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Prosecutorial Discretion

v. Judicial Activism at theInternational Criminal Court

William A. Schabas*

AbstractThe Prosecutor of the International Criminal Court has exercised broad prosecutor-

ial discretion in the selection of situations and cases to be heard by the Court. It

is difficult to explain the exercise of this discretion by reference to the criteria

purportedly used by the Prosecutor of gravity and interests of justice under

Articles 17 and 53 of the ICC Statute, respectively. Unlike the ad hoc international

criminal tribunals, it appears more the norm that the Prosecutor of the International

Criminal Court acts in accordance with the wishes of the State parties, and with

respect to the availability of an individual to be prosecuted. For its part, the Court

has encountered difficulties in reviewing the Prosecutors exercise of discretion asit has been unable to effectively access the criteria of gravityand interests of justice.

In relation to the charges faced by an accused, the Court has been more active, and

has even been willing to add the criterion of inactive to Article 17 ICC Statute. The

Courts impatience with the slow pace of prosecutions in Darfur has created tension

with the Prosecutor.

1. Introduction: Prosecutorial Discretion from

Nuremberg to Sierra LeoneProsecutorial independence, and with it a broad discretion in the choice of cases

and in the selection of evidence to be presented, has been an important feature of

international criminal justice since its beginning at Nuremberg. This almost cer-

tainly reflects the strong influence of adversarial procedural models derived from

common law systems. UnderArticle15 of the Charterof the International Military

Tribunal (IMT Charter), the four Chief Prosecutors, designated by the United

Kingdom, the United States, France and the Soviet Union, wereindividually, and

* OC, MRIA, Professor of Human Rights Law, National University of Ireland, Galway and Director,

Irish Centre for Human Rights; Global Legal Scholar, University of Warwick School of Law;

Visiting Professor, Queens University Belfast School of Law; Visiting Fellow, All Souls College,

University of Oxford (2008). An earlier version of the article was presented at the meeting on

New Vistas in International Criminal Justice sponsored by theJournal of International Criminal

Justice, Florence, 16 May 2008. [ will [email protected]]

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Journal of International Criminal Justice 6 (2008), 731^761 doi:10.1093/jicj/mqn045 Oxford University Press,2008, All rights reserved. For permissions, please email: [email protected]

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acting in collaboration with one another to undertake the investigation, collec-

tion and production of evidence, and the preparation of the indictment. Selection

of the accused was to be agreed by the four Chief Prosecutors, who were

collectively designated the Committee for the Investigation and Prosecution

of MajorWar Criminals. In that regard, they appear to have had full discretion.To be entirely accurate, these were not independent prosecutors but rather

representatives of their own governments, and their role, at least in part, was

surely to ensure that the interests of their respective states were protected.

There is little or no evidence of this in the public domain, but it may well be

that they were acting under instructions from their own governments in the

choice of whom to charge. A recent study shows how intelligence agents were

planted on the staff of the American Prosecutor at the highest levels. One

aspect of their job was to ensure that high-ranking Nazis who had collaborated

with the United States in the final months of the war were not prosecuted.1

Prosecutors at Nuremberg selected the accused and issued the indictment

without any real judicial oversight. According to the record, the judges

merely noted that the indictment had been lodged and then issued orders that

it was to be served, together with copies of the Charter, on the accused.2 It seems,

however, that judicial approval was required to modify the indictment. After it had

been determined that Gustav Krupp Von Bohlen und Halbach was not fit to

stand trial,3 the American Chief Prosecutor Robert Jackson asked theTribunal to

authorize an amendment to the indictment so as to add Krupps son. Unlike the

father, Alfried was deemed compos mentis.4 Jackson told the Tribunal thatthe proposal from the United States to add Alfried Krupps name to the indictment

had initially been opposed by the other three powers, but that subsequently

France and the Soviet Union had come round to Washingtons point of view.

The British Chief Prosecutor, Hartley Shawcross, said that if it happened

that Alfried Krupp were prepared to step into his fathers shoes in this matter,

without any delay in the proceedings, the British Prosecutors would welcome

that procedure but if his joinder involves any further delay in the Trial of the

existing defendants, we are opposed to it.5 The motion to amend was dismissed.6

1 M. Salter, Nazi War Crimes, US Intelligence and Selective Prosecutions at Nuremberg: Controversies

Regarding the Role of the Office of Strategic Services (Abingdon: Taylor & Francis, 2007).

2 Minutes of the Opening Session of the Tribunal, Berlin, 18 October 1945 (1947) 1 IMT 24.

3 Preliminary Hearing, Thursday, 15 November 1945 (1947) 2 IMT 19; Order of the Tribunal

Granting Postponement of Proceedings against Gustav Krupp Von Bohlen (1947) 1 IMT 143;

Motion on Behalf of Defendant Gustav Krupp Von Bohlen for Postponement of the Trial (1947)

1 IMT 124^125.

4 Ibid., at 6^7. See also, Motion Of The Prosecution To Amend The Indictment By Adding The

Name Of Alfried Krupp Von Bohlen As A Defendant (1947) 1 IMT 145; Supplementary

Statement of the US Prosecution on Granting Postponement of Proceedings against Gustav

Krupp Von Bohlen: Memorandum Filed By the US Chief of Counsel To the International

Military Tribunal (1947) 1 IMT 144.

5 Ibid., at 11^12.

6 Preliminary Hearing, Saturday, 17 November 1945 (1947) 2 IMT 28; Order of the Tribunal

Rejecting the Motion to Amend the Indictment by Adding the Name of Alfried Krupp Von

Bohlen as a Defendant (1947) 1 IMT 146.

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Five decades later, with the post-Cold War renaissance of international

criminal justice, the Security Council established an institution with an inde-

pendent Prosecutor whose hands were free to select cases for prosecution,

albeit within the tight jurisdictional framework of the ad hoc institution.

The Prosecutor was to act independently as a separate organ, and was not toseek or receive instructions from any Government or from any other source.7

Judges eventually threatened to intervene in the selection of cases, as part of

the completion strategy. According to Rule 28 of the Rules of Procedure of

the International Criminal Tribunal for the former Yugoslavia (ICTY), as

amended on 6 April 2004, the Bureau is to determine whether a proposed

indictment concentrates on one or more of the most senior leaders suspected

of being most responsible for crimes within the jurisdiction of the Tribunal.

