3.3 THE APPLICATION OF THE PROSECUTOR’S DISCRETION RELATING TO SEXUAL AND GENDER-BASED CRIMES
3.3.4 Impartiality
The OTP in its early years stated that it would focus its investigations and prosecutions on ‘the most serious crimes and on those who bear the greatest responsibility for these crimes’.661 It therefore sets out to target people in high positions who had ordered, financed or organised crimes alleged to have been committed.662 In addition, its policy papers stated that general principles on preliminary examinations, case selections and their prioritisation (carefully packaged) were based on ‘the overarching principles of independence, impartiality and objectivity’.663 The previous ICC Prosecutor, Luis Moreno-Ocampo, was accused of being biased and impartial as he only targeted rebel groups in the DRC, Uganda and the CAR conflicts, thereby failing to apply the aims of the OTP on whom to investigate and prosecute.664 In endorsing the Prosecutor’s alleged bias and impartiality in the DRC, Human Rights Watch, for example, stated that:
Key political and military figures in Kinshasa, as well as in Uganda and Rwanda also played a prominent role in creating, supporting and arming Lubanga’s Union of Congolese Patriots, Katanga’s Nationalist and Integrationist Front, and Ngudjolo’s Ituri Patriotic Resistance Forces.
The availability of political and military support from these external actors encouraged local leaders in Ituri to form more structured movements and significantly increased their military strength. We therefore urge the Prosecutor to investigate senior officials in Kinshasa, Kampala and Kigoli and, evidence permitting, to bring cases against them.665
660 Ibid.
661 Prosecutorial Strategy 2009-2012 at 5- 6. OTP, Report on Prosecutorial Strategy at 5.
662 Idem at 6.
663 ICC-OTP, Policy Paper on Preliminary Examinations (1 November 2013) at para 25. ICC-OTP, Policy Paper on Case Selection and Prioritisation at para 16.
664 William W Burke-White ‘Complementarity in practice: The International Criminal Court as part of a system of multi-level global governance in the Democratic Republic of Congo’ (2005) 18 Leiden Journal of International Law 557 at 559, 563- 568 (stating that ‘the existence of the ICC has offered a politically expedient solution for the Congolese president to deal with potential electoral rivals, resulting in the somewhat surprising referral of the situation to the Court by the Congolese government itself’). William A Schabas ‘Prosecutorial discretion v judicial activism’ (2008) 6 Journal of International Criminal Justice 731 at 752-753.
665 Human Rights Watch ‘Courting history: The landmark International Criminal Court’s first years’ at 60-61 available at https://www.hrw.org/sites/default/files/reports/icc0708webwcover.pdf (accessed 1 November 2016).
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The Prosecutor defended his actions in the Ugandan situation by saying that he based the decision on whom to prosecute on the gravity criteria.666 This included an assessment from ‘a quantitative and qualitative viewpoint and factors such as the scale, nature and manner of commission of the crimes, and their impact on victims’.667 In applying the gravity criteria, the Prosecutor concluded that the alleged crimes committed by the LRA were of a higher gravity than those committed by the Ugandan People’s Defence Force (UPDF), and other groups,668 thus indicating that the alleged SGBCs committed by the UPDF and other groups were not serious enough to prosecute, even though various international bodies had brought to light the gravity of these crimes. A 2005 report by Human Rights Watch, for instance, confirms that the UPDF were equally to blame for SGBCs committed in Uganda. It states that ‘soldiers and officers of the Ugandan army, which is deployed in or near every displaced persons camp in northern Uganda, engaged in abuses in 2005, beating, raping and even killing civilians with near total impunity’.669 These civilians obviously trusted the government to protect them. Scholars have also criticised the ICC for only prosecuting the LRA as a political move.670 In the DRC and CAR situations, the Prosecutor should have also applied the gravity criteria, given that they were an important factor he was obliged to consider in opening an investigation or selecting cases.671
The Prosecutor in policy papers has consistently stated that impartiality
. . . does not mean ‘equivalence of blame’ between different persons and groups within a situation, or that the Office must necessarily prosecute all sides in order to balance off perceptions of bias; instead it requires the Office to focus its efforts objectively on those most responsible for the most serious crimes within the situation in a consistent manner, irrespective of the States or parties involved or the person(s) or group(s) concerned.672
666 Luis Moreno-Ocampo ‘Keynote address: Integrating the work of the International Criminal Court into local justice initiatives’ (2005) 21 American University International Review 497 at 498. OTP-ICC, Report on the activities performed during the first three years at 8.
667 ICC-OTP, Policy Paper on Preliminary Examinations (1 November 2013) Executive summary at para 9. ICC- OTP, Policy Paper on Case Selection and Prioritisation at para 31.
668 Moreno-Ocampo ‘Keynote address’ at 498. OTP-ICC, Report on the activities performed during the first three years at 8.
669 Human Rights Watch ‘Uganda Events of 2005’ available at https://www.hrw.org/world-report/2006/country- chapters/uganda (accessed 14 August 2018).
