Who to Prosecute? The OTP’s Inherent Dilemma

ICC Deputy Prosecutor James Stewart recently explained that the Office of the Prosecutor (OTP) can’t always investigate or prosecute all sides of a conflict at the same time. He stated that sometimes “You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized.”

Some have suggested that Stewart’s statement indicates that the OTP acts in a self-interested way, taking into account “what is  good for the Court” when determining which situations and cases to focus its time on.

This analysis misses Stewart’s point. Stewart is simply saying that the OTP must consider what is actually possible when determining what to investigate and prosecute. His statement points at a fundamental question that the OTP has always faced: how best to spend its limited time and insufficient manpower and resources to ensure that justice is done.

The OTP’s staff and resource shortage is primarily due to the OTP’s limited budget, which is set by the Assembly of States Parties (ASP). Even though the ASP is putting great pressure on the ICC not to increase its budget for 2014, the OTP has asked the ASP for more money to, among other things, allow the OTP to perform broader investigations. This would certainly help the OTP to conduct simultaneous investigations and prosecutions of multiple sides of a conflict.

Absent additional resources, the OTP must weigh a variety of factors when determining where to focus its attention. Many of these issues will remain important for the OTP if its budget is increased.

One issue the OTP must examine is whether justice can only be done if all sides of a conflict are investigated and prosecuted simultaneously. This factor obviously influenced the OTP’s decision to bring two simultaneous cases from its investigation into the 2007/2008 post-election violence in Kenya. The OTP brought charges against the two main sides of the conflict (the predominantly ODM/Kalenjin side, and the predominantly PNU/Kikuyu side); charging only one side would have provoked the underlying us-versus-them tribal discord that led to the violence in the first place and could have triggered fresh violence.

Another issue the OTP considers is how fast the investigation or case must progress so that its work will contribute to the pursuit of justice and possibly help to stop ongoing atrocities. This is surely a factor that influenced the speed with which the OTP requested arrest warrants in the Libya investigation. Though the OTP requested arrest warrants only for senior Gaddafi officials, the OTP may have weighed speedy arrest warrants over the need to simultaneously pursue rebel crimes in order to contribute to the global effort to stop the atrocities of Gaddafi’s regime.

The OTP may also choose to focus on one party to a conflict where that party has committed or is committing crimes that are more serious that those committed by others. Again, this may have influenced the OTP’s priorities during its investigation in the Libya situation.

Where the OTP seeks to investigate and prosecute crimes committed by a sitting government, the OTP will have to consider what kind of cases it can feasibly bring. The government can disrupt the OTP’s investigation by, for example, refusing OTP staff access to the country, or tampering with witnesses and other evidence. Under these circumstances, the OTP may have insufficient evidence of certain crimes. It may decide to bring charges for only a limited set of crimes to ensure that the perpetrators are prosecuted for something, rather than waiting – possibly in vain – to gather evidence of all suspected crimes before requesting arrest warrants or summonses to appear.

These are only examples of the numerous practical questions that effect the OTP’s investigation and charging decisions. Now that Deputy Prosecutor Stewart is being more candid about this issue, perhaps the OTP can be more transparent about how and why its investigations and cases take the shape they do. Without this transparency, external observers, victims, and others will not understand the real factors influencing the OTP’s decisions, and may view it as biased, self-interested, or misled. They will not understand how the OTP has delicately balanced its work between an understanding of what it will mean for justice to be done, and the factors that limit how the OTP can achieve justice.

At the same time the OTP must not become complacent in its prosecutions. Stewart’s statement highlights the fact that the OTP may sometimes need to move forward with the prosecution of one side of a conflict without prosecuting crimes committed by other sides at the same time. The danger is that the OTP will not follow up with prosecutions of crimes committed by the other sides. This is particularly so because the OTP is already stretched thin, and because new crises regularly arise and may require immediate attention before the OTP has circled back to prosecute follow-up cases. The OTP needs to internalize practices and standards that guard against this.

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By Karen Corrie

From 2005-2008, Corrie served as an Assistant District Attorney in New York County (Manhattan). From 2009-2012, Corrie served as an analyst and trial lawyer with the OTP. She has also worked on international human rights litigation with the Open Society Justice Initiative, and now acts as a consultant to the President of the Assembly of States Parties of the ICC. The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, any organization with whom the author has worked or currently works.