The judges justify their authority to adopt such a norm with reference

to Security Council Resolution 1534, which Calls on each Tribunal, in review-ing and confirming any new indictments, to ensure that any such indictments

concentrate on the most senior leaders suspected of being most responsible for

crimes within the jurisdiction of the relevant Tribunal as set out in resolution

1503 (2003).8 Apparently acting on the belief that they have no such authority,

the judges of the International Criminal Tribunal for Rwanda (ICTR) have

not adopted a similar rule.9 The ICTY Prosecutor objected to Rule 28 as

interference in her discretion. It is not known whether the Bureau has actually

ever exercised its authority under Rule 28 by rejecting a request to issue an

indictment. Whether judges may intervene at the Special Court forSierra Leone (SCSL) to overrule the Prosecutors determination that an

accused is someone who bears the greatest responsibility for atrocities is a

matter on which the case law is conflicting,10 but which is also, given the

fact that the Court is in its twilight years, purely theoretical.

It is also possible for an indictment properly before the ICTY to be referred

to national courts at the initiative of a Trial Chamber designated by the

president, acting proprio motu, bearing in mind the gravity of the crimes

charged and the level of responsibility of the accused.11 It may apparently

take place over the objections of the Prosecutor, but there are no examples ofthis occurring in practice.

7 UN Doc. S/RES/827 (1993), annexe, Art. 16.

8 UN Doc. S/RES/1534 (2004),x 5.

9 D.A. Mundis, The Judicial Effects of the Completion Strategies on the Ad Hoc International

Criminal Tribunals, 99American Journal of International Law(2005) 142, at 148.

10 Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on

Behalf of the Accused Fofana, Norman, Fofana and Kondewa (SCSL-2004-14-PT), Trial Chamber,

3 March 2004, xx27, 39; Judgment, Brima et al. (SCSL-04-16-T), Trial Chamber, 20 June 2007

(hereinafterBrimajudgment), x 653.

11 Rule 11bis ICTY RPE.

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2. Discretion in Selection of Situations and Cases

In contrast with both Nuremberg and the ad hoc tribunals, the judicial over-

sight of the Prosecutor of the International Criminal Court (ICC) in the selec-

tion of cases is considerably more robust. It is necessary to divide the processinto two distinct stages, involving first the identification of situations and

subsequently that of cases. Prior to issuance of an arrest warrant, the Court

must be properly seized of the situation. There was no selection of a situation

either at Nuremberg or before the ad hoc tribunals. This had been done for

them in their enabling instruments, by the powers that created the

institutions.

At the ICC, situations are identified through one of the three modes or

trigger mechanisms set out in the ICC Statute: Security Council referral

(Article 13), State Party referral (Article 14) and prosecutorial initiative(Article 15). In the first two, neither the Prosecutor nor the judges have any

discretion. This is a manifestation of state sovereignty, through either the

action of one state or that of the international community, acting collectively

through the Security Council. These two modes of selecting situations for the

Court correspond closely to the conception presented in the draft statute pre-

pared by the International Law Commission (ILC) and submitted to the United

Nations General Assembly in 1994. The Court was to be a facility available to

States Parties to its Statute, and in certain cases to the Security Council, who

alone were empowered to initiate prosecutions.12

The third mode of selection of situations was one of the great and contro-

versial innovations of the post-ILC phase of drafting the Rome Statute.13

It allows the Prosecutor to identify crimes within the jurisdiction of the Court

that he proposes to investigate, although judicial authorization is required for

him to proceed. There have been no manifestations of exercise of this proprio

motu authority by the Prosecutor, so we can only speculate about how the

power will be used, and how it will be reviewed at the judicial level.

Whatever the mode used to trigger the jurisdiction of the Court, once this

has taken place, the Prosecutor has great discretion in the selection of cases.14

The Prosecutor can decide that there simply are no cases, and choose to pro-

ceed no further, subject to the review of this decision by a Pre-Trial Chamber.15

Louise Arbour, former Prosecutor of the ICTY, insisted in a statement to the

December 1997 session of the Preparatory Committee that there is a major

12 Yearbook. . . 1994, UN Doc. A/CN.4/SER.A/1994/Add.l (Part 2), at 45.

13 S.A. Fernandez de Gurmendi, The Role of the International Prosecutor, in R.S. Lee (ed.), The

International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (The

Hague: Kluwer Law International, 1999) 175^188; L.N. Sadat and S.R. Carden, The New

International Criminal Court: An Uneasy Revolution, 88 Georgetown Law Journal(2000) 381, at

400^401.

14 See generally: M.R. Brubacher, Prosecutorial Discretion within the International Criminal

Court, 2 Journal of International Criminal Justice (2004) 71; L. Co te, International Justice:

Tightening up the Rules of the Game, 81 International Review of the Red Cross (2006) 133.

15 Art. 53 ICCSt.

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distinction between domestic and international prosecution. It lies in the

unfettered discretion of the Prosecutor. In a domestic context, there is an

assumption that all crimes that go beyond the trivial or de minimis range are

to be prosecuted. But before an international tribunal, particularly one based

on complementarity, the discretion to prosecute is considerably larger, and thecriteria upon which such prosecutorial discretion is to be exercised are ill-

defined, and complex. In my experience, based on the work of the two

Tribunals to date, I believe that the real challenge posed to a Prosecutor is to

choose from many meritorious complaints the appropriate ones for inter-

national intervention, rather than to weed out weak or frivolous ones.16

Information available to the public indicates that the Prosecutor has applied

for and obtained 12 arrest warrants. Five of them concern the Situation in

Uganda, four the Situation in the Democratic Republic of the Congo (DRC),

two the Situation in Darfur, Sudan17 and one the Situation in the CentralAfrican Republic. The Prosecutor has provided some explanation as to why

the specific individuals, and not others, were selected for prosecution, and

this assists in understanding how his discretion is being exercised. In addition,

the Prosecutor has also explained why he has decided not to proceed further

with respect to the conduct of foreign troops in Iraq and alleged atrocities

committed in Venezuela.

The Prosecutor has said that in determining whether to exercise his proprio

motu powers, he is required to consider three factors, all of them rooted in

provisions of the ICC Statute. First, he must determine whether the availableinformation provides a reasonable basis to believe that a crime within the

jurisdiction of the Court has been or is being committed.18 Second, he must

assess whether the case would be admissible in terms of Article 17 ICC Statute.

This involves examining the familiar standard of whether the national courts

are unwilling or unable genuinely to proceed. But, it also involves evaluating

the rather enigmatic notion of gravity. If these conditions are met, the prose-

cutor must then give consideration to the interests of justice.19 These criteria,

especially those of gravity and interests of justice, provide enormous space

for highly discretionary determinations.The Office of the Prosecutor published its Prosecutorial Strategy in

September 2006.20 It says that in selecting cases, the Off ice adopted a policy

of focusing its efforts on the most serious crimes and on those who bear the

greatest responsibility for these crimes. This is apparently combined with a

so-called sequenced approach to selection, whereby cases inside the situation

16 Statement by Justice Louise Arbour to the Preparatory Committee on the Establishment of an

International Criminal Court, December 8, 1997, at 7^8.

