Is There Still a Need for Guidelines for the Exercise of ICC Prosecutorial Discretion?

In April of this year, the ICC Prosecutor issued a set of Regulations of the Office of the Prosecutor. These regulations are intended to govern the way in which the office of the ICC Prosecutor  is administered and the way in which it conducts investigations and operations. Back in 2003, the Office of the Prosecutor issued a policy paper in which it stated that:

“The Office of the Prosecutor considers that Regulations are essential to ensure its independence and accountability. For this reason, it will adopt ad interim Regulations to guide the decisions and practice of the Office, taking into consideration the comments received in the public hearings and throughout the consultation process. The Office considers that in the elaboration of the final Regulations, it will be indispensable to also take into account the views of the staff members that will be recruited and the experience gained by the Office in its first months of operations. The Office envisages adopting these Regulations during the first semester of 2004.”

I am not sure if interim regulations were issued in 2003 or if the 2009 regulations are the first issuance of the “final regulations.” Given what was said in the policy paper, it would appear that the Regulations are intended to provide standards for prosecutorial decision making and in particular to guide the exercise of prosecutorial discretion. However, these regulations do not in fact provide much guidance on how the prosecutor will make decisions in those areas where the prosecutorial discretion is most important: decisions relating to what situations to investigate and who to prosecute.

It is universally recognised that the ICC Statute confers significant discretion on the ICC Prosecutor with respect to decisions as to which situations to investigate and what charges to bring against whom. In making these decisions, the Prosecutor is required to act independently. Although the Prosecutor has the power to initiate prosecutions on his own motion and without referrals, he is under no obligation to bring charges against all those who may have committed crimes within the jurisdiction of the Court. Indeed, it would be impossible to impose such a requirement on the prosecutor. As a result of these features some, like the US under the Bush administration, have complained about the possibility of a maverick prosecutor who may pursue politically motivated prosecutions (see here). Others have suggested that the ICC may not be sufficiently senstive to the needs of  countries in transition and which may seek to achieve peace and reconciliation through means other than prosecution and the retributive justice. Overall, there is a concern by some that Prosecutorial discretion may lead to arbitrary, discriminatory, politically motivated or politically insensitive decisionmaking.

In order to ensure to impose some degree of accountability on the ICC Prosecutor and to ensure that the prosecutorial decision making is legitimate, it has been suggested that the Prosecutor’s decisions with respect to investigations and prosecutions should be guided by ex ante  standards, a set of guidelines for prosecutorial decisionmaking. Allison Marston Danner’s article in the 2003 American Journal of International Law makes a very persuasive case for such guidelines (see here). Others have also argued that a set of guidelines will help to “objectify” the exercise of prosecutorial discretion (see here and here).

The Regulations issued by the Prosecutor does not go far enough in creating a set of standards by which the legitimacy of the prosecutors decision making can be judged. First of all, though the regulations deal to some extent with decisions relating to investigations and decision to bring charges, they do not provide for standards to be applied or factors to be taken into account with regard to the key decision to investigate or charge. For example, Regulation 29 which deals with “Initiation of an Investigation or Prosecution” is extremely short, with only 5 short sub regulations. Moreover, it does not provide any detail on how the Prosecutor will interpret the factors relating to the gravity of the crime when deciding whether or not to prosecute nor does it set out the factors to be taken into account in deciding whether there is a reasonable basis to proceed. Under Article 53(2)(c) of the Statute, the Prosecutor may decide that there is not a sufficient basis for prosecution because “a prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims  and the age or infirmity of the alleged perpetrators, and his or her role in the alleged crime.” Regulation 31 of the 2009 Regulations which deals with the decision not to proceed in the interest of justice does not set out how the prosecutor will make a decision that a decision not to prosecute is in the interests of justice. A comparision of the ICC Regulations with the The Code for Crown Prosecutors in England and Wales (see here)  reveals the poverty of the ICC Regulations in providing an explantion of the factors to be considered in deciding whether to prosecutor or not. The English Code has a detailed section dealing the factors to be considered when deciding whether a prosecution is in the public interest. It should be noted that the Office of the Prosecutor issued a policy paper in September 2007 setting out its understanding of the concept of interests of justice. It is not clear why that understanding is not reflected in the 2009 paper but it would seem logical that all the factors relating to prosecutorial discretion should be found in one set of guidelines.

 The second reason why the Prosecutor’s Regulations do not fulfill the call for guidelines set above is that these standards should be determined by or at least approved by governments. This is because governments bear the primary responsibility for ensuring the well being of their societies. It is the case that prosecutorial guidelines in domestic law are often issued by the prosecutors themselves. This is usually because they have the necessary expertise in making decisions regarding the standards to be applied in making prosecutorial decisions. However, the decisions to be taken by international prosecutions are very different from those regarding prosecutions for national crimes. International prosecutors will often be faced with decisions which have an impact not merely on individuals but also on whole societies, either those in conflict or those in transition. Although it is probably appropriate for the prosecutor to make those decisions independent of political considerations and of political actors, the standards to be used should be those which have some legitimacy in that they are approved by those with responsibility for the potentially affected parties, i.e by governments.

Therefore, in addition to a call for greater specificity in the Regulations, I would suggest that a set of revised regulations or guidelines ought to be developed by (or at least approved by) the Assembly of States Parties to the Rome Statute.