Fallacies in the Mandate and Operations of International Criminal Court and Procedural Justice

ICC’s Procedural Justice and Selectivity

The ‘engine-room’ of the ICC is its Office of the Prosecutor (OTP). The operations and effectiveness of the court are determined by its investigations and prosecutions. Along with seeking convictions, the OTP is also concerned with influencing the target audiences. Hence it becomes important that all those affected by its decisions like the civil society, governments etc. support it. The selection of cases initially helps in gaining such support which strengthens the Court’s perceived legitimacy. Both of these concepts are linked and the selections have the potential to either diminish or enhance the perceived legitimacy of the Court. We have seen a decline in public confidence for almost a decade now in these prosecutorial selections more specifically in the African Continent. There have been complaining that mostly nationals of African states have been targeted by these investigations. Evidence shows that the alleged crimes by government forces are being overlooked like situation in Uganda where selections defer to the interests of the state due to intra-situation pattern. In 2017, the consequences of prosecution selectivity were aptly surmised by African Union strategy by declaring that the Court is ‘riddled with … struggles over its perceived legitimacy’.

This gap in research is important for two reasons. Firstly, the Court’s ’target audience’ dilemma can be illuminated by an analysis of the Prosecutor’s selection process. A lack of single target audience is seen in the working of the Court. This leads to uncertainty in the Court’s goals. Secondly, the selection procedure is so fundamental to the interests of the affected communities that the lack of attention towards the same comes as a surprise. Fatou Bensouda once said that to prosecute is to ‘stand up for the victims and affected communities’. But these decisions in the Court are often made in isolation due to the remoteness between the Court and the affected communities. The perception of the legitimacy of the court is a multi-layered, complex and a psychological phenomenon. This perception can be either by one’s senses and secondly something as understood or regarded. This encompasses two major epistemological points of view: the objective and the subjective. The latter being specific to each individual while the former being general. From an objective view, perceptions of the Court are likely to be informed by various material attributes, e.g. the extent to which participation is permitted, its proximity, the degree of access to information and the type or quality of justice it is seen to dispense. These attributes can delegitimize the Court in the eyes of affected communities either in combination or individually. From a subjective perspective, every community is influenced by its own socially conditioned convictions and anchors (e.g. ethnic, political, social or religious or affiliations) which produce emotional or cognitive biases. In summary, both objective and subjective factors are crucial in understanding the perceptions of the Court.

Hence the Court must endeavour to improve its perceived legitimacy, for the benefit of those entrenched in their scepticism which is furthered and exacerbated by political elites espousing anti-Court sentiment which is not something that can be ignored. There is a need for a more sophisticated and nuanced account and the first step is to distinguish the potential objective and subjective factors that form individual perceptions; and, secondly, how changes in objective factors can influence the impact of subjective factors. What matters is a reasonable and stable recognition of an institution (i.e. the Court) as legitimate, coupled with a general willingness to accept its decisions. This type of support can be distinguished from specific support, i.e. a positive attitude towards particular institutional decisions or policies. According to Thirlway, procedural justice means that procedure is fair based on principles, norms and rules. The fairer the procedure, the fairer will be the eventual decision. However, this relationship begs two essential questions: (i) do procedures that lead to fair decisions exist, and (ii) can one know whether a decision is itself fair?

These have been answered by Rawls in The Theory of Justice where three types of procedural justice were distinguished: Perfect, Imperfect and Pure. These are helpful in the current situation where we are concerned about the fairness of the procedure’s results. We need to optimize the potential of the selection procedure which finds its place in Rawls’ imperfect procedural justice. This procedure retains humility as one can never be sure that any procedure will lead to fairest result at a given time. And hence this a stark contrast can be seen to this perspective as the OTP’s frequent rhetorical claim is that its procedures are inherently faultless and, ipso facto, always lead to the fairest selection and is based on a strict legalist approach. It persistently claims that a black and white technical application of the Rome Statute is followed and a little or no space has been given for the exercise of any discretion, political or otherwise. But in reality, there has always been discretionary decision-making. Although they are asked to implement rules and leeway as to application can always be seen. Thus this means a subjective human judgement and not a mechanical process.

