Analysis of the ICC's Selection of Situations and Cases

By Prof. Ai Kihara-Hunt

1. The Movement to End Impunity

The international movement to end impunity influenced the establishment of the ICC. This movement pushes for prosecuting individuals who have allegedly committed serious crimes – particularly international crimes – and grave human rights violations. According to Reeves, anti-impunity norm is a ‘moral requirement holding that the commission of an atrocity enjoins capable respondents to hold at least some culpable perpetrators criminally accountable for their wrongdoing’ (Reeves 2019, 416). This movement had two waves (Nazareno, 175-177).

The first wave of the anti-impunity movement came around transitional justice commissions (Nazareno, 175-177). It originated in the South American states’ moves against authoritarian regimes’ mass-scale human rights violations. Generally, they sought individual accountability to prevent future atrocities, but did not only seek prosecution. They set up new and ad hoc transitional justice mechanisms in accordance with the particular states’ and communities’ needs, including reconciliation, truth, and measures for a guarantee of non-recurrence (Reeves 2019, 416; UN ECOSOC 2005). Therefore, the movement to end impunity is tightly connected to human rights movements (Keck and Sikkink 1998, 103-110; Nazareno, 181). In particular, Argentina contributed to this movement significantly, as the first state that established transitional justice commissions (Nazareno, 175-177). Argentina’s imperatives such as ‘never again’, ‘the perpetrators of this appalling evil be given justice’, ‘the truth must be told’, and ‘we must convey that these crimes violate the conscience of humanity’ all accompany demands to end impunity (Reeves 2019, 416).

The second wave of the anti-impunity movement focused on asserting jurisdiction by multiple entities for international crimes and tackling legal obstacles (Reeves 2019, 416; UN ECOSOC 2005): removing and nullifying amnesties, pardons, and statutory limitations (Nazareno, 175-177). This can be seen in the assertion of national jurisdiction for international crimes, including through universal jurisdiction. Especially after the 1990s, the UN also emphasized the international law and culture of the world community required the end of impunity for perpetrators of international crimes. Part of that came out as the UN’s rejection of granting amnesty in the name of peace (ICC-OTP 2007, 3).^[1] This position was clear in Sierra Leone (SCSL 2004). Similarly, ad hoc tribunals’ statutes had clauses nullifying blanket amnesties, pardons, statutory limitations and immunities (UNSC 1993, art.7-2; UNSC 1994, art.6-2). As central to the civil society’s movement to enable universal access to justice for victims of international crimes, civil society groups made a global Coalition for the ICC in 1995 (Coalition for the International Criminal Court 2022). This Coalition pushed for the establishment of the ICC, and after its establishment, it is advocating for all states to join and strengthen support for the ICC, and for stronger national laws that deliver justice for international crimes (Coalition for the International Criminal Court 2022a). In particular, the movement is to bring justice to national leaders, including ‘presidents, generals and rebel leaders’ through strong ICC (Coalition for the International Criminal Court 2022b).

Through these two waves, calls to end impunity have been prominent in discussions of international criminal law (ICL) and transitional justice, and this is understood to involve imposing criminal accountability on those responsible for international crimes (Reeves 2019, 416; UN ECOSOC 2005).

2. The Establishment of Policies and Strategies

The Court recognized ‘a consistent trend imposing a duty on states to prosecute crimes of international concern’ (ICC-OTP  2007, 3) and calls on states to join the fight against impunity (ICC 2022a). It is important to note that states’ responsibility to deliver individual criminal accountability for international crimes is in no way eased by the establishment of the ICC. The Preamble to the Rome Statute recognizes that ‘it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes’ (Rome Statute 1998, para.6). This is how the complementarity principle plays the key role, as discussed below. Gravity threshold is another critical consideration the Court makes in prioritizing situations and cases.

3. The Court’s Prosecutorial Strategies

The Court’s priorities and directions further developed through prosecutorial strategies.

Positive complementarity

According to the complementarity principle, the ICC is to only adjudicate on alleged crimes where concerned states are either unable or unwilling to do so. A state is considered unwilling ‘if the national decision has been made and proceedings are or were being undertaken for the purpose of shielding the person concerned from criminal responsibility’, if ‘there has been an unjustified delay which is inconsistent with an intent to bring the person concerned to justice’; or if ‘the proceedings were not or are not being conducted independently or impartially’ (ICC-OTP 2003, 4; ICC-OTP 2013, 13). For the ‘unable’ test, the Prosecutor determines whether ‘due to a total or substantial collapse or unavailability of its national judicial system, the state is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.’ Examples of ‘unable’ situations are:

• where a state lacks the central government,

• where a state is in the state of chaos due to the conflict or crisis, and

• where public disorder leads to collapse of national systems.

