What is the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor (OTP) and where does it fit in the overall structure of the International Criminal Court?
The Jurisdiction, Complementarity and Cooperation Division (JCCD) is one of the three main Divisions in the Office of the Prosecutor (OTP, Office), together with the Investigations Division (ID) and the Prosecutions Division (PD). While ID is in charge of the investigative activities of the OTP, and PD of its prosecutorial activities, JCCD has two main mandates: to conduct the preliminary examinations activities of the OTP (within the Situation Analysis Section) and to coordinate and galvanise the necessary cooperation and judicial assistance from the OTP’s relevant stakeholders (States, international and regional organizations, civil society, etc.) necessary for the OTP to fulfill its mandate, from the start of an investigation to the end of the trial.
The establishment of JCCD is clear recognition that the judicial pillar of the Rome Statute system, i.e. the ICC, requires the strong, consistent and timely support from its enforcement pillar, State Parties, in order to effectively carry out its mandate.
Complementarity is one of the foundational principles of the Rome Statute system. Could you explain the principle of complementarity of the court?
The goal of the Rome Statute is to end impunity for the most serious crimes of concern to the international community as a whole and to contribute to their prevention. To achieve its goal of holding accountable the perpetrators of such crimes, the Statute created an interdependent, mutually reinforcing system of justice with a permanent International Criminal Court (ICC) complementary to national criminal jurisdictions.
The principle of complementarity means that the primary responsibility to investigate and prosecute crimes within ICC jurisdiction lies with State Parties themselves, and the ICC is effectively a court of last resort which can only intervene when the relevant State is unable or unwilling to do so. Proceedings before the ICC should remain an exception to the norm. States must uphold their obligations to investigate and prosecute mass atrocities.
Moreover, the Court will handle a limited number of cases. As a rule, the Office will select for prosecution those most responsible for the most serious crimes, based on the evidence. The strength of the system lies therefore in the possibility for shared responsibility and complementary action between the Court and the national judicial system.
How does it work? It is not enough to passively remind States of their obligations to investigate and prosecute atrocity crimes. The Office’s role is first and foremost to investigate and prosecute its cases. However, the Statute provides for a sophisticated approach to generate national proceedings with elements of dialogue (“who is doing what”), cooperation (“we can help you if you need”) and drawing the lines based on the Statute (“we shall do it if you don’t”).
The Office thus takes a positive approach to complementarity by combining efforts to prosecute those most responsible with proceedings at a national level against other potential perpetrators. The Office particularly encourages relevant national authorities and other entities to address barriers to genuine proceedings and to provide support for the victims of such crimes.
You contributed to the two books edited by Professor Roy Lee: The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (1999) and The International Criminal Court: Elements of Crimes and Rules of Procedures and Evidence (2001). You are also a joint contributor to “Internationalised Criminal Courts and Tribunals” edited by Cesare Romano, Andre Nollkaemper and Jann K. Kleffner. Could you give us a brief insight into the rationale behind the formation and operations of the court?
For centuries, conflicts were resolved through the use of force without respect for the law. Nuremberg was a landmark because for the first time, those who committed atrocity crimes were held accountable before an international tribunal. But it took some time before the ICC was created. In Rome in 1998, a new and entirely different approach was adopted by 120 States who committed to put an end to impunity for the most serious crimes of concern to the international community and to contribute to the prevention of such crimes. They created an International Criminal Court, a permanent court, with jurisdiction over genocide, crimes against humanity and war crimes, and potentially, the crime of aggression in the future.
International criminal justice was not a moment in time any longer, neither an ad hoc post conflict solution: it became a permanent feature of international discourse. The Rome Statute created a comprehensive and global criminal justice system: • Substantive law has been codified in one detailed text; the content of different international conventions such as the Genocide Convention and the Geneva Conventions have been incorporated; elements of crimes have been meticulously defined; based on the jurisprudence of the ad hoc tribunals the definition of sexual violence has been further elaborated; special emphasis has been put on sexual and gender-based crimes, as well as crimes against children; • Different legal and procedural traditions have been integrated into a new international model; victims have been given the right to participate in proceedings; their voice and interests formally included at different stages of the process; a trust fund has been created for reparations or compensation of victims; • The Scope of The ICC’s Jurisdiction Reaches Beyond any National or Regional Boundary; whereas the ad hoc tribunals were each limited in scope to a particular territory, the ICC is a worldwide criminal justice institution. Its jurisdiction extends over crimes committed on the territory or by the nationals of more than 124 State Parties (including 34 African States) that are Members of the Rome Statute System of justice; its jurisdiction could potentially extend to the entire world as the United Nations Security Council can refer situations in any country to the Court for its independent assessment of whether to take on those situation based on the applicable law; • Even more important, and the object of strong debate in Rome was the decision of States to give the Prosecutor the ability to trigger the Jurisdiction of the Court. By establishing the propio motu powers of the Prosecutor to open an investigation, the treaty creates a new autonomous actor on the international scene. Such a provision, which allows the Court to act without an additional trigger from States or the UN Security Council, ensures that the requirements of justice will prevail over any political decision. This is a key, defining provision for the new legal framework.
