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ICC: Prosecutor Can Spur National Trials, Deter Crimes

‘Situations Under Analysis’ Practice Should be Consistent, Clear

(Brussels) - The prosecutor of the International Criminal Court (ICC) could better encourage national trials for international crimes and deter international crimes in "situations under analysis," Human Rights Watch said in a report released today. Situations under analysis - such as Afghanistan, Colombia, Georgia, and Guinea - are those countries where the ICC prosecutor is considering whether to open formal investigations.

"The ICC prosecutor's ambitious commitment to use his decision whether to investigate as a spur to national trials is a potential boost for justice," said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. "He should focus now on putting in place more effective strategies for achieving this."

The 29-page report, "Course Correction: Recommendations to the ICC Prosecutor for a More Effective Approach to ‘Situations Under Analysis'," examines the Office of the Prosecutor's commitment to using the time it takes to decide whether to open an investigation - known as a preliminary examination - to engage with national authorities. The prospect of ICC action can provide an incentive to national authorities to step up efforts to pursue their own investigations, while signalling to would-be violators that the international community is watching.

While the prosecutor's office has in recent years increased the public profile of its "situations under analysis" and its engagement at the national level, this engagement has not always been consistent. It has also not provided sufficient public reporting regarding the status of its examinations. Increased publicity with limited follow-up can undermine the ICC's credibility among affected communities and the prosecutor's efforts to encourage national proceedings.

At the same time, maintaining the credibility of ICC action with national authorities while not inflating expectations among affected communities requires a careful balancing act, Human Rights Watch said. For instance, the prosecutor's office could better keep this balance during "situations under analysis" by publicly issuing interim reports.

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. There are currently 115 states parties to the ICC. The ICC prosecutor has opened investigations in the Democratic Republic of Congo, northern Uganda, the Darfur region of Sudan, the Central African Republic, Kenya, and Libya, and has recently announced that he intends to seek authorization to open an investigation in Cote d'Ivoire.

The ICC prosecutor also has a number of other situations under analysis around the world. These are Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria, and South Korea. The Palestinian National Authority also has petitioned the ICC prosecutor to accept jurisdiction over crimes committed in Gaza.

The current ICC prosecutor, Luis Moreno Ocampo, was elected to a nine-year term in 2003. ICC states parties will elect a new prosecutor in December 2011. The new prosecutor is expected to take office in mid-2012.

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