‘[T]he policy of the Office of the Prosecutor (OTP) will be to undertake investigations only where there is a clear case of failure to act by the state or states concerned’ (ICC-OTP  2003, 2, 4).

Later, this complementarity principle was further developed. In 2006, the OTP adopted a positive approach to complementarity: the Office encourages genuine national proceedings if possible, relies on national and international networks, and participates in a system of international cooperation (ICC-OTP  2006, 5). This means that the Court does not necessarily have to prosecute the alleged crime, but rather see itself as part of the international network to do so. Positive complementarity is ‘a proactive policy of cooperation aimed at promoting national proceedings’ (ICC-OTP 2010, 5). The OTP’s 2013 policy emphasizes that ‘a significant part of the Office’s efforts at the preliminary examination stage is directed towards encouraging states to carry out their primary responsibility to investigate and prosecute international crimes,’ and that for that, the ICC and national judicial authorities are required to function together (ICC-OTP 2013, para.100). At this point, state cooperation with the ICC has arguably become even more vital for successful ICC functions.

Gravity assessment at two stages, including the most responsible

The Statute’s gravity threshold requires the Court to dismiss a case where it does not have sufficient gravity to justify further action (Rome Statute 1998, art 17 (1) (d)). It is understood from an early stage that this requirement provided prosecutorial discretion to avoid exercising jurisdiction (SaCouto and Cleary 2008, 809). There are two stages. The first concerns the selection of situations – a specific temporal and geographic space where the Prosecutor investigates. The second stage is the selection of cases inside the selected situation – specifically identified crimes by identified persons who have allegedly committed the crimes (SaCouto and Cleary 2008, 3).^[2]

Gravity assessment at the first stage involves examining the scale and nature of the alleged crimes, the manner in which they were committed, and the impact of the crimes. The assessment of the scale may be indicated by the number of victims, the extent of resulting damage, or their geographic or temporal spread. The nature refers to the specific elements of each offense. The manner in which the crimes were committed may be assessed by looking at the means employed to execute the crime, the degree of participation and intent of the perpetrator, the extent to which the crimes were systematic or resulted from a plan or organized policy, and elements of cruelty, discrimination or the use of rape and sexual violence as a means of destroying groups. The impact of the crimes may be indicated by the victims’ suffering and their increased vulnerability, the terror instilled, or the social, economic, and environmental damage to the affected communities (ICC-OTP 2009, reg.29; ICC-OTP 2013, paras. 62-65).

At the stage of selecting cases, gravity assessment also includes consideration for prosecuting the most responsible person for the crime. This takes place in the process of evidence collection. The OTP prioritizes the gravest incidents and those most responsible for these crimes (ICC 2022b). The Office selects for prosecution of ‘those situated at the highest echelons of responsibility, including those who ordered, financed, or otherwise organized the alleged crimes (ICC-OTP 2010, 6).

Focused investigations and prosecutions

Gravity assessment is used in conjunction with the second principle of OTP’s prosecutorial strategy: focused investigations and prosecutions (ICC-OTP 2006, 5). Prosecutor ‘should focus its investigative and prosecutorial resources on those who bear the greatest responsibility, such as the leaders of the state or organization allegedly responsible for those crimes.’ This is generally understood to lead to the distinction between higher-ranking and lower-ranking officials: the former comes under the ICC, and the latter faces national courts, unless it is considered necessary to investigate those officers lower down the chain of command to assist the understanding of the whole case. Prosecuting the greatest responsibility goes up to the head of state, which may ordinarily trigger the issue of immunity. ICC Statute, therefore, makes it clear that immunity attached to the official capacity of the person does not shield the ICC’s jurisdiction over the person (Rome Statute 1998, art 27).

