In his paper, the prosecutor outlines the four guiding principles of his office in the selection of situations and cases: independence, impartiality, objectivity, and non-discrimination.3 We welcome the prosecutors enumeration of these four important principles to ensure his maximum effectiveness. Indeed, these principles should be highlighted as part of the prosecutors outreach and communications strategy, especially with the communities most affected by the crimes within the ICCs jurisdiction.
Preserving the integrity of these principles requires making every effort to preempt potentially negative perceptions concerning their application and, as they arise, to effectively address such perceptions. In that regard, with respect to the principle of independence, we have concerns that the prosecutors Policy Paper does not adequately address the practical challenges he may face in preserving his independence and/or the perception of it as he selects situations. The failure to address these challenges at the situation stage may also have a detrimental impact on the perception of his independence in his selection of cases.
In particular, according to the prosecutors Policy Paper, the principle of independence requires that he avoid seeking or acting on instructions from other sources. In addition, he states that independence means ensuring that the the selection process is not influenced by the presumed wishes of any external source, nor the importance of the cooperation of any particular party, nor the quality of cooperation provided.4 At the same time, the prosecutor in his Activities Report has adopted a policy of inviting voluntary referrals from states because this increases the likelihood of important cooperation and support on the ground.5
Human Rights Watch is not opposed to the voluntary referral of situations (self-referrals) where the other criteria under the Rome Statute have been satisfied.6 Indeed, there may be practical advantages associated with conducting investigations in situations that have been self-referred. These include securing state cooperation and support in gathering evidence in the course of an investigation, as well as in executing arrest warrants. However, to ensure compatibility between the prosecutors independence and his policy of inviting self-referrals, the prosecutor should clearly state that the possibility of voluntary referral will not be given preference in determining which situations should be selected for investigation.
We believe it is important for the prosecutor to acknowledge that systematically selecting situations that have been voluntarily referred may ultimately carry significant negative implications regarding his perceived and actual independence. For example, there is a risk that the prosecutor may be perceived as a tool of the referring government. Further, waiting for states to refer situations can create delays that could have an impact on the integrity and availability of evidence of ICC crimes on the ground. In the worst case scenario, it could risk subjecting the prosecutor to manipulation by a state party wanting to use the prospect of voluntary referral as a stalling tactic to destroy any evidence of its own involvement in crimes that may be in the jurisdiction of the ICC.
The negative implications arising from relying on the voluntary referral of situations underscore the importance of the prosecutors using other avenues available to gather information about a particular situation, such as his proprio motu power. Pursuant to this power, the prosecutor can actively monitor a country situation on his own initiative to gather information in order to determine whether to pursue an investigation there. 7 With the authorization of the Pre-Trial Chamber, this information can lead to the opening of an investigation.8 The proprio motu power is therefore an important tool in the prosecutors exercise of his independence in the execution of his mandate, which he has acknowledged in his Activities Report.9
The prosecutors use of his proprio motu powers is particularly important in those situations where a state has expressed, either explicitly or implicitly, its unwillingness to cooperate with the ICC. Of course, the prosecutor may face difficulties in the short term in gathering evidence during an investigation, enforcing arrest warrants, and building cases for prosecution. However, the use of his proprio motu powers in such a situation could reinforce his actual and perceived independence, especially among those communities most affected by the crimes. Further, proceeding in this manner could provide the prosecutor with the opportunity to build the requisite support from the international community to pressure the otherwise unwilling government to cooperate with his investigation over the longer term.
3 Policy Paper, pp. 1-2.
4 Ibid., p. 1.
5 Activities Report., pp. 2, 7.
6 The prosecutor highlights the requirements under Article 53 of the Rome Statute that must be satisfied before opening a formal investigation. First, there must be a reasonable basis to believe that a crime within the jurisdiction of the court has been or is being committed. Second, there is a determination of admissibility (gravity and complementarity), and finally, consideration of the interests of justice. The prosecutor also puts forward a brief overview of factors his office considers necessary to satisfy each of the above mentioned requirements. Pursuant to Article 15(3) of the Rome Statute, if the Pre-Trial Chamber is satisfied that these requirements have been met, the prosecutor can open a formal investigation in a situation. See Policy Paper, pp. 3-8.
7 Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 15(1).
8 Rome Statute, art. 15(3).
9 Activities Report, pp. 2, 8. We note, however, that the prosecutors Policy Paper does not reference the role of his proprio motu authority.