There are three kinds of triggering mechanisms pursuant to the Rome Statute. The UN Security Council, acting under Chapter VII of the UN Charter, as well as a state party, may refer a situation to the Prosecutor, or the Prosecutor may initiate an investigation independently, proprio motu, with the authorization of the Pre-Trial Chamber.50 The Prosecution has the key role and is the only organ of the Court in preliminary investigation able to obtain the necessary information and examine national courts to make sure that they investigate and prosecute crimes committed within the situation of crisis that is the subject of the triggering procedure.51 The Rome Statute, in general,
43
Bruno, G. (2011). " A decade of reasons why Arab countries distrust the ICC. " from
www.thenational.ae/featured-content/home/middle-national-conversation/a-decade-of-reasons-why-arab- countries-distrust-the-icc [accessed on 10th September 2011]
44
Danner, The American Journal of International Law, Op, cit., p. 514.
45
Article 13 of the Rome Statute.
46
Arbour, Op, cit., p. 210.
47
Article 34 of the Rome Statute.
48
Ibid., Article 42 (2).
49
Arbour, Op, cit., p. 142.
50
Olasolo, H. (2005). The Triggering Procedure of the International Criminal Court. Martinus, Nijhoff. p. 65.
51
grants the Prosecutor the authority to exercise discretion in selecting and prioritizing investigations.52 Article 53 of the Rome Statute, along with the complementarity regime based on Article 17, set out some obligations for initiating an investigation and for the admissibility of a case.53 As such, no external entity can direct the Prosecutor to charge cases against particular individuals.54
Yet, as Knoop has claimed, ‘no definition of reasonable basis is provided’ and it is the Prosecutor, therefore, who is empowered to determine whether this reasonable basis exists.55 However, the Prosecutor does have the power to conduct his or her preliminary inquiry. The main purpose of this is to gather sufficient information to determine the existence of ‘a reasonable basis to believe’ that crimes within the jurisdiction of the Court have been committed in the situation concerned. For instance, ‘seek[ing] additional information from states, organs of [the] United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate’ and ‘receiv[ing] written or oral testimony at the seat of the Court,’ are the sort of preliminary investigative steps, based upon proprio motu power, which are formulated in Article 15 of the Rome Statute. However, a situation which is referred by the Security Council or state party presupposes that they have undertaken a previous investigation before formally communicating with the Prosecutor.56
An important point which arises here is that the preliminary inquiry may be carried out confidentially without giving notice to the state concerned, while the initiation of an investigation must always be communicated by the Prosecutor to ‘all state parties’ and any states concerned who are not party to the Rome Statute.57 However, there is an important distinction between the preliminary inquiry and the investigation. In the preliminary phase, ‘the Prosecutor shall establish the personal, territorial and temporal parameters that define the referred situation within which those specific facts take place.’58 On the other hand, in the investigation phase, and in accordance with Article 54 (1) (a), the Prosecutor has to ‘establish the truth.’ In doing so, he or she has to ‘extend the investigation to cover all facts and evidence relevant to an assessment of
52
Danner, The American Journal of International Law, Op, cit., p. 519.
53
Articles 17 and 53 of the Rome Statute.
54
Danner, The American Journal of International Law, Op, cit., p. 520.
55
Knoop, Criminal Law Forum, Op, cit., p. 375.
56
Olasolo, H. (2003). "The Prosecutor of the ICC before the initiation of investigations: A quasi-judicial or a political body? ." International Criminal Law Review 3: 87-150. p. 134.
57 Ibid
., p. 92.