You joined the International Criminal Court as part of the ICC Advance Team created to set up the Court in the Hague in 2002, your involvement with the process began with establishing the ICC in 1994 in your capacity as Legal Counselor for the Permanent Mission of Lesotho to the United Nations. What do you think the role of the International Criminal Court is in the world today? Could you comment on the ICC’s progress so far in carrying out its mandate?
After Rome, the next challenge was to make this newly created institution and body of law operational, to transform the ideas and concepts into a working system. As part of the advance team, this was our objective for the first years. The challenging task of establishing an institution from nothing, without a budget, with no staff or a building, fell on the five Members of the Advance Team. Looking back at those years, it is striking to see what has been achieved to date.
The entry into force of the Rome Statute in July 2002 ushered in a new era, an era of hope for victims of the worst crimes witnessed over centuries. From the first day we started work, the phones never stopped ringing and the small fax machine over-heated as victims of alleged crimes sent details of their complaints and asked for justice. In the absence of a Prosecutor and judges, all we could do was to acknowledge receipt of these complaints and carefully catalogued and stored them for the Prosecutor.
Over a decade later, the Court is a fully functional institution. It has concluded cases, it has trials which are ongoing, it is conducting preliminary examinations around the world and more importantly, the decisions taken in courtrooms, have a deterrent impact in at least the 124 State Parties that have signed up to the Rome Statute. This means that over 2 billion people are under the protection of the ICC.
How does the OTP select cases? What are the conditions for exercising the Court’s Jurisdiction outside its classification of War Crimes or Genocide? Is there an internal protocol for it?
The mandate of the Office is to receive and analyse referrals and communications in order to determine whether there is a reasonable basis to conduct investigations into genocide, crimes against humanity and war crimes, and to investigate and prosecute persons alleged to be responsible for such crimes.
According to the Rome Statute there are three ways that a case may be brought before the International Criminal Court:
1) A State Party can refer a situation to the Prosecutor; 2) The Prosecutor may initiative investigations on her own (proprio motu) on the basis of information received from reliable sources. In this case, the Prosecutor must seek prior authorisation from a Pre-Trial Chamber composed of three independent judges; and 3) The United Nations Security Council can refer a situation to the Prosecutor acting under Chapter VII of the UN Charter.
The decision on whether or not to initiate an investigation on the basis of referrals or communications, as well as the selection of cases and individuals within a situation, is made by the Prosecutor in full independence, following the criteria established in the Rome Statute, the Office’s strategies and policies, and the existence of reliable evidence.
Furthermore, the criteria applied by the Prosecutor in deciding whether to initiate an investigation are applied equally to all situations, irrespective of whether the situation has been the subject of a referral or the Prosecutor is acting on the basis of communications she received.
The Prosecutor’s independent role in selecting situations and cases helps to ensure that the impartiality and integrity of the ICC is preserved.
The Office applies consistent methods and criteria, irrespective of the States or parties involved or the person(s) or group(s) concerned. For instance, geopolitical considerations, or geographical balance between situations, are not relevant criteria for the Prosecutor’s selection of situations and cases.
The International Criminal Courts have a specific mandate to try individuals whose actions appear to be connected to “the most serious crimes of concern to the international community” classified as Genocide, War Crimes, Crimes against Humanity, and the Crime of Aggression. However in our modern day we see the indelible link between the perpetration of such crimes and the support and funding it receives from graft and grand corruption. Is it not time that the ICC takes on grand corruption itself because of its links to war crimes?
Investigating the link between finance and conflict has been part of the Office’s strategy from its inception, in 2003.
