THE ROLE OF THE PROSECUTOR IN THE INTERNATIONAL CRIMINAL COURT: DISCRETION, LEGITIMACY, AND THE POLITICS OF JUSTICE THE DEGREE OF DOCTOR OF PHILOSOPHY FARID MOHAMMED RASHID ROYAL DOCKS SCHOOL OF BUSINESS AND LAW EAST LONDON UNIVERSITY DECEMBER 2016 i ABSTRACT………………………………………………………………………………..v. ACKNOWLEDGEMENT………………………………………………………………...vii LIST OF ABBREVIATIONS……………………………………………………………..viii INTRODUCTION…………………………………………………………………………..1 CHAPTER ONE: OVERVIEW OF THE INTERNATIONAL CRIMINAL COURT 1.1. The International Criminal Court’s Overview……………………………………....29 1.1.1. Drafting the Statute: ………………………………………………………….29 1.1.2. Meaningful Justice and the Need for Prosecutorial Discretion …………….34 1.1.3. Court Structure………………………………………………………………...43 1.2. The ICC Prosecutor…………………………………………………………………....45 1.2.1. Decision-Making Process of the Prosecutor…………………………………….45 1.2.1.1. Preliminary Examination’s Stage…………………………………………54 1.2.1.2. Investigation’s Stage……………………………………………………...57 1.2.1.3. Prosecution’s Stage……………………………………………………….58 1.2.2. The ICC Prosecutor Discretion………………………………………………….59 1.2.2.1. Investigation……………………………………………………………...60 1.2.2.1.1. Proprio Motu Decisions: Article 15 (1) and (3)………………60 1.2.2.1.2. Referrals……………………………………………………….63 1.2.2.2. Prosecution……………………………………………………………….66 1.2.2.2.1. Selecting Cases………………………………………………..66 CHAPTER TWO: THE HISTORICAL DEVELOPMENT OF INTERNATIONAL CRIMINAL TRIBUNALS AND THE DISCRETIONARY POWER OF THE PROSECUTOR 2.1. Introduction…………………………………………………………………………….69 2.2. Post-World War II Tribunals………………………………………………………….71 2.2.1. Prosecutor’s Power under the Nuremberg Charter…………………………….73 2.2.2. The Power of the Prosecutor of the Tokyo Tribunal…………………………..79 2.3. Post-Cold War Tribunals………………………………………………………………84 2.3.1. The Legal Framework of the Office of the Prosecution under ICTY and ICTR Statutes……………………………………………………………………………….85 2.3.2. Prosecutorial Discretion in Practice under the ICTY and ICTR……………94 2.3.3. Prosecutorial Independence in Practice……………………………………..113 2.4. Summary………………………………………………………………………………116 CHAPTER THREE: THE LEGITIMACY OF THE DISCRETIONRY DECISION- MAKING PROCESS BETWEEN LAW AND POLITICS 3.1. The Strategy of Prosecution between Law and Politics…………………………….121 3.1.1. The Prosecutor, Discretion, and the Political……………………………………131 3.1.2. Structured Approach…………………………………………………………….139 3.2. The Concept of Discretion………………………………………………………........ 143 3.2.1 Prosecutorial Discretion………………………………………………………148 3.2.2 Legal Interpretive Discretion…………………………………………………153 3.3. Theoretical Framework………………………………………………………………157 ii 3.3.1 The Dyadicicm of International Legal Discourses ……………………….…157 CHAPTER FOUR: Gravity between Prosecutorial and Legal Interpretive Discretion 4.1. Introduction…………………………………………………………………………...163 4.2. Gravity and Discretion…………………………………………………………….…175 4.3. Gravity in OTP Documents and Statements …………………………..……………183 4.4. Gravity in Practice (2004- 2012)……………………………………..………………186 4.4.1. Uganda (2004), DRC (2004), Sudan (2005) Situations………………………187 4.4.2. The LRA Case (2005)………………………………………………………..189 4.4.3. Iraq Situation (2006)………………………..………………………………...192 4.4.4. Lubanga and Ntaganda Cases (2006)………………………………………..197 4.4.5. Kenya Situation (2010) and Cote d’Ivoire Situation (2011)…………………200 4.4.6. Mohammed Ali Hussein Case (2011)………………………………………..203 4.4.7. Mali Situation (2012)…………………………………………………………204 4.5. Remarks on Relative Gravity……………………………………………………..….206 4.6. Quantitative ‘versus’ Qualitative Factors………………………………….……..…208 4.7. Case Law: The Gaza (Comoros) Situation- Recent Development (2013)……...….212 4.7.1. Implications……………………………………………………………..…..222 CHAPTER FIVE: IN THE INTERESTS OF JUSTICE 5.1. Introduction…………………………………………………………………………..228 5.2. Exploring the Article 53 Provisions on ‘the Interests of Justice’…………………234 5.3. Interpreting ‘the Interests of Justice’………………………………………………238 5.3.1. The General Orientation of the OTP and the Prosecutors on ‘the Interests of Justice’……………………………………………………………………………….244 5.3.2. General Guidelines for the Deferral Decision under ‘the Interests of Justice’………………………………………………………………………………..248 5.4. Theories of Justice…………………………………………………………………….250 5.5. Is Peace Process within the Scope of ‘the Interests of Justice’? ...............................255 5.5.1. The Ugandan Application…………………………………………………..261 CHAPTER SIX: THE DARFUR SITUATION (CASE STUDY) 6.1. Darfur Conflict……………………………………………………………………279 6.2. The UNSC and ICC’s Response…………………………………………………282 6.3. The AU’s Response……………………………………………………………….284 6.4. African States and Sudan’s Response…………………………………………...288 6.5. Justice v. Peace……………………………………………..