17 On 14 July 2008, the Prosecutor applied for a warrant of arrest against the President of Sudan,

Omar Hassan Ahmad al-Bashir.

18 Art. 53(1)(a) ICCSt.

19 Art. 53(1)(c) ICCSt.

20 In June 2006, the Office of the Prosecutor circulated a draft annexe to its policy paper entitled

Criteria for Selection of Situations and Cases, but it did not accompany the September docu-

ment and has never been issued publicly in a final version.



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are selected according to their gravity. Although any crime falling within the

jurisdiction of the Court is a serious matter, the Statute clearly foresees and

requires an additional consideration of gravity whereby the Office must deter-

mine that a case is of sufficient gravity to justify further action by the Court.

According to the Office of the Prosecutor, factors relevant in assessing gravityinclude: the scale of the crimes; the nature of the crimes; the manner of

commission of the crimes; and the impact of the crimes. Finally, the statement

said that it is part of this policy to request arrest warrants or summons to

appear only when a case is nearly trial-ready in order to facilitate the expedi-

tiousness of the judicial proceedings.21

A. The Gravity Criterion

The emphasis on gravity in the exercise of prosecutorial discretion was not

apparent in early pronouncements by the Prosecutor, although this should

hardly seem surprising. Indeed, the issue of gravity was virtually ignored in

the negotiations of the Rome Statute, and did not manifest itself as an impor-

tant question until well after the Court had begun to operate. It was introduced

by the ILC in 1994, at a time when a court with broad jurisdiction over so-

called treaty crimes was contemplated. At that time, the Commission probably

thought gravity was a way of discarding minor crimes and violations for

example, a combatant appropriating a loaf of bread in an occupied village

22

rather than minor cases. The authoritative two-volume commentary on the ICC

Statute, edited by Antonio Cassese, Paola Gaeta and John Jones, is essentially

silent on the issue. The word gravitydoes not even appear in the index to the

commentary, in striking contrast with the word complementarity, whose

entries in the index consume the best part of a page.23 The chapters in the

commentary on admissibility consider the concept as if was synonymous with

complementarity.24 The discussion of gravity in the commentary edited by

Otto Triffterer consists of two terse and uninformative paragraphs.25 The sub-

ject is entirely absent in the consideration of admissibility in the commentaryby Eric David.26 Many other commentators have treated the issue of

21 Report on Prosecutorial Strategy, 14 September 2006, at 5^6 (reference omitted).

22 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadic(IT-94-1-AR72),

Appeal Chamber, 2 October 1995 (hereinafter TadicJurisdictional Decision), x 94.

23 A. Cassese, P. Gaeta and J.R.W.D. Jones (eds),The Rome Statute of the International Criminal Court:

A Commentary, Vol. II (Oxford: Oxford University Press, 2002), at 1946.

24 Ibid., Vol. I, at 667^731; also G. Turone, Powers and Duties of the Prosecutor, in Cassese et al.,

ibid., Vol. II, 1137^1180, 1153^1154.

25 S.A. Williams, Article 17, in O. Triffterer (ed.), Commentary on the Rome Statute of the

International Criminal Court (Baden Baden: Nomos, 1999) 383^394, at 393; M. Bergsmo and

P. Kruger, Article 53, in Triff terer, ibid., 701^714, at 708^709.

26 E. David,La cour penale internationale, 313Receuil des cours (2005) 325, at 248^251.

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admissibility as if it was synonymous with complementarity, completely over-

looking the issue of gravity.

Upon taking office, in July 2003, the Prosecutor issued a report on commu-

nications already received. He neither used the word gravity, nor did the

concept appear to have any significance in initial determinations aboutwhether and when to exercise his proprio motu authority to commence an

investigation.27 The Prosecutor said he had decided to concentrate on the

Ituri region, in the DRC, explaining it was the most urgent situation to be

followed.28 He discussed the [a]bility of the government of the Democratic

Republic of Congo to genuinely investigate and prosecute the crimes allegedly

committed in Ituri,29 but did not give any consideration to whether the situa-

tion was of sufficient gravity, either in an autonomous sense or by comparison

with other situations that might also fall within his purview.

Shortly thereafter, in September 2003, the Prosecutor issued a nine-pagepaper on some policy issues of importance to his work. The introductory

sentence said that the paper defined a general strategy for the Office of the

Prosecutor. There was only one perfunctory reference to the issue of gravity:

Article 17, dealing with admissibility, adds to the complementarity grounds one related to

the gravity of a case. It states that the Court (which includes the Office of the Prosecutor)

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.30

It was accompanied by a 12-page Annexe to the Policy Paper, described as

offering further details on the process of analysis of referrals and communica-

tions up to the time when a decision is taken to proceed with an investiga-

tion.31 The Annexe used the word gravityonly once, in a paraphrase of Article

53 of the ICC Statute.32 In February 2004, the Prosecutor addressed the diplo-

matic corps in The Hague. He spoke about Article 53 ICC Statute, specifically

mentioning the interests of victims and the interests of justice, but altogether

omitting to mention gravity.33 Taken together, these documents issued by the

Office of the Prosecutor in the first year of its activity indicate that gravity wasnot then viewed as an issue of significance in the selection of cases and an

assessment of their admissibility.

This all seemed to change by late 2005, when the Prosecutor found that

he was required to defend his initial choices of whom to target in prosecutions.

27 Communications Received by the Office of the Prosecutor of the ICC, 16 July 2003.

28 Ibid., at 3.

29 Ibid., at 4.

30 Paper on some policy issues before the Office of the Prosecutor, at 7.

31 Annexe to the Paper on some policy issues before the Office of the Prosecutor, Referrals and

Communications, at 1.

32 Ibid., at 3.

33 Statement of the Prosecutor Luis Moreno-Ocampo, to Diplomatic Corps, The Hague,

Netherlands, 12 February 2004, at 4.