The assumption was and still is that in order to prevent such crimes, one needs to look at the dynamics that fuel a conflict. Conflicts seem to be largely driven either by ideology, hunger for political power, or the potential for financial enrichment, or a combination of all these.
The Office’s financial investigations have three main goals: 1. Offering a different type of evidence against those most responsible, and by doing so, decreasing the number of physical witnesses which come with highly complicated protection issues 2. Identifying assets for victims’ compensation and reparations 3. Disrupting criminal organisations through asset freezing or other enforcement action by States using ICC information.
One of the goals of the Office latest Strategic Plan is to develop with partners, a coordinated investigative and prosecutorial strategy to close the impunity gap. This is borne out of the reality that the large number of ICC crimes committed in situation countries as well as the connection to other related crimes (organised, transnational, financial, terrorism; human trafficking) form a serious challenge to closing the impunity gap.
While the Office is mandated by the Rome Statute to investigate and prosecute ICC crimes when relevant States are either unable or unwilling to do so genuinely, it has no mandate to deal with other instances of criminality closely associated with atrocity crimes, even though such crimes often fuel the continuation of a conflict and can lead to the commission of ICC crimes. Other organisations at the international (e.g. Interpol, Europol and Eurojust) and at the regional and national level will need to take the lead if efforts to close the impunity gap for ICC crimes are to be effective.
To be effective in ICC crimes prevention, the relationship with other forms of crimes needs to be mapped and strategies developed to prevent the continuation of the commission of crimes. The Office invites relevant jurisdictions and organisations to take the lead on addressing these other crimes. The Office is willing to contribute, where appropriate, and within its mandate and means, by sharing information and evidence in its possession that may be relevant to these interconnected areas of criminality. At the same time, the Office would be interested to explore how it can utilise and exploit existing information or evidence held by other jurisdictions or organisations working on these other types of criminality that may be relevant to establishing the criminal liability of alleged perpetrators of Rome Statute Crimes (genocide, crimes against humanity and war crimes) or with respect to offences against the administration of justice.
The Preamble of the Rome Statute and the resolution of the ASP on complementarity issued at the 2010 Review Conference stress the need for measures at the national level and enhanced international cooperation to close the impunity gap and thus contribute to the prevention of crimes. The prevention of ICC crimes requires a collective effort and can take many different forms (e.g. educational and awareness campaigns, diplomatic intervention and brokering of peace efforts, peace keeping forces, economic growth and development, etc.).
Within this context of integrated action, the Office has initiated a network with national law enforcement agencies and other specialised institutions and organisations to coordinate and strengthen the efforts to investigate and prosecute persons responsible for international crimes. This network can be used, among others, to support and foster domestic investigations and prosecutions of persons responsible for doing illegal business with armed groups in conflict zones. This can be done by exchanging evidence, mutually supporting investigations and by sharing expertise.
The Office intends to contribute to this network by sharing with national authorities some of the information that it has obtained in the context of its own investigations, but also by facilitating contacts among national authorities and other specialised organisations and by sharing its experience in investigating and prosecuting crimes committed in conflict zones in an efficient manner. Through this type of support, the Office has for instance successfully contributed to the investigation by German authorities of two senior leaders of the FDLR (Forces Démocratiques de Libération du Rwanda), an armed group operating in the DRC, who have been arrested and are currently being prosecuted in Germany.
The establishment of International Criminal Justice Courts has been applauded by lawyers, NGOs and human rights activists because they identify internationally punishable conduct and seek to bring to justice individuals guilty of crimes of a very grave nature. Despite these objectives, there are lingering issues of cooperation and the political will which limit the effectiveness of these courts. Being the Head of the Jurisdiction, Complementarity and Cooperation Division. What challenges does the ICC face and how does the ICC navigate these challenges?
There are a number of challenges that the Court faces: the Office operates in difficult terrains, conducting investigations and prosecutions in contexts of ongoing armed conflict or post-conflict instability: for instance in the eastern Democratic Republic of the Congo, where mass rape and other crimes continue to be a daily reality for women and girls, and men and boys, or in the Central African Republic and Mali, countries that continue to be embroiled by instabilities and insecurities. This necessarily complicates the Office’s efforts to provide justice, but also underscores the inextricable link between bringing justice to victims, and achieving peace.
