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I. Introduction

The personal, temporal and territorial jurisdiction of the International Criminal Court (ICC) enables it to be engaged in a number of country situations simultaneously. To date, the prosecutor of the ICC has opened investigations in Uganda, the Democratic Republic of Congo (DRC) and the Darfur region of Sudan.In light of the court’s jurisdiction, it is essential to ensure, to the greatest extent possible, objectivity and transparency in the selection of situations and cases by the prosecutor. Such transparency enhances the ICC’s credibility and maximizes its role in the fight against impunity.

Human Rights Watch therefore welcomes the ICC prosecutor’s recent draft Policy Paper, “Criteria for Selection of Situations and Cases.”¹ We have outlined below several recommendations regarding the criteria put forward by the prosecutor in that paper. The recommendations are not meant to be exhaustive; rather, we have focused on a limited number of issues of pressing concern. To ensure thorough consideration of these issues, in making our recommendations we have gone beyond the parameters of the paper to address the challenges we see in implementing the criteria enumerated. In doing so, we have referenced, where appropriate, the “Report on the activities performed during the first three years (June 2003-June 2006)” recently issued by the Office of the Prosecutor.²

Part II of our paper addresses issues in relation to the selection of situations. We highlight particular challenges for the prosecutor in the selection of situations that may have implications for his independence. The recommendations address factors that could infringe on the prosecutor’s independence, including the perception of his independence.

Part III of our paper emphasizes issues in relation to the selection of cases. We outline concerns regarding the prosecutor’s “sequential” approach, which refers to his policy of investigating groups in a situation one at a time, and its implications for the perception of his impartiality. We include recommendations to address these concerns. We also include recommendations to preserve his impartiality, and the perception of it, when perpetrators from all sides in a conflict have not been selected for prosecution. In addition, we provide recommendations regarding the manner in which individual perpetrators should be selected for prosecution to maximize the impact of the ICC in the communities most affected by the crimes in its jurisdiction. 

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