented, it can be a supplementary strategy owing to the financial constraints facing the

ICC.67

Recent developments have seen new interpretations of the principle of complementarity beyond

its literal meaning which requires the ICC to intervene if a state with jurisdiction is unwilling or

unable to investigate and prosecute the crime within its domestic mechanism.68Two different

approaches have been put forward on construing Article 17 although both still remain

contentious.69 One interpretation holds that Article 17 renders a case admissible before the ICC if

the state with jurisdiction over crimes committed is unwilling or unable to investigate or

prosecute. There is a disagreement among commentators on when the unwillingness or inability

64 See International Criminal Court, Office of the Prosecutor, Report on the activities performed during the first three years (June 2003-June 2006) 12 September 2006, para. 95 at http://www.iccnow.org/documents/3YearReport%20_06Sep14.pdf; International Criminal Court, Office of the Prosecutor, Prosecutorial Strategy 2009-2012, 1 February 2010, paras. 16 and 17, <http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62D229D1128F65/281506/OTP ProsecutorialStrategy20092013.pdf , 26 August 2010. (Accessed 27 July 2012)

65 Caban (n 189) 206 (although article 93 (10) has been over stretched to accommodate the same).

66 Sriram and Brown (n 41) 230.

67 Burke-White WW, 'Implementing a Policy of Positive Complementarity in the Rome System of Justice' (Criminal Law Forum Springer, 2008) 85.

68 Hansen (n 200) 3.

69 Ibid.

15

begins to count.70 The second interpretation which the OTP seems to favour posits that mere

inaction of a State in the face of crimes within the Court s jurisdiction will lead to admissibility

of situations and cases before the ICC.71 This concept of inactivity, although not mentioned in the

Statute can render a case admissible before the ICC.72 A self-referral witnessed in the Ugandan

situation would operate differently when compared to the Kenyan situation where Kenya is

challenging the admissibility of the cases before the Court claiming willingness and ability to try

the crimes. It further claims that it has overhauled the judiciary, the police and the prosecuting

agencies and is now willing to conduct genuine prosecutions.

3.4 The Gravity Criterion and OTP Interpretation.

Many scholars concur that evaluating or construing the gravity criterion both as a requirement of

the admissibility assessment under Article 53(1) and as articulated in Article 17(1) (d) remains

mysterious as far as the OTP is concerned.73 This problem is compounded by lack of clear

judicial pronouncements and legal commentary concerning the subject. William Schabas notes

that the subject of gravity was not given much consideration during the Rome Conference and

only came to the fore as soon as the Court became operational.74 It is however not disputed that

70 Ibid.

71 See Benzing M, The Complementarity Regime of the International Criminal Court: International Justice between State Sovereignty and the Fight against Impunity (2003) Max Planc Yearbook on United Nations Law 601.

72 Hansen (n 200) 4.

73 See Heller, Kevin Jon, Situational Gravity Under the Rome Statute. FUTURE DIRECTIONS IN INTERNATIONAL CRIMINAL JUSTICE, Carsten Stahn and Larissa van den Herik, eds., TMC Asser/CUP, 2009. Available at SSRN: http://ssrn.com/abstract=1270369 (Accessed 15 July 2012). See also Sriram CL and Brown S, 'Kenya in the Shadow of the ICC: Complementarity, Gravity and Impact' (2012) 12(2) International Criminal Law Review 234. See also Caban (n 189) 207.

74 Schabas (n 8) 761. 16

apart from complementarity, a case may be declared inadmissible if it is not of sufficient gravity

to justify further action by the ICC.75

The word sufficient is vague as it lacks the basic minimum and maximum and is very subjective.

Although gravity is a ground for determining inadmissibility, the criterion for its determination is

missing both in the Rome Statue.76 In 2003 the OTP issued guidelines for determining gravity,

stating inter alia that;

Article 17, dealing with admissibility, adds to the complementarity grounds one related to the gravity of a case. It states that the Court shall determine that a case is inadmissible where the case is not of sufficient gravity to justify further action by the Court. The concept of gravity should not be exclusively attached to the act that constituted the crime but also to the degree of participation in its commission.77

It appears that this criterion is to be regarded as an additional threshold of special additional

gravity, since the crimes included in the Rome statute are grave in themselves.78 The practical

application of gravity assessment by the OTP reveals a number of inconsistencies. In the

issuance of arrest warrants to the Uganda s Lords Resistant Army (LRA), the Prosecutor noted

that crimes committed by the LRA were many and of a higher gravity than those of the Ugandan

Peoples Defence Force (UPDF) counterparts.79 In this particular case the Prosecutor’s

75 Art. 17 (1) (d) of the ICCst.

76 Caban (n 189) 207.

77 Draft Policy Paper on Preliminary Examinations, 4 October 2010, p. 1; see http://www.icc-cpiint/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Policies+and+Strategies Draft+Policy+Paper+on+Preliminary+Examinations.htm. (Accessed 30 July 2012). 78 See Prosecutor v Lubanga, Case No. ICC-01/04-01/06-8, Decision on the Prosecutor s Application for a Warrant of Arrest, 24 February 2006, para. 41 and 45; Letter of the Prosecutor dated 9 February 2006 (Iraq) 8. Articles 5-8 of the ICCst.

