Prosecutorial Discretion and the Need for a Stronger Voice for Victims is asking international criminal justice experts to weigh in on pressing issues facing the ICC. The following commentary was written by Gaelle Carayon, ICC legal officer at REDRESS. The views expressed below do not necessarily reflect the views of Open Society Justice Initiative.

 How much discretion should the prosecutor of the International Criminal Court (ICC) have when deciding which investigations should be opened, suspended, or closed, or when deciding the scope of investigations? What role should victims be allowed to play during investigations when their vital interests are at stake? The prosecutor has a lot of discretion. Arguably, she should have less. The victims have next to no role during investigations. Arguably, they should have a much bigger role.

The practice in many domestic jurisdictions affords victims the possibility of seeking a review of how prosecutors exercise their discretion. At the ICC, victims do not, as a matter of right, have the ability to request a review of the prosecutor’s decisions. The role of victims is limited to making general submissions when the prosecutor seeks to open investigations proprio motu (as in the Kenya and Ivory Coast situations), or to submitting views and concerns, once review proceedings have been triggered by the chamber or a state (as in the Comoros situation).

Furthermore, the prosecutor is not obliged to indicate within a set timeframe whether she will ever proceed with a particular investigation or line of enquiry. The ICC Appeals Chamber has ruled that victims have no general right to participate in the “investigation phase” of the proceedings, and thus the victims have no route to seek clarity or answers from the prosecutor. This is despite the fact that prosecutorial decisions relating to investigations go to the heart of victims’ concerns and interests: these decisions have an impact on victims’ ability to obtain justice and other forms of reparation for the harm they suffered and to know the truth about what happened. Only those victims who have suffered harm as a result of the crimes set out in the charges against a particular accused person can participate in the proceedings and ultimately receive reparation if the case gets to that stage (see the appeals chamber ruling). Other victims—the ones who don’t feature in the charges—are most affected by prosecutorial discretion to pursue narrow charges or to hold off on charges altogether. Under the current system, there is no route for them to express views and concerns.

Unlike victims, a state party that refers a situation to the ICC can request a review of the prosecutor’s decision not to investigate. This issue arose in the situation concerning an attack by Israel Defense Forces on a ship in a humanitarian aid flotilla in 2010, referred to the court by the Union of Comoros. Comoros’ request for review was granted by the pre-trial chamber in July 2015. Some participating victims were able to present their views and concerns, but only after the Comoros had triggered these proceedings. Ultimately, the chamber could merely request that the prosecutor reconsider her decision and the prosecutor’s response (she is seeking to appeal the decision) suggests that victims’ views had little impact on her position. In this case, victims had expressed their disappointment at what they perceived as the prosecutor’s unwillingness to listen to their concerns and to understand what had really happened.

If the prosecutor decides to terminate an investigation or prosecution because continuing with the proceedings would not serve the “interests of justice,” then the pre-trial chamber has the ability to review that decision. However, so far the prosecutor has refrained from formally making such a decision, though in a number of cases proceedings have been suspended indefinitely, with no real timeframe or prospect for their resumption. There is no obligation for the prosecutor to formally close a suspended or dormant investigation after a set period of time. In practice, this has meant that a number of investigations are now dormant, but because they have not been formally closed, there is no possibility for the pre-trial chamber to review the decision to make these proceedings dormant. And, there is no possibility for victims to express their views and concerns.

In the few instances in which victims have sought to challenge decisions to suspend investigations (in the DRC and more recently in the Kenya situations), the prosecution has argued that no decision to close the investigation had been made and that as a result there was no decision for a chamber to review. In the DRC situation, the pre-trial chamber accepted this argument to reject the request by one  victims’ lawyer who called for a review of the prosecutor’s decision to suspend investigations of further crimes allegedly committed by Thomas Lubanga Dyilo due to “the precarious security conditions […] in Ituri.” A similar scenario is currently the subject of litigation in the Kenya situation, in which a lawyer representing victims is seeking to encourage the pre-trial chamber to review the prosecutor’s decision to “suspend” investigations in relation to the case against Uhuru Kenyatta, Francis Muthaura, and Mohammed Huss dealing with post-election violence, which he argues was a roundabout way of closing the investigation without formally saying so.

Prosecutorial decisions on the scope of the investigations also remain largely unchallenged in practice, depriving many victims of the ability to participate in future proceedings. When the prosecutor sought the approval of the pre-trial chamber to open an investigation in relation to post-election violence committed in Ivory Coast, the pre-trial chamber sought representations from victims, as required by the ICC’s Rome Statute. As a result of victims’ input, the pre-trial chamber directed the prosecutor to extend the scope of investigations to include crimes allegedly committed prior to the post-election violence. However, years have now passed and there is still no sign of the prosecutor’s intention to investigate these earlier allegations.

Victims’ ability to influence the scope of the charges that come out of these investigations has also been limited. This has prompted criticisms by victims who do not see the charges brought by the prosecution as reflecting the full or main extent of the criminal conduct they experienced, as was expressed by the victims’ legal representative in the Ruto and Sang case. Attempts by victims’ legal representatives to encourage the prosecutor to add charges to the indictment reflecting the sexual and gender based crimes suffered by former child soldiers failed in the Lubanga case. The decision not to bring charges against Bosco Ntaganda for alleged crimes committed after 2003 has also been criticized as a missed opportunity by the prosecutor to ensure the case against him reflects the full scale of the crimes and victimization.

Recent developments in the case against Dominic Ongwen, who is accused of having perpetrated war crimes and crimes against humanity in Northern Uganda, offer a sliver of hope for victims. The case against him focused on a single attack that happened on a single day at a single location (Lukodi). Victims who had applied to participate in the Uganda situation promptly called for the charges to be expanded and for the prosecutor to undertake additional investigations. Victims’ organizations in Uganda also brought similar concerns to the attention of the court. The prosecutor announced on September 28, 2015 that she would expand the scope of the charges to cover three additional incidents as well as the crimes of persecution, sexual and gender-based crimes, and the conscription and use of child soldiers. In total, 67 charges are being brought, 60 of them new. While a positive outcome for the many victims who were originally excluded from this case, the prosecutor’s decision to expand the charges comes somewhat late in the process and underscores the need for stronger and earlier engagement of victims in the investigations.

Clearly, the ICC prosecutor will not be able to prosecute all suspected perpetrators of international crimes and will need to prioritize investigations and charges in order to address the challenges of limited resources, wide-scale criminality, and limited cooperation. However, there is a need for greater oversight and more transparency in the exercise of prosecutorial discretion. While essential to preserve the prosecutor from political interference, prosecutorial discretion should not be used as a shield to avoid scrutiny of what is essentially a public office or overly restrict victims’ right to justice, truth, and reparation before the ICC.

The prosecutor herself has committed to adopting a ‘victim responsive approach’ to her work. To turn these words into reality, victims should be allowed to play a stronger role from the outset. They should be entitled to express their views about all prosecutorial decisions, even those taken during the investigation, and should be entitled to seek leave to challenge decisions to open, close, or suspend an investigation. The long-awaited prosecutorial policy on case selection and prioritization will ideally provide an opportunity for the prosecutor to address some of these challenges, though others require the concerted efforts of the judiciary.

For a more detailed discussion on the issues raised in this piece, please read the article submitted by Carla Ferstman, REDRESS Director, to Acta Juridica for its 2016 edition.

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