Global Policy Forum

ICC Needs Better Strategies for Case Selection

The International Criminal Court (ICC) has since its foundation produced ten cases and three trials, marking important steps in the fight against impunity for some of the worst crimes against humanity. However, according to a report by the Human Rights Watch (HRW), the delivery of justice is at risk. Too many victims have been left without justice, since too many key perpetrators and crimes have been bypassed. The report also highlights that the lack of public explanations on why those most responsible are not being pursued, concluding that this undermines the court’s independence and impartiality. In order to achieve the courts goal, the prosecutor needs a different approach to case selection.

Human Rights Watch
September 15, 2011

The delivery of justice at the International Criminal Court (ICC) is at risk despite progress by the ICC prosecutor, said Human Rights Watch in a report released today. With the appointment of a new prosecutor by year’s end and new cases in Libya, the ICC prosecutor should close gaps in investigation and prosecution strategies and bring additional cases.

The 50-page report, “Unfinished Business: Closing Gaps in the Selection of ICC Cases,”assesses the Office of the Prosecutor’s choice of cases in its first five investigations.Investigations in Central African Republic, Sudan’s Darfur region,Democratic Republic of Congo, Kenya, and northern Uganda have yielded 10 cases and three trials, making an important contribution to tackling impunity for some of the world’s worst crimes. But these cases have not gone far enough to ensure thatjustice delivered by the ICC will resonate with concerns of victims and affected communities.
The report is based on Human Rights Watch country expertise and close monitoring of the ICC over the past eight years. To deliver meaningfully on its mandate, the ICC should bring to trial those most responsible for the gravest crimes, including government officials. Safeguarding the court’s independence and impartiality in the selection of cases is of fundamental importance, Human Rights Watch said.

In Congo and Uganda, ICC investigations have targeted rebel groups but have not yielded charges against government officials and armed forces widely alleged to have committed serious abuses. The absence of these cases ­– or clear and public explanations as to why they are not being pursued – has left too many victims without justice and undermined perceptions of the court’s independence and impartiality.

In investigations in the Central African Republic and of Sudanese government atrocities in Darfur, the ICC has targeted only one senior leader for prosecution. Ensuring that those most responsible are brought to justice is a key benchmark of the ICC’s mandate, and one unlikely to be satisfied through a single prosecution, Human Rights Watch said.

“The ICC prosecutor’s tough choices face intense scrutiny, which makes it all the more important that they enhance the court’s independence and credibility,” said Evenson. “By failing to project an effective and coherent strategy through his investigations, the prosecutor has too often come up short.”

The ICC’s recent investigations in Kenya are a welcome shift from past practice, Human Rights Watch said. The prosecutor is seeking charges against alleged perpetrators affiliated with both sides of the country’s 2007-2008 post-election violence. This is in marked contrast to Congo, where delays and discrepancies in charges brought against leaders of rival militias in the Ituri district may have worsened ethnic tension. But more ICC investigations are needed to expand accountability in Kenya for police abuses and for crimes committed in western Kenya’s Mt. Elgon region.

ICC member countries will meet in December 2011 to elect the next ICC prosecutor, who is expected to take office in mid-2012. Human Rights Watch urged the Office of the Prosecutor to put more effective case selection strategies in place. 

The ICC’s increasing workload will place new pressures on the court, Human Rights Watch said. In March 2011, the ICC prosecutor opened an investigation in Libya, following a unanimous referral by the United Nations Security Council. Member countries fund the court, including its country investigations. 

“Delivering meaningful justice in Libya should not come at the expense of the court’s existing commitments to affected communities in Bangui and Bunia,” said Evenson. “ICC member countries should ensure the court has the resources it needs to meet existing and new demands.”

The ICC is the world’s first permanent court mandated to bring to justice perpetrators of war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. The ICC treaty, known as the Rome Statute, entered into force in 2002, just four years after 120 states adopted the treaty during the Rome Conference.

The court’s jurisdiction may be triggered in one of three ways. States parties or the UN Security Council can refer a specific set of events, known as a “situation,” to the ICC prosecutor, or the ICC prosecutor can seek on his own motion authorization by a pre-trial chamber of ICC judges to open an investigation.

In addition to investigations in Democratic Republic of Congo, northern Uganda, the Darfur region of Sudan, the Central African Republic, Kenya, and Libya, the Office of the Prosecutor is looking at situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria and South Korea. The Palestinian National Authority also has petitioned the ICC prosecutor to accept jurisdiction over alleged crimes in Gaza. In June 2011, the prosecutor asked the ICC for authorization to open an investigation in Côte d’Ivoire; a decision is pending.

Five individuals are in ICC custody in The Hague, while six suspects in Kenya cases are voluntarily appearing at pre-trial proceedings. Three others charged with war crimes in connection with an attack on African Union peacekeepers in Darfur appeared voluntarily during pre-trial proceedings, although ICC judges declined to confirm charges against one. Pre-trial proceedings are ongoing in a case arising out of the ICC’s investigations in Congo’s North and South Kivu provinces.

Closing arguments were heard in August 2011 in the trial of the Congolese militia leader Thomas Lubanga Dyilo. Trials are ongoing in the case of Germain Katanga and Mathieu Ngudjolo Chui, also Congolese militia leaders, and Jean-Pierre Bemba Gombo, a Congolese national and former vice-president of the Congo charged with crimes committed in the Central African Republic.

Sudanese President Omar al-Bashir and two other individuals sought in relation to the Darfur situation remain at large, as do former Libyan leader Muammar Gaddafi and two others wanted in connection with crimes against humanity committed in Libya. Arrest warrants also remain outstanding for leaders of Uganda’s rebel Lord’s Resistance Army and Bosco Ntaganda, a former rebel commander now integrated into the Congolese national army.

The current ICC prosecutor, Luis Moreno-Ocampo, was elected to a nine-year term in 2003. ICC member states will elect a new prosecutor in December 2011. The new prosecutor is expected to take office in mid-2012. Human Rights Watch, along with other non-governmental organizations, has urged ICC member countries to ensure that the election of the next prosecutor is driven by merit.


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