J Int Criminal Justice 2008 Schabas 731 61

Prosecutorial Discretion
v. Judicial Activism at the

International Criminal Court
William A. Schabas*
Abstract
The Prosecutor of the International Criminal Court has exercised broad prosecutor-
ial discretion in the selection of situations and cases to be heard by the Court. It
is difficult to explain the exercise of this discretion by reference to the criteria
purportedly used by the Prosecutor of gravity and interests of justice under
Articles 17 and 53 of the ICC Statute, respectively. Unlike the ad hoc international
criminal tribunals, it appears more the norm that the Prosecutor of the International
Criminal Court acts in accordance with the wishes of the State parties, and with
respect to the availability of an individual to be prosecuted. For its part, the Court
has encountered difficulties in reviewing the Prosecutors exercise of discretion as
it has been unable to effectively access the criteria of gravity and interests of justice.
In relation to the charges faced by an accused, the Court has been more active, and
has even been willing to add the criterion of inactive to Article 17 ICC Statute. The
Courts impatience with the slow pace of prosecutions in Darfur has created tension
with the Prosecutor.
1. Introduction: Prosecutorial Discretion from
Nuremberg to Sierra Leone
Prosecutorial independence, and with it a broad discretion inthe choice of cases
and inthe selectionof evidence to be presented, has beenan important feature of
international criminal justice since its beginning at Nuremberg. This almost cer-
tainly reflects the strong influence of adversarial procedural models derived from
commonlawsystems. UnderArticle15of the Charter of the International Military
Tribunal (IMT Charter), the four Chief Prosecutors, designated by the United
Kingdom, the United States, France and the Soviet Union, wereindividually, and
* OC, MRIA, Professor of Human Rights Law, National University of Ireland, Galway and Director,
Irish Centre for Human Rights; Global Legal Scholar, University of Warwick School of Law;
Visiting Professor, Queens University Belfast School of Law; Visiting Fellow, All Souls College,
University of Oxford (2008). An earlier version of the article was presented at the meeting on
NewVistas in International Criminal Justice sponsored by the Journal of International Criminal
Justice, Florence, 16 May 2008. [william.schabas@nuigalway.ie]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Journal of International Criminal Justice 6 (2008), 731^761 doi:10.1093/jicj/mqn045
Oxford University Press, 2008, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org

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acting in collaboration with one another to undertake the investigation, collec-
tionand productionof evidence, and the preparationof the indictment. Selection
of the accused was to be agreed by the four Chief Prosecutors, who were
collectively designated the Committee for the Investigation and Prosecution
of MajorWar Criminals. Inthat regard, theyappear to have had full discretion.
To be entirely accurate, these were not independent prosecutors but rather
representatives of their own governments, and their role, at least in part, was
surely to ensure that the interests of their respective states were protected.
There is little or no evidence of this in the public domain, but it may well be
that they were acting under instructions from their own governments in the
choice of whom to charge. A recent study shows how intelligence agents were
planted on the staff of the American Prosecutor at the highest levels. One
aspect of their job was to ensure that high-ranking Nazis who had collaborated
with the United States in the final months of the war were not prosecuted.
1
Prosecutors at Nuremberg selected the accused and issued the indictment
without any real judicial oversight. According to the record, the judges
merely noted that the indictment had beenlodged and then issued orders that
it was to be served, together withcopies of the Charter, onthe accused.
2
It seems,
however, that judicial approval was requiredtomodifythe indictment. After it had
been determined that Gustav Krupp Von Bohlen und Halbach was not fit to
stand trial,
3
the American Chief Prosecutor Robert Jacksonasked theTribunal to
authorize an amendment to the indictment so as to add Krupps son. Unlike the
father, Alfried was deemed compos mentis.
4
Jackson told the Tribunal that
the proposal fromthe United States toadd Alfried Krupps name to the indictment
had initially been opposed by the other three powers, but that subsequently
France and the Soviet Union had come round to Washingtons point of view.
The British Chief Prosecutor, Hartley Shawcross, said that if it happened
that Alfried Krupp were prepared to step into his fathers shoes in this matter,
without any delay in the proceedings, the British Prosecutors would welcome
that procedure but if his joinder involves any further delay in the Trial of the
existing defendants, we are opposed to it.
5
The motiontoamend was dismissed.
6
1 M. Salter, Nazi War Crimes, US Intelligence and Selective Prosecutions at Nuremberg: Controversies
Regarding the Role of the Office of Strategic Services (Abingdon: Taylor & Francis, 2007).
2 Minutes of the Opening Session of the Tribunal, Berlin, 18 October 1945 (1947) 1 IMT 24.
3 Preliminary Hearing, Thursday, 15 November 1945 (1947) 2 IMT 19; Order of the Tribunal
Granting Postponement of Proceedings against Gustav Krupp Von Bohlen (1947) 1 IMT 143;
Motion on Behalf of Defendant Gustav Krupp Von Bohlen for Postponement of the Trial (1947)
1 IMT 124^125.
4 Ibid., at 6^7. See also, Motion Of The Prosecution To Amend The Indictment By Adding The
Name Of Alfried Krupp Von Bohlen As A Defendant (1947) 1 IMT 145; Supplementary
Statement of the US Prosecution on Granting Postponement of Proceedings against Gustav
Krupp Von Bohlen: Memorandum Filed By the US Chief of Counsel To the International
Military Tribunal (1947) 1 IMT 144.
5 Ibid., at 11^12.
6 Preliminary Hearing, Saturday, 17 November 1945 (1947) 2 IMT 28; Order of the Tribunal
Rejecting the Motion to Amend the Indictment by Adding the Name of Alfried Krupp Von
Bohlen as a Defendant (1947) 1 IMT 146.
732 JICJ 6 (2008), 731^761

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Five decades later, with the post-Cold War renaissance of international
criminal justice, the Security Council established an institution with an inde-
pendent Prosecutor whose hands were free to select cases for prosecution,
albeit within the tight jurisdictional framework of the ad hoc institution.
The Prosecutor was to act independently as a separate organ, and was not to
seek or receive instructions from any Government or from any other source.
7
Judges eventually threatened to intervene in the selection of cases, as part of
the completion strategy. According to Rule 28 of the Rules of Procedure of
the International Criminal Tribunal for the former Yugoslavia (ICTY), as
amended on 6 April 2004, the Bureau is to determine whether a proposed
indictment concentrates on one or more of the most senior leaders suspected
of being most responsible for crimes within the jurisdiction of the Tribunal.
The judges justify their authority to adopt such a norm with reference
to Security Council Resolution 1534, which Calls on each Tribunal, in review-
ing and confirming any new indictments, to ensure that any such indictments
concentrate on the most senior leaders suspected of being most responsible for
crimes within the jurisdiction of the relevant Tribunal as set out in resolution
1503 (2003).
8
Apparently acting on the belief that they have no such authority,
the judges of the International Criminal Tribunal for Rwanda (ICTR) have
not adopted a similar rule.
9
The ICTY Prosecutor objected to Rule 28 as
interference in her discretion. It is not known whether the Bureau has actually
ever exercised its authority under Rule 28 by rejecting a request to issue an
indictment. Whether judges may intervene at the Special Court for
Sierra Leone (SCSL) to overrule the Prosecutors determination that an
accused is someone who bears the greatest responsibility for atrocities is a
matter on which the case law is conflicting,
10
but which is also, given the
fact that the Court is in its twilight years, purely theoretical.
It is also possible for an indictment properly before the ICTY to be referred
to national courts at the initiative of a Trial Chamber designated by the
president, acting proprio motu, bearing in mind the gravity of the crimes
charged and the level of responsibility of the accused.
11
It may apparently
take place over the objections of the Prosecutor, but there are no examples of
this occurring in practice.
7 UN Doc. S/RES/827 (1993), annexe, Art. 16.
8 UN Doc. S/RES/1534 (2004), x 5.
9 D.A. Mundis, The Judicial Effects of the Completion Strategies on the Ad Hoc International
Criminal Tribunals, 99 American Journal of International Law (2005) 142, at 148.
10 Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on
Behalf of the Accused Fofana, Norman, Fofana and Kondewa (SCSL-2004-14-PT), Trial Chamber,
3 March 2004, xx 27, 39; Judgment, Brima et al. (SCSL-04-16-T), Trial Chamber, 20 June 2007
(hereinafter Brima judgment), x 653.
11 Rule 11bis ICTY RPE.
Prosecutorial Discretion v. Judicial Activism 733

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2. Discretion in Selection of Situations and Cases
In contrast with both Nuremberg and the ad hoc tribunals, the judicial over-
sight of the Prosecutor of the International Criminal Court (ICC) in the selec-
tion of cases is considerably more robust. It is necessary to divide the process
into two distinct stages, involving first the identification of situations and
subsequently that of cases. Prior to issuance of an arrest warrant, the Court
must be properly seized of the situation. There was no selection of a situation
either at Nuremberg or before the ad hoc tribunals. This had been done for
them in their enabling instruments, by the powers that created the
institutions.
At the ICC, situations are identified through one of the three modes or
trigger mechanisms set out in the ICC Statute: Security Council referral
(Article 13), State Party referral (Article 14) and prosecutorial initiative
(Article 15). In the first two, neither the Prosecutor nor the judges have any
discretion. This is a manifestation of state sovereignty, through either the
action of one state or that of the international community, acting collectively
through the Security Council. These two modes of selecting situations for the
Court correspond closely to the conception presented in the draft statute pre-
pared by the International Law Commission (ILC) and submitted to the United
Nations General Assembly in 1994. The Court was to be a facility available to
States Parties to its Statute, and in certain cases to the Security Council, who
alone were empowered to initiate prosecutions.
12
The third mode of selection of situations was one of the great and contro-
versial innovations of the post-ILC phase of drafting the Rome Statute.
13
It allows the Prosecutor to identify crimes within the jurisdiction of the Court
that he proposes to investigate, although judicial authorization is required for
him to proceed. There have been no manifestations of exercise of this proprio
motu authority by the Prosecutor, so we can only speculate about how the
power will be used, and how it will be reviewed at the judicial level.
Whatever the mode used to trigger the jurisdiction of the Court, once this
has taken place, the Prosecutor has great discretion in the selection of cases.
14
The Prosecutor can decide that there simply are no cases, and choose to pro-
ceed no further, subject to the review of this decision by a Pre-Trial Chamber.
15
Louise Arbour, former Prosecutor of the ICTY, insisted in a statement to the
December 1997 session of the Preparatory Committee that there is a major
12 Yearbook . . . 1994, UN Doc. A/CN.4/SER.A/1994/Add.l (Part 2), at 45.
13 S.A. Ferna ndez de Gurmendi, The Role of the International Prosecutor, in R.S. Lee (ed.), The
International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (The
Hague: Kluwer Law International, 1999) 175^188; L.N. Sadat and S.R. Carden, The New
International Criminal Court: An Uneasy Revolution, 88 Georgetown LawJournal (2000) 381, at
400^401.
14 See generally: M.R. Brubacher, Prosecutorial Discretion within the International Criminal
Court, 2 Journal of International Criminal Justice (2004) 71; L. Co te , International Justice:
Tightening up the Rules of the Game, 81 International Review of the Red Cross (2006) 133.
15 Art. 53 ICCSt.
734 JICJ 6 (2008), 731^761

