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Discretion and State Influence at the International Criminal Court: The Prosecutor's Preliminary Examinations

Published online by Cambridge University Press:  07 September 2017

David Bosco
David Bosco*
Affiliation:
Associate Professor, School of Global and International Studies, Indiana University.
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Extract

In November 2016, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) produced an extensive report documenting the status of ten “preliminary examinations” it is conducting. These examinations cover situations in which crimes under the jurisdiction of the Court may have been committed but the prosecutor has not yet decided to open a full investigation. The OTP's reporting practice has shed additional light on a process that has been opaque for much of the Court's existence and that has attracted relatively limited scholarly and specialist attention.

Type
Notes and Comments
Information
American Journal of International Law , Volume 111 , Issue 2 , April 2017 , pp. 395 - 414
Copyright
Copyright © 2017 by The American Society of International Law 

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References

1 ICC Office of the Prosecutor, Report on Preliminary Examination Activities 2016 [hereinafter 2016 Preliminary Examination Report].

2 For notable exceptions, see Caban, Pavel, Preliminary Examinations by the Office of the Prosecutor of the International Criminal Court, 2 Czech Y.B. Pub. & Private Int'l L. 199 (2011)Google Scholar; Goldston, James, More Candour About Criteria, 8 J. Int'l Crim. Just. 383 (2010)Google Scholar; Human Rights Watch, Course Correction: Recommendations to the ICC Prosecutor for a More Effective Approach to ‘Situations Under Analysis’ (June 6, 2010); Olásolo, Héctor, The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of the Office of the Prosecutor, 5 Int'l Crim. L. Rev. 121 (2005)Google Scholar; Olásolo, Héctor, The Prosecutor of the ICC Before the Initiation of Investigations: A Quasi-judicial or a Political Body?, 3 Int'l Crim. L. Rev. 87 (2003)Google Scholar.

3 See, e.g., Burundi Notifies U.N. of International Criminal Court Withdrawal, Reuters (Oct. 26, 2016), at http://www.reuters.com/article/us-burundi-icc-idUSKCN12Q287; African Union Summit on ICC Pullout over Ruto Trial, BBC News (Sept. 20, 2013) available at http://www.bbc.com/news/world-africa-24173557; Nicholas Kulish, Kenyan Lawmakers Vote to Leave International Court, N.Y. Times, Sept. 5, 2013, at A10.

4 See Statute of the International Court of Justice, Art. 38, June 26, 1945, 59 Stat. 1055, 33 UNTS 99 (providing that the Court shall hear “such disputes as are submitted to it …”) [hereinafter ICJ Statute]; Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to Marrakesh Agreement Establishing the World Trade Organization, Art. 1, Apr. 15, 1994 (providing that “this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements … ”) in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 354 (1999); United Nations Convention on the Law of the Sea, ann. VI, Art. 21, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, 21 ILM 1261 (1982) (providing that “[t]he jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention …”).

5 Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 AJIL 510 (2003).

6 Ambos, Kai & Stegmiller, Ignaz, Prosecuting International Crimes at the International Criminal Court: Is There a Coherent and Comprehensive Prosecution Strategy?, 59 Crime L. Soc. Change 415, 420 (2013)Google Scholar.

7 Rome Statute of the International Criminal Court, Art. 42(1), July 17, 1998, 2187 UNTS 3, reprinted in 1 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records (1998) [hereinafter Rome Statute].

8 The term appears only in Article 15(6) of the Rome Statute.

9 Triffterer, Otto, Commentary on the Rome Statute of the International Criminal Court 592 (2d ed. 2008)Google Scholar.

10 Schabas, William A., Victor's Justice: Selecting ‘Situations’ at the International Criminal Court, 43 J. Marshall L. Rev. 535, 544 (2010)Google Scholar.

11 Article 12(3) of the Statute provides what can be considered a fourth trigger mechanism. It permits non-member states to grant the Court jurisdiction with respect to specific crimes. The International Criminal Court (ICC) Office of the Prosecutor (OTP) has noted, however, that Article 12(3) should not be considered a trigger mechanism of its own but is merely a jurisdictional provision that requires some other trigger. See ICC Office of the Prosecutor, Policy Paper on Preliminary Examinations, n. 25. (2013) [hereinafter Policy Paper on Preliminary Examinations].