58
whether there is criminal responsibility under this Statue,’ and must cover incriminating and exonerating circumstances equally.59
It is also important to note here that the situation as the subject of investigation is contained in the Rome Statute Article 13 (a) (b), Article 14 (1), Article 15 (5) (6), Article 18 (1), and Article 19 (3), and objectivity is defined by ‘personal, territorial and temporal parameters as opposed to a case composed of specific facts allegedly committed by identified suspects.’60 In other words, the Prosecutor is bound to investigate and prosecute the crimes committed by all the different parties within the situation.61 Moreover, the Prosecutor’s determination as to whether there is a ‘reasonable basis to proceed’ with an investigation must be made in relation to the whole situation referred by the state party, and not only with regard to specific acts which took place within it.62 It is important to emphasize here that the nature of the authority to interpret and define the situation is important. In this regard, a senior ICC officer has claimed that there is no authority to interpret what constitutes a ‘situation’. For example,
In the records of the Uganda situation it mentioned that the government referred the situation concerning the Lord’s Resistance Army (LRA) to the Prosecutor as well as the situation in Northern Uganda.63
In relation to the assessment of the differences between the admissibility test of a situation and that of a case, a senior ICC officer suggested that:
‘The admissibility test of a case is easier than the admissibility test of a situation. In terms of a case, the same individual and the same conduct should be considered. However, in the admissibility test at the situation level before the opening of an investigation, it is difficult to determine what the state is doing and what is sufficient to consider whether the state is acting or not. This is complicated and there are no established criteria.’64
In relation to the assessment of a situation, he also emphasizes that:
‘The performance of the state in relation to crimes within the jurisdiction of the Court is important, and it is difficult to find out whether any prosecution and investigation has been done in respect of certain crimes.
59
The Rome Statue, Article 54 (1)(a)
60
Olasolo, Op, cit., p. 58.
61
Ibid.,
62
Ibid., p. 99.
63
Interview with senior ICC officer D
64
In doing so, the difficulty is when the state is taking partial action to investigate certain crimes but not others, and when they are prosecuting a group of certain individuals but not others. The point is there should be some standards to do an admissibility test at this stage.’65
He suggests three criteria to consider whether the state is active or inactive. ‘In the situation, three main criteria should be considered; 1- those groups that may be involved in the criminality that has taken place; 2- the high level individuals in those groups; and 3- not every high level individual but those who was involved in promoting that criminality.’
‘The next question is whether the State is unwilling or unable to carry out those investigations and prosecutions.’66
As discussed earlier in this section, there are a set of considerations in the Rome Statute regarding investigation and prosecution which govern the discretion of the Prosecutor in determining whether or not to proceed with a case.67 However, the experience of the ad hoc tribunals demonstrated that international prosecutions cannot pursue all crimes within a particular conflict, which is the main challenge faced by the Prosecutor, and this may cause a discriminatory result and inequality in treatment. It is a problematic issue and the Rome Statute is silent about which potential accused should be pursued by the Prosecutor.68 Danner has claimed that even the review of the Prosecutor’s decision by the Pre-Trial Chamber will not solve this problem, given that the Chamber can assess ‘only the lawfulness and not the wisdom of the Prosecutor’s decision to investigate.’69 When an investigation has been initiated, the Prosecutor will be able to ‘control the way in which an investigation is conducted’ 70 and the investigators are accountable to him or her.71 Under Article 53 (2) of the Rome Statute, the Prosecutor has discretion not to proceed where ‘there is not a sufficient basis for a prosecution.’72 If the Prosecutor decides there is a reasonable basis to proceed with an investigation, based upon Article 18(1) of Rome Statute, he or she must notify all states parties to the Rome Statute and those states that would otherwise exercise jurisdiction
65 Ibid., 66 Ibid., 67
Article 53 (1) of the Rome Statute
68
Danner, The American Journal of International Law, Op, cit., p. 521.
69
Ibid., p. 520.
70
Arbour, Op, cit., p. 143.
71
Ibid., p. 146.
72
over the crimes.73 Subsequently, if one of these states informs the Court that ‘it is investigating or has investigated its nationals within its jurisdiction, the Prosecutor shall defer to the state’s investigation of those persons.’74 However, it is questionable how far the prosecution submissions can be under seal or confidential regarding such complex admissibility procedures.
Regarding the Prosecutor’s discretion over the decision to charge, it is worth mentioning here that Article 16 (4) of the Rome Statute provides that the Prosecutor ‘may amend or withdraw any charges’ before the hearing to confirm charges on which the Prosecutor intends to seek trial.75 However, ‘after commencement of the trial, the Prosecutor may, [only] with the permission of the Trial Chamber, withdraw the charges.’76