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In a public statement issued when the five Ugandan arrest warrants were made

public, he said:

The criteria [sic] for selection of the first case was gravity. We analyzed the gravity of all

crimes in Northern Uganda committed by the LRA and Ugandan forces. Crimes committed

by the LRA were much more numerous and of much higher gravity than alleged crimes

committed by the UPDF. We therefore started with an investigation of the LRA.34

Several days later, he spoke to diplomats about criteria for case selection: the

issue of gravity, which had not figured at all in the discourse of the Prosecutor

a year or two earlier, had suddenly become prominent. According to the

Prosecutor,

Among the most important of these criteria is gravity. We are currently in the process of

refining our methodologies for assessing gravity. In particular, there are several factors that

must be considered. The most obvious of these is the number of persons killed as this

tends to be the most reliably reported. However, we will not necessarily limit our investiga-

tions to situations where killing has been the predominant crime.We also look at number of

victims of other crimes, especially crimes against physical integrity. The impact of the

crimes is another important factor.35

He spoke specifically about the Ugandan warrants:

In Uganda, the criterion for selection of the first case was gravity. We analyzed the gravity

of all crimes in Northern Uganda committed by all groups the LRA, the UPDF and other

forces. Our i nvestigations indicated that the crimes committed by the LRA were of drama-tically higher gravity.We therefore started with an investigation of the LRA.36

He also mused somewhat more philosophically, providing a rationale for this

new insistence upon gravity:

A case driven approach would imply that the Court should act in every situation involving

crimes that appear to fall within our jurisdiction. As a result, the Court would take on

multiple situations, including those of comparatively lesser gravity, and would thereby

expand its reach, reducing the role of national states. Increasing demands for cooperation

and intervention in less grave situations which may fail to reflect the concern of the inter-

national community as whole might lead to ICC fatigueand a diminishing of support.37

The Prosecutor continued:

Crimes within our jurisdiction are by definition grave crimes of international concern. But

gravity in our Statute is not only a characteristic of the crime, but also an admissibility

factor, which seems to reflect the wish of our founders that the ICC should focus on the

gravest situations in the world.38

34 Statement by the Chief Prosecutor on the Uganda Arrest Warrants, The Hague, 14 October

2005, at 2^3.

35 Statement by Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Informal

meeting of Legal Advisors of Ministries of Foreign Affairs, New York, 24 October 2005, at 6.

36 Ibid., at 7.

37 Ibid., at 8.

38 Ibid., at 8^9.

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Similar remarks were made in his address to the Assembly of States Parties, in

November 2005:

In Uganda, we examined information concerning all groups that had committed crimes in

the region. We selected our first case based on gravity. Between July 2002 and June 2004,

the Lords Resistance Army (LRA) was allegedly responsible for at least 2200 killings and

3200 abductions in over 850 attacks. It was clear that we must start with the LRA.39

Turning to the DRC, the country he had focused on in 2003 as being the most

deserving of his attention, the Prosecutor said: In the Democratic Republic of

the Congo (DRC) there have been more than 8,000 killings committed by

numerous armed groups within the temporal jurisdiction of the Court. We are

working in sequence, selecting cases on the basis of gravity.40

The Prosecutor issued a public statement in February 2006 explaining

his decision not to proceed on the basis of complaints filed concerning thebehaviour of British troops in Iraq since the 2003 invasion. Even though Iraq

is not a State Party, the Court has jurisdiction over nationals of States Parties,

including those of the United Kingdom, in accordance with Article 12 ICC

Statute. The decision not to proceed was apparently based upon the gravity

threshold. The report contains the most elaborate discussion to date of the

issue of gravity in documents emanating from the Office of the Prosecutor:

Even where there is a reasonable basis to believe that a crime has been committed, this is

not sufficient for the initiation of an investigation by the International Criminal Court. The

Statute then requires consideration of admissibility before the Court, in light of the gravityof the crimes and complementarity with national systems.

While, in a general sense, any crime within the jurisdiction of the Court is grave, the

Statute requires an additional threshold of gravity even where the subject-matter jurisdic-

tion is satisfied. This assessment is necessary as the Court is faced with multiple situations

involving hundreds or thousands of crimes and must select situations in accordance with

the Article 53 criteria.

For war crimes, a specific gravity threshold is set down in Article 8(1), which states that the

Court shall have jurisdiction in respect of war crimes in particular when committed as part

of a plan or policy or as part of a large-scale commission of such crimes. This threshold is

not an element of the crime, and the words in particular suggest that this is not a strictrequirement. It does, however, provide Statute guidance that the Court is intended to focus

on situations meeting these requirements.

According to the available information, it did not appear that any of the criteria of Article

8(1) were satisfied.

Even if one were to assume that Article 8(1) had been satisfied, it would then be necessary

to consider the general gravity requirement under Article 53(1)(b). The Office considers

various factors in assessing gravity. A key consideration is the number of victims of parti-

cularly serious crimes, such as wilful killing or rape. The number of potential victims of

crimes within the jurisdiction of the Court in this situation 4 to 12 victims of wilful

killing and a limited number of victims of inhuman treatment was of a different order

39 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,

28 November 2005, at 2.

40Ibid.



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than the number of victims found in other situations under investigation or analysis by the

Office. It is worth bearing in mind that the OTP is currently investigating three situations

involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo

and Darfur. Each of the three situations under investigation involves thousands of wilful

killings as well as intentional and large-scale sexual violence and abductions. Collectively,they have resulted in the displacement of more than 5 million people. Other situations

under analysis also feature hundreds or thousands of such crimes.

Taking into account all the considerations, the situation did not appear to meet the required

threshold of the Statute.

In light of the conclusion reached on gravity, it was unnecessary to reach a conclusion on

complementarity.41

In June 2006, in his bi-annual report to the Security Council on the Darfur

referral, he said: The gravity of the crimes is central to the process of case

selection. The Office looks at factors such as the scale and nature of the crimes(in particular, high numbers of killings), the systematic character and impact

of the crimes, as well as other aggravating factors.42

Although it has never been officially released, the draft Criteria for Selection

of Situations and Cases, dated June 2006, provides some insight into the vision

of the gravity issue of the Office of the Prosecutor. According to this document,

[i]n the view of the [Office of the Prosecutor], factors relevant to assessing

gravity include: a) the scale of the crimes; b) the nature of the crimes; c) the

manner of commission of the crimes; d) the impact of the crimes. The draft

document says that these factors should be considered jointly: no fixed weight

should be assigned to the criteria, but rather a judgment will have to be

reached on the facts and circumstances of each situation.43

The practice of the Office of the Prosecutor suggests that gravity is invoked

not so much as a justification for the selection of cases on which to proceed as

a justification for refusing to undertake other cases. This is especially apparent

when the reluctance of the Prosecutor to actually exercise his proprio motu

powers in accordance with Article 15 ICC Statute is considered. Thus, for

example, the Prosecutor decided to go no further with investigations in Iraq,

justifying the decision on the grounds that there were substantially more

victims in Uganda and the DRC, where situations were being investigated

pursuant to State Party referrals. He did not, however, compare the situation

in Iraq, or for that matter the situations in the central African countries, with

those elsewhere in the 106 states over which he has territorial jurisdiction. It

may be possible to argue that the situations in northern Uganda and Ituri are

the most grave of those within the jurisdiction of the Court, but no such

demonstration appears in any of the public documents issued by the Office of

the Prosecutor. In any event, the Prosecutor did not select the situations in

41 Statement on communications concerning Iraq, The Hague, 9 February 2006, at 8^9.

42 Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno-Ocampo to

the UN Security Council pursuant to UNSCR 1593 (2005), 14 June 2006, at 2. Compare with:

UN Doc. S/PV.5459, at 2.