Furthermore, in most situations before the Court, conflict management and often specific peace negotiations have been underway while the Office’s investigations and prosecutions are proceeding. The role of the Court has never precluded or put an end to such processes. If anything, the “Shadow of the Court” has helped to isolate individuals wanted by the ICC, or to kick-start peace negotiations.
Amongst other challenges, is the difficulty of matching resources to the expectations of State Parties, victims, communities affected by mass atrocities, and the international community as a whole. Proper funding will be key to ensuring that the ICC delivers on the promise of the Rome Statute.
Operating in a highly politicised international environment, in which the role and function of the Court as a key player and judicial pillar in the international arena is often misunderstood, continues to be a major challenge. This has led to unfair and unjustified criticism of the Court. Such criticisms have served to strengthen the Office’s resolve and commitment to independently and impartially discharge the mandate entrusted to it by the Rome Statute, guided by nothing but the law and evidence, devoid of any political considerations. Respect for judicial independence and safeguarding the integrity of the judicial process from political interference is an important factor for the institution’s success.
Witness protection is another challenge. The Registry of the Court is the organ responsible for the protection of witnesses. However, the Prosecutor has a statutory duty to protect people who are at risk due to their interaction with the Court. The Office has to carefully decide how it can collect evidence in a way that does not expose anyone to danger. Without going into details, suffice it to say that the Office uses, different ways to identify relevant evidence inside or outside the conflict country and confidentially interacts with its various interlocutors ensuring that appropriate protective measures are put in place when necessary. Increasingly, the Office is relying more on alternative forms of evidence in order to reduce the security risks to witnesses.
The procedure of the court requires its prosecutors to personally go into a country to investigate reported cases. Given the level of insecurity and the fact that most of these cases are against immediate past heads of government who still exercise influence, does this not compromise investigations and put ICC prosecutors at a great risk?
As mentioned before, the Office operates in difficult terrains, carrying out investigations and prosecutions in contexts of ongoing armed conflict or post-conflict instability. Such situations will pose risks for staff members who have to travel to the field to collect evidence. To the extent possible and necessary, the Office conducts investigations without going into a country when security does not permit. Safety and security of ICC staff is a top priority and a paramount consideration for any deployment of staff.
There have been reports that the African Union (AU) poses a challenge to the ICC especially with regards to the Al Bashir arrest. What is the working relationship between the AU and the ICC?
While sceptics and naysayers have been at pains to question the legitimacy of the ICC and to portray a dooms day scenario of an institution that does not enjoy the support of the African Continent, facts point to the contrary.
Not only has the African continent and individual African States been instrumental in the creation and functioning of the ICC, African States continue to provide the critical support and cooperation for ICC operations including the protection of victims and witnesses. Indeed, without such support, the ICC would not have recorded important successes such as the arrest and surrender of Thomas Lubanga, Bosco Ntaganda, Charles Ble Goude, Laurent Gbagbo, Dominic Ongwen, or more recently Ahmad Al Faqi al-Mahdi, to mention a few, neither would the Office have secured the necessary evidence to advance its various cases. In the exercise of its legal mandate, the ICC has been guided by nothing but the law and the evidence. The Office has and will continue to apply the Rome Statute provisions without fear or favour, and the Court’s decisions have been and will continue to be independent, impartial and fair.
Unfounded accusations of ICC’s selectivity have also been rife. One only has to look at all the situations that are under preliminary examination by the Office to dismiss these allegations.
As with all of its work, these preliminary examinations are undertaken with full independence and impartiality, and should the legal requirements be met, the Prosecutor will not hesitate to open investigations in any of these situations.
As the Prosecutor has stated, as Africans, we should take pride in the many virtues of our picturesque Continent. But we must also recognise that there is much work to be done. There can be no doubt that we all want to see a prosperous and more peaceful Continent in which democratic values, the rule of law, and human rights are universally respected and advanced. Holding those responsible for these crimes accountable is key to the Continent’s success. Selective justice of holding others accountable while some are shielded from prosecution because of their status is tantamount to unbridled impunity for some.
In this new century, on a balance, Africa has demonstrated a growing commitment to the rule of law and accountability for mass crimes and will continue to move in this positive direction. Ending impunity for mass crimes is not the preserve of any one institution – it is a common goal and aspiration that ties us all together in our shared quest for justice, peace and stability in Africa and beyond.
The dilemma the ICC faces is that every situation, in which it is called upon to deal with, will always be politically volatile. Many interests may be at stake. However, justice for victims of crimes committed in these situations should never be sacrificed at the altar of political expediency.