12 Rome Statute, supra note 7, Art. 15.

13 For a statement of the U.S. concerns regarding the prosecutor's authority, see Marc Grossman, Under-Secretary for Political Affairs, American Foreign Policy and the International Criminal Court, Remarks to the Center for Strategic and International Studies (May 6, 2002), available at http://2001-2009.state.gov/p/us/rm/9949.htm.

14 A Council referral does not mean that the territorial state will necessarily support an ICC role. The two Council referrals to date, in Sudan and Libya, were made in the face of opposition from the government on whose territory the crimes were alleged to have occurred.

15 In practice, state referrals have always come from the state on whose territory the alleged crimes have been committed.

16 Rome Statute, supra note 7, Art. 53(1).

17 Ambos & Stegmiller, supra note 6, 421.

18 Rome Statute, supra note 7, Art. 53(1).

19 Rome Statute, supra note 7, Art. 15(3).

20 ICC Office of the Prosecutor, Annex to the ‘Paper on Some Policy Issues Before the Office of the Prosecutor’: Referrals and Communications 1–2 (2004) [hereinafter Annex on Referrals and Communications]. See also Goldston, supra note 2, at 391; Human Rights Watch, supra note 2, at 4 (noting that the “Rome Statute creates a heavy presumption that the OTP is to open formal investigations into situations referred by governments and the Security Council …”).

21 Rome Statute, supra note 7, Art. 18. Article 19, which provides additional detail on challenges to the admissibility of cases, does not repeat that distinction between different types of referrals. Yet Article 19 also discusses only the admissibility of “cases” and not “situations,” an indication that it is concerned with admissibility challenges at a later stage.

22 There are several reasons that the drafters might have wanted to treat a Council referral differently in terms of admissibility challenges. The Council can create jurisdiction where none existed previously, so perhaps it can also override other barriers—such as admissibility concerns—to Court action. Indeed, some commentators have argued that the OTP should have no discretion about whether to launch a full investigation once the Council has referred. For an argument that the Rome Statute unacceptably limits the power of the Security Council by providing for any prosecutorial discretion even in the case of Council referrals, see Jens David Ohlin, Peace, Security and Prosecutorial Discretion, in The Emerging Practice of the International Criminal Court 185 (Carsten Stahn & Goran Sluiter eds., 2009).

23 See Olásolo, The Prosecutor of the ICC Before the Initiation of Investigations, supra note 2, at 101. Whatever the textual merit of that view, the prosecutor's office has rejected the notion that it need not conduct a full admissibility analysis when there is a Council referral. See Sharon A. Williams & William A. Schabas, Article 13: Exercise of Jurisdiction, in Triffterer, supra note 9, at 570 (“The Prosecutor has made it abundantly clear, in his reports to the Security Council, that he believes he is required to determine whether the case is admissible pursuant to the provisions of Article 17. There have been no objections from members of the Council.”).

24 See Olásolo, The Prosecutor of the ICC Before the Initiation of Investigations, supra note 2, at 100–03.

25 Rome Statute, supra note 7, Art. 15(3).

26 See, e.g., Morten Bergsmo & Jelena Pejic, Article 15: Prosecutor, in Triffterer, supra note 9, at 583.

27 Rome Statute, supra note 7, Art. 15(6).

28 The pretrial chamber can, on its own initiative, request that the prosecutor review a decision not to initiate an investigation when it is based solely on the “interests of justice.”

29 Rome Statute, supra note 7, Art. 53(3).

30 2016 Preliminary Examination Report, supra note 1, para. 10.

31 The OTP identifies this situation as “Registered Vessels of Comoros, Greece, and Cambodia.”

32 In several situations, including Afghanistan, the OTP has noted a date or period when the preliminary examination was “made public,” rather than when it was opened, leaving some uncertainty about when the office deemed the examination active.

33 There is evidence that the Ugandan government referred the situation of the Lord's Resistance Army as a way of seeking to attract broader international support for its counterinsurgency effort. See David Bosco, Rough Justice: The International Court in a World of Power Politics 97 (2014).

34 See ICC Office of the Prosecutor, Draft Policy Paper on Preliminary Examinations, para. 81. (2010) [hereinafter Draft Policy Paper on Preliminary Examinations].