43 Criteria for Selection of Situations and Cases, unpublished draft document of the Office of the

Prosecutor, June 2006, at. 5.

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northern Uganda and the DRC. Rather, these were referred to him by the states

themselves in accordance with Article 14 ICC Statute. It is by virtue of this self-

selection that they appear at the top of the prosecutorial agenda, rather than

any analysis that they manifest the greatest gravity. In practice, then, it has

been states themselves that have selected the situations, if not the cases.

1. TheLubangaCase and Gravity

Early in 2006, the Prosecutor identified an individual,Thomas Lubanga Dyilo,

who was already in custody in the Congo awaiting prosecution before national

courts on charges of genocide and crimes against humanity. The Prosecutor

obtained an arrest warrant against Lubanga for charges concerning enlistment

of child soldiers, something for which he had not been charged in the DRC,44

and the suspect was quickly brought to The Hague. Given that France excluded

itself from the jurisdiction of the Court with respect to war crimes, pursuant to

Article 124, it was ironic that Lubangas transfer to stand trial for war crimes

was effected by a French military airplane. Charges against Lubanga were

confirmed in January 2007,45 and his trial was scheduled to begin in March

2008 and again in June 2008 before being postponed sine die.46 Two other

Congolese paramilitary leaders have been taken into custody and charged

with war crimes and crimes against humanity.47 Their joint confirmation

hearing began in June 2008.

It is difficult to reconcile the prosecutorial discourse about gravity with the

decision to proceed against Lubanga. The arrest took place within days of

issuance of the statement in which the Prosecutor said wilful killing of civi-

lians by British troops in Iraq was not sufficiently serious enough to warrant

further investigation. He contrasted this with the thousands of deaths in the

DRC, yet then proceeded in a case of recruiting child soldiers in which allega-

tions of homicide were not even made. The Prosecutor was comparing apples

with oranges.

The Pre-Trial Chamber that issued the Lubanga arrest warrant produced an

interesting decision that discussed the issue of gravity. Noting that the gravity

threshold was mandatory, it said that were it to decide that a case was not of

sufficient gravity, there would be no alternative but to reject it as inadmissible.

Pre-Trial Chamber I noted that the gravity threshold was in addition to the

44 Decision on the Prosecutors Application for a Warrant of Arrest,Prosecutor v. Lubanga (ICC-01/

04-01/06-8), Pre-Trial Chamber I, 10 February 2006 (hereinafter LubangaDecision on Warrant

of Arrest).

45 Decision sur la confirmation des charges, Prosecutor v. Lubanga (ICC-01/04-01/06), 29 January

2007 (hereinafterLubangaDecision sur la Confirmation des Charges).

46 Decision on the consequences of non-disclosure of exculpatory materials covered by Art.

54(3)(e) agreements and the application to stay the prosecution of the accused, together with

certain other issues raised at the Status Conference on 10 June 2008, Prosecutor v. Lubanga

(ICC-01/04-01/06), Trial Chamber I, 13 June 2008.

47 Warrant of Arrest for Germain Katanga, Prosecutor v. Katanga (ICC-01/04-01/07), 2 July 2007;

Warrant of Arrest for Mathieu Ngudjolo Chui, Prosecutor v.Chui(ICC-01/04-02/07), 2 July 2007.



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drafterscareful selection of the crimes included in Article 6 to 8 ICC Statute, a

selection based on gravity and directed at confining the material jurisdiction of

the Court to the most serious crimes of international concern.48 As a result,

the relevant conduct must present particular features which render it espe-

cially grave.49 However and the distinction is fundamental the Pre-TrialChamber had nothing to compare with the gravity of Lubangas alleged crimes.

It was not asked, for example, to decide whether recruitment of child soldiers

was more or less serious than wilful killing of civilians. It was not asked

to compare the overall situation in Ituri with that prevailing in Iraq, or

Colombia, or Afghanistan, or other territories within the jurisdictional scope

of the Prosecutor. In other words, from the standpoint of the Pre-Trial

Chamber, issues of the exercise of discretion did not arise.

The Pre-Trial Chamber said that an important component of the gravity

analysis involved the social alarm such conduct may have caused in the inter-national community.50 In the specifics of the Lubanga case, it said the social

alarmcomponent of the gravity test was particularly relevant,due to the social

alarm in the international community caused by the extent of the practice of

enlisting into armed groups, conscripting into armed groups and using to

participate actively in hostilities children under the age of fifteen.51 Although

the Prosecutor does not seem to have endorsed the social alarm criterion, the

June 2006 draft document advances a somewhat analogous concept: the

[Office of the Prosecutor] will consider the broader impact of crimes on

the community and on regional peace and security, including longer termsocial, economic and environmental damage. This factor includes attacks

on persons involved in humanitarian assistance and peacekeeping mission

[sic], as well as crimes intended to obstruct police (particularly those targeting

ICC witnesses or staff) and crimes committed with intent to spread terror.52

In support of its affirmation about social alarm, the Chamber cited a United

Nations report and two of the indictments at the SCSL charging enlistment of

child soldiers.53 The Pre-Trial Chamber did not consider the social alarm in the

international community created by the invasion of Iraq, and by the atrocities

committed by British troops and their allies, by the abuse of prisoners, and bythe hundreds of thousands of deaths resulting from the invasion. It seems

probable that in the period since the Court may exercise its jurisdiction, that

is, since 1 July 2002, there have been more combat-related deaths in Iraq

48 LubangaDecision on Warrant of Arrest, supranote 44, x 41.

49 Ibid., x 45.

50 Ibid., x 46.

51 Ibid.; also xx 65^66.


Prosecutor, June 2006, at 6.

53 See also, Human Security Report 2005, at 113^116. The Report calls Sub-Saharan African the

epicentre of the phenomenon of child soldiers, although it also says that the number of armed

conflicts has been declining for more than a decade. And when wars end, soldiers including

child soldiers are usually demobilized. So it is more likely that the number of child soldiers

serving around the world has declined rather than increased in recent years.

