Carlos Castresana outlines his vision for the ICC

By Millicent Zighe

Carlos Castresana of Spain is one of the front runners in the race to succeed Fatou Bensouda as Prosecutor of the International Criminal Court (ICC) in June. He is widely applauded for his investigation of atrocity crimes (and the fight against impunity) in Guatemala, but is less known in Africa than his main contenders, Karim Khan and Fergal Gaynor. He responded exclusively to questions from Journalists for Justice.

Journalists for Justice: Your main competitors have had previous engagements/commitments in Africa. You are more known for your international work in other parts of the world, like Guatemala. What is your relationship with Africa, and what work have you done there previously?

Carlos Castresana: First of all, I am the only finalist who has no conflict of interest in the situations in Africa before the ICC. I have not to abstain and cannot be recused in any of them. Secondly, I’ve researched extensively the situation in the conflict areas in Africa, the Great Lakes Region, Nigeria, Sudan, Kenya, Uganda, Rwanda, Burundi, Democratic Republic of Congo, the Maghreb and the Sahel. I’ve investigated the illegal exploitation of natural resources in Equatorial Guinea (for Open Society Justice Initiative), the extractive industries – oil, gold, diamonds, coltan; human trafficking, networks of organised crime and their relationship with the conflicts (I published a paper last year on this issue in Politorbis, the Swiss Ministry of Foreign Affairs magazine). I was appointed by the UNDP adviser to the Truth Commission in Tunisia to support their efforts on anti-corruption strategies. For 10 years, I’ve been training for the Swiss government young prosecutors, civil servants, and civil society representatives of 43 post-conflict countries, among them 13 African states (Mali, Burundi, Cameroun, Liberia, South Africa, Chad, Tunisia, Libya, DR Congo, Egypt, Zimbabwe, Kenya, and Nigeria). Currently I am working for IFIT (Institute for Integrated Transitions) in projects of transitional justice mechanisms for Nigeria and Libya.

Q: Whereas your competitor, Karim Khan, is accused of being too close to those in power in Kenya, some accuse you of being too close to those in power in Venezuela, the country you may have to investigate as ICC Prosecutor. Could you elaborate on your relationship with that Venezuela? 

A: I have never been to Venezuela, and have never met or talked or sustained any kind of personal or professional relationship with any representative of that country. I am aware of the misinformation being spread about an interest or relationship with the acting vice-president, the former president of the Spanish government, or the political party Podemos. I’ve never met or talked to Mr Pablo Iglesias, Mr Rodríguez Zapatero, or any representative of Podemos, and of course I am not a member or militant of Podemos, PSOE [Spanish Socialist Workers’ Party], or any other political party. I’ve never held a position on political or discretional appointment in any institution. The only information and connection I have regarding Venezuela is what is available from the mass media. I’ve not made any public statement about the situation in Venezuela, and won’t make it before -if I am elected; having seen the files about the case in the OTP [Office of the Prosecutor].

Q: Which reforms will you enforce if elected as the next ICC prosecutor?

A: I subscribe to most of the recommendations of the IER [Independent Expert Review].

The priorities should be:

1. Sexual harassment, bullying, abuse of power, or mismanagement of funds are forbidden. Clear rules must be established and strictly enforced.
2. Representation of countries affected by situations must be increased among the staff of ICC. 62 per cent WEOG [Western European and Others Group] and 17 per cent Africans is not an acceptable standard. There will be gender balance in the directive positions.
3. One-third of the staff is P1 and P2. We need much more seniority.
4. More expertise is needed. In the short term, simultaneously with the improvement of the professional and expert capacity of the OTP, I’ll ask the States Parties to approve the secondment of specialists in technology, finance, gender, forensics, and science, and police and military experts.
5. Reassessment of all the existing preliminary examinations, investigations, and prosecutions in the first six months. Immediate prioritisation of cases according to the interest of victims and probability of success.
6. Strategies are required for every situation: goals, work plan, budget, term, equipment, team, benchmarks, outreach, and completion.
7. Preliminary examinations must be brief assessments (maximum six months) on complementarity. Every state must be granted the opportunity to do the job themselves.
8. Positive complementarity: joint teams of national and international investigators working together in the field, exchanging experiences, and learning by doing. Deployment of the Investigations Division in territories with situations.
9. We need to rectify the deep misunderstanding of the RS [Rome Statute] regarding the OTP’s investigative powers. The OTP is not self-sufficient. It has an enormous jurisdiction, but the architects of the court decided that the tools for investigation should remain in national prosecution offices. An operational network must be developed to allow investigations to be done in a permanent national-international partnership. For this to happen, a dialogue with the states affected in every situation must be established.

Collegial decision-making processes, clear criteria applied equally to all, legal certainty. For this we need to come back to the original design of two deputy prosecutors, one in charge of prosecutions and one responsible for investigations, and two divisions. The JCCD [Jurisdiction, Complementarity and Cooperation Division] will be eliminated. New sections must be created for financial investigations, gender crimes, and technology.

Q: There is a lot of backlash against the ICC from African countries. What do you intend to do to counter that? 

A: I am proposing to have an African woman as deputy prosecutor. I will exponentially increase the representation of African states in the OTP. We will open offices in every country with a situation before the ICC and offer joint teams of investigators for each case. No more distant justice. I will guarantee transparency in decision-making processes and eliminate any double standards. I will open up dialogue with all the African states, their national jurisdictions, the African Union, civil society, and the victims to ensure their rights are respected and to help the states to enforce their responsibility to protect their citizens.

Q: There is mistrust surrounding the International Criminal Court because of lack of results. How do you intend to deal with that challenge if elected the new prosecutor?

A: The investigations must target the joint criminal enterprises behind the crimes. These groups must be investigated in their entirety with the purpose of identifying and prosecuting their masterminds, dismantling the groups, and confiscating their assets. We’ll bring to the ICC 21st century evidence, with not so many victim-witnesses, and more insider information. Trials will be cheaper, faster, and have more efficient evidence, thus achieving convictions, providing accountability for the perpetrators, and ensuring that there are reparations for the victims. This will help in prevention and deterrence, encouraging communities to avoid conflicts and restoring coexistence and the rule of law.

Q: Moving forward, two of the most challenging investigations are likely to be Afghanistan and potentially Palestine. How will you navigate that?

A: By applying exactly the same criteria as in any other situation.

Q: One of the biggest challenges the ICC is currently facing is enforcement of the court’s decisions, especially executing arrest warrants. The ICC faces these problems because it must rely on States Parties to implement arrests. How do you intend to deal with this problem?

A: To be effective, we need to offer results, to show independence, legitimacy, professionalism, and strict respect for the legality of the RS; we need to be more transparent and impartial, to provide legal certainty equally to all, and to engage broad constituencies in every situation. Then the cooperation will flow.