The ICC’s Office of the Prosecutor (OTP) operates with an open-door policy. Prosecutor Fatou Bensouda emphasized this while addressing the "Group of Friends of the ICC" (GoF) this past Wednesday, May 13. Her remarks directly followed her biannual briefing to the United Nations Security Council (UNSC) on the situation in Libya. Bensouda gave an overview to the GoF of the OTP’s activities, commented on new policies adopted by the office, and identified challenges that it currently faces.
In outlining details of the Palestine-Israel situation at the Court, Bensouda reiterated points communicated in previous statements issued by the OTP. Namely, she sought to distinguish a preliminary examination (PE) from a formal investigation. Underscoring that the OTP conducts preliminary examinations without “fear or favor,” Bensouda explained that the Office examines several factors during a PE. The OTP examines the applicability of ICC jurisdiction (i.e. gravity threshold), national proceedings in the interest of complementarity, and the interests of justice.
Ultimately, a PE involves reviewing available information to determine whether there is a “reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.” The OTP renders a determination only when it has sufficient facts and legal findings to decide whether an investigation is justified. She informed the GoF that her office’s PE of the Palestine-Israel situation will comprehensively cover all alleged crimes committed by both sides. To this end, she encouraged Israel to cooperate with the OTP as it proceeds in its examination.
Bensouda also assessed the ICC’s jurisdiction over the Islamic State of Iraq and the Levant (ISIL) and recognized challenges her Office faces in connection to the Libyan cases. She declared that the Court does not have territorial jurisdiction over ISIL, as neither Iraq nor Syria is party to the Rome Statute. Even so, she asserted that there are nationals of state parties amongst the ranks of ISIS. Yet, because those of the top echelon of ISIL are Iraqi and Syrian – and thus beyond the ICC’s reach – Bensouda urged State parties to be creative in their approach to end the impunity from which ISIL currently benefits. Particularly, she mentioned an article 12(3) declaration or a UNSC referral both as viable means through which ISIL may be brought to the Court.
Echoing her remarks made to the UNSC on Libya, Bensouda also communicated that the security situation in Libya is one that deeply troubles her. In an effort to address the situation, her Office has encouraged the formation of an ‘international contact group’ on justice issues through which material, legal and other support could be provided to Libya. Bensouda underscored that the OTP is continually monitoring the situation, asserting that she will “not hesitate to take action to end the state of impunity in Libya.”
Citing Dominic Ongwen’s long-awaited surrender and subsequent arrival at the Court as evidence that the Court is both “permanent and patient,” Bensouda highlighted the extent to which the ICC – and the OTP more specifically – has developed in recent years. With the increase in both the Court’s scope and caseload, Bensouda noted that her Office has had to prioritize the assignment of funds and other resources, leaving some cases lacking. She specified that this was particularly true in light of Ongwen’s arrival at the Court.
In general, Bensouda noted that resources available to the Office do not match the current demand. She specifically identified the need for increased financial support for the Trust Fund for Victims (TFV) and the insufficiency of the ASP’s designated budget. The provision of reparations plays a key role in delivering reparative justice to victims. To ensure that victims’ rights to reparations are appropriately served, Bensouda called on more States to contribute funds to the TFV. She also indicated that the Court’s budget must be increased so that the ICC can effectively fulfill its mandate. In addition to identifying the need for increased funding, Bensouda specified that non-cooperation of states in hosting convicted persons and witness location have posed challenges for the OTP. The Registrar and the OTP are currently addressing these issues.
The OTP has benefited from several positive developments since Bensouda began as Prosecutor. When first taking office, Bensouda established an internal review that led to the creation of the 2012- 2015 OTP Strategic Plan. This strategic plan has enhanced the Office’s efficiency and analysis function. The admissibility threshold for evidence has heightened as well, with the OTP demanding trial-ready evidence as early as the “Confirmation of Charges” hearing. Building on this momentum, Bensouda shared that the new Strategic Plan for 2016-2018 is already underway. As the drafting of this plan progresses, the OTP is also enhancing its case selection policy, developing performance indicators, and establishing an institutionalized “lessons learned” policy.
Bensouda stressed that the OTP will operate independently, impartially and with the utmost transparency as it moves forward and continues to build on its preexisting successes. Given the advent of the Palestine-Israel situation at the Court, demonstrating this institutional independence is especially important. We will monitor the OTP’s actions to ensure that this independence is maintained.
Written by Michaela Connolly