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distinction between domestic and international prosecution. It lies in the
unfettered discretion of the Prosecutor. In a domestic context, there is an
assumption that all crimes that go beyond the trivial or de minimis range are
to be prosecuted. But before an international tribunal, particularly one based
on complementarity, the discretion to prosecute is considerably larger, and the
criteria upon which such prosecutorial discretion is to be exercised are ill-
defined, and complex. In my experience, based on the work of the two
Tribunals to date, I believe that the real challenge posed to a Prosecutor is to
choose from many meritorious complaints the appropriate ones for inter-
national intervention, rather than to weed out weak or frivolous ones.
16
Information available to the public indicates that the Prosecutor has applied
for and obtained 12 arrest warrants. Five of them concern the Situation in
Uganda, four the Situation in the Democratic Republic of the Congo (DRC),
two the Situation in Darfur, Sudan
17
and one the Situation in the Central
African Republic. The Prosecutor has provided some explanation as to why
the specific individuals, and not others, were selected for prosecution, and
this assists in understanding how his discretion is being exercised. In addition,
the Prosecutor has also explained why he has decided not to proceed further
with respect to the conduct of foreign troops in Iraq and alleged atrocities
committed inVenezuela.
The Prosecutor has said that in determining whether to exercise his proprio
motu powers, he is required to consider three factors, all of them rooted in
provisions of the ICC Statute. First, he must determine whether the available
information provides a reasonable basis to believe that a crime within the
jurisdiction of the Court has been or is being committed.
18
Second, he must
assess whether the case would be admissible in terms of Article 17 ICC Statute.
This involves examining the familiar standard of whether the national courts
are unwilling or unable genuinely to proceed. But, it also involves evaluating
the rather enigmatic notion of gravity. If these conditions are met, the prose-
cutor must then give consideration to the interests of justice.
19
These criteria,
especially those of gravity and interests of justice, provide enormous space
for highly discretionary determinations.
The Office of the Prosecutor published its Prosecutorial Strategy in
September 2006.
20
It says that in selecting cases, the Office adopted a policy
of focusing its efforts on the most serious crimes and on those who bear the
greatest responsibility for these crimes. This is apparently combined with a
so-called sequenced approach to selection, whereby cases inside the situation
16 Statement by Justice Louise Arbour to the Preparatory Committee on the Establishment of an
International Criminal Court, December 8, 1997, at 7^8.
17 On 14 July 2008, the Prosecutor applied for a warrant of arrest against the President of Sudan,
Omar Hassan Ahmad al-Bashir.
18 Art. 53(1)(a) ICCSt.
19 Art. 53(1)(c) ICCSt.
20 In June 2006, the Office of the Prosecutor circulated a draft annexe to its policy paper entitled
Criteria for Selection of Situations and Cases, but it did not accompany the September docu-
ment and has never been issued publicly in a final version.

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are selected according to their gravity. Although any crime falling within the
jurisdiction of the Court is a serious matter, the Statute clearly foresees and
requires an additional consideration of gravity whereby the Office must deter-
mine that a case is of sufficient gravity to justify further action by the Court.
According to the Office of the Prosecutor, factors relevant in assessing gravity
include: the scale of the crimes; the nature of the crimes; the manner of
commission of the crimes; and the impact of the crimes. Finally, the statement
said that it is part of this policy to request arrest warrants or summons to
appear only when a case is nearly trial-ready in order to facilitate the expedi-
tiousness of the judicial proceedings.
21
A. The Gravity Criterion
The emphasis on gravity in the exercise of prosecutorial discretion was not
apparent in early pronouncements by the Prosecutor, although this should
hardly seem surprising. Indeed, the issue of gravity was virtually ignored in
the negotiations of the Rome Statute, and did not manifest itself as an impor-
tant question until well after the Court had begun to operate. It was introduced
by the ILC in 1994, at a time when a court with broad jurisdiction over so-
called treaty crimes was contemplated. At that time, the Commission probably
thought gravity was a way of discarding minor crimes and violations for
example, a combatant appropriating a loaf of bread in an occupied village
22
rather than minor cases. The authoritative two-volume commentary on the ICC
Statute, edited by Antonio Cassese, Paola Gaeta and John Jones, is essentially
silent on the issue. The word gravity does not even appear in the index to the
commentary, in striking contrast with the word complementarity, whose
entries in the index consume the best part of a page.
23
The chapters in the
commentary on admissibility consider the concept as if was synonymous with
complementarity.
24
The discussion of gravity in the commentary edited by
Otto Triffterer consists of two terse and uninformative paragraphs.
25
The sub-
ject is entirely absent in the consideration of admissibility in the commentary
by Eric David.
26
Many other commentators have treated the issue of
21 Report on Prosecutorial Strategy, 14 September 2006, at 5^6 (reference omitted).
22 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadic (IT-94-1-AR72),
Appeal Chamber, 2 October 1995 (hereinafter Tadic Jurisdictional Decision), x 94.
23 A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court:
A Commentary, Vol. II (Oxford: Oxford University Press, 2002), at 1946.
24 Ibid., Vol. I, at 667^731; also G. Turone, Powers and Duties of the Prosecutor, in Cassese et al.,
ibid., Vol. II, 1137^1180, 1153^1154.
25 S.A. Williams, Article 17, in O. Triffterer (ed.), Commentary on the Rome Statute of the
International Criminal Court (Baden Baden: Nomos, 1999) 383^394, at 393; M. Bergsmo and
P. Kruger, Article 53, in Triffterer, ibid., 701^714, at 708^709.
26 E. David, La cour pe nale internationale, 313 Receuil des cours (2005) 325, at 248^251.
736 JICJ 6 (2008), 731^761

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admissibility as if it was synonymous with complementarity, completely over-
looking the issue of gravity.
Upon taking office, in July 2003, the Prosecutor issued a report on commu-
nications already received. He neither used the word gravity, nor did the
concept appear to have any significance in initial determinations about
whether and when to exercise his proprio motu authority to commence an
investigation.
27
The Prosecutor said he had decided to concentrate on the
Ituri region, in the DRC, explaining it was the most urgent situation to be
followed.
28
He discussed the [a]bility of the government of the Democratic
Republic of Congo to genuinely investigate and prosecute the crimes allegedly
committed in Ituri,
29
but did not give any consideration to whether the situa-
tion was of sufficient gravity, either in an autonomous sense or by comparison
with other situations that might also fall within his purview.
Shortly thereafter, in September 2003, the Prosecutor issued a nine-page
paper on some policy issues of importance to his work. The introductory
sentence said that the paper defined a general strategy for the Office of the
Prosecutor. There was only one perfunctory reference to the issue of gravity:
Article 17, dealing with admissibility, adds to the complementarity grounds one related to
the gravity of a case. It states that the Court (which includes the Office of the Prosecutor)
shall determine that a case is inadmissible where the case is not of sufficient gravity to justify
further action by the Court. The concept of gravity should not be exclusively attached to the
act that constituted the crime but also to the degree of participation in its commission.
30
It was accompanied by a 12-page Annexe to the Policy Paper, described as
offering further details on the process of analysis of referrals and communica-
tions up to the time when a decision is taken to proceed with an investiga-
tion.
31
The Annexe used the word gravity only once, in a paraphrase of Article
53 of the ICC Statute.
32
In February 2004, the Prosecutor addressed the diplo-
matic corps in The Hague. He spoke about Article 53 ICC Statute, specifically
mentioning the interests of victims and the interests of justice, but altogether
omitting to mention gravity.
33
Taken together, these documents issued by the
Office of the Prosecutor in the first year of its activity indicate that gravity was
not then viewed as an issue of significance in the selection of cases and an
assessment of their admissibility.
This all seemed to change by late 2005, when the Prosecutor found that
he was required to defend his initial choices of whom to target in prosecutions.
27 Communications Received by the Office of the Prosecutor of the ICC, 16 July 2003.
28 Ibid., at 3.
29 Ibid., at 4.
30 Paper on some policy issues before the Office of the Prosecutor, at 7.
31 Annexe to the Paper on some policy issues before the Office of the Prosecutor, Referrals and
Communications, at 1.
32 Ibid., at 3.
33 Statement of the Prosecutor Luis Moreno-Ocampo, to Diplomatic Corps, The Hague,
Netherlands, 12 February 2004, at 4.

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In a public statement issued when the five Ugandan arrest warrants were made
public, he said:
The criteria [sic] for selection of the first case was gravity. We analyzed the gravity of all
crimes in Northern Uganda committed by the LRA and Ugandan forces. Crimes committed
by the LRA were much more numerous and of much higher gravity than alleged crimes
committed by the UPDF. We therefore started with an investigation of the LRA.
34
Several days later, he spoke to diplomats about criteria for case selection: the
issue of gravity, which had not figured at all in the discourse of the Prosecutor
a year or two earlier, had suddenly become prominent. According to the
Prosecutor,
Among the most important of these criteria is gravity. We are currently in the process of
refining our methodologies for assessing gravity. In particular, there are several factors that
must be considered. The most obvious of these is the number of persons killed as this
tends to be the most reliably reported. However, we will not necessarily limit our investiga-
tions to situations where killing has been the predominant crime. We also look at number of
victims of other crimes, especially crimes against physical integrity. The impact of the
crimes is another important factor.
35
He spoke specifically about the Ugandan warrants:
In Uganda, the criterion for selection of the first case was gravity. We analyzed the gravity
of all crimes in Northern Uganda committed by all groups the LRA, the UPDF and other
forces. Our investigations indicated that the crimes committed by the LRAwere of drama-
tically higher gravity. We therefore started with an investigation of the LRA.
36
He also mused somewhat more philosophically, providing a rationale for this
new insistence upon gravity:
A case driven approach would imply that the Court should act in every situation involving
crimes that appear to fall within our jurisdiction. As a result, the Court would take on
multiple situations, including those of comparatively lesser gravity, and would thereby
expand its reach, reducing the role of national states. Increasing demands for cooperation
and intervention in less grave situations which may fail to reflect the concern of the inter-
national community as whole might lead to ICC fatigue and a diminishing of support.
37
The Prosecutor continued:
Crimes within our jurisdiction are by definition grave crimes of international concern. But
gravity in our Statute is not only a characteristic of the crime, but also an admissibility
factor, which seems to reflect the wish of our founders that the ICC should focus on the
gravest situations in the world.
38
34 Statement by the Chief Prosecutor on the Uganda Arrest Warrants, The Hague, 14 October
2005, at 2^3.
35 Statement by Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Informal
meeting of Legal Advisors of Ministries of Foreign Affairs, NewYork, 24 October 2005, at 6.
36 Ibid., at 7.
37 Ibid., at 8.
38 Ibid., at 8^9.
738 JICJ 6 (2008), 731^761