All misunderstandings, irrespective of their nature can be resolved through dialogue. It continues to be the Office’s strong belief that through frank and constructive dialogue, misunderstandings or misperceptions about the Office’s work and its mandate can be addressed.
The Al Bashir situation also draws attention to a more fundamental limitation of the ICC which is the need for cooperation with nation states whose leaders are being investigated. How can the ICC move to overcome this drawback?
Over the years the Office has stressed the importance of effective, timely, and tangible cooperation with the Court, in particular in the crucial areas of collection of evidence, witness protection, arrest and surrender of suspects as well as the enforcement of sentences. Statistics in each of these areas is a far cry when viewed against the 124 State Parties that have assumed obligations to fully cooperate with the Court.
It is particularly disturbing that a number of suspects indicted by the Court remain at large after States invested so much in the investigations that culminated in the Judges’ decisions that these suspects have to answer charges. It is in our collective interest to see a return on this investment. States are the enforcement arm without which the Court cannot properly function.
The Court was established, among others, to try persons accused of mass crimes in situations where their own national jurisdictions are neither willing nor genuinely able to do so, for example, because of the powerful positions they occupy.
It is only normal for an institution that challenges the existing status quo to face challenges of its own. But that should not mean that the ICC’s mandate should not be pursued. The Court’s founding treaty, the Rome Statute is very clear: no one is above the law.
It is not fair to criticise the Court as ineffective simply because certain individuals who are believed to be criminally responsible are difficult to investigate and prosecute because of their positions of influence. The difficulties are there because those who commit the crimes and against whom the Court has evidence – often heads of militia or heads of state – are protected; militias by the army; heads of state by the state apparatus. The international community is yet to devise strategies for dealing with this new type of challenge.
Generally, the rationale behind granting immunity to government officials under international law is to enable them to fulfil legitimate state functions/affairs of the state. Certainly committing mass crimes of genocide, crimes against humanity and war crimes cannot be considered as legitimate state function. And hence those who are alleged to have committed such crimes should not be shielded from due investigation and where warranted, prosecution.
Since inception, the ICC’s concentrated efforts to curb impunity have been observed mainly in African countries, giving the impression that it is targeting African political leaders as they leave office. What is the ICC’s response to this accusation?
These accusations of selective enforcement of the Court’s jurisdiction are not only misplaced but fail to take relevant facts into account. The Court’s mandate is clear; to investigate and prosecute genocide, crimes against humanity and war crimes committed on the territory of State Parties or by nationals of State Parties. There is no doubt that in all cases and situations currently before the Court serious crimes which fall under ICC jurisdiction have allegedly been committed.
There are more than five (5) million African victims displaced, more than 40.000 African victims killed, hundreds of thousands of African children transformed into killers and rapists, thousands of African women and girls raped and the alleged perpetrators, based on evidence collected during the course of our investigations, are also African. It is also worth noting that 80% of United Nations Peace keeping Missions are in Africa and it is in these situations that crimes are committed. The focus of discussions should not be about a few individuals who seek to be shielded from the law, but should instead be shifted to the thousands of victims of crimes committed by these individuals.
Political considerations have no place in the determination of what situations merit the ICC’s attention if jurisdiction is established. The Office bases its decisions solely on the law and the evidence emerging from its investigations without fear or favour. Geographical balance is never part of decision-making, and, short of universal ratification of the Rome Statute, the Office’s capabilities are inherently limited by the Court’s jurisdiction as defined by its founding treaty.
African institutions and African people are largely responsible for building the system of international justice designed by the Rome Statute of the International Criminal Court. African states have played and continue to play a critical role in the evolution of the ICC.
Many of the situations were opened in African states as a result of those very states specifically asking the Court to exercise its jurisdiction in their respective countries: this is true for the Central African Republic, (on two separate occasions), Mali, Democratic Republic of the Congo, Uganda, and Cote d’Ivoire. The self-referral of Mali and the second self-referral by Central African Republic in May 2014 are yet more recent examples of how African states ultimately value the ICC and engage with it to address mass crimes. The other two cases, Libya and Darfur, were referrals by the UN Security Council and it is only with respect to Kenya that investigations were opened proprio motu (after Kenya failed to investigate and prosecute those responsible for the crimes arising from the Post-Election Violence (PEV) in that country. This investigation was only opened after Kenya was given ample opportunity to do so investigate and prosecute.