670 Adam Branch ‘Uganda’s civil war and the politics of ICC intervention’ 28 Ethics & International Affairs 179 (stating that ‘the ICC, in accepting the referral and prosecuting only the Lord‘s Resistance Army, has in effect chosen to pursue a politically pragmatic case even though doing so contravenes the interests of peace, justice, and the rule of law’.)
671 ICC-OTP, Policy Paper on Preliminary Examinations (1 November 2013) at para 66. ICC-OTP, Policy Paper on Case Selection and Prioritisation at para 6.
672 Idem at paras 28 and 66. Idem at para 20.
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If the OTP had investigated the alleged crimes committed by senior government officials in the DRC and CAR situations it would have found that the SGBCs alleged to have been committed by these senior government officials were serious enough to be prosecuted. With regard to the Ugandan situation, contrary to Luis Moreno-Ocampo’s assertion that the crimes committed by the UPDF were not of greater gravity than those committed by the LRA is contradicted by the statement of the OTP that no complaints had been received against the UPDF.673 The non- prosecution of senior government officials or heads of state shows the difficulty in bringing charges of SGBCs against this set of people, thus creating an impunity gap in the investigation and prosecution of these officials. Uganda and the DRC, for example, were politically motivated in referring of the situations to the ICC, and such referrals helped the Prosecutor in bringing situations before the ICC.674 Although the Prosecutor could have brought these situations proprio motu before the ICC, he would have faced the hurdle of proving that the states in question were ‘unable or unwilling genuinely to carry out’ domestic proceedings, especially if these states opposed him.675 The ICC was certain of the cooperation of the Ugandan and the DRC governments by choosing not to investigate or prosecute the governments of these states (which also committed SGBCs) but rather their opponents for crimes committed in their territory.676
Gaeta is of the opinion that self-referrals may be the best option in bringing situations before the ICC, compared to the other options for triggering the ICC’s jurisdiction.677 As observed by one of the ICC’s former judges, the ICC ‘will almost inevitably be caught between
673 The Director Jurisdiction Complementarity and Co-operation Division of the ICC, Phakiso Mochochoko, stated in 2015 that the ICC had not received any complaints against the UPDF, regarding the alleged crimes, which have been committed in northern Uganda. Willy Chowoo ‘No yet case against UPDF at ICC – Hague’ (16 November 2015) available https://chowoo.wordpress.com/2015/11/16/no-yet-case-against-updf-in-icc-hague/ (accessed 7 November 2016).
674 Paola Gaeta ‘Is the practice of “self-referrals” a sound start for the ICC’ at 949-952. Burke-White
‘Complementarity in practice’ at 563-567. Sarah M H Nouwen and Wouter G Werner ‘Doing justice to the political:
The International Criminal Court in Uganda and Sudan’ (2011) 21 The European Journal of International Law at 941-965.
675 Ibid at 950-951.
676 Ibid at 950 and 952. Nouwen and Werner ‘Doing justice to the political’ at 952-953 and 964.
677 Idem at 951. The case against Al-Bashir, the President of Darfur, Sudan, which was referred to the ICC by the Security Council under article 13(b) of the Rome Statute, is an example of the difficulties, which the ICC is encountering. The ICC has not been able to arrest Al-Bashir as Sudan has refused to arrest him, and also certain state parties to the Rome Statute and non-state parties have refused to cooperate with the ICC in the arrest and surrender of Al-Bashir. Katerina Katsimardon-Mirariti ‘ICC Al-Bashir case: New decisions on non-cooperation’
(2016) available at
http://blog.casematrixnetwork.org/toolkits/eventsnews/news/icc-al-bashir-case-new-decisions-on-non-cooperation/
(accessed 7 November 2016).
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the poles of brutal power politics on the one hand and law and human rights on the other’.678 If there is to be accountability for crimes of SGBV, the ICC has to make a choice of whom it will investigate and prosecute.
In its recent Policy Paper on Case Selection and Prioritisation, the OTP states that it ‘shall apply its methods and criteria equally to all persons without any distinction based on official capacity pursuant to article 27(1) or other grounds referred to in article 21(3)’.679 Yet, aside from the OTP’s statement that it had not received any complaints against the UPDF, the OTP has not investigated alleged crimes against the government forces in the DRC and CAR, based on the purported knowledge that these states prosecute their own government forces. The OTP goes on to state in its policy paper that it would ‘not seek to create the appearance of parity within a situation between rival parties by selecting cases that would not otherwise meet the criteria set out’ in its paper.680 This statement indicates that the OTP realises the difficulty in investigating high-placed officials where a state government is unlikely to allow them to investigate crimes allegedly committed on their territory by their officials. As scholars have noted, in the self- referral cases the expectation is that the Prosecutor would not investigate government officials, but those who were against the government.681 The pertinent question for the Prosecutor is whether he should solely pursue the rebel leaders as the cooperation of states makes a difference as to what evidence he obtains. It also means at least the prosecution of some perpetrators, and victims of the alleged crimes, which include SGBCs, would feel that justice has been done.
3.4 RECTIFYING PAST MISTAKES IN THE INVESTIGATION AND