The policy of focused investigations also means that cases inside a situation are selected according to gravity, considering factors such as the scale, nature, manner of commission, and impact of the alleged crimes. A limited number of incidents are selected to provide a sample, reflecting ‘the gravest incidents and the main types of victimization’. This allows the Office to carry out short investigations, limit the number of persons put at risk because of their interaction with the Office, and propose expeditious trials while aiming to represent the entire range of victimization (ICC-OTP 2010, 6).

In the Interest of Justice

A critical consideration for the OTP, which is embedded in the Statute’s Article 53 (1), is the interest of justice. This is within the OTP’s preliminary examination to decide whether there is a reasonable basis to initiate an investigation. It should only be made after jurisdiction and admissibility is determined (ICC 2022b; ICC-OTP 2010, 3,16, 19). Bearing in mind the objectives of the Court, a strong presumption exists that investigations and prosecutions will be in the interest of justice. A decision not to proceed based on the interest of justice is a course of last resort (ICC-OTP 2007, 9; ICC-OTP 2010, para.71). Therefore, the Prosecutor does not have to establish that an investigation serves the interest of justice affirmatively. The OTP will proceed with investigation unless there are specific circumstances that provide substantial reasons to believe that the interest of justice would not be served by investigating at the time (ICC-OTP 2010, para.67).

Nonetheless, the pursuit of criminal justice can be, in exceptional circumstances, considered not to serve the interest of justice (Rome Statute 1998, art 53(1)(c)). The Office has not clarified all factors to be considered in the determination of exceptional circumstances (ICC-OTP 2007) but has listed some. One is the gravity of the crime. Another important factor is the interest of victims (ICC-OTP 2010, 2), as will be discussed below. The interest of the accused, for example, where the accused is terminally ill, is listed as a potential factor (ICC-OTP 2007, 7).

One point that has been subject to criticism is the allegedly political nature of the selection of situations and cases that the Court takes up. This selection is often made under the name of peace and security. Indeed, the Statute recognizes the role of the UNSC to defer ICC action where it considers it necessary to maintain international peace and security (Rome Statute 1998 art 53(1); rule 48, RPE). However, the interest of justice is distinguished from the interest of peace. The OTP sees the latter to be outside its mandate (ICC-OTP 2007, 1). The Prosecutor should thus not be required to assume the role of a mediator in political negotiations, as it would ‘run contrary to the explicitly judicial functions of the Office and the Court as a whole.’ (ICC-OTP 2013, 16-17)

In fact, fearing that this ‘interest of justice’ can obstruct justice, the OTP has set out several limitations and clarifications. One such clarification is the irrelevance of political consideration or geographic balance. The Office is clear that, at no stage, political consideration or geographic or regional balance plays a role in the selection of situations or cases (ICC 2022b; ICC-OTP 2013, 3). Another clarification is regarding the principle of impartiality. Impartiality does not mean ‘an “equivalence of blame” between different persons and groups within a situation.’ It also does not require the Office to prosecute all sides to avoid the perception of bias. The principle of impartiality is instead a requirement that the OTP must ‘focus its efforts objectively on those most responsible for the most serious crimes within the situation in a consistent manner’ (ICC-OTP 2013, para.66).

Another important point is the irrelevance of operational feasibility. According to the OTP, ‘feasibility is not a separate factor under the Statute as such when determining whether to open an investigation. Weighing feasibility as a separate self-standing factor, moreover, could prejudice the consistent application of the Statute and might encourage obstructionism to dissuade ICC intervention’ (ICC-OTP 2013, para.70).

The implementation of this point is not straightforward, though. The OTP has set out a principle guiding the Prosecutorial Strategy as maximizing the impact of the activities of the Office (ICC-OTP 2006, 6). This is related to the policy to consider all circumstances prevailing in the country/region concerned and practical realities. Apparently, ‘no investigation can be initiated without having careful regard to all circumstances prevailing in the country or region concerned, including the nature and stage of the conflict and any intervention by international community.’ Furthermore, arguably more contradictorily, prosecutorial strategy has admitted that the Prosecutor would have to consider the practical realities, including questions of security on the ground, availability of the necessary means of investigation, and possibilities for the protection of witnesses (ICC-OTP 2003, 2). In that deliberation, it can be difficult to distinguish between operational feasibility and practical realities.

At the decision stage of a situation, an additional guarantee to pursue prosecution exists. The Pre-Trial Chamber (PTC) may review a decision by the Prosecutor not to proceed with an investigation in relation to a referral by a state or by the UNSC. The PTC may also, on its initiative, review the Prosecutor’s decision not to proceed with a referral if it is based solely on the interests of justice [Rome Statute 1998, art 53(3)]. These points will be discussed further in Section 4.