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Similar remarks were made in his address to the Assembly of States Parties, in
November 2005:
In Uganda, we examined information concerning all groups that had committed crimes in
the region. We selected our first case based on gravity. Between July 2002 and June 2004,
the Lords Resistance Army (LRA) was allegedly responsible for at least 2200 killings and
3200 abductions in over 850 attacks. It was clear that we must start with the LRA.
39
Turning to the DRC, the country he had focused on in 2003 as being the most
deserving of his attention, the Prosecutor said: In the Democratic Republic of
the Congo (DRC) there have been more than 8,000 killings committed by
numerous armed groups within the temporal jurisdiction of the Court. We are
working in sequence, selecting cases on the basis of gravity.
40
The Prosecutor issued a public statement in February 2006 explaining
his decision not to proceed on the basis of complaints filed concerning the
behaviour of British troops in Iraq since the 2003 invasion. Even though Iraq
is not a State Party, the Court has jurisdiction over nationals of States Parties,
including those of the United Kingdom, in accordance with Article 12 ICC
Statute. The decision not to proceed was apparently based upon the gravity
threshold. The report contains the most elaborate discussion to date of the
issue of gravity in documents emanating from the Office of the Prosecutor:
Even where there is a reasonable basis to believe that a crime has been committed, this is
not sufficient for the initiation of an investigation by the International Criminal Court. The
Statute then requires consideration of admissibility before the Court, in light of the gravity
of the crimes and complementarity with national systems.
While, in a general sense, any crime within the jurisdiction of the Court is grave, the
Statute requires an additional threshold of gravity even where the subject-matter jurisdic-
tion is satisfied. This assessment is necessary as the Court is faced with multiple situations
involving hundreds or thousands of crimes and must select situations in accordance with
the Article 53 criteria.
For war crimes, a specific gravity threshold is set down in Article 8(1), which states that the
Court shall have jurisdiction in respect of war crimes in particular when committed as part
of a plan or policy or as part of a large-scale commission of such crimes. This threshold is
not an element of the crime, and the words in particular suggest that this is not a strict
requirement. It does, however, provide Statute guidance that the Court is intended to focus
on situations meeting these requirements.
According to the available information, it did not appear that any of the criteria of Article
8(1) were satisfied.
Even if one were to assume that Article 8(1) had been satisfied, it would then be necessary
to consider the general gravity requirement under Article 53(1)(b). The Office considers
various factors in assessing gravity. A key consideration is the number of victims of parti-
cularly serious crimes, such as wilful killing or rape. The number of potential victims of
crimes within the jurisdiction of the Court in this situation 4 to 12 victims of wilful
killing and a limited number of victims of inhuman treatment was of a different order
39 Statement by Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Fourth
Session of the Assembly of States Parties, 28 November ^ 3 December 2005, The Hague,
28 November 2005, at 2.
40 Ibid.

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than the number of victims found in other situations under investigation or analysis by the
Office. It is worth bearing in mind that the OTP is currently investigating three situations
involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo
and Darfur. Each of the three situations under investigation involves thousands of wilful
killings as well as intentional and large-scale sexual violence and abductions. Collectively,
they have resulted in the displacement of more than 5 million people. Other situations
under analysis also feature hundreds or thousands of such crimes.
Taking into account all the considerations, the situation did not appear to meet the required
threshold of the Statute.
In light of the conclusion reached on gravity, it was unnecessary to reach a conclusion on
complementarity.
41
In June 2006, in his bi-annual report to the Security Council on the Darfur
referral, he said: The gravity of the crimes is central to the process of case
selection. The Office looks at factors such as the scale and nature of the crimes
(in particular, high numbers of killings), the systematic character and impact
of the crimes, as well as other aggravating factors.
42
Although it has never been officially released, the draft Criteria for Selection
of Situations and Cases, dated June 2006, provides some insight into the vision
of the gravity issue of the Office of the Prosecutor. According to this document,
[i]n the view of the [Office of the Prosecutor], factors relevant to assessing
gravity include: a) the scale of the crimes; b) the nature of the crimes; c) the
manner of commission of the crimes; d) the impact of the crimes. The draft
document says that these factors should be considered jointly: no fixed weight
should be assigned to the criteria, but rather a judgment will have to be
reached on the facts and circumstances of each situation.
43
The practice of the Office of the Prosecutor suggests that gravity is invoked
not so much as a justification for the selection of cases on which to proceed as
a justification for refusing to undertake other cases. This is especially apparent
when the reluctance of the Prosecutor to actually exercise his proprio motu
powers in accordance with Article 15 ICC Statute is considered. Thus, for
example, the Prosecutor decided to go no further with investigations in Iraq,
justifying the decision on the grounds that there were substantially more
victims in Uganda and the DRC, where situations were being investigated
pursuant to State Party referrals. He did not, however, compare the situation
in Iraq, or for that matter the situations in the central African countries, with
those elsewhere in the 106 states over which he has territorial jurisdiction. It
may be possible to argue that the situations in northern Uganda and Ituri are
the most grave of those within the jurisdiction of the Court, but no such
demonstration appears in any of the public documents issued by the Office of
the Prosecutor. In any event, the Prosecutor did not select the situations in
41 Statement on communications concerning Iraq, The Hague, 9 February 2006, at 8^9.
42 Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno-Ocampo to
the UN Security Council pursuant to UNSCR 1593 (2005), 14 June 2006, at 2. Compare with:
UN Doc. S/PV.5459, at 2.
43 Criteria for Selection of Situations and Cases, unpublished draft document of the Office of the
Prosecutor, June 2006, at. 5.
740 JICJ 6 (2008), 731^761

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northern Uganda and the DRC. Rather, these were referred to him by the states
themselves in accordance with Article 14 ICC Statute. It is by virtue of this self-
selection that they appear at the top of the prosecutorial agenda, rather than
any analysis that they manifest the greatest gravity. In practice, then, it has
been states themselves that have selected the situations, if not the cases.
1. The Lubanga Case and Gravity
Early in 2006, the Prosecutor identified an individual, Thomas Lubanga Dyilo,
who was already in custody in the Congo awaiting prosecution before national
courts on charges of genocide and crimes against humanity. The Prosecutor
obtained an arrest warrant against Lubanga for charges concerning enlistment
of child soldiers, something for which he had not been charged in the DRC,
44
and the suspect was quickly brought to The Hague. Given that France excluded
itself from the jurisdiction of the Court with respect to war crimes, pursuant to
Article 124, it was ironic that Lubangas transfer to stand trial for war crimes
was effected by a French military airplane. Charges against Lubanga were
confirmed in January 2007,
45
and his trial was scheduled to begin in March
2008 and again in June 2008 before being postponed sine die.
46
Two other
Congolese paramilitary leaders have been taken into custody and charged
with war crimes and crimes against humanity.
47
Their joint confirmation
hearing began in June 2008.
It is difficult to reconcile the prosecutorial discourse about gravity with the
decision to proceed against Lubanga. The arrest took place within days of
issuance of the statement in which the Prosecutor said wilful killing of civi-
lians by British troops in Iraq was not sufficiently serious enough to warrant
further investigation. He contrasted this with the thousands of deaths in the
DRC, yet then proceeded in a case of recruiting child soldiers in which allega-
tions of homicide were not even made. The Prosecutor was comparing apples
with oranges.
The Pre-Trial Chamber that issued the Lubanga arrest warrant produced an
interesting decision that discussed the issue of gravity. Noting that the gravity
threshold was mandatory, it said that were it to decide that a case was not of
sufficient gravity, there would be no alternative but to reject it as inadmissible.
Pre-Trial Chamber I noted that the gravity threshold was in addition to the
44 Decision on the Prosecutors Application for aWarrant of Arrest, Prosecutor v. Lubanga (ICC-01/
04-01/06-8), Pre-Trial Chamber I, 10 February 2006 (hereinafter Lubanga Decision onWarrant
of Arrest).
45 De cision sur la confirmation des charges, Prosecutor v. Lubanga (ICC-01/04-01/06), 29 January
2007 (hereinafter Lubanga De cision sur la Confirmation des Charges).
46 Decision on the consequences of non-disclosure of exculpatory materials covered by Art.
54(3)(e) agreements and the application to stay the prosecution of the accused, together with
certain other issues raised at the Status Conference on 10 June 2008, Prosecutor v. Lubanga
(ICC-01/04-01/06), Trial Chamber I, 13 June 2008.
47 Warrant of Arrest for Germain Katanga, Prosecutor v. Katanga (ICC-01/04-01/07), 2 July 2007;
Warrant of Arrest for Mathieu Ngudjolo Chui, Prosecutor v. Chui (ICC-01/04-02/07), 2 July 2007.