79 Statement by the Chief Prosecutor on the Uganda Arrest Warrants , The Hague, 14 October 2005, 17

comparison was between two warring parties in the same country and not between two countries.

In declining to proceed with the allegations of abuse of civilians and detainees in Iraq, the

Prosecutor indicated that the crimes committed were relatively small compared to other

situations like Northern Uganda, the Democratic Republic of Congo (DRC) and Sudan.80 In this

instance he compared the Iraq incidence with other countries in Africa. The application of

gravity criterion by the OTP continues to retain an aura of mystery. Ohlin having regard to the

vagueness of the gravity criterion warns that one can imagine a situation in the future where a

prosecutor’s decision is greatly influenced by matters of collective peace and security, but the

decision is publicly justified by appealing to the gravity of the situation and he warns that Such

camouflaging would be easy to accomplish, especially since it is unclear what kind of legal

threshold is established by the Rome Statute s use of the term gravity in articles 17 and 53 .81

3.5 Selectivity of ICC prosecutions.

Just like Nuremberg and the ad hoc tribunals, the ICC has received criticism of being selective.82

This may present itself generally in ICC choice of situations, choice of cases or charges.

Although the Prosecutor has indicated that his duty is simply judicial and non-political, his

2-3.

80 Caban (n 189) 208.

81 Ohlin (n 8) 200.

82 See Amann DM, 'Group Mentality, Expressivism, and Genocide' (2002) 2 Int'l Crim. L.Rev. 93, 116- 117(discussing selectivity and randomness);; Schabas , Unimaginable Atrocities: Justice, Politics, And Rights at the War Crimes Tribunals 82 (stating that international criminal tribunals, and their budgets, were never conceived to deal with allcrimes within their jurisdiction, a justification for selectivity. )

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interpretations of the legal requirement leave so much to be desired.83 The OTP is currently

handling 15 cases in seven situations, and is conducting preliminary examinations in eight

additional countries, located on four continents with intervention in Libya and Mali being the

latest situations for the ICC. While it would be difficult to justify legally that selectivity exists in

situations, the perception would be so difficult to discount. Selectivity on situations often arises

in the context of the ICC relationship with the UNSC s referral and deferral powers.84 Where a

country is not a State Party to the Rome Statute, only the UNSC can trigger the ICC jurisdiction.

Not that the UNSC has not exercised its powers but it has exercised this trigger mechanism in a

selective manner.85 The swift move to refer Libya and Sudan while leaving out crimes committed

in the Gaza, the situation in Syria and crimes committed by the US in Iraq amounts to selectivity.

With regard to proprio motu powers application, the question of gravity has been used to

intervene into Kenya and not with regard to the British soldiers in Iraq, despite that Britain is a

State Party to the Rome Statute. Even so, such an intervention can be deferred under article 16 of

the Rome Statute as Britain is a permanent member of the UNSC. So it appears that weaker

nations have a raw deal as far as international criminal justice is concerned.86

4.0 CONCLUSION.The ICC is faced with a challenge of balancing between legal and policy considerations. Also 83 Luis Moreno-Ocampo, Address (June 25, 2007) at 3 (keynoting international conference, and Justice, at Nuremberg), available at conference.info/download/speech%20moreno.pdf. (Accessed 19 July 2012)

84 Amann (270) 117.

85 Danner AM, 'Navigating Law and Politics: The Prosecutor of the International Criminal Court and the Independent Counsel' (2002) 55 Stan. L.Rev. 1633. 86 Knoops GJA, 'Challenging the Legitimacy of Initiating Contemporary International Criminal Proceedings: Rethinking Prosecutorial Discretionary Powers from a Legal, Ethical and Political Perspective' (Criminal Law Forum Springer, 2004) 388.

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there are challenges of selectivity and this might affect the legitimacy of the Court. The Court

has had its first proprio motu trigger mechanism ten years after it began its operation. The OTP

policy guidelines lack clarity in terms of offering a clear guidance on which situations and

persons to investigate and prosecute. Secondly, even the strategy adopted by the OTP has been

interpreted and applied inconsistently especially when applying the gravity criterion.

The Rome Statute bestows on the Prosecutor with an ostensibly wide and unfettered discretion.

The role of the PTC on the other hand appears to be engaging in judicial activism, as it is

revealed in the expansive approach in giving definitions to terms. This lack of clarity in the

assessment of complementarity, gravity criteria and delineation of interest of justice requirement

will often result in discriminatory and selectivity of ICC prosecutions if not so a perception

thereof. As a way forward the ICC should employ positive complementarity when handling cases

as a way of winning support from national prosecutions.

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