……………………..290 6.6. Discretionary Policy: Flexibility and Calculation………………………………295 6.7. Applicability of Article 53 to the Darfur Situation……………………………..303 6.8. Applicability of Factors of Article 53 to the Darfur Cases……………………..305 CONCLUSION……………………………………………………………………………313 APPENDIX………………………………………………………………………………..328 iii BIBLIOGRAPHY…………………………………………………………………………329 TABLE OF CASES………………………………………………………………………..363 TREATIES, AGREEMENTS, AND REGULATIONS…………………………………364 iv ABSTRACT Under the complex circumstances and the limited capacity in which the International Criminal Court (ICC) operates, the role of its prosecutor has been challenging. The ICC prosecutor cannot pursue all situations for investigation, and cases for prosecution. She has to be selective. Moreover, the individuals and the crimes over which the Court exercises its jurisdiction, and the present circumstances in which it operates raise political sensitivities that might undermine the ability of the Court to deliver its justice effectively. The ICC prosecutor faces a complex dilemma in negotiating a relationship between fealty to the law and the impact and possible benefits of political exigencies in delivering justice. It also raises the problem of the role of political considerations within the decision-making process. The exercise of discretion lies at the heart of these challenges, as the ICC’s Statute allows the prosecutor to exercise significant discretion. This thesis will explore and analyse the discretionary power of the ICC prosecutor. It situates the development of the office historically by referring to the experiences of the War Crimes Tribunals after World War II and the two United Nations Tribunals of the 1990’s. Against this background, it examines the scope of discretion and the way the Prosecutor has exercised it. This thesis will suggest that there has been a tendency to overlook the necessity of distinguishing between various senses of discretion open to the prosecutor to exercise. In exploring the scope of discretion, the thesis will argue that there is wider range of discretion with different senses, available to the Prosecutor and that has been exercised by her, when applying legal thresholds. In assessing these legal thresholds, the focus will be on ‘sufficient gravity’ and ‘the interests of justice’. The thesis will suggest that the indeterminacy of the legal thresholds, such as ‘sufficient gravity’ is the space, which, in effect, allows decision-makers to exercise a wide range of discretion. The thesis refers to this discourse as legal interpretative discretion. This is to be distinguished from prosecutorial discretion, which is a different v concept and allows decision-makers to consider extra-legal considerations, as the case with the term ‘interests of justice ’. An implication of the interpretation of the terms like ‘sufficient gravity’, is that the prosecutor can appear to possess almost unlimited power. In exploring the relationship between the two types of discretion the thesis will root the analysis within a close reading of examples of the investigations and prosecutions, and the scholarly literature. The thesis also discusses the relevance of political considerations within the decision-making process in the context of the exercise of prosecutorial discretion. It suggests that there need not be a conflict between the broad sense of justice as outlined in the Statute and political factors in giving effect to decisions. The thesis engages with the repeated statements by prosecutors, which have denied the use of discretion and asserted a fealty to strict legalism. It suggests that beneath these statements lie a resource, discretion, which helps not hinders international criminal justice. vi ACKNOWLEDEGMENTS Spending more than four years under tremendous pressure due to the contemporary tragedy – the civil war in Syria -, I’d like first to thank Allah, the almighty, for giving me the strength and patience to accomplish this thesis. I would like also to express my very great appreciation to my supervisors Professor John Strawson, Professor Beverly Brown, and Dr. Olga Martin-Ortega. Your patience, tolerance, and guidance are gratefully priceless. Without their abiding support and advice, I would not be able to complete this work successfully. I am particularly thankful to you John for your unlimited support and encouragement, which made me able to stand and to continue writing this thesis during times, where my life has gone through miserable and difficult moments due to the tragedy of the Syrian civil war.. John, there is no word can appreciate the countless hours and efforts you devoted to my research. It is your belief and faith in my abilities as a researcher, and my thesis as a valuable piece of work that helped me to come out with this final draft. I’d like also to thank Professor Beverly for her willingness to be