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drafters careful selection of the crimes included in Article 6 to 8 ICC Statute, a
selection based on gravity and directed at confining the material jurisdiction of
the Court to the most serious crimes of international concern.
48
As a result,
the relevant conduct must present particular features which render it espe-
cially grave.
49
However and the distinction is fundamental the Pre-Trial
Chamber had nothing to compare with the gravity of Lubangas alleged crimes.
It was not asked, for example, to decide whether recruitment of child soldiers
was more or less serious than wilful killing of civilians. It was not asked
to compare the overall situation in Ituri with that prevailing in Iraq, or
Colombia, or Afghanistan, or other territories within the jurisdictional scope
of the Prosecutor. In other words, from the standpoint of the Pre-Trial
Chamber, issues of the exercise of discretion did not arise.
The Pre-Trial Chamber said that an important component of the gravity
analysis involved the social alarm such conduct may have caused in the inter-
national community.
50
In the specifics of the Lubanga case, it said the social
alarmcomponent of the gravity test was particularly relevant, due to the social
alarm in the international community caused by the extent of the practice of
enlisting into armed groups, conscripting into armed groups and using to
participate actively in hostilities children under the age of fifteen.
51
Although
the Prosecutor does not seem to have endorsed the social alarm criterion, the
June 2006 draft document advances a somewhat analogous concept: the
[Office of the Prosecutor] will consider the broader impact of crimes on
the community and on regional peace and security, including longer term
social, economic and environmental damage. This factor includes attacks
on persons involved in humanitarian assistance and peacekeeping mission
[sic], as well as crimes intended to obstruct police (particularly those targeting
ICC witnesses or staff) and crimes committed with intent to spread terror.
52
In support of its affirmation about social alarm, the Chamber cited a United
Nations report and two of the indictments at the SCSL charging enlistment of
child soldiers.
53
The Pre-Trial Chamber did not consider the social alarm in the
international community created by the invasion of Iraq, and by the atrocities
committed by British troops and their allies, by the abuse of prisoners, and by
the hundreds of thousands of deaths resulting from the invasion. It seems
probable that in the period since the Court may exercise its jurisdiction, that
is, since 1 July 2002, there have been more combat-related deaths in Iraq
48 Lubanga Decision onWarrant of Arrest, supra note 44, x 41.
49 Ibid., x 45.
50 Ibid., x 46.
51 Ibid.; also xx 65^66.
Prosecutor, June 2006, at 6.
53 See also, Human Security Report 2005, at 113^116. The Report calls Sub-Saharan African the
epicentre of the phenomenon of child soldiers, although it also says that the number of armed
conflicts has been declining for more than a decade. And when wars end, soldiers including
child soldiers are usually demobilized. So it is more likely that the number of child soldiers
serving around the world has declined rather than increased in recent years.
742 JICJ 6 (2008), 731^761

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following the British and American invasion than in the DRC and Uganda
combined.
54
But of course, these matters were not considered by the Pre-Trial
Chamber in determining the gravity of the child soldier issue. In reality, the
Pre-Trial Chamber assessed gravity in a vacuum. Unlike the Prosecutor, it was
not even comparing apples and oranges. It was comparing apples with nothing.
One interesting juxtapositionwas never advanced by the Pre-Trial Chamber. It
did not examine the relative gravity of the offence for which Lubanga was in
custody in the DRC at the time and the crimes he was accused of before the ICC.
Lubanga was being prosecuted in the DRC for genocide and crimes against
humanity. He was not being put on trial for recruitment of child soldiers, the
offence contemplated by the Courts arrest warrant. Proceedings in the Congo
were not based upon the policy or practice of enlisting, conscripting and active
use of childrenunder the age of fifteen inarmed conflict.
55
As a result, wrote the
Pre-Trial Chamber,the DRC cannot be considered to be acting in relation to the
specific case before the Court . . ..
56
This was discussed inthe context of comple-
mentarity, rather than gravity. But if gravity is germane to the Courts choices
about whether to proceed in a given case, where domestic prosecution is in fact
underway, as was the case in the DRC, is it not pertinent to weigh the relative
gravityof the domestic crimes against those of the international tribunal?
Commenting on the Lubanga arrest warrant in a press statement, Prosecutor
Moreno-Ocampo said [f]orcing children to be killers jeopardises the future of
mankind.
57
But arguably, the justice system of the DRC was doing a better job
than the Court itself, because it was addressing crimes of greater gravity.
Certainly, genocide and crimes against humanity might also be said to jeopar-
dise the future of mankind. There is no attempt within the ICC Statute itself to
rank crimes based on gravity, and it might be claimed, as judges have done at
the ICTY,
58
that there is no objective distinction between war crimes, crimes
against humanity and genocide in terms of seriousness. In reply, however,
there is implicit evidence in the ICC Statute that war crimes are less serious
than genocide and crimes against humanity. States may accept the treaty but
opt out of subject matter jurisdiction over war crimes,
59
and the defences of
superior orders and defence of property are available with respect to war
crimes but not genocide and crimes against humanity.
60
It would appear that the ICC has removed Thomas Lubanga from jeopardy
before the criminal tribunals of his own country for crimes that are more
54 G. Burnham et al., Mortality after the 2003 Invasion of Iraq: A Cross-sectional Cluster Sample
Survey, 368 The Lancet (2006) 1421; L. Roberts et al., Mortality Before and After the 2003
Invasion of Iraq: Cluster Sample Survey, 364 The Lancet (2004) 1857.
55 Supra note 44, x 38.
56 Supra note 44, x 39.
57 Statement by Luis Moreno-Ocampo, Press Conference in relation with the surrender to the
Court of Mr. Thomas Lubanga Dyilo, 18 March 2006.
58 Judgment, Furundz ija (IT-95-17/1-A), Appeals Chamber, 21 July 2000, x 247; Judgment in
Sentencing Appeals, Tadic (IT-94-1-Abis), Appeals Chamber, 26 January 2000, x 69.
59 Art. 124 ICCSt.
60 Arts 33(2), 33(1)(c) ICCSt.

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serious than those for which he is being prosecuted in The Hague.
61
To be fair
to the Prosecutor, his position was such that the courts of the DRC were not
prosecuting adequately. There were also concerns that Lubanga might soon
be released. Although it rejected the Prosecutors submission about the failings
of the Congolese national prosecution, Pre-Trial Chamber I note[d] the
Prosecutions allegations that the [DRC] authorities are not pursuing the inves-
tigations against Mr. Thomas Lubanga Dyilo.
62
But perhaps the Prosecutor
would agree that if the Congolese justice system is working, then it would be
better for Lubanga to stand trial at home for genocide and crimes against
humanity than to stand trial in The Hague for recruitment of child soldiers.
As for Lubanga himself, he must be delighted to find himself in The Hague
facing prosecution for relatively less important offences concerning child sol-
diers rather than genocide and crimes against humanity. The impression
remains that in the Lubanga case, the exercise of prosecutorial discretion had
more to do with the fact that this was an accused who was accessible to a
Court starved for trial work rather than any compelling analysis based upon
either gravity or complementarity.
Otherarrest warrant decisions have not consideredthe issue of gravity, suggest-
ing that there may be differences among members of the Chambers as to the
importance this issue deserves. For example, Trial Chamber I considered the
admissibility of the charges against Germain Katanga and Mathieu Ngoudjolo
Chui solely from the perspective of complementarity and not gravity.
63
Nor has
61 According to Art. 89(4) ICCSt., 4. If the person sought is being proceeded against or is serving a
sentence in the requested State for a crime different from that for which surrender to the Court
is sought, the requested State, after making its decision to grant the request, shall consult with
the Court. Rule 183 declares: Following the consultations referred to in article 89, paragraph 4,
the requested State may temporarily surrender the person sought in accordance with condi-
tions determined between the requested State and the Court. In such case the person shall be
kept in custody during his or her presence before the Court and shall be transferred to the
requested State once his or her presence before the Court is no longer required, at the latest
when the proceedings have been completed. Nothing in the public record indicates that
Mr Lubanga was surrendered on a temporary basis, however. When Pre-Trial Chamber I
ordered his release, it did not direct that he be returned to the DRC: Decision on the release of
Thomas Lubanga Dyilo, Prosecutor v. Lubanga (ICC-01/04-01/06-8), Trial Chamber I, 2 July
2008. Rule 185(1) ICC RPE indicates that following release, the Court shall, as soon as possible,
make such arrangements as it considers appropriate for the transfer of the person, taking into
account the views of the person, to a State which is obliged to receive him or her, to another
State which agrees to receive him or her, or to a State which has requested his or her extradi-
tion with the consent of the original surrendering State. In this case, the host State shall
facilitate the transfer in accordance with the agreement referred to in article 3, paragraph 2,
and the related arrangements.
62 Lubanga Decision onWarrant of Arrest, supra note 44, x 36; supra note 32.
63 Decision on the evidence and information provided by the Prosecution for the issuance of a
warrant of arrest for Germain Katanga, Prosecutor v. Katanga (ICC-01/04-01/07), Pre-Trial
Chamber I, 2 July 2007, xx 19^20; Decision on the evidence and information provided by the
Prosecution for the issuance of a warrant of arrest for Mathieu Ngudjolo Chui, Prosecutor v.
Chui (ICC-01/04-02/07), Pre-Trial Chamber I, 6 July 2007, xx 20^21.
744 JICJ 6 (2008), 731^761

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the issue of gravity figured in the arrest warrant decisions in the Situation in
Darfur, Sudan
64
and the Situation inUganda.
65
2. Senior Leaders
Although the Prosecutor did not refer to the issue of gravity in his early policy
statements, in 2003 and 2004, he did address the matter indirectly, to the extent
that he said prosecutions would be directed at leaders who bear most responsi-
bility for the crimes,
66
or the leaders who bear the greatest responsibility.
67
Eventually, the focus on leadership would be invoked as an attempt to address
gravity, but in the early days of the Office of the Prosecutor, the motivation was
entirely different. The paper onComplementarity in Practiceexplained that the
ICC and a territorial State incapacitated by mass crimes may agree that a con-
sensual division of labour is the most logical and effective approach.
Alternatively, groups bitterly divided by conflict may oppose prosecutions at
each others hands (fearing biased proceedings) and yet agree to leadership pro-
secution by a Court seen as neutral and impartial.
68
In other words, leaders
would be the focus of prosecutorial attention not because of some heightened
level of gravity associated with their role, but rather because it would be politi-
callyexpedient. The draft document onselectionof cases, issued inJune 2006, did
not mention the issue of leadership or the status of the accused in its rather
lengthy consideration of gravity.
69
The issue is briefly considered elsewhere in
the paper, under criteria for selection of cases, but in a manner suggesting that
the Office of the Prosecutor does not want to highlight this factor, possibly out of
concerns about admissibilitychallenges by defendants.
70
In its important ruling on admissibility in Lubanga, Pre-Trial Chamber I first
made the link between the gravity threshold and a focus on senior leaders. The
Chamber said that the gravity threshold was intended to ensure that the Court
pursued cases onlyagainst the most senior leaders inany given situationunder
investigation.
71
It saidthat this factor was comprisedof three elements. The first is
the position played by the accused person. The second is the role played by that
person, when the State entities, organizations or armed groups to which they
belong commit systematic or large-scale crimes. The third is the role played by
64 Decision on the Prosecution Application under Art. 58(7) of the Statute, Situation in Darfur,
Sudan (ICC-02/05-01/07), Pre-Trial Chamber I, 27 April 2007; Decision on the Prosecutors
Application for Warrants of Arrest Under Art. 58, Situation in Uganda (ICC-02/04-57), Pre-Trial
Chamber II, 8 July 2005 (hereinafter Uganda, Decision onWarrants of Arrest), x 2.
65 Ibid.
66 Paper on some policy issues before the Office of the Prosecutor, at 3, 7.
67 Statement of the Prosecutor Luis Moreno-Ocampo, to Diplomatic Corps, The Hague,
Netherlands, 12 February 2004, at 4
68 Informal expert paper: The principle of complementarity in practice, at 19.
Prosecutor, June 2006, at 5^6.
70 Ibid., at 13.