35 Quoted in William Schabas, Prosecutorial Discretion and Gravity, in The Emerging Practice of the International Criminal Court, supra note 22, at 231–32.

36 ICC Office of the Prosecutor, Policy Paper on the Interests of Justice 5 (2007).

37 See, e.g., ICC Office of the Prosecutor, The Situation in Mali: Article 53(1) Report, para. 11. (Jan. 2013) [hereinafter The Situation in Mali]. For an argument that the OTP in practice relied heavily on the number of victims in making gravity determinations during its first several years, see Kevin Jon Heller, Situational Gravity Under the Rome Statute, in Future Perspectives in International Criminal Justice (Carsten Stahn & Larissa Van Den Herik eds., 2010).

38 The pretrial chamber in the Lubanga case imposed a fairly rigid formulation of gravity that was rejected by the appellate chamber. See Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Appeal Against the Decision of Pre-Trial Chamber I Entitled “Decision on the Prosecutor's Application for Warrants of Arrest, Article 58,” Case No. ICC-01/04-169, paras. 69–79 (under seal July 13, 2006; reclassified public Sept. 23, 2008).

39 See, e.g., William Schabas, Prosecutorial Discretion and Gravity, in The Emerging Practice of the International Criminal Court, supra note 22, at 231–34; Murphy, Ray, Gravity Issues and the International Criminal Court, 17 Crim. L. F. 281, 282–83 (2006)Google Scholar.

40 See Human Rights Watch, State of Anarchy: Rebellion and Abuses Against Civilians (Sept. 14, 2007) (noting several hundred civilian deaths).

41 ICC Office of the Prosecutor, Report on Preliminary Examination Activities 2013, para. 97 [hereinafter 2013 Preliminary Examination Report].

42 Ploughshares Fund, Democratic Republic of the Congo (1990-First Combat Deaths), at http://ploughshares.ca/pl_armedconflict/democratic-republic-of-the-congo-1990-first-combat-deaths/#Deaths.

43 Opposition sources claimed that several dozen people died in postelection violence. The government reports that only three died. See Returning Gabon Opposition Chief Still Claims He Won, Daily Mail (Nov. 26, 2016).

44 Estimates for civilian deaths during the Libyan conflict vary widely. For the period between February 15, 2011, and March 2, 2011, when the prosecutor announced an investigation, it appears that at least two hundred civilians were killed. See Report of the International Commission of Inquiry on Libya, UN Doc. A/HRC/19/68 (Mar. 8, 2012). Initial estimates cited in some media accounts were much higher but subsequent reporting cast doubt on these. See Kuperman, Alan J., A Model Humanitarian Intervention? Reassessing NATO's Libya Campaign, 38 Int'l Security, 105–36 (2013)CrossRefGoogle Scholar.

45 In announcing the opening of a formal investigation, the OTP did not provide estimates for civilian casualties but did outline a range of alleged war crimes. The incident that it examined in greatest detail was the execution of between 70 and 153 captured government security forces. See The Situation in Mali, supra note 37, paras. 90–93.

46 Estimates of direct civilian deaths for the relevant time period vary widely, and the OTP did not produce its own estimate. The arrest warrant for Sudanese president Omar al-Bashir, for example, only references “thousands” of civilian deaths. The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Warrant of Arrest, 6 (Mar. 4, 2009). The UN Commission of Inquiry for Darfur, which focused on 2003 and 2004, referenced “mass killing” of civilians and provides estimates for certain individual attacks but no aggregate figures. See International Commission of Inquiry on Darfur, Report to the Secretary-General Pursuant to Security Council Resolution 1564, Jan. 25, 2005. For a more concrete estimate, see Ploughshares Fund, Sudan-Darfur (2003-First Combat Deaths), available at http://ploughshares.ca/pl_armedconflict/sudan-darfur-2003-first-combat-deaths/#Deaths.

47 In 2005, the prosecutor cited a total of 2,200 deaths in LRA attacks between mid-2002 and June 2004. See Statement by Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Fourth Session of the Assembly of States Parties, 28 November – 3 December 2005, The Hague, Nov. 28, 2005, 2.

48 ICC Office of the Prosecutor, Situation in Central African Republic II: Article 53(1) Report (Sept. 2014).

49 United Nations, Assistance Mission to Afghanistan, Afghanistan—Annual Report 2016—Protection of Civilians in Armed Conflict [hereinafter Protection of Civilians in Armed Conflict: Annual Report] 3 (Feb. 2017).