It is also worth noting that the Office is working outside Africa as well. The judges have recently authorised the Prosecutor’s to open an investigation in Georgia. In addition, the Office is also conducting preliminary examinations in countries outside Africa including in Palestine, Afghanistan, Colombia, Ukraine and Iraq.
The ICC is a permanent, independent judicial institution: it operates in strict conformity with the Rome Statute legal framework it has jurisdiction. The Prosecutor is duty bound to open investigations in accordance with the Rome Statute whether in Africa or anywhere else if atrocity crimes are committed and all jurisdictional requirements are met. The victims of atrocity crimes deserve genuine, independent and impartial justice, whether at the national level, or that failing, at the ICC. The charge, therefore, that the ICC has a bias against or is targeting Africa is utterly false and not backed by the facts. Respect for the rule of law is key to seeing Africa achieve greater security and prosperity in this new century.
Many prominent nations and notably America and the United Kingdom are not signatories to the ICC Protocol. How does the court deal with reported cases from such countries?
The United Kingdom is a State Party to the ICC. In fact ICC jurisdiction in the preliminary examination of the Iraq case is based on the UK’s status as a State Party to the Rome Statute.
In general, the Office does not have jurisdiction over alleged crimes committed by nationals of or on the territory of a non-State Party to the ICC. However, there are three ways in which the Office can investigate alleged crimes attributed to nationals of non-State Parties: First if the United Nations Security Council refers the situation to the ICC under Chapter 7 of the UN Charter as it did with the situations in Darfur and Libya; secondly, if nationals of a non-State Party commit crimes on the territory of a State Party, then the ICC would have jurisdiction. The Office is impartially examining all allegations of war crimes committed in Afghanistan, by any party to the conflict, including international forces and the US which is a not a State Party to the ICC and finally, if the non-State Party accepts the jurisdiction of the ICC under Article 12(3) of the Rome Statute as Ukraine has done. Joining an international treaty is a voluntary sovereign prerogative of a State. The Office remains hopeful that all States that have not yet done so, will soon join the ever increasing family of Rome Statute State Parties.
Can you confirm a claim by a United Kingdom based non-profit organisation, the Islamic human rights Commission IHRC, that it submitted a petition to the Office of the Prosecutor (OTP) in respect of the killing of some members of the Islamic Movement of Nigeria in Zaria last year? Has any step been taken with respect to this petition?
Any person or organisation can send information on alleged war crimes, crimes against humanity or genocide to the Office. Unless the sender of such information goes public him or herself the Office keeps such petitions – or “communications” as we call it – confidential. In the case you mentioned, the IHRC has published the communication so I can confirm that the Office has indeed received it, but will not comment further on the content. This communication – as any other communication the Office receives – will be examined against the legal criteria set out in the Rome Statute. If it appears the alleged crimes fall under the jurisdiction of the ICC the Office will include this incident in the ongoing preliminary examination of the situation in Nigeria and assess whether other legal criteria are met. It is my understanding that a public inquiry into this incident by relevant Nigerian authorities is on-going.
In the OTP’s last report of its investigation into a petition accusing both the Nigerian military and the Boko Haram insurgents of committing war crimes, the OTP concluded that both the military and the insurgents have committed war crimes. What is the next step the OTP will take now having made this accusation?
Let me first clarify that no investigations have been opened in Nigeria yet. The Office is still at a preliminary examination stage, the purpose of which is to determine whether legal criteria for opening investigations are met in Nigeria. Following a thorough examination and analysis of information received to date, Prosecutor has come to the conclusion that there is “a reasonable basis to believe” that both Boko Haram and Nigerian Security forces have committed crimes in the course of their conflict. The next step is to determine whether these crimes are being investigated or prosecuted by the national authorities. The ICC is a court of last resort. Only when national authorities fail to investigate or prosecute these crimes can the ICC intervene. In accordance with its policy of positive complementarity, the Office will continue to encourage Nigeria to investigate and prosecute these crimes.
The OTP has also investigated the issue of whether Nigeria is prosecuting cases of those arrested for various offences in connection with the war against Boko Haram insurgency. Has this investigation been concluded? If they have what are its findings?