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such state entities, organizations or armed groups in the overall commission of
crimes. According to the Chamber, because of the position such individuals play
theyare alsothe ones who can most effectively prevent or stop the commissionof
those crimes.
72
The Chamber explained that the gravity threshold was a key tool
provided by the drafters to maximize the Courts deterrent effect. As a result, the
Chamber must conclude that any retributory effect of the activities of the Court
must be subordinate to the higher purpose of prevention.
73
The Chamber further justified its emphasis on senior leaders with reference
to current practice at the ad hoc international criminal tribunals. It noted
Security Council Resolution 1534, which mandates the completion strategy of
the ad hoc tribunals. The Resolution calls for them to concentrate on the most
senior leaders suspected of being responsible. Reference was also made to Rule
28(A) ICTY RPE, which authorizes the Bureau to block the approval of indict-
ments that do not meet the senior leaders standard, and to Rule 11 bis, which
establishes the gravity of the crimes charged and the level of responsibility of
the accused as the standard to be imposed in transferring cases from the
international to the national courts.
74
The Pre-Trial Chamber compared the
ad hoc tribunals, with their limited jurisdiction over one crisis situation, to
the ICC, with its broad personal, temporal and territorial jurisdiction. In the
Chambers view, it is in this context that one realises the key role of the addi-
tional gravity threshold set out in article 17(1)(d) of the Statute in ensuring the
effectiveness of the Court in carrying out its deterrent function and maximis-
ing the deterrent effect of its activities, the Pre-Trial Chamber concluded.
75
In November 2007, the Prosecutor said he had been approached by states
and stakeholders with the suggestion that arrest warrants targeting lower
level perpetrators were more likely to succeed than those aimed at ministers
and powerful militia leaders. He answered that the Prosecutorial policy, in
accordance with the Statute, will seek to investigate and prosecute those most
responsible for the most serious crimes of concern to the international com-
munity, based on the criminal evidence we collect and subject only to the
judicial review of the Chambers.
76
Within the DRC, the proposition, which was upheld by the Pre-Trial Chamber
that prosecution of a leader like Thomas Lubanga is inherently more serious
than that of a foot soldier, hardly seems controversial. The ICTY conducted
prosecutions of low-level perpetrators in its first years, but these cases stand
out as the exception rather than the rule. From Nuremberg and Tokyo to
Freetown, Arusha and The Hague, it seems clear that international criminal
tribunals have virtually always focused on senior leaders. This can only provide
a partial answer to the gravity issue, however, because it does not assist in any
72 Ibid., xx 51^53.
73 Ibid., x 48.
74 Ibid., xx 55^58.
75 Ibid., x 60.
76 Statement by Mr. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court,
Eleventh Diplomatic Briefing of the International Criminal Court, The Hague, 10 October 2007,
at 5.
746 JICJ 6 (2008), 731^761

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way in distinguishing between situations as opposed to cases. Both the
paramilitaries in the DRC and the regular British troops in Iraq have leaders.
Somethingelse must be involved inassessing whichof the twois graver.
3. Quantity or Quality?
Differences betweenthe analysis of gravity by the Pre-Trial Chamber, in Lubanga,
and by the Office of the Prosecutor in its various public statements, may be
explained by the fact that they are addressing somewhat different issues. The
Pre-Trial Chamber was examining the gravity of the crime that was charged,
and the significance of the accused within the criminal activity overall. The
Prosecutor, on the other hand, has been looking at the gravity of the situation.
He did not refuse to proceed in Iraq because the British leaders were not impor-
tant, or because wilful killing of civilians is not a source of social alarm. Rather,
his analysis hinged essentially on the fact that there were thousands of deaths
incentral Africa, whereas British forces were charged with responsibility for war
crimes occasioning loss of life in only 10 or 20 cases in Iraq. In the draft policy
paper of June 2006, the Office of the Prosecutor made the arguable assertionthat
[a]t present, the gravest admissible situations within the jurisdiction of the
Court have been in one continent, Africa.
77
The methodology of the comparison between Central Africa and Iraq seems
flawed. The Prosecutor could not have been comparing the total number of
deaths in Iraq with the total in the DRC or Uganda, because he might have
been forced to conclude that the situation in Iraq is more serious. Nor could he
have been comparing the total number of deaths resulting from the crimes
attributed to Lubanga with those blamed on the British troops in Iraq, because
Lubanga was not charged with killing anybody. Thus, the quantitative analysis
of gravity, which has a certain persuasive authority, appears to get totally
muddled in imprecise comparisons. In the situation in Uganda, however, the
Prosecutor compared the different combatant groups in a civil war, concluding
that those responsible for more killing should be the focus of prosecution in
application of the criterion of gravity.
The fundamentally quantitative approach to gravity suggested by the
Prosecutor in the LRA arrest warrants and the Iraq situation also seems to
neglect an important dimension of the crimes. Even assuming that the
Ugandan Peoples Defence Forces have killed significantly fewer innocent civi-
lians than the Lords Resistance Army, is not the fact that the crimes are attribu-
table to the state germane to the gravity of the case? After all, the only genuine
problemof impunity with respect to the LRAperpetrators has been the inability
of the Ugandan authorities to apprehend them. If Museveni had been able to
capture Joseph Kony prior to 1 July 2002, can there be any doubt that Kony
would now be in jail, or worse? With respect to the government forces, on the
other hand, we are confronted with the classic impunity paradigm: individuals
Prosecutor, June 2006, at 9.

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acting on behalf of a state that shelters them from its own courts. In a domestic
justice setting involving ordinary crime, would we countenance a national pro-
secutor who ignored clandestine police death squads on the grounds that gang-
sters were killing more people than the rogue officials? We need not totally
dismiss the relevance of the relative numbers of victims in order to appreciate
the need to consider other factors, such as the fact that crimes are committed by
individuals actingonbehalf of the state, as contributing to the objective gravityof
the crime.
A somewhat similar analysis might be applied to the situation in Iraq. Even if
it is admitted that wilful killing attributable to British forces only concerns 15
or 20 victims, surely the fact that this results from an aggressive war that has
brought the deaths of hundreds of thousands of Iraqi civilians is germane to
the gravity determination. Although aggression may not yet be prosecuted by
the Court, Article 5(1) ICC Statute declares it to be one of the most serious
crimes of concern to the international community as a whole. Moreover, the
preamble to the ICC Statute reminds us that all States shall refrain from the
threat or use of force against the territorial integrity or political independence
of any State, or in any other manner inconsistent with the Purposes of the
United Nations. Is aggressive war not, at the very least, an aggravating factor of
relevance to the assessment of gravity?
B. Interests of Justice
Article 53 ICC Statute authorizes the Prosecutor to decline to proceed with an
investigation or a prosecution when it would not be in the interests of justice.
The expression was not invented by the drafters of the ICC Statute. Many legal
systems use the interests of justice or a similar formulation. For example,
Article 14 of the International Covenant on Civil and Political Rights and
Article 6 of the European Convention on Human Rights use the interests of
justice standard in assessing whether to allow exceptions to the principle of a
public trial, and when to require funded counsel for a criminal defendant.
The interests of justice reference in Article 53 provides the Prosecutor with
a very useful safety valve. For this reason, his attempts to codify when and how
such discretion might be employed look rather like a self-inflicted wound. Early
in his term, he requested non-governmental organizations to provide input on
the subject. The result was a number of briefs and position papers. Human
Rights Watch noted that the term was not precisely defined, and spoke of the
need for clarity regarding the phrase. It proposed that the construction most
consistent with the object and purpose of the Rome Statute and its context
would be a narrow one.
78
Amnesty International took a similarly restrictive
view of the concept.
79
78 Human Rights Watch Policy Paper: The Meaning of The Interests of Justice in Article 53 of
the Rome Statute, June 2005.
79 Open Letter to the Chief Prosecutor of the International Criminal Court: Comments on the
Concept of the Interests of Justice, 17 June 2005, AI Index: IOR 40/023/2005.
748 JICJ 6 (2008), 731^761

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In September 2007, the Office of the Prosecutor issued a position paper on
this subject. The paper emphasizes that the exercise of prosecutorial discretion
where the interests of justice is invoked is exceptional in its nature and that
there is a presumption in favour of investigation or prosecution, and that the
criteria for its exercise will naturally be guided by the objects and purposes of
the Statute namely the prevention of serious crimes of concern to the inter-
national community through ending impunity. These assertions should be
evident enough, in that they flow more or less automatically from the provi-
sions of the ICC Statute. But the Office of the Prosecutor goes on to a more
questionable affirmation, namely that there is a difference between the con-
cepts of the interests of justice and the interests of peace and that the latter
falls within the mandate of institutions other than the Office of the Prosecutor.
This comment is directed at those who contend that sometimes international
prosecution should stand aside in favour of peace processes.
80
In distinguishing the interests of peace from the interests of justice, the
Prosecutor is reading too much into the term. He is trying to impose a literal
approach to legal interpretation on an expression that was intended to leave
the exercise of prosecutorial discretion unfettered. Lamenting the fact that
interests of justice is not defined simply misses the point. Sometimes, legal
texts cannot codify concepts that require the exercise of common sense and
good judgment by responsible professionals. In any event, an attempt at defini-
tion would have broken down at the Rome Conference, given profound dis-
agreements about how the Prosecutor should be governed in situations like
that posed where a peace process requires justice to take a back seat.
Are there any limits upon the exercise of prosecutorial discretion in the
context of Article 53? Obviously, it cannot be used in an arbitrary or a discri-
minatory manner. But there is certainly no evidence in the drafting history of
the ICC Statute that a distinction between interests of justice and interests of
peace was intended. To be sure, there were those at the Rome Conference who
would have preferred language limiting the interests of justice concept by
excluding the interests of peace, but their views are not reflected in the ICC
Statute because there was no consensus on this issue. In attempting to codify
how the discretion created by Article 53 should be exercised, the Prosecutor,
with the encouragement of certain states and NGOs, is indirectly amending the
ICC Statute.
C. Victors Justice
One issue involving the choice of cases that has received relatively little atten-
tion in the literature concerns what is sometimes called victors justice, or
moral equivalence. Almost without exception, the situations within the pur-
view of the ICC will involve complex civil conflicts where participants on both
sides have been accused of atrocity crimes. Choices need to be made about the
80 Policy paper on the interests of justice, September 2007.