50 ICC Office of the Prosecutor, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on Opening a Preliminary Examination into the Situation in Burundi (Apr. 25, 2016).

51 See Project Ploughshares, Colombia (1964–First Combat Deaths), available at http://ploughshares.ca/pl_armedconflict/colombia-1964-first-combat-deaths/#Deaths. It is important to note that the ICC only acquired jurisdiction over war crimes in Colombia after 2009. Colombia was one of two countries to request a waiver of jurisdiction over war crimes that was made available in the Rome Statute. The determination of whether alleged killings were war crimes or crimes against humanity therefore becomes critical.

52 International Criminal Court, Pre Trial Chamber III, “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire” (Oct. 3, 2011), para. 64.

53 The OTP reports have not included an estimated civilian death toll for the conflict. Outside sources estimate that a total of 850 people were killed in the fighting, many of them civilians. See Report of the Independent International Fact-Finding Mission on the Conflict in Georgia (vol. 1) 5 (2009).

54 2013 Preliminary Examination Report, supra note 41, at para. 183.

55 Id., para. 64.

56 ICC Office of the Prosecutor, Letter Concerning Situation in Iraq (Feb. 9, 2006).

57 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09, para. 131 (Mar. 31, 2010).

58 2013 Preliminary Examinations Report, supra note 41, para. 107.

59 See, e.g., Human Rights Watch, Spiraling Violence: Boko Haram Attacks and Security Force Abuses in Nigeria 9 (Oct. 2012) (citing evidence of more than 2,800 deaths, primarily civilian).

60 ICC Office of the Prosecutor, Report on Preliminary Examination Activities 2015, para. 63 [hereinafter 2015 Preliminary Examination Report].

61 2016 Preliminary Examination Report, supra note 1, para. 178.

62 In its letter closing the preliminary investigation, the OTP reported that it had received information about forty-five murders as well as several dozen cases of torture and other forms of persecution. See ICC Office of the Prosecutor, Letter Concerning Situation in Venezuela 3 (Feb. 9, 2006).

63 See, e.g., Kress, Claus, Self-Referrals and Waivers of Complementarity—Some Considerations in Law and Policy, 2 J. Int'l Crim. Just. 944 (2004)CrossRefGoogle Scholar.

64 Policy Paper on Preliminary Examinations, supra note 11, para. 47.

65 See ICC Office of the Prosecutor, Prosecutorial Strategy: 2009–2012, para. 17 (2010).

66 See Judge Silvia Fernández de Gurmendi's Separate and Partially Dissenting Opinion to the Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Cote d'Ivoire, para. 9, Case No. ICC-02/11 (Oct. 3, 2011).

67 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Case No. ICC-01/09, Dissenting Opinion of Hans-Peter Kaul (Mar. 31, 2010).

68 Id., paras. 14, 19.

69 Because it was determined that no armed conflict existed in Kenya, the judges did not consider whether war crimes had been committed.

70 Id., para. 10.

71 Decision on the Request of the Union of the Comoros to Review the Prosecutor's Decision Not to Initiate an Investigation, Case No. ICC-01/13-34, Diss. Op., Kaul, J., para. 44 (July 16, 2015).

72 ICC Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor 2 (Sept. 2003).

73 Annex on Referrals and Communications, supra note 20, at 5.

74 Id. at 5.

75 Bosco, supra note 33, at 175.

76 Policy Paper on Preliminary Examinations, supra note 11, para. 85.

77 Rome Statute, supra note 7, Art. 86.

78 Claus Kress & Kimberly Prost, Article 86: General Obligation to Cooperate, in Triffterer, supra note 9, at 1515.

79 See Olásolo, The Triggering Procedure, supra note 2, at 144 (arguing that member states’ cooperation obligations extend to the preliminary examination phase).

80 Turone, Giuliano, The Powers and Duties of the Prosecutor, in The Rome Statute of the International Criminal Court: A Commentary (Cassese, Antonio, Gaeta, Paola & Jones, John R.W.D. eds., 2002)Google Scholar.

81 Policy Paper on Preliminary Examinations, supra note 11, para. 31.

82 2016 Preliminary Examination Report, supra note 1, para. 11.

