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Instrument of Justice: The ICC Prosecutor Reflects

JURIST Special Guest Columnist Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court at The Hague, says that since he began work in late 2003 his office has already faced and met several key challenges in bringing to justice persons suspected of committing war crimes, genocide and crimes against humanity ...

I took office as Prosecutor of the International Criminal Court in November 2003. As we begin 2007, I would like to take the opportunity to reflect on my office's achievements and some of the main challenges we have faced. In the last three years, the Office of the Prosecutor has opened three investigations, collected evidence amidst on-going violence, requested arrest warrants and secured the arrest of a major suspect. In accomplishing these results, the Office had to overcome considerable obstacles. Specifically, I would like to detail the three major challenges the Office has faced in relation to its core activities of investigating and prosecuting crimes under its jurisdiction. Each challenge has necessitated creative thinking and innovative solutions.

First Challenge: Beginning Cases

The first challenge faced by the Office related to how to begin its cases. Two distinct issues arose in beginning cases: first, how to select situations to investigate, and second, which method to use to trigger the jurisdiction of the Court.

According to the Rome Statute (the main governing document of the ICC), there are three ways that a case may be brought before the International Criminal Court: 1) A State Party can refer a situation to the Prosecutor; 2) the Prosecutor can initiate an investigation (proprio motu), subject to authorization by ICC judges; and 3) the United Nations Security Council can refer a situation acting under Chapter VII of the UN Charter. The ICC currently has jurisdiction over genocide, war crimes and crimes against humanity committed in the territory or by a national of a State Party for crimes committed after July 1, 2002.

In the last three years, the Office has opened three investigations: Northern Uganda, the Democratic Republic of the Congo (DRC) -- both referrals from the respective States Parties -- and Darfur, the Sudan, which was referred to the Prosecutor by the United Nations Security Council.

In selecting situations to investigate, once the requirements of temporal and subject-matter jurisdiction are met, the Office is guided by the standard of gravity. Although any crime falling within the jurisdiction of the Court is a serious matter, the Rome Statute clearly requires an additional consideration of "gravity" whereby the Office must determine that a situation is sufficiently grave to justify further action by the Court.

In deciding whether this additional consideration of gravity is met the Office considers the following factors, amongst others, to be relevant: the scale of the crimes; the nature of the crimes; the manner of commission of the crimes; and the impact of the crimes.

While my authority as the Prosecutor to initiate investigations by the proprio motu power is a critical aspect of the Office's independence, I have adopted the policy of inviting and welcoming voluntary referrals by territorial states as a first step in triggering the jurisdiction of the Court. This policy resulted in referrals for what would become the Court's first two situations: Northern Uganda and the DRC. The method of inviting investigations by voluntary referral has increased the likelihood of important cooperation and on-the-ground support to carry out the investigation and prosecution.

Second Challenge: Working in the Context of On-going Conflict

The second significant challenge faced by the Office was how to conduct investigations into situations of on-going violence, where even traveling to the areas in question may be impossible, or where the territory suffers from a collapse of functioning institutions. Working in an environment of persistent violence has made protecting victims and witnesses more difficult. The Office had to learn how to approach and interview possible witnesses without exposing them, including identifying safe sites for interviews, securing discreet transportation for investigators and witnesses and providing for the contingency of moving to safe locations.

In addition, the Office had to communicate effectively with witnesses in different languages, some of which have no corresponding words for the legal terminology required for the interview. Because there are few qualified professional translators, finding persons with the appropriate skills and background required exceptional efforts. Furthermore, conditions on the ground for investigators are usually quite difficult, with poor facilities, in some cases 90% of the Office's investigators returned from their missions with illnesses.

In order to address the challenges presented by these exceptional logistical difficulties, the Office endeavored to reduce the length and scope of the investigation. Based on the Statute, the Office adopted a policy of focusing its efforts on the most serious crimes and on those who bear the greatest responsibility for these crimes. Determining which individuals bear the greatest responsibility for these crimes is done according to and dependant on the evidence that emerges in the course of an investigation.

In thinking about the Office's prosecutorial strategy, it is important to acknowledge that the ICC does not have primacy over domestic judicial systems. Instead, the ICC is a court of last resort; it will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine. In this sense, the ICC is complementary to national systems. When the Court decides not to prosecute a particular person, it does not mean that impunity is thereby granted. Part of the Court's work is to encourage national measures against other offenders.

The challenge of working amidst violent conditions requires the Office, whenever possible, to present expeditious and focused cases while aiming to represent the entire range of criminality. In principle, incidents will be selected to provide a sample that is reflective of the gravest incidents and the main types of victimization. In Northern Uganda, for example, the Office selected six incidents out of hundreds that occurred and charged the five top leaders of the Lord's Resistance Army (LRA) with crimes against humanity, including, sexual slavery, rape and murder, and war crimes, including intentionally directing an attack against the civilian population, enlisting children and inducing rape and pillaging.

Sometimes there are conflicting interests which force the Office to focus on only one part of the criminality in a particular conflict. In the situation in the DRC, the Office initially investigated a wide range of crimes allegedly committed, seeking to represent the broad range of criminality. The Office subsequently decided in its first case, the case against Thomas Lubanga Dyilo, to focus on the crime of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. After careful consideration of the evidence gathered, including linkage of the accused to the crime and in accordance with the requirement to prove charges beyond a reasonable doubt, the Office decided to limit the charges in its first case to those mentioned above. Meanwhile, the Office continues to investigate crimes under its jurisdiction allegedly committed by various parties to the conflict in the DRC.

The approach used in the selection of incidents and charges assists the Office in reducing the number of witnesses called to testify. This is one of the measures taken to address the security challenge. Additionally, the Court developed plans to adequately protect witnesses and ICC Staff, including immediate response systems. These response systems have already been used effectively in several instances where threats were reported.

Third Challenge: Executing Arrest Warrants

The third challenge faced by the entire Court is how to execute arrest warrants. This is perhaps the most critical and difficult issue of the system created by the Rome Statute. The Court does not have its own enforcement force. Under the Statute, it is the States Parties that bear the responsibility for arresting suspects and delivering them to the Court for prosecution. Although territorial states have the mandate to control their territory, in the context of the situations where the Court operates, they often have difficulties executing arrest warrants. The Court was able to effectively address this challenge in the Thomas Lubanga Dyilo case because he was already in custody, but more assistance is needed to enforce the outstanding arrest warrants that have been issued in the LRA case. The Office anticipates that this will be a key challenge in the next phase of its operations.

Looking forward, the Office will face new challenges and will likely need to continue to devise creative ways of approaching the current ones. I encourage academics and practitioners to engage and publish on these topics in order to contribute to this rapidly evolving field of international criminal prosecution and to help enhance the quality of our work as prosecutors.

Luis Moreno-Ocampo is Chief Prosecutor of the International Criminal Court at The Hague.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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