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focus of investigations and prosecutions. Thus far, with the exception of the
Darfur referral from the Security Council, the Prosecutor has directed his
attention to rebel groups who are the adversaries of state authorities rather
than to the state authorities themselves.
This is not a new problem. The IMT has been criticized for judging only one
side of the conflict, overlooking war crimes and other atrocities for which
those who won the war might be held responsible.
81
The perceived neutrality
of the ad hoc tribunals has often been mentioned as an indication of their
superiority over the earlier institutions, yet they too have not been immune
to criticism in this respect. Within the Balkans, there are incessant charges that
the Tribunal is driven by bias, in one direction or the other. When NATO troops
unexpectedly turned up within its jurisdiction, in an air warfare campaign
launched in violation of the Charter of the United Nations, a controversial
explanation was provided by the Prosecutor for her refusal to pursue investiga-
tions.
82
Perhaps the most sincere attempt at balanced prosecution came from
the Prosecutor of the SCSL. He issued three clusters of indictments, each
directed at a different group in the conflict, including the government-sup-
ported Civil Defence Forces. The two judgments of the Trial Chambers will
revive claims of victors justice: the pro-government forces received light sen-
tences, while the rebels were given fixed terms that exceed anything ever
previously known to international criminal law.
83
Moreover, there is a bizarre
dissent by one judge who took the view that the pro-government forces should
be acquitted of committing atrocities because they were on the right side.
84
The Appeals Chamber rectified the situation, augmenting the light sentences
and declaring that fighting for ajust cause should not be a mitigating factor in
establishing penalties.
85
Nevertheless, the issue remains, especially in the
selection of targets for prosecution.
Where this issue is currently debated most sharply is at the ICTR. Critics
have long argued that the Tribunal was one-sided in its failure to prosecute
members of the Rwandese Patriotic Front for atrocities committed after the
genocidal regime had been overthrown. It is alleged that former Prosecutor
Carla del Ponte was removed from her position because of her intention to
push ahead in this area, although the recent memoirs suggest the explanation
for her unpopularity with certain powerful members of the Security Council is
81 See, e.g. D. Luban, The Legacies of Nuremberg, in G. Mettraux (ed.), Perspectives on the
Nuremberg Trial (Oxford: Oxford University Press, 2008) 639^672, at 659^660; H.-H. Jescheck,
The Development of International Criminal Law after Nuremberg, in Mettraux, ibid., 408^429,
at 420^421.
82 A.J. Colangelo, Manipulating International Criminal Procedure: The Decision of the ICTY Office
of the Independent Prosecutor not to Investigate NATO Bombing in the former Yugoslavia, 97
Northwestern University Law Review (2003) 1393.
83 Brima judgment, supra note 10; Judgment, Fofana and Kondewa (SCSL-04-14-T), Trial Chamber,
2 August 2007 (hereinafter Fofana judgment).
84 Separate Concurring and Partially Dissenting Opinion of Hon. Justice Bankole Thompson Filed
Pursuant to Article 18 of the Statute, Fofana judgment, supra note 83.
85 Fofana judgment, supra note 83, x 535.
750 JICJ 6 (2008), 731^761

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more complex.
86
The current Prosecutor of the Tribunal has been promising to
complete his investigations in this area since he was first appointed, but there
have been no visible signs of progress.
87
Amnesty International has argued
that failure to prosecute Rwandese Patriotic Front crimes actually compro-
mises the right to a fair trial of those charged with genocide against the
Tutsi.
88
In June 2008, the Prosecutor announced that he would transfer case files
respecting the Rwandese Patriotic Front crimes to the Rwandan authorities.
He described how Rwandans had cooperated, as requested by the Council, in
investigations that established a prima facie case showing the killing of 13
clergymen, including five Roman Catholic bishops, by [Rwandese Patriotic
Front] soldiers in Kabgayi Parish in Gitarama. He said some perpetrators of
the crimes had since died, but that the Prosecutor General of Rwanda was
planning to prosecute four senior serving military officers in Rwanda for
murder and complicity to murder as war crimes.
89
In late June 2008, the four
were arrested, and shortly afterwards two of them, John Butera and Dieudonne
Rukeba, both captains in the Rwandan armed forces, pleaded guilty. Two
others, General Wilson Gumisiriza and Major Wilson Ukwishaka, have pleaded
not guilty and will stand trial.
90
The shortcomings of the post-Second World War prosecutions in this respect
have neither been eliminated in recent practice of the ad hoc tribunals nor do
they seem to be entirely absent at the ICC. The prosecutorial focus on rebel
groups in both the Uganda and Congo situations is quite striking in this regard.
George Fletcher has warned: The danger of this approach is that ICC will
become embroiled in civil strife and deploy the powers of the criminal law to
strengthen one party against the other.
91
The attention to non-state actors is
closely related to the concept of self-referral, which has the practical conse-
quence of establishing a degree of complicity between the Office of the
Prosecutor and the referring state. The Ugandan cases provide a good illustra-
tion of the problem.
It seems doubtful that jurists within the Ugandan foreign ministry were
responsible for the novel interpretation of Article 14 ICC Statute by which a
state could, in effect, refer itself to the Court. It is obvious that the idea, of
which there is not a trace in the travaux preparatoires,
92
emerged within the
86 C. Del Ponte, La caccia. Io e i criminali di guerra (Rome: Feltrinelli, 2008); F. Hartmann, Paix
et chatiment (Paris: Flammarion, 2007).
87 UN Doc. S/PV.5594, at 14; UN Doc. S/PV.5796, at 13.
88 Rwanda: Suspects must not be transferred to Rwandan courts for trial until it is demonstrated
that trials will comply with international standards of justice, AI Index: AFR 47/013/2007, at 2.
89 UN Doc. S/PV.5904, at 11.
90 Rwandan officers admit killing 13 priests during genocide, Agence France Presse, 19 June 2008.
91 G.P. Fletcher, The Grammar of Criminal Law, American, Comparative, and International. Volume
One: Foundations (NewYork: Oxford University Press, 2007), at 189.
92 The drafting history of Art. 14 on this point is reviewed in W. Schabas, Complementarity in
Practice: Creative Solutions or a Trap for the Court?, in M. Politi (ed.), The International Criminal
Court and the Relationships with National Jurisdictions: Complementarity and Cooperation
(Aldershot: Ashgate, forthcoming).

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Office of the Prosecutor during 2003. Later, the Prosecutor said that while
proprio motu power is a critical aspect of the Offices independence, the
Prosecutor adopted the policy of inviting and welcoming voluntary referrals
by territorial states as a first step in triggering the jurisdiction of the Court.
93
The first to respond to the encouragement was Ugandas Museveni, who
shrewdly understood that the Court might put decisive pressure upon an
adversary he had been unable to defeat on the battlefield. Ugandas letter of
referral made reference to the situation concerning the Lords Resistance
Army in northern and western Uganda.
94
The Prosecutor initially welcomed
the self-referral without further comment, although he later attempted to cor-
rect its blatant bias against one combatant group in a civil war when he
informed Uganda that, in his view, the scope of the referral encompasses all
crimes committed in Northern Uganda in the context of the ongoing conflict
involving the [Lords Resistance Army].
95
When the Ugandan arrest warrants were made public, the Prosecutor was
sharply criticized by international non-governmental organizations for being
one-sided.
96
A few months later, Uganda was condemned by the International
Court of Justice for a range of violations of international human rights law and
international humanitarian law.
97
In February 2004, the Prosecutor announced that he had been discussing a
cooperative arrangement with the DRC:
We have proposed a consensual division of labour with the DRC. We would contribute
by prosecuting the leaders who bear the greatest responsibility for crimes committed on or
after 1 July 2002. National authorities, with the assistance of the international community,
could implement appropriate mechanisms to address other responsible individuals.
98
Obviously, discussions with Congolese authorities about prosecuting the
leaders who bear the greatest responsibility did not mean their leaders. It
meant their enemies. The Prosecutor reported that the government had sent
him a letter agreeing with the proposal.
99
Close to four years have passed since
93 Office of the Prosecutor, Report on the Activities Performed During the First Three Years (June
2003-June 2006), 12 September 2006, at 7.
94 For the background to the conflict, see M. El Zeidy, The Ugandan Government Triggers the First
Test of the Complementarity Principle: An Assessment of the First States Party Referral to the
ICC, 5 International Criminal Law Review (2005) 83.
95 See Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in
Relation to the Application of Art. 53, Situation in Uganda (ICC-02/04-01/05), Pre-Trial Chamber
II, 2 December 2005, xx 3^4.
96 Amnesty International, Uganda: First Ever Arrest Warrants by International Criminal Court - A
First Step Towards Addressing Impunity, 14 October 2005, AI Index: AFR 59/008/2005; Human
Rights Watch, ICC Takes Decisive Step for Justice in Uganda, 14 October 2005.
97 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), ICJ, judgment of 19 December 2005.
98 Statement of the Prosecutor Luis Moreno-Ocampo to Diplomatic Corps, The Hague,
Netherlands, 12 February 2004, at 4.
99 Ibid.
752 JICJ 6 (2008), 731^761

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these discussions, and the Prosecutor has only shown interest in prosecuting
rebel leaders.
Prosecutions of only one side in the conflict seem to be the price of the self-
referral strategy of the Office of the Prosecutor. It has always been obvious that
the minute the Prosecutor turns his attention to pro-government forces, any
enthusiasm within Uganda or the DRC for self-referral will quickly evaporate.
Indeed, no government anywhere would respond anymore to an invitation to
the Prosecutor to, in practice, prosecute themselves. Self-referral will be viewed
as a trap, a Trojan horse for the Court.
However, the Prosecutor has yet to break his implied compact with the
governments that refer cases. Self-referral is indeed a trap, but for the Office of
the Prosecutor rather than for the referring states. Self-referral was cleverly
exploited by Uganda in order to isolate the rebel leaders. Once the political
goals had been achieved, Uganda had no further use for the Court. For the
Ugandan regime, the Court soon became an impediment to peace rather than
a weapon to use against its enemies.
3. Selecting the Charges
The Prosecutor has a broad discretion in selecting situations, to the extent that
crimes within the jurisdiction of the Court have been committed. If there is no
referral, he can simply unleash his proprio motu authority, subject to judicial
oversight by the Pre-Trial Chamber. It is difficult to assess how intrusive judges
may be at the authorization stage provided for in Article 15, given that this
mechanism has not yet been activated. The Pre-Trial Chamber is to confirm
that there is a reasonable basis to proceed with an investigation, and that the
case appears to fall within the jurisdiction of the Court. The reasonable basis
test is unclear in the Statute. The tautological Article 53(1) suggests that the
Prosecutor shall initiate an investigation unless he determines that there is no
reasonable basis, something he is to do by considering whether the informa-
tion available provides a reasonable basis. But, probably, the assessment will
include determinations on the issues of complementarity and gravity.
Prosecution of individual cases begins with issuance of arrest warrants.
These are proposed by the Prosecutor, but must be approved by judges. Once
the accused person has appeared before the Court, the Prosecutor prepares a
legally androgynous document known as the document containing the
charges.
100
There is a confirmation hearing whose purpose is to validate
the charges that the Prosecutor has proposed.
101
It is said that the objective of
the confirmation hearing is to protect the defendant against abusive and
unfounded accusations.
102
Thomas Lubanga Dyilo, the first accused person to
100 Art. 61(3)(a) ICCSt.; Regulation 52 Regulations of the Court, ICC-BD/01-01-04 (hereinafter ICC
Regulations),.
101 Art. 61(1) ICCSt.
102 Lubanga De cision sur la Confirmation des Charges, supra note 45, x 37.