83 Claire Grandison, Center for Human Rights & Humanitarian Law, Maximizing the Impact of ICC Preliminary Examinations 1 (2012).

84 Draft Policy Paper on Preliminary Examinations, supra note 34, para. 74.

85 See Protection of Civilians in Armed Conflict: Annual Report, supra note 49, at 3.

86 See Assembly of States Parties, International Criminal Court, at https://asp.icc-cpi.int/en_menus/asp/states%20parties/fgha%20states/Pages/fghanistan.aspx; International Criminal Court, Preliminary Examination: Afghanistan, at https:// www.icc-cpi.int/Afghanistan.

87 For a discussion of the “extreme case” approach to case studies, see, e.g., Seawright, Jason & Gerring, John, Case Selection Techniques in Case Study Research, 61 Pol. Res. Q. 294, 301–02 (2008)Google Scholar.

88 Court to Probe Afghan War Crimes, BBC News (Sept. 10, 2009), at http://news.bbc.co.uk/2/hi/south_asia/8247793.stm.

89 ICC Office of the Prosecutor, 2011 Preliminary Examination Report, para. 30.

90 ICC Office of the Prosecutor, 2012 Preliminary Examination Report, para. 38 [hereinafter 2012 Preliminary Examination Report].

91 2013 Preliminary Examination Report, supra note 41, para. 35.

92 Id., para. 39.

93 2015 Preliminary Examination Report, supra note 60, paras. 128–30.

94 2016 Preliminary Examination Report, supra note 1.

95 See Bosco, supra note 33, at 162–63.

96 For a critical analysis of these efforts, see International Crisis Group, Reforming Afghanistan's Broken Judiciary 1 (Nov. 17, 2010) (noting that “resource allocation has been miserly, funding plans unrealistic and implementation weak”).

97 Candace Rondeaux & Nick Grono, Prosecuting Taliban War Criminals, N.Y. Times (Mar. 23, 2010), at http://www.nytimes.com/2010/03/24/opinion/24iht-edgrono.html.

98 See Bosco, supra note 33, at 163.

99 2012 Preliminary Examination Report, supra note 90, para. 37.

100 2016 Preliminary Examination Report, supra note 1, para. 100; 2013 Preliminary Examination Report, supra note 41, paras. 226, 228. Since that update appeared, there are indications that the Afghan government has provided additional information to the prosecutor on national proceedings. See Stephanie van den Berg, ICC: New Information Delays Decision on Afghan War Crimes Investigation Reuters (July 5, 2017).

101 For a discussion of the improved relationship, see David Kaye, American's Honeymoon with the ICC, Foreign Aff. (Apr. 16, 2013), at http://www.foreignaffairs.com/articles/139170/david-kaye/americas-honeymoon-with-the-icc.

102 For a recent exploration of the role of current and former warlords and commanders in Afghanistan's political transition, see Dipali Mukhopadhyay, Warlords, Strongman Governors, and the State in Afghanistan (2014).

103 See Human Rights Watch, Getting Away with Torture: The Bush Administration and Mistreatment of Detainees (July 12, 2011).

104 See David Bosco, Is the ICC Investigating Crimes by U.S. Forces in Afghanistan?, Foreign Pol'y (May 15, 2014).

105 Id.

106 Id.

107 David Bosco, The War over U.S. War Crimes in Afghanistan Is Heating Up, Foreign Pol'y (Dec. 3, 2014).

108 See supra text at notes 67–70.

109 Author interview with former OTP official (on file with author).

110 Kevin Jon Heller has argued that “[t]here is only one plausible answer [for the delay]: a desire to avoid angering the West, which has been militarily involved in Afghanistan for more than a decade.” The OTP's Remarkable Slow-Walking of the Afghanistan Examination, Opinio Juris (Dec. 1, 2013).

111 See, e.g., ICC Drops Uhuru Kenyatta Charges for Kenya Ethnic Violence, BBC News (Dec. 5, 2014), at http://www.bbc.com/news/world-africa-30347019.

112 Christopher Keith Hall, Developing and Implementing an Effective Positive Complementarity Prosecution Strategy, in The Emerging Practice of the International Criminal Court, supra note 22, at 220.

113 ICC Office of the Prosecutor, Prosecutorial Strategy, 2009–2012, para. 38 (2010).