Some illustrations to substantiate this point are that we know that a state referral to the Court (UNSC) is the beginning of the selection process in accordance with Chapter VII of the UN Charter or through its proprio motu powers. Also according to Article 53 (19) (a) - (c) of the Rome Statute, the Prosecutor exercises discretion by considering admissibility (including the tests of ‘complementarity’ and ‘gravity’) and the ‘the interests of justice’. In this light, the question to be answered is: what makes this selection procedure fair? Leventhal demonstrated six components of procedural fairness: (i) consistency across persons, time and circumstances; (ii) impartiality; (iii) accuracy; (iv) correctability; (v) representation of the interests of groups and (vi) ethicality. These principles paint procedural fairness as an objective or a normative question — simply based on complying with standards and safeguards. Having proposed an understanding of what procedural justice entails, we now analyse the OTP’s selection procedure against three essential components of procedural justice: consistency, impartiality and representation. They emerge across a range of studies as the foremost indicators of procedural fairness.

A. Consistency

It denotes similar behaviour, performance or treatment, often over a period of time. It related to the Aristotelian principle of justice which proposes that ‘like cases should be treated alike, and unlike cases should be treated un-alike in proportion to their difference’. In turning to the OTP, the present analysis suggests that affected communities are equally likely to see procedure treat like cases unalike rather than like cases alike. There is a considerable inconsistency between the various situations with respect to the duration of preliminary examinations — an initial but essential stage in the selection procedure. On the one hand, the disparities of time are to be expected given the context-specific complexities of the alleged crimes and the accompanying challenges of evidence-gathering and management of capacity/resources. Nevertheless, consistency requires efforts to harmonize differences of treatment accompanied by convincing explanations for any need for differential treatment. Although the Rome Statute contains no specific provision that regulates the length of preliminary examinations, the Prosecutor has argued that the statutory silence was a deliberate choice on the part of the drafters to afford her Office flexibility. A brief overview of the duration of a range of preliminary examination shows the inconsistency. The preliminary examination(s) lasted: one week in the Situation in Libya; over two years in the Situation on the Registered Vessels of Comoros; approximately 10 years in the situation in Afghanistan and more than 13 years (and still ongoing) in the situation in Colombia. The Situation in Palestine offers a similar story of temporal inconsistency. First, the OTP took more than three years to determine that Palestine was not a state and therefore was not capable of accepting the Court’s jurisdiction. It then took the OTP almost five years before, in December 2019, it determined there was a reasonable basis to proceed to an investigation. And yet, the duration of this examination is likely to be significantly prolonged by the OTP’s recent request for a PTC ruling on territorial jurisdiction. Against this backdrop, the OTP’s ‘negative practice’ in omitting to publicize reasons that justify differential treatment between situations entrenches the view that inconsistencies in time are a way to avoid politically contentious investigations, and prolonged delays are a way for certain cases never to be selected. The greatest source of inconsistency in the selection procedure arguably lies in the determination of the gravity of situations and cases. The Rome Statute fails to provide criteria governing the exercise of discretion in selecting situations and so, in recognition of its limited resources, the OTP selects situations based on their relative gravity. To illustrate, let us consider the OTP’s decision not to proceed with an investigation in the Situation on the Registered Vessels of Comoros, Greece and Cambodia. The Office argued that said situation concerned a limited number of victims and drew a comparison with the Abu Garda case, which had a similar ‘size’. The Prosecutor argued that Abu Garda was distinguishable because of its nature and its impact: it concerned attacks intentionally directed against African Union’s peacekeepers, including the attempted killing of eight of them. Such attacks on peacekeepers would ‘strike at the very heart of the international legal system established for the purpose of maintaining international peace and security’. However, the persuasive criticism has been made that the OTP’s approach conflated the distinction between the situation as a whole and potential cases.

However, so long as such lack of publicity continues, there is a continuing risk that affected communities may perceive that prosecutorial decisions are inconsistent rather than consistent.

B. Impartiality

From consistency flows the principle of impartiality: treating parties to or rivals in a conflict equally. In most instances, impartiality refers to the ‘state of mind’ or virtue of a decision-maker who is overseeing a procedure (e.g. a hearing) between, typically, two parties. Impartiality is a fundamental principle of justice because it reflects fairness and inspires public confidence in justice being seen to be done. The antithesis of impartiality is the concept of bias: being unfairly prejudiced against particular individuals or groups, or unduly concentrating an interest towards an exclusive target or range of subjects. Frequently, therefore, impartiality finds the greatest expression in one of the principles of natural justice: the rule against bias. An impartial procedure is one that demonstrates an absence of bias towards either relevant party. In this light, this section explains why affected communities may be more likely to see the procedure’s treatment of parties as biased rather than impartial.