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following the British and American invasion than in the DRC and Uganda

combined.54 But of course, these matters were not considered by the Pre-Trial

Chamber in determining the gravity of the child soldier issue. In reality, the

Pre-Trial Chamber assessed gravity in a vacuum. Unlike the Prosecutor, it was

not even comparing apples and oranges. It was comparing apples with nothing.One interesting juxtaposition was never advanced by the Pre-Trial Chamber. It

did not examine the relative gravity of the offence for which Lubanga was in

custody in the DRC at the time and the crimes he was accused of before the ICC.

Lubanga was being prosecuted in the DRC for genocide and crimes against

humanity. He was not being put on trial for recruitment of child soldiers, the

offence contemplated by the Courts arrest warrant. Proceedings in the Congo

were not based upon the policy or practice of enlisting, conscripting and active

use of children under the age of fifteen in armed conflict.55 As a result, wrote the

Pre-Trial Chamber,the DRC cannot be considered to be acting in relation to thespecific case before the Court. . ..56 This was discussed in the context of comple-

mentarity, rather than gravity. But if gravity is germane to the Courts choices

about whether to proceed in a given case, where domestic prosecution is in fact

underway, as was the case in the DRC, is it not pertinent to weigh the relative

gravity of the domestic crimes against those of the international tribunal?

Commenting on the Lubanga arrest warrant in a press statement, Prosecutor

Moreno-Ocampo said [f]orcing children to be killers jeopardises the future of

mankind.57 But arguably, the justice system of the DRC was doing a better job

than the Court itself, because it was addressing crimes of greater gravity.Certainly, genocide and crimes against humanity might also be said to jeopar-

dise the future of mankind. There is no attempt within the ICC Statute itself to

rank crimes based on gravity, and it might be claimed, as judges have done at

the ICTY,58 that there is no objective distinction between war crimes, crimes

against humanity and genocide in terms of seriousness. In reply, however,

there is implicit evidence in the ICC Statute that war crimes are less serious

than genocide and crimes against humanity. States may accept the treaty but

opt out of subject matter jurisdiction over war crimes,59 and the defences of

superior orders and defence of property are available with respect to warcrimes but not genocide and crimes against humanity.60

It would appear that the ICC has removed Thomas Lubanga from jeopardy

before the criminal tribunals of his own country for crimes that are more

54 G. Burnham et al., Mortality after the 2003 Invasion of Iraq: A Cross-sectional Cluster Sample

Survey, 368 The Lancet (2006) 1421; L. Roberts et al., Mortality Before and After the 2003

Invasion of I raq: Cluster Sample Survey, 364The Lancet(2004) 1857.

55 Supranote 44, x 38.

56 Supranote 44, x 39.

57 Statement by Luis Moreno-Ocampo, Press Conference in relation with the surrender to the

Court of Mr. Thomas Lubanga Dyilo, 18 March 2006.

58 Judgment, Furundzija (IT-95-17/1-A), Appeals Chamber, 21 July 2000, x 247; Judgment in

Sentencing Appeals, Tadic(IT-94-1-Abis), Appeals Chamber, 26 January 2000, x 69.

59 Art. 124 ICCSt.

60 Arts 33(2), 33(1)(c) ICCSt.



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serious than those for which he is being prosecuted in The Hague.61 To be fair

to the Prosecutor, his position was such that the courts of the DRC were not

prosecuting adequately. There were also concerns that Lubanga might soon

be released. Although it rejected the Prosecutors submission about the failings

of the Congolese national prosecution, Pre-Trial Chamber I note[d] theProsecutions allegations that the [DRC] authorities are not pursuing the inves-

tigations against Mr. Thomas Lubanga Dyilo.62 But perhaps the Prosecutor

would agree that if the Congolese justice system is working, then it would be

better for Lubanga to stand trial at home for genocide and crimes against

humanity than to stand trial in The Hague for recruitment of child soldiers.

As for Lubanga himself, he must be delighted to find himself in The Hague

facing prosecution for relatively less important offences concerning child sol-

diers rather than genocide and crimes against humanity. The impression

remains that in the Lubanga case, the exercise of prosecutorial discretion hadmore to do with the fact that this was an accused who was accessible to a

Court starved for trial work rather than any compelling analysis based upon

either gravity or complementarity.

Otherarrest warrant decisions have not consideredthe issue of gravity, suggest-

ing that there may be differences among members of the Chambers as to the

importance this issue deserves. For example, Trial Chamber I considered the

admissibility of the charges against Germain Katanga and Mathieu Ngoudjolo

Chui solely from the perspective of complementarity and not gravity.63 Nor has

61 According to Art. 89(4) ICCSt.,4. If the person sought is being proceeded against or is serving a

sentence in the requested State for a crime different from that for which surrender to the Court

is sought, the requested State, after making its decision to grant the request, shall consult with

the Court. Rule 183 declares: Following the consultations referred to in article 89, paragraph 4,

the requested State may temporarily surrender the person sought in accordance with condi-

tions determined between the requested State and the Court. In such case the person shall be

kept in custody during his or her presence before the Court and shall be transferred to the

requested State once his or her presence before the Court is no longer required, at the latest

when the proceedings have been completed. Nothing in the public record indicates that

Mr Lubanga was surrendered on a temporary basis, however. When Pre-Trial Chamber I

ordered his release, it did not direct that he be returned to the DRC: Decision on the release of

Thomas Lubanga Dyilo, Prosecutor v. Lubanga (ICC-01/04-01/06-8), Trial Chamber I, 2 July

2008. Rule 185(1) ICC RPE indicates that following release,the Court shall, as soon as possible,

make such arrangements as it considers appropriate for the transfer of the person, taking into

account the views of the person, to a State which is obliged to receive him or her, to another

State which agrees to receive him or her, or to a State which has requested his or her extradi-

tion with the consent of the original surrendering State. In this case, the host State shall

facilitate the transfer in accordance with the agreement referred to in article 3, paragraph 2,

and the related arrangements.

62 LubangaDecision on Warrant of Arrest, supranote 44, x 36; supranote 32.

63 Decision on the evidence and information provided by the Prosecution for the issuance of a

warrant of arrest for Germain Katanga, Prosecutor v. Katanga (ICC -01/04-01/07), Pre-Trial

Chamber I, 2 July 2007, xx19^20; Decision on the evidence and information provided by the

Prosecution for the issuance of a warrant of arrest for Mathieu Ngudjolo Chui, Prosecutor v.

Chui (ICC-01/04-02/07), Pre-Trial Chamber I, 6 July 2007, xx20^21.