Let me again stress that to date OTP has not yet investigated any crimes in Nigeria. The reason for the current visit to Nigeria (the first since the current Government took over) is to engage with the Government for purposes of advancing the Prosecutor’s assessment of what next steps, if any should be taken. The Minister of Justice and Attorney General of the Federation have assured the Prosecutor of his support and cooperation with the preliminary examination process in Nigeria. He also stressed that Nigeria retains the sovereign capacity to investigate and punish the alleged crimes identified by the Office. Close collaboration on a technical level to follow-up on these national investigations will hopefully facilitate timely determination of whether or not such crimes need to be investigated by the ICC.
Shortly before the 2015 general election, the OTP sent in representatives to Nigeria to warn Nigerian politicians about committing electoral crimes. As it turned out, people were killed during the election and people are still being killed in respect of the re-run elections ordered by the courts particularly in Rivers State, South-South Nigeria. Where do such crimes fit into the OTP’s jurisdiction?
It is first and foremost the responsibility of Nigeria to prevent such violence and to hold any perpetrator to account. As the Prosecutor stressed just before the elections anyone alleged to be committing ICC crimes could be held individually accountable. This holds true with respect to crimes allegedly committed during the 2015 elections, any State elections or indeed any crime that may constitute a war crime, crime against humanity or act of genocide. While the Office received communications alleging public incitements or threats from various sources, a careful and thorough analysis of that information has not established that crimes that fall within ICC jurisdiction were committed during the period leading up to and after the 2015 elections.
The ICC began investigations in Kenya into the responsibility for the 2007–2008 post-election violence in Kenya and subsequently, prosecuted Kenyan President Uhuru Kenyatta. Following his trial all charges were dropped against him. Can you clarify the reasons for withdrawing the allegations?
On 5 December 2014, the Prosecutor withdrew the charges against Mr. Kenyatta after carefully considering all the evidence available to the OTP at that time. The decision was based on the specific facts of the case, not on any other consideration. As always the Prosecutor’s actions and decisions were guided by the law and the available evidence.
The Prosecutor withdrew the case without prejudice to the possibility of bringing a new case, should additional evidence become available. In other words, the withdrawal of the charges against Mr. Kenyatta does not mean that the case has been permanently terminated. Mr. Kenyatta has not been acquitted, and the case can be reopened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them becomes available.
This was a painful moment for the Kenyan men, women and children who suffered tremendously from the horrors of the Kenya post-election violence.
Unfortunately, despite Prosecutor’s persistent efforts to advance the course of justice in Kenya, those who have sought to obstruct the path of justice have, for now, deprived the people of Kenya of the accountability they deserve.
The severe challenges the Office faced in the investigation of Mr. Kenyatta include the fact that:
• several people who may have provided important evidence regarding Mr. Kenyatta’s actions, have died, while others were too terrified to testify for the Prosecution;
• key witnesses who provided evidence in this case later withdrew or changed their accounts, in particular, witnesses who subsequently alleged that they had lied to the Prosecution about having been personally present at crucial meetings, and
• the Kenyan Government’s non-compliance as confirmed by the Judges, compromised the Prosecution’s ability to thoroughly investigate the charges.
The Prosecutor withdrew the charges against Mr Kenyatta because she did not believe it possible at this time, to collect evidence that would meet the required standards for prosecuting the alleged crimes.
The Office continues to receive and consider information which may shed light on those who are responsible for the 2007-2008 post-election violence, and will assess what further steps it can realistically and meaningfully take in the future.
You were the keynote speaker at the NBA African Bar leaders’ Conference. What role can African Bar Associations play in advancing international criminal justice in Africa?
The silence of African legal practitioners when justice is under attack is not helpful. One wonders what could be more noble for Members of this profession than to fight to end impunity and to bring about justice for millions of African victims? African legal practitioners and academics can play a crucial role in advancing international criminal justice in Africa in many ways: – First, they can ensure a better understanding of ICC legal framework and the Court’s mandate and thus dispel misconceptions and wrong information about the Court; – They can also organise trainings and seminars, bringing the profession together, to share best practices and experiences, in order to strengthen the national and regional capacity to deal with crimes; – Bar Associations can also contribute to the ICC List of Counsel, by providing African legal practitioners as potential counsel for the Defence and Victims at the Court, ensuring the participation and representation of African legal expertise at the Court; – The Bar Associations can also circulate ICC recruitment postings to their members. – The Office of the Prosecutor is committed to fully engaging and cooperating with African legal practitioners in combating impunity by anyone, irrespective of status, and ensuring that African victims receive the justice they deserve.