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appear before the Court, was charged with offences relating to the recruitment
of child soldiers. There are two very similar provisions in the ICC Statute, one
applicable to international armed conflict and the other to non-international
armed conflict. In the Lubanga arrest warrant, the charges were phrased in the
alternative, making a determination of whether the conflict in the DRC was
international or non-international of little importance in the prosecution.
103
However, months after the arrest, when it issued the document containing
the charges, the Office of the Prosecutor took the position that the conflict
was purely non-international in nature, and withdrew the charge based upon
Article 8(2)(b) ICC Statute.
104
At the confirmation hearing, the Pre-Trial
Chamber disagreed, and re-instated the charge concerning enlistment, con-
scription and active use of child soldiers in an international armed conflict.
105
The Prosecutor was incensed that the Pre-Trial Chamber had, in his opinion,
exceeded the terms of Article 61ICC Statute: [T]he selection of the crimes to be
prosecuted before Chambers of this Court is a decision that rests solely within
the province of the Prosecutor, with Pre-Trial Chambers exercising an impor-
tant, but nonetheless statutorily confined supervisory role.
106
Here was a case
where prosecutorial discretion seemed directly confronted with judicial acti-
vism. The Prosecutor sought leave to appeal the decision, arguing that:
[t]he Chambers Decision, plainly substituting a crime charged by the Prosecution with a
different crime, without any amendment ever being considered, let alone initiated by the
Prosecution, poses the vital question of the scope of the Chambers authority under Article
61(7) for the purposes of conducting its scrutiny of the charges brought before it.
Conversely, it directly relates to the scope of the Prosecutions autonomy to determine,
according to its own professional assessment, which crimes should be included in its char-
ging instruments and prosecuted at trial.
107
Leave to appeal was denied. The Pre-Trial Chamber pointed to Regulation 55 of
the ICC Regulations, which allows the Trial Chamber to change the legal char-
acterisation of facts to accord with the crimes under articles 6, 7 or 8 to accord
with the form of participation of the accused. According to the Pre-Trial
Chamber, there is nothing to prevent the Prosecution or the Defence from
requesting that the Trial Chamber reconsider the legal characterisation of the
facts described in the charges against Thomas Lubanga Dyilo and as confirmed
by the Chamber.
108
In any event, even if the Pre-Trial Chamber can impose
additional charges on the Prosecutor, the latter need only fail to adduce
103 Lubanga Decision onWarrant of Arrest, supra note 44.
104 Document Containing the Charges, Art. 61(3)(a), Prosecutor v. Lubanga (ICC-01/04-01/06), Pre-
Trial Chamber I, 28 August 2006, x 7.
105 Lubanga De cision sur la Confirmation des Charges, supra note 45, at 132.
106 Application for Leave to Appeal Pre-Trial Chamber Is 29 January 2007 De cision sur la
confirmation des charges, Prosecutor v. Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I,
single Judge Sylvia Steiner, 5 February 2007, x 14.
107 Ibid., x 11.
108 Decision on the Prosecution and Defence Applications for Leave to Appeal the Decision on the
Confirmation of Charges, Prosecutor v. Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, 24
May 2007, x 44.
754 JICJ 6 (2008), 731^761

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relevant evidence on the unwanted charges. At the practical level, the ability of
judges to direct the outcome of a trial in this way is rather limited.
4. Judicial Activism
A. Interpreting the ICC Statute
The judges at Nuremberg were conservative and faithful to the intent of those
who drafted the IMT Charter. For example, they resisted arguments that crimes
against humanity might have been committed during peacetime in Nazi
Germany, although this possibility seemed to be contemplated by Article 6(c)
of the IMT Charter. Although the Tribunal took into consideration the rise of
the Nazi regime and the atrocities associated with it, no convictions were
registered with respect to acts perpetrated prior to 1 September 1939.
The same cannot be said for the ICTY, whose judges provided radical inter-
pretations in a dramatic expression of judicial activism. For example, the defi-
nition of crimes against humanity proposed by the Secretary-General and
affirmed by the Security Council reflected the belief, still common at the time,
that customary international law required a nexus between crimes against
humanity and armed conflict.
109
In the Tadic Jurisdictional Decision of 2
October 1995, the majority said such a requirement was inconsistent with
customary law.
110
It was also widely believed, in 1993 when the ICTY Statute
was adopted, that the concept of war crimes simply did not apply to non-
international armed conflict.
111
A creative interpretation of Article 3 ICTY
Statute changed that situation forever.
112
In a substantive sense, much of the important legal progress that resulted
from rulings of the ICTYAppeals Chamber in its early years was welcomed by
states and this is reflected in provisions of the ICC Statute. At the same time,
the drafters of the ICC Statute decided that while they appreciated the results of
judicial activism in the past, they were not anxious for it to be repeated. With
this in mind, Article 22(b) declares: The definition of a crime shall be strictly
construed and shall not be extended by analogy. In case of ambiguity, the
definition shall be interpreted in favour of the person being investigated, pro-
secuted or convicted. There were other manifestations of resistance to some
109 See the Secretary-Generals report: Crimes against humanity are aimed at any civilian popu-
lation and are prohibited regardless of whether they are committed in an armed conflict,
international or internal in character. Report of the Secretary-General Pursuant to paragraph
2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), x 47.
110 Tadic Jurisdictional Decision, supra note 22, x141; Judgment, Tadic (IT-94-1-A), Appeals
Chamber, 15 July 1999, x251; Judgment, Kordic et al. (IT-95-14/2-T), Trial Chamber,
26 February 2001, x 23.
111 E.g. T. Meron, War Crimes in Yugoslavia and the Development of International Law, 88
American Journal of International Law (1994) 78, at 80.
112 Tadic Jurisdictional Decision, supra note 22, x 137. Also: Judgment, Furundz ija (IT-95-17/1-T),
Trial Chamber, 10 December 1998, x 132.

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aspects of judicial activism. A far-reaching decision of the Appeals Chamber
that had been perceived as a threat to national security concerns
113
was effec-
tively reversed by a provision of the ICCSt.
114
The judges of the Yugoslavia and
Rwanda Tribunals, like those at Nuremberg, had been given broad latitude on
procedural matters, but this was not to be the case at the ICC, where the
Assembly of States Parties is responsible for the ICC RPE.
115
The States
Parties may also object to Regulations of the Court and thereby prevent their
continued operation.
116
In some respects, judges at the ICC have behaved cautiously and with due
loyalty to the text of the ICC Statute and the intent of its drafters. Frustrated by
what seemed to be systematic denials for leave to appeal interlocutory deci-
sions by the Pre-Trial Chamber, which had a more ambitious viewof its powers
than the Prosecutor, a challenge was taken to the Appeals Chamber. The
Prosecutor argued that there was an implicit power given by the ICC Statute
to the Appeals Chamber to review such decisions, despite the absence of any
express provision. The Appeals Chamber responded that
The Statute defines exhaustively the right to appeal against decisions of first instance
courts, namely decisions of the Pre-Trial or Trial Chambers. No gap is noticeable in the
Statute with regard to the power claimed in the sense of an objective not being given effect
to by its provisions. The lacuna postulated by the Prosecutor is inexistent.
117
A more activistAppeals Chamber might have taken the bolder approach urged
by the Prosecutor. But the decision of the Appeals Chamber was rooted in
considerable wisdom, and the result is explained by more than mere deference
to the text and to the intent of the drafters. As the Appeals Chamber explained,
it was a statutory body, not a court of general jurisdiction exercising judicial
review over lower courts.
118
Some observers have argued that all outstanding
issues should be settled by the Appeals Chamber as early as possible. But it is
probably better to let a thousand flowers bloom, for a while, before the Appeals
Chamber steps in with authoritative rulings. An impetuous Appeals Chamber
might stifle interesting and creative experiments at the pre-trial and trial
stages, when the Court is still in its infancy, and when the consequences of
certain interpretations of what is a unique and innovative instrument are not
always apparent.
Many of the developments in the practice of the Pre-Trial Chambers, such as
the very prominent position given to victims at the earliest stages of proceed-
ings, are based upon controversial but plausible interpretations of the ICC
113 Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial
Chamber II of 18 July 1997, Blaskic (IT-95-14-AR108bis), Appeals Chamber, 29 October 1997.
114 Art. 72 ICCSt.
115 Art. 51 ICCSt.
116 Art. 52 ICCSt.
117 Judgment on the Prosecutors Application for Extraordinary Review of Pre-Trial Chamber Is
31 March 2006 Decision Denying Leave to Appeal, Situation in the Democratic Republic of
Congo (ICC-01/04-168), Appeals Chamber, 13 July 2006, x 39.
118 Ibid., x 30.
756 JICJ 6 (2008), 731^761

