By Luis Moreno Ocampo, founding ICC chief prosecutor
should the prosecutor at the International Criminal Court (ICC) open new
investigations? The answer to that question will define the next 10 years of
international criminal justice, and the upcoming 18th Assembly of
States Parties (ASP) to the Rome Statute could play a substantial role in how
those decisions are reached.
The issues to be decided are highly complex, involving factual, legal and
political aspects: Should the ICC Prosecutor open an investigation into
Venezuela following a referral by six states parties? Should the Office of the
Prosecutor (OTP) open an investigation in Ukraine that could also target Russian
personnel? Should it open an investigation about settlements in the West Bank,
including East Jerusalem? Should it investigate the new allegations about
Colombian armed forces bombing civilians? Should it investigate allegations
against UK personnel in Iraq, especially after the recent BBC documentary
suggesting a cover-up?
complexity of the decisions should not affect the Rome Statute’s legal
architecture defining which are the organs responsible for various actions. The
Prosecutor, is the gatekeeper of the Rome Statute,
and has the mandate to take the first decision on where and when the ICC should
intervene. The Chambers make final decisions based on the facts and the law,
without infringing on the Prosecutor’s authority or taking into consideration
political factors. States parties have the obligation to cooperate with the
investigation. Article 87(7) of
the Rome Statute grants the Assembly of States Parties responsibility to manage
the failure of the states parties to cooperate with the court.
Office of the Prosecutor developed a specific technical area to identify
situations under the jurisdiction of the court, clear standards and a
transparent process. The evaluation is conducted by the Situation Analysis
Section, a policy paper on preliminary examinations defined in detail the
procedure to apply in following the Rome Statute. Since 2011, the Office has
been publicly publishing a report each year summarising its findings on the
different situations under analysis. All the decisions adopted, opening and
dismissing situations, were taken by scrupulously respecting the legal
parameters. The most innovative to date, the Rohingya displacement into
Bangladesh, was adopted after consultation with the Chambers.
that the Colombia preliminary analysis should be concluded ignore the legal
framework within which such examinations occur. The admissibility of the
situation requires the evaluation of ongoing national proceedings. Colombia
conducted, and is conducting, thousands of proceedings against paramilitaries,
guerrillas and members of the armed forces. Besides, Colombia demobilised
thousands of members of those groups respecting the Statute. Colombia is the
best example of peace and justice working together.
gatekeeper, the Office of the Prosecutor has two different and parallel duties:
to fully respect the principle of complementarity and refrain from opening
investigations when national authorities have conducted genuine proceedings,
but also to ensure the “end of impunity” and trigger the
jurisdiction of the court when they fail to do so. There are no time limits,
and new factors should be included. The Colombia’s preliminary examination
carried out since 2004 evaluating thousands of judicial proceedings and the
peace negotiations with the paramilitaries and the Fuerzas Armadas Revolucionarias de Colombia (FARC) shows how carefully
the Office of the Prosecutor has to strike a delicate balance in carrying out its
OTP requested to open an investigation in Afghanistan more than two years ago.
After a year and five months of analysis, the Pre-Trial Chamber declined to
authorise an investigation in Afghanistan. The decision affected the Rome
Statute’s legal architecture. It was infringing on the authority of the
Prosecutor to decide on the budget of her office, it was based on a political
factor and without factual support: “Changes
within the relevant political landscape both in Afghanistan and in key States
(both parties and non-parties to the Statute), coupled with the complexity and
volatility of the political climate still surrounding the Afghan scenario, make
it extremely difficult to gauge the prospects of securing meaningful
cooperation from relevant authorities for the future.” The decision is under review by
the Appeals Chamber. Hearings on the numerous amicus curiae submissions will be
held in December, during the ASP session.
next Assembly of States Parties will be a test: It provides an opportunity to
the states parties to dissipate the assumption of the Pre-Trial Chamber that
they will not cooperate. Thirty-nine states parties were part of the International Security Assistance Force
(ISAF) deployed in Afghanistan. During the Assembly the representatives of each
of those states would have the opportunity to express their willingness to
cooperate and to provide the information in their possession.
is an option at any moment for any of the 122 states parties to end this saga:
a referral from one country would suffice to open the Afghanistan situation. Several
countries could join forces, like for the historical Venezuela referral.
political challenges confronting international criminal justice around the
world should be faced by the states parties; not by the judges or the
Olásolo, The prosecutor of the ICC before the initiation of investigations:
A quasi-judicial or a political body?, 3 Int’l
Crim. L. Rev. 87, 90 (2003) .