An iteration was developed at the International Criminal Tribunals for the former Yugoslavia (ICTY) in the Furundžija case. In common law jurisdictions (e.g. in England and Wales) and in civil jurisdictions (e.g. in Germany), these disqualification tests apply in reviewing the decision-making of public administrative bodies such as a prosecutor’s decision to proceed with a prosecution or not. The ICC’s Appeals Chamber has adopted a similar test in relation to the Court’s Prosecutor, assessing whether there could be an appearance of bias ‘based on the perspective of a reasonable observer, properly informed’. Such a construct is a heuristic device to determine whether, looking in from the outside, impartiality is outweighed by an appearance of bias. It is thus appropriate to ask whether there is an appearance of bias from the perspective of ‘reasonable observers, properly informed’ within affected communities. In adopting this test, one needs to ask two questions: (i) what is a reasonable observer? and (ii) what knowledge makes an observer ‘properly informed’? First, reasonable observers can be cast as those who would apprehend bias based on objective circumstances. The observer’s reasonableness would find expression in their fair-mindedness: a reasonable observer could be defined as someone who ‘always reserves judgment on every point until she has seen and fully understood both sides of the argument’, ‘someone who is not unduly sensitive or suspicious’ or prone to making snap judgments or reaching hasty conclusions based on an isolated episode. Secondly, informed observers have ‘taken the trouble to inform themselves of all matters that are relevant within its overall social, political or geographical context … ’. However, they cannot be presumed to possess a detailed knowledge of the law beyond that acquired through ordinary life experience — though conversely they should not be imagined as being wholly uninformed about the law in general and may be expected to be aware of the basics of legal traditions and culture. When applying these criteria to the assessment of the ICC’s selection procedure, reasonable observers in affected communities should be imagined as firmly putting their subjective preferences aside. They should also be conceived as having been able to critically assess negative narratives about the Court expressed by politics and media. Moreover, the ICC Appeals Chamber described a reasonable observer as one who is ‘properly informed,… aware of the functions of the Prosecutor’. Being aware of the Prosecutor’s functions, presumably, refers to not only having a basic knowledge of her duties — investigating and prosecuting — but also of the way in which those duties are to be discharged. A reasonable observer would be aware of the significance of independence for the Prosecutor’s impartiality and of the expectation that the Prosecutor’s behaviour is free from any bias or external influence. However, if such a reasonable observer were to assess the Prosecutor’s selection record to date, it is not unlikely that they could find an appearance of bias.

C. Representation

The concept of representation designates acting or speaking on behalf of someone, or portraying someone or something in a particular way. For Pitkin, the concept of representation is an act — i.e. re-presentation — and involves making someone, or something, present when ‘not being present literally or fully in fact’. In practice, this right requires a ‘representative’ to act effectively on behalf of the constituency. In this context, this concluding section explains why the OTP’s selection procedure is not satisfactory inadequately representing the interests of affected communities.

First, the selection procedure lacks any formal arrangements ensuring the involvement of affected communities. The OTP has declared that it welcomes direct interaction with victims and victim associations at the earliest stages of its work, to help define the focus of investigations and develop an assessment of the gravity of the crimes (including their impact on victims and affected communities). However, there are no formal rules governing this crucial interaction, and the OTP has acknowledged the need to develop and refine best practices to enable victims to make representations to the Office. The OTP’s selection procedure has no formal accommodation or participatory regime for affected communities to interact with the OTP more generally. First, the OTP’s representation cannot reflect the complexity of affected communities’ interests prior to a decision being made. Secondly and relatedly, the OTP’s representation does not permit affected communities to exert an influence on selection procedure after a decision has been made. In public administrations, those affected by a decision are nearly always given the opportunity to make their case. However, the OTP’s ability to comply with such an indicator of procedural justice is limited, because there is no mechanism for all those affected to review a decision not to prosecute. Under the UK’s Victim’s Right to Review Scheme, to take only one example, a victim can request a review of a decision not to prosecute before any recourse to a judicial review. This mechanism includes a local resolution where another prosecutor will review the correctness of the decision and, by providing additional information and explanation, will either confirm or reverse the original decision. This shortfall is even more striking because the PTC has proven to be unwilling to compensate for it.

