Comments on the ICC OTP’s draft policy paper on the case selection and prioritisation

The Prosecutor of the International Criminal Court (the ICC/the Court), Fatou Bensouda, issued a draft Policy Paper on Case Selection and Prioritisation late last month. Comments and amendments are still expected, but the paper is a welcome initiative because it offers more insights into the wide scope of prosecutorial discretion that is usually exercised behind the closed doors. The more discretion there is, the more transparency is needed.  

While the draft policy paper has merits, some issues spring out

1. The situation selection precedes the case selection. This implies that clarification of the situation selection should be prioritised over clarification of the case selection. The Prosecutor believes that she has already dealt with the situation selection in the policy paper on the preliminary examination. However, the recent draft policy paper reveals that more insights are needed on the situation selection. Prioritisation, as described in the draft paper, is not only a matter of case selection, but it is also applicable to the situation selection.

The Prosecutor has to select the gravest situations based both on operational and legal reasons. However, this aspect of the situation selection is missing in the policy paper. It requires the Prosecutor to complement her policy paper on preliminary examinations. Cases are closely linked to their corresponding situations. More clarity on the situation notion leads to more accuracy in the case issue.

2. The policy paper suffers from some conceptual ambiguities. Logically speaking, conceptual questions should precede normative inquires; nonetheless, the draft policy paper appears to deal with the normative aspects of the case selection in the absence of a clear understanding of those concepts referred to in the paper.

• 2.1. For instance, in paragraph 1, the case selection is defined as a process “of choosing the incidents, persons and conduct to be investigated and prosecuted”. Accordingly, the case notion consists of three elements, namely incidents, conduct and person. Soon after that, in paragraph 4, ‘cases’ are referred to as a notion which “comprise specific incidents within a given ‘situation’ during which one or more crimes within the jurisdiction of the Court may have been committed, and whose scope are defined by the suspect under investigation and the conduct that gives rise to criminal liability under the Statute”. Indeed, this statement adds the crime element to the definition of case, while the distinction between ‘crime’ and ‘conduct’ remains ambiguous and vague. One effect of this ambiguity emerges in paragraph 27 when the Prosecutor addresses the complementarity requirement as one of the legal criteria that should be considered in the case selection.

According to the draft policy paper, “In relation to complementarity, the Office will determine whether the State concerned is exercising jurisdiction in relation to the same person for substantially the same conduct as that alleged before the Court”. Here, in the complementarity assessment, only two elements of a case are mentioned, namely person and conduct. Nonetheless, the Prosecutor’s standpoint about other elements, namely incident and crime. is covered. A case consists of two main elements, namely the person and the conduct. The latter is comprised of some elements, namely the contextual element, crimes (legal characteristic of criminal acts, such as crimes against humanity or war crimes), underlying acts (such as murder and sexual violence) and incidents. The draft policy paper lacks such a bright and logical vision in defining and approaching to the above-mentioned concepts.

• 2.2. Another conceptual ambiguity in the policy paper emerges when the Prosecutor describes the case selection criteria. She makes a distinction between the gravity of crimes and charges. In defining the gravity of crimes, the paper refers to the admissibility rule enshrined in Article 17 of the Rome Statute. In the gravity assessment, as the Prosecutor has frequently insisted, “the factors that guide the Office’s assessment include the scale, nature, manner of commission, and impact of the crimes”.

The nature of crimes, as defined by the draft paper, refers to “the specific factual elements of each offence such as killings, rapes, other sexual or gender-based crimes, crimes committed against children and persecution”.   However, the definition of charges appears to be the same as the nature. In other words, there is no conceptual distinction between the ‘nature of crimes’ and the notion of ‘charges’ in the context at hand. The Prosecutor has to select those cases that are sufficiently grave and prioritise the gravest ones by taking into account the gravity of charges or nature of crimes.

3. The policy paper states that the prioritisation of cases is based on a comparative assessment of the selected cases.  However, the scope of these selected cases is not clear. If this paragraph is read in light of paragraph 1 of the draft paper stating that “in relation to the process of choosing the incidents, persons and conduct to be investigated and prosecuted within a given situation and across different situations”, it implies that to make a prioritisation among the available cases, the Prosecutor should select those cases that are gravest not only within a situation but also across other situations. However, this interpretation is clearly wrong.