Victims’ interests

Victims' interests are part of the consideration of ‘the interest of justice. This principle was newly added to the OTP policy in 2009 (ICC-OTP 2010, 2, 6). For the first time, victims have the possibility under the Statute to present their views and concerns to the Court (ICC-OTP 2007, 5). The Office is not only passive but is ‘systematically address the interests of victims’ in its work at all stages on an ongoing basis (ICC-OTP 2010, 6). Different views of victims, their communities and the broader societies are considered. Dialogues are conducted with victims and representatives of local communities, respected intermediaries and representatives, religious, political, or tribal leaders, representatives of other states, local, regional, or international intergovernmental and nongovernmental organizations, or ‘those who may be able to provide a comprehensive overview of a complex situation.’ The OTP specifically seeks views that require action, including protection (ICC-OTP  2007, 5-6).

The OTP sees that these broad consultations reflect victims’ interests in its actions and ensure policies for combating impunity are rooted in processes that ensure public accountability. The UN Secretary-General reported that programs that emerge from national consultations are more likely than those imposed from outside ‘to secure sustainable justice for the future, per international standards, domestic legal traditions and national aspirations’, in other words, to ensure ending impunity (UNSC 2004a, 2).

4. Court’s Decisions

The Court’s rulings are mainly consistent with the prosecutorial priorities discussed above, but there are some contradicting interpretations.

In terms of gravity assessment at the stage of determination of cases, the Court found that ‘both the person and the conduct which is the subject of the case’ is assessed (ICC 2006, paras. 21, 31, 38). The Court’s practice largely followed prosecutorial policies, and its assessment of gravity included both quantitative and qualitative factors, including the number of victims, the scale of the alleged crimes including assessment of geographical and temporal intensity, nature, manner and impact of the alleged crime, and the importance of the suspect and their role. Qualitative consideration involves the nature of unlawful behavior, means employed to execute the crime, position, responsibility and seniority of the accused, and the role and degree of the accused’s participation.  In addition, a specific gravity threshold is set down for war crimes: the crime being committed ‘as part of a plan or policy or as part of a large-scale commission of such crimes’. Accordingly, the Appeals Chamber (AC) dismissed the setting of an overly restrictive legal bar to the interpretation of gravity that would hamper the deterrent role of the Court (ICC 2008, paras.69-79). 

A related criterion for admissibility is the role of the person(s) in the alleged crime. The policy requirement that the Court prosecute persons with the greatest responsibility is not firmly followed. In the Lubanga arrest warrant decision, PTC endorsed the policy that the Court should prosecute persons with the greatest responsibility, noting that the focus on such leaders was justified because these persons are ‘the ones who can most effectively prevent or stop the commission of those crimes.’ This reinforces the idea that the Court’s primary purpose for prosecution is the prevention of such crimes. However, the AC disagreed and found that the emphasis on persons most responsible would impose too high a threshold for investigations (ICC 2008, paras.73-82). It observed that the role of persons or groups might vary considerably depending on the circumstances of the case and therefore should not be exclusively assessed or predetermined on excessively formalistic grounds (ICC 2008, paras.69-79). As a result, subsequent PTCs have taken into account the group of persons that bear the greatest responsibility as a factor to consider admissibility, but not a requirement (ICC 2010a, para.62; 2011c, paras.201-206; 2015, para.21; 2019a, paras.80-86). 

One area where the Court’s actions appear to have swayed is the implementation of ‘the interest of justice’. The Court has taken a ‘positive complementarity’ policy as discussed above. What was and remains controversial is how much reality needs to be considered by the Court in its decision to look into a particular situation or a case. This point demands a separate consideration. 

In sum, the Court’s policies have been modified and clarified. The Court’s policies have flexibilities in their implementations, reflecting the reality, and utilizing the margin of flexibility in interpreting and implementing the Statute and policies. There may be a space for African states to use their influence in this process.

[1] The name of this document is ‘Policy Paper on the Interest of Justice’ (hereinafter ‘Interest of Justice’).

[2] A case is understood ‘to comprise an identified set of incidents, suspects and conduct’ (ICC-OTP 2013, 10).

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