There is no better example of this than the PTC’s decision in the Situation in Afghanistan. Although now overturned by the Appeals Chamber, the PTC had originally rejected the OTP’s request to authorize a proprio motu investigation into alleged war crimes and crimes against humanity. In a decision that was subsequently widely criticized, the PTC concluded that, in light of the lack of cooperation that the OTP had received, the chances of a successful investigation were so small that authorizing one would not serve the interests of justice under Article 53(1)(c). The PTC’s determination was in spite of the fact that out of 699 victims’ representations, 680 welcomed the prospect of an investigation. The PTC reasoned that victims’ expectation of justice would be no more than aspirational and that an unsuccessful investigation would, in the end, create ‘frustration and possibly hostility vis-à-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve’.

Conclusion and Recommendations

Prosecution selectivity has been described as the ‘greatest problem of international criminal justice’. This article contributes to the literature by way of its focus on the selection procedure from the perspective of affected communities. Vis-à-vis this target audience, the article critiqued the procedure’s effectiveness against a measure of perceived legitimacy. Using a Rawlsian model of imperfect procedural justice, the preceding analysis explained the shortcomings of the ICC Prosecutor’s selection procedure in being sufficiently consistent, impartial and representative. In turn, this lack of procedural fairness may reduce the likelihood that the OTP’s selections are perceived as legitimate within affected communities. More broadly, this article argued that the OTP is unable to produce the ‘fairest’ possible prosecutorial decisions as to situations or cases — culminating in the conclusion that its selection procedure only makes a limited (if any) contribution to the Court’s perceived legitimacy. The article aims to trigger further reflection and research on the Court’s ability to fulfil an expressive function, i.e. to convey a message that can help to educate and improve perceptions of international criminal justice in societies and among their communities. This article has made a case for the OTP to fully exhaust its commitment to procedural justice components. Accordingly, the most principled basis for procedural improvements should rest on the development of an organizational culture (including decision-making incentives) that tracks these public intuitions of justice. In view of the above, the OTP should fully maximize the psychological effect of its selection procedure. This endeavour may be assisted by adopting the following recommendations.

• First, the OTP should commit to more consistency in its treatment of situations, e.g. in the duration of preliminary examinations and its deference to a policy of positive complementarity. This does not mean the OTP should self-impose a precise time limit for preliminary examinations or maintain a strictly uniform approach to positive complementarity. Instead of blind uniformity, prosecutorial choices should be openly tailored and proportioned in a way that is justified by the degree of difference between situations.

• Secondly, the OTP could develop more consistency by avoiding an over-reliance on gravity as the basis for its selections. The concept is highly elastic and, in the words of DeGuzman, ‘simply does not have enough agreed content to provide convincing justifications for selection decisions’.195 The OTP’s application of relative gravity exacerbates its arbitrariness, and its use has already become tainted with politicized judgments that do not inspire confidence. In this regard, the OTP could anchor its steps towards consistency by articulating specific goals and priorities across and within its range of situations.

• Thirdly, the OTP should incorporate the ‘reasonable observer, properly informed’ test into its Policy on Case Selection. The test would provide a normative standard that would direct the OTP towards meaningful self-evaluation of its procedure and even enable it to ‘check’ the internal and often unconscious biases of its individual personnel.

• Finally, the OTP needs to engage in critical self-evaluation about a fundamental question: how can its selection procedure (best) represent the interests of affected communities? On the one hand, the OTP’s relationship with those communities must respect the Office’s independence: the Prosecutor does not act on behalf of communities in a manner akin to a defence lawyer acting on behalf of their client, including by following their instructions. On the other hand, the OTP must foster a sufficiently close relationship so as to adequately represent their interests.

Perceptions of the Court will always be contested, fluid and subject to the influence of various circumstances. Nonetheless, the procedure by which situations and cases are selected is a critical constituent of the Court’s perceived legitimacy. Aligning this selection procedure towards greater procedural justice may make a modest but meaningful contribution to the Court’s legitimacy. Such alignment may not be sufficient, but it may well be necessary.