To asses the gravity of cases, both actual or potential cases in the situational gravity assessment, the status of a case should be assessed only within its corresponding situation and not across all situations. If the Prosecutor compares case A in situation B with case C in situation D, it means that she compares apples with oranges. To select a situation and in the situational gravity assessment, a comparison should be made among the available situations. However, if the Prosecutor activates the Court’s jurisdiction over a situation to select cases for prosecution, she has to select the graves cases within that situation even though they are not grave in comparison with the cases within other situations.

4. One of the main products of the draft policy paper is to establish the Case Selection Plan. The plan is established to facilitate prioritisation among cases. The Prosecutor shall select those cases that are sufficiently grave. However, it is not the end of story; the Prosecutor should make a selection even among the grave cases and take action in the gravest cases. The Prosecutor has called this kind of selectivity as ‘prioritisation’. Prioritisation, in contrast with the legal gravity assessment, is based on a wide range of operational considerations.

The draft policy paper explicitly refers to this fact: “At the case prioritization stage, by contrast {with the investigation opening}, operational feasibility does become a relevant factor when exercising discretion regarding the timing of the roll-out of selected cases”.  It is a welcome and important acceptance that results in some necessary implications.  Among the operational criteria, the prospect of arrest of a suspect has been set. According to the draft policy paper, “ the potential to secure the arrest and surrender of suspects to the Court or their appearance before the Court either voluntarily or pursuant to a summons” is taken into account when the Prosecutor intends to prioritise a case over other available cases. These criteria do not only direct the Prosecutor to prioritise cases, but they play a role in deprioritising them as well; “If it appears to the Office at any given point in time that it cannot do so, the Office may decide to deprioritise and postpone the investigation of that case until conditions have improved”.

It is known that the case stage begins with the issuance of a warrant. Now, a question arises and that is whether the Prosecutor should not select a case and should refrain from requesting the Pre-Trial Chamber to issue a warrant if there is no prospect of the suspect being apprehended? If so, the Prosecutor has to accept the adverse effect of such an implication on the function and role of arrest warrants. An arrest warrant has many functions, in particular the expressive and deterrent ones.

Therefore, it does not sound reasonable to reduce its role due to non-feasibility. In addition, if an arrest warrant is issued but it remains outstanding for a long time, as is the case with many warrants before the Court, then the Prosecutor has to deprioritise the cases, in accordance with the draft policy paper.

5. The draft policy paper insists that impartiality as a ruling principle in the case selection does not mean the ‘equivalence of blame’ within a situation.  In other words, the Prosecutor is not obliged to prosecute all parties to a conflict if their cases are not as grave as the cases of rivals. However, a question remains unanswered here and that is the role of the public opinion. The Prosecutor has to clarify the meaning of ‘impact of crimes’ as one of the criteria in the gravity assessment: “The impact of the crimes may be assessed in light of, inter alia, the suffering endured by the victims and their increased vulnerability, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities”.

This narrow definition does not embrace the impact of crimes on public opinion. Nonetheless, the gravity notion appears to be open to such interpretation. The Pre-Trial Chamber of the Court in the Mavi Marmara situation refers to this important fact. The final note mentioned by the Chamber in its decision was that “the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor’s conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d’être is to investigate and prosecute international crimes of concern to the international community, and, on the other hand, the attention and concern that these events attracted from the parties involved, also leading to several fact-finding efforts on behalf of States and the United Nations in order to shed light on the events”.  It shows that the Chamber considered a role for public opinion in the Court’s selectivity.

The Court should be responsive to public opinion, and some degree of penal populism is desirable in the Court’s functioning. However, the Prosecutor doesn’t appear to pay much attention to this idea, even though in the expressive mandates of the Court, public opinion plays a prominent role for the legitimacy of the Court.

Lead image: ICC Chief Prosecutor Fatou Bensouda (Photo: Peter Dejong/EPA)

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