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the issue of gravity figured in the arrest warrant decisions in the Situation in

Darfur, Sudan64and the Situation in Uganda.65

2. Senior Leaders

Although the Prosecutor did not refer to the issue of gravity in his early policy

statements, in 2003 and 2004, he did address the matter indirectly, to the extent

that he said prosecutions would be directed at leaders who bear most responsi-

bility for the crimes,66 or the leaders who bear the greatest responsibility.67

Eventually, the focus on leadership would be invoked as an attempt to address

gravity, but in the early days of the Office of the Prosecutor, the motivation was

entirely different. The paper onComplementarity in Practiceexplained that the

ICC and a territorial State incapacitated by mass crimes may agree that a con-

sensual division of labour is the most logical and effective approach.

Alternatively, groups bitterly divided by conflict may oppose prosecutions at

each others hands (fearing biased proceedings) and yet agree to leadership pro-

secution by a Court seen as neutral and impartial.68 In other words, leaders

would be the focus of prosecutorial attention not because of some heightened

level of gravity associated with their role, but rather because it would be politi-

cally expedient.The draft document on selection of cases, issued inJune 2006, did

not mention the issue of leadership or the status of the accused in its rather

lengthy consideration of gravity.

69

The issue is briefly considered elsewhere inthe paper, under criteria for selection of cases, but in a manner suggesting that

the Office of the Prosecutor does not want to highlight this factor, possibly out of

concerns about admissibility challenges by defendants.70

In its important ruling on admissibility in Lubanga, Pre-Trial Chamber I first

made the link between the gravity threshold and a focus on senior leaders. The

Chamber said that the gravity threshold was intended to ensure that the Court

pursued cases only against the most senior leaders in any given situation under

investigation.71It said that this factor was comprised of three elements.The first is

the position played by the accused person. The second is the role played by that

person, when the State entities, organizations or armed groups to which they

belong commit systematic or large-scale crimes. The third is the role played by

64 Decision on the Prosecution Application under Art. 58(7) of the Statute, Situation in Darfur,

Sudan (ICC-02/05-01/07), Pre-Trial Chamber I, 27 April 2007; Decision on the Prosecutors

Application for Warrants of Arrest Under Art. 58, Situation in Uganda (ICC-02/04-57), Pre-Trial

Chamber II, 8 July 2005 (hereinafter Uganda, Decision on Warrants of Arrest), x2.

65 Ibid.

66 Paper on some policy issues before the Office of the Prosecutor, at 3, 7.

67 Statement of the Prosecutor Luis Moreno-Ocampo, to Diplomatic Corps, The Hague,

Netherlands, 12 February 2004, at 4

68 Informal expert paper: The principle of complementarity in practice, at 19.


Prosecutor, June 2006, at 5^6.

70 Ibid., at 13.

71 LubangaDecision on Warrant of Arrest, supranote 44, x 50.



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such state entities, organizations or armed groups in the overall commission of

crimes. According to the Chamber, because of the position such individuals play

theyare alsothe ones who can most effectively prevent or stop the commission of

those crimes.72 The Chamber explained that the gravity threshold was a key tool

provided by the drafters to maximize the Courts deterrent effect. As a result, theChamber must conclude that any retributory effect of the activities of the Court

must be subordinate to the higher purpose of prevention.73

The Chamber further justified its emphasis on senior leaders with reference

to current practice at the ad hoc international criminal tribunals. It noted

Security Council Resolution 1534, which mandates the completion strategy of

the ad hoc tribunals. The Resolution calls for them to concentrate on the most

senior leaders suspected of being responsible. Reference was also made to Rule

28(A) ICTY RPE, which authorizes the Bureau to block the approval of indict-

ments that do not meet the senior leaders standard, and to Rule 11bis, whichestablishes the gravity of the crimes charged and the level of responsibility of

the accused as the standard to be imposed in transferring cases from the

international to the national courts.74 The Pre-Trial Chamber compared the

ad hoc tribunals, with their limited jurisdiction over one crisis situation, to

the ICC, with its broad personal, temporal and territorial jurisdiction. In the

Chambers view, it is in this context that one realises the key role of the addi-

tional gravity threshold set out in article 17(1)(d) of the Statute in ensuring the

effectiveness of the Court in carrying out its deterrent function and maximis-

ing the deterrent effect of its activities, the Pre-Trial Chamber concluded.75

In November 2007, the Prosecutor said he had been approached by states

and stakeholders with the suggestion that arrest warrants targeting lower

level perpetrators were more likely to succeed than those aimed at ministers

and powerful militia leaders. He answered that the Prosecutorial policy, in

accordance with the Statute, will seek to investigate and prosecute those most

responsible for the most serious crimes of concern to the international com-

munity, based on the criminal evidence we collect and subject only to the

judicial review of the Chambers.76

Within the DRC, the proposition, which was upheld by the Pre-Trial Chamberthat prosecution of a leader like Thomas Lubanga is inherently more serious

than that of a foot soldier, hardly seems controversial. The ICTY conducted

prosecutions of low-level perpetrators in its first years, but these cases stand

out as the exception rather than the rule. From Nuremberg and Tokyo to

Freetown, Arusha and The Hague, it seems clear that international criminal

tribunals have virtually always focused on senior leaders. This can only provide

a partial answer to the gravity issue, however, because it does not assist in any

72 Ibid., xx 51^53.

73 Ibid., x 48.

74 Ibid., xx 55^58.

75 Ibid., x 60.

76 Statement by Mr. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court,

Eleventh Diplomatic Brief ing of the International Criminal Court, The Hague, 10 October 2007,

at 5.

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way in distinguishing between situations as opposed to cases. Both the

paramilitaries in the DRC and the regular British troops in Iraq have leaders.

Something else must be involved in assessing which of the two is graver.

3. Quantity or Quality?

Differences between the analysis of gravity by the Pre-Trial Chamber, in Lubanga,

and by the Office of the Prosecutor in its various public statements, may be

explained by the fact that they are addressing somewhat different issues. The

Pre-Trial Chamber was examining the gravity of the crime that was charged,

and the significance of the accused within the criminal activity overall. The

Prosecutor, on the other hand, has been looking at the gravity of the situation.