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Statute and are not really manifestations of judicial activism. Indeed, judicial
activism may be necessary in order to address what may amount to an exag-
gerated engagement of victims, with all of the attendant consequences in
terms of delay and procedural bottleneck. There is one good example of judicial
activism in the interpretation of the ICC Statute by judges of the Court. It
concerns the application of Article 17 on the admissibility of cases. The two
prongs of the complementarity test are well known, even to non-specialists: the
state must be unwilling or unable genuinely to investigate or prosecute. In
Lubanga, the Pre-Trial Chamber invented a third prong, inactivity. It said that
the case would be inadmissible only in those States with jurisdiction over it
have remained inactive in relation to that case or are unwilling or unable.
119
A footnote after the words in relation to that case states: Interpretation a
contrario of article 17, paras. (1) (a) to (c) of the Statute.
120
This activist interpretation solved a little problem for the Pre-Trial Chamber.
When the situation had been referred by the DRC, the inability of the justice
system to deal with prosecutions had been invoked. But as the judges pointed
out, there had been improvements in the capacity of the domestic courts, and
therefore their inability might no longer be the case. The Prosecutors general
statement that the Congolese courts were unable to prosecute does not wholly
correspond to the reality any longer, said the Pre-Trial Chamber.
121
Because
the charges against Lubanga before the Congolese justice system did not
include child soldier offences, the DRC cannot be said to be acting in relation
to the specific case before the Court.
122
Given its conclusion that the DRC was
inactive, the Pre-Trial Chamber said it need not make any analysis of unwill-
ingness or inability.
123
The inactive gloss on Article 17 fit very nicely with the Prosecutors strategy
of self-referral. This was a partnership with states, rather than a value judg-
ment about the abilities or intentions of their justice systems. There was only
one problem: it is not in the ICC Statute. Yet, the judicial activism of the Pre-
Trial Chamber on this point went unchallenged. There was no appeal. After all,
who had any interest in contesting such a reading of the ICC Statute? The
Prosecutor was content, because the arrest warrant was issued, and he could
now provide tangible evidence that he was doing his job. The judges were
delighted to have a real trial, after years of relative inactivity. The State Party
was satisfied to have disposed of a troublesome rebel leader who would be
judged in distant Europe. And the accused, who might normally be expected
to challenge irregular application of the law in a prosecution, was thrilled that
he would remain in The Hague and not be sent back home, where he was
facing charges of genocide and crimes against humanity. It was a win-win
situation for all concerned. Except for the victims of atrocities in states where
120 Ibid., fn. 19.
121 Ibid., x 36.
122 Ibid., x 39.
123 Ibid.

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the authorities were genuinely unable or unwilling to investigate and prose-
cute, and where their persecutors and tormentors continue to enjoy impunity.
They did not get the Courts attention because of the polite arrangement pro-
posed by the Prosecutor, accepted by the government of the DRC, blessed by
the Pre-Trial Chamber and sanctified by the acquiescence of the accused.
B. Impatience with the Prosecutors Pace
For many complex reasons, the ICC has shown itself to be the slowest institu-
tion of its kind since the beginnings at Nuremberg. Some think that
Nuremberg moved too quickly, although if it had taken more time to get started
and to function, the whole process might well have been aborted when the
Cold War began to heat up. It seems more appropriate to compare the ICC with
the three ad hoc tribunals, although even there we encounter significant dif-
ferences. The ICC has the complex admissibility issues to contend with, as well
as an additional procedural step, the confirmation hearing. For purposes of
comparison, the trial of the first accused at the ICTY began on 7 May 1996,
slightly more than a year from the date he first appeared in The Hague.
124
At
the ICTR, Jean-Paul Akayesu first appeared on 30 May 1996 and his trial
started on 9 January 1997, seven months later.
125
The initial trial at the SCSL,
involving three defendants, opened on 3 June 2004, 15 months after the first of
the accused was taken into custody. At the ICC, Thomas Lubanga Dyilo
appeared on 24 March 2006; after two abortive attempts at a trial date, the
case is now postponed indefinitely.
The Situation in Darfur, Sudan was referred to the Court by the Security
Council in March 2005.
126
More than a year after the referral, there had been
no arrest warrants. In June 2006, the Prosecutor made his bi-annual report to
the Security Council. Buried in the lengthy report was the admission that the
Prosecutor had been unable to conduct an effective investigation inside
Darfur.
127
Pre-Trial Chamber I had been assigned responsibility for the
Darfur referral in April 2005.
128
The Chamber, presided by Claude Jorda, had
already shown itself to be pro-active and intrusive in areas that, in other
jurisdictions, might be left to the initiative of the prosecution. Following pre-
sentation of the June 2006 report to the Security Council, and in reaction to it,
Pre-Trial Chamber I issued an order inviting what amounted to a second
opinion on the Prosecutors assessments.
129
The unprecedented initiative was
ostensibly based upon Article 57(3)(c), which authorizes the Chamber where
124 Opinion and Judgment, Tadic (IT-94-1-T), Trial Chamber, 7 May 1997, xx 10, 27.
125 Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, xx 12, 17.
126 UN Doc. S/RES/1593 (2005).
127 UN Doc. S/PV.5459, 14 June 2006, at 4.
128 Decision Assigning the Situation in Darfur, Sudan to Pre-Trial Chamber I, Situation in Darfur,
Sudan (ICC-02/05), The Presidency, 21 April 2005.
129 Decision Inviting Observations in Application of Rule 103 of the Rules of Proecudure and
Evidence, Situation in Darfur, Sudan (ICC-02/05), Pre-Trial Chamber I, 24 July 2006.
758 JICJ 6 (2008), 731^761

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necessary [to] provide for the protection and privacy of victims and witnesses
[and] the preservation of evidence. It was all a bit contrived, and in reality the
judges sought a pretext for questioning the Prosecutors claim that he could not
conduct investigations within Darfur because of the security situation. Two
amici curiae were asked for their views: Professor Antonio Cassese, chair of
the United Nations Commission of Inquiry whose report had provoked the
Darfur referral, and Louise Arbour, United Nations High Commissioner for
Human Rights. Their opinions were submitted in August and September
2006. Each took the view that the Prosecutor had exaggerated the security
problems involved in investigating within Darfur. In a journal article published
at about the same time, Professor Cassese referred critically to the
[e]xceedingly prudent attitude of the ICC Prosecutor.
130
His own report on
Darfur, issued more than 18 months earlier, had campaigned for referral to the
ICC and against alternative judicial mechanisms such as ad hoc tribunals and
mixed courts because the latter were too slow.
131
Professor Casseses report discussed the investigation in general, making
a number of observations about the focus of the inquiry, the types of
witnesses who should be interviewed, and even the legal basis for prosecution.
He signalled the importance of establishing the chain of command so as to
hold accountable those responsible for addressing the violations within
the Sudanese military, under the principle of command or superior responsi-
bility. With respect to the specific issue of conducting an investigation
within Darfur, Professor Cassese recommended targeted and brief interviews
of victims and witnesses. He also proposed that Sudanese officials be
summoned to The Hague to testify before the Pre-Trial Chamber.
132
High Commissioner Arbour told the Pre-Trial Chamber that it is possible to
conduct investigations of human rights violations during an armed conflict
in general, and in Darfur in particular, without putting victims at unreason-
able risk.
133
The Prosecutor seemed stung by the remarks. He replied with observations
to the Pre-Trial Chamber arguing that parts of the reports encroach upon the
discretion of the Prosecutor.
134
But in his statements to the Assembly of States
130 A. Cassese, Is the ICC Still Having Teething Problems?, 4 Journal of International Criminal
Justice (2006) 434, at 438.
131 Report of the International Commission of Inquiry on Darfur to the Secretary-General,
Pursuant to Security Council resolution 1564 (2004) of 18 September 2004, UN Doc.
S/2005/60, annexe, xx 574, 578.
132 Observations on Issues Concerning the Protection of Victims and the Preservation of
Evidence in the Proceedings on Darfur Pending before the ICC, Situation in Darfur, Sudan
(ICC-02/05), Pre-Trial Chamber I, 25 August 2006.
133 Observations of the United Nations High Commissioner for Human Rights Invited in
Application of Rule 103 of the Rules of Procedure and Evidence, Situation in Darfur, Sudan
(ICC-02/05), Pre-Trial Chamber I, 10 October 2006, x 64.
134 Prosecutors Response to Casseses Observations on Issues Concerning the Protection of
Witnesses and the Preservation of Evidence in the Proceedings on Darfur Pending before the
ICC, Situation in Darfur, Sudan (ICC-02/05), Pre-Trial Chamber I, 11 September 2006, x 9.
Also: Prosecutors Response to Arbours Observations on Issues Concerning the Protection of

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Parties, in November 2006,
135
and to the Security Council, in
December 2006,
136
the Prosecutor did not even mention the skirmish with
the Pre-Trial Chamber and the admonitions of Antonio Cassese and Louise
Arbour.
5. Conclusions
The pioneering work of the ad hoc tribunals may have accustomed us
to institutions characterized both by the exercise of broad prosecutorial
discretion and bold manifestations of judicial activism. Clearly, the drafters of
the ICC Statute contemplated a more conservative institution. They provided
for judicial supervision of the Prosecutor from the earliest stages of proceed-
ings. As for the judges, their ability to adapt procedural and evidentiary rules
is greatly limited not only by the ICC Statute but also the ICC RPE, as is their
freedom to adopt liberal and purposive interpretations of the definitions of
crimes.
The observations in this essay revolve around two big themes in the Courts
initial years, self-referral and gravity. Neither concept finds any real echo
in the travaux preparatoires or in academic commentary prior to 2003. Self-
referral had the great benefit of avoiding confrontation with states. It might
even have encouraged ratifications of the ICC Statute when non-party states
saw that the Prosecutor was not threatening their vital interests, indeed he
might even be counted upon to partner with governments in the pursuit of
their adversaries. With the first arrest warrants, it became obvious that this
distorted the vision of those who struggled so hard to create the Court because
of its comfortable relationship with states and its one-sidedness. It was only at
this point that gravity emerged in the discourse of the Prosecutor as the
central criterion in the selection of cases. As for Pre-Trial Chamber I, it may
have developed its theories of social alarm as part of the gravity threshold out
of self-consciousness because child soldier recruitment, which is arguably
closer to the mala prohibita than the mala in se end of the spectrum, might not
seem to everyone to be significant enough for the first trial of the ICC.
This may all be quite ephemeral. Perhaps, 10 years from now, we will look
back on these issues the way those at the ad hoc tribunals reminisce about
the now atrophied Rule 61 or the pre-joint criminal enterprise approaches
to criminal participation. There can be little doubt that part of these interpre-
tative deviations can be explained as part of a sincere effort to make the
Court operational. Our concern must be that opportunistic constructions of
Witnesses and the Preservation of Evidence in the Proceedings on Darfur Pending before the
ICC, Situation in Darfur, Sudan (ICC-02/05), Pre-Trial Chamber I, 19 October 2006.
135 Opening Remarks, Luis Moreno-Ocampo, Fifth Session of the Assembly of States Parties,
23 November 2006.
136 UN Doc. S/PV.5589 (2006).
760 JICJ 6 (2008), 731^761

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the ICC Statute driven by the need to generate activity will linger in the
future, distorting the proper role of the ICC in the campaign against
impunity and the protection of human rights. Its opponents may be relieved
by its current behaviour, but its strongest supporters may ultimately become
demoralized, and that may prove more costly in the long run.

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