He did not refuse to proceed in Iraq because the British leaders were not impor-

tant, or because wilful killing of civilians is not a source of social alarm. Rather,his analysis hinged essentially on the fact that there were thousands of deaths

in central Africa, whereas British forces were charged with responsibility for war

crimes occasioning loss of life in only 10 or 20 cases in Iraq. In the draft policy

paper of June 2006, the Office of the Prosecutor made the arguable assertion that

[a]t present, the gravest admissible situations within the jurisdiction of the

Court have been in one continent, Africa.77

The methodology of the comparison between Central Africa and Iraq seems

flawed. The Prosecutor could not have been comparing the total number of

deaths in Iraq with the total in the DRC or Uganda, because he might havebeen forced to conclude that the situation in Iraq is more serious. Nor could he

have been comparing the total number of deaths resulting from the crimes

attributed to Lubanga with those blamed on the British troops in Iraq, because

Lubanga was not charged with killing anybody. Thus, the quantitative analysis

of gravity, which has a certain persuasive authority, appears to get totally

muddled in imprecise comparisons. In the situation in Uganda, however, the

Prosecutor compared the different combatant groups in a civil war, concluding

that those responsible for more killing should be the focus of prosecution in

application of the criterion of gravity.The fundamentally quantitative approach to gravity suggested by the

Prosecutor in the LRA arrest warrants and the Iraq situation also seems to

neglect an important dimension of the crimes. Even assuming that the

Ugandan Peoples Defence Forces have killed significantly fewer innocent civi-

lians than the Lords Resistance Army, is not the fact that the crimes are attribu-

table to the state germane to the gravity of the case? After all, the only genuine

problem of impunity with respect to the LRA perpetrators has been the inability

of the Ugandan authorities to apprehend them. If Museveni had been able to

capture Joseph Kony prior to 1 July 2002, can there be any doubt that Konywould now be in jail, or worse? With respect to the government forces, on the

other hand, we are confronted with the classic impunity paradigm: individuals


Prosecutor, June 2006, at 9.



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acting on behalf of a state that shelters them from its own courts. In a domestic

justice setting involving ordinary crime, would we countenance a national pro-

secutor who ignored clandestine police death squads on the grounds that gang-

sters were killing more people than the rogue officials? We need not totally

dismiss the relevance of the relative numbers of victims in order to appreciatethe need to consider other factors, such as the fact that crimes are committed by

individuals acting on behalf of the state, as contributing to the objective gravityof

the crime.

A somewhat similar analysis might be applied to the situation in Iraq. Even if

it is admitted that wilful killing attributable to British forces only concerns 15

or 20 victims, surely the fact that this results from an aggressive war that has

brought the deaths of hundreds of thousands of Iraqi civilians is germane to

the gravity determination. Although aggression may not yet be prosecuted by

the Court, Article 5(1) ICC Statute declares it to be one of the most seriouscrimes of concern to the international community as a whole. Moreover, the

preamble to the ICC Statute reminds us that all States shall refrain from the

threat or use of force against the territorial integrity or political independence

of any State, or in any other manner inconsistent with the Purposes of the

United Nations. Is aggressive war not, at the very least, an aggravating factor of

relevance to the assessment of gravity?

B. Interests of Justice

Article 53 ICC Statute authorizes the Prosecutor to decline to proceed with an

investigation or a prosecution when it would not be in the interests of justice.

The expression was not invented by the drafters of the ICC Statute. Many legal

systems use the interests of justice or a similar formulation. For example,

Article 14 of the International Covenant on Civil and Political Rights and

Article 6 of the European Convention on Human Rights use the interests of

justice standard in assessing whether to allow exceptions to the principle of a

public trial, and when to require funded counsel for a criminal defendant.

The interests of justice reference in Article 53 provides the Prosecutor witha very useful safety valve. For this reason, his attempts to codify when and how

such discretion might be employed look rather like a self-inflicted wound. Early

in his term, he requested non-governmental organizations to provide input on

the subject. The result was a number of briefs and position papers. Human

Rights Watch noted that the term was not precisely defined, and spoke of the

need for clarity regarding the phrase. It proposed that the construction most

consistent with the object and purpose of the Rome Statute and its context

would be a narrow one.78 Amnesty International took a similarly restrictive

view of the concept.79

78 Human Rights Watch Policy Paper: The Meaning of The Interests of Justice in Article 53 of

the Rome Statute, June 2005.

79 Open Letter to the Chief Prosecutor of the International Criminal Court: Comments on the

Concept of the Interest s of Justice, 17 June 2005, AI Index: IOR 40/023/2005.

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In September 2007, the Office of the Prosecutor issued a position paper on

this subject. The paper emphasizes that the exercise of prosecutorial discretion

where the interests of justice is invoked is exceptional in its nature and that

there is a presumption in favour of investigation or prosecution, and that the

criteria for its exercise will naturally be guided by the objects and purposes ofthe Statute namely the prevention of serious crimes of concern to the inter-

national community through ending impunity. These assertions should be

evident enough, in that they flow more or less automatically from the provi-

sions of the ICC Statute. But the Office of the Prosecutor goes on to a more

questionable affirmation, namely that there is a difference between the con-

cepts of the interests of justice and the interests of peace and that the latter

falls within the mandate of institutions other than the Office of the Prosecutor.

This comment is directed at those who contend that sometimes international

prosecution should stand aside in favour of peace processes.80

In distinguishing the interests of peace from the interests of justice, the

Prosecutor is reading too much into the term. He is trying to impose a literal

approach to legal interpretation on an expression that was intended to leave

the exercise of prosecutorial discretion unfettered. Lamenting the fact that

interests of justice is not defined simply misses the point. Sometimes, legal

texts cannot codify concepts that require the exercise of common sense and

good judgment by responsible professionals. In any event, an attempt at defini-

tion would have broken down at the Rome Conference, given profound dis-

agreements about how the Prosecutor should be governed in situations likethat posed where a peace process requires justice to take a back seat.

Are there any limits upon the exercise of prosecutorial discretion in the

context of Article 53? Obviously, it cannot be used in an arbitrary or a discri-

minatory manner. But there is certainly no evidence in the drafting history of

the ICC Statute that a distinction between interests of justice and interests of

peace was intended. To be sure, there were those at the Rome Conference who

would have preferred language limiting the interests of justice concept by

excluding the interests of peace, but their views are not reflected in the ICC

Statute because there was no consensus on this issue. In attempting to codifyhow the discretion created by Article 53 should be exercised, the Prosecutor,

with the encouragement of certain states and NGOs, is indirectly amending the

ICC Statute.

C. Victors Justice

One issue involving the choice of cases that has received relatively little atten-

tion in the literature concerns what is sometimes called victors justice, or

moral equivalence. Almost without exception, the situations within the pur-

view of the ICC will involve complex civil conflicts where participants on both

sides have been accused of atrocity crimes. Choices need to be made about the

80 Policy paper on the interests of justice, September 2007.

Prosecutorial Discretion v.

J Int Criminal Justice 2008 Schabas 731 61

Documents

Transcript of J Int Criminal Justice 2008 Schabas 731 61