Human Rights Watch Remarks on ICC Office of Prosecutor

Human Rights Watch welcomes the opportunity to provide the following comments on the "[Draft] Policy on Complementarity and Cooperation (September 2023)" (hereafter "draft policy") of the Office of the Prosecutor (OTP or the Office) of the International Criminal Court (ICC).

The draft policy recognizes the crucial role that the OTP plays in the broader international justice ecosystem, and the need for the Office to actively engage with national authorities who bear the primary responsibility to deliver justice for serious international crimes. In this regard, Human Rights Watch welcomes the policy's acknowledgment that efforts to support national prosecutions should be applied at all stages of the Office's work.[1] Human Rights Watch also recalls the Office's commitment in its 2013 policy that during the preliminary examination phase, "[w]here potential cases falling within the jurisdiction of the Court have been identified, the Office will seek to encourage, where feasible, genuine national investigations and prosecutions by the States concerned in relation to these crimes."[2]

This draft policy aligns with a number of recommendations Human Rights Watch made in its past reporting; including on the importance of increased engagement with national authorities as well as the need for the Office to invest in strategic partnerships with key stakeholders, including civil society, other international justice mechanisms as well as international and regional organizations.[3] We recommend that the final policy explicitly address the critical role of the OTP as a catalyst for political will to advance credible national proceedings; that political will is often the key missing ingredient. The policy should identify the steps it plans to take to play this role and to remain vigilant as to when the ICC will need to act in the absence of genuine national proceedings.

The OTP as a catalyst for political will: the critical link between partnership and vigilance

In the preface to the draft policy, the prosecutor lays out his vision for a "Renewed Partnership for Accountability." Referring to his Office, he states: "we must establish ourselves as a strong and effective partner for national authorities…by strengthening our ability to cooperate with national authorities in addressing core international crimes, and by increasing our capacity to provide tangible support to domestic proceedings, we can foster a stronger basis for national actors to uphold their primary responsibilities and thereby reduce the need for the Office to step in."[4]

But there is more that is needed and possible than tangible support to national authorities. Indeed, it is crucial for the OTP to use its unique leverage to encourage actual progress. Where national authorities have an interest in avoiding ICC intervention, or seek a deferral of an ICC investigation, they can do that by conducting genuine national proceedings. By making the most of this leverage, the OTP can be an effective catalyst for justice. Yet experience shows that the OTP needs to walk a careful line: leaving enough space for national authorities to act, while being prepared to step in if they do not go forward. This is the line between partnership and vigilance.

As Human Rights Watch's research in Guinea, Colombia, Georgia, and the United Kingdom has shown, lack of political will was one of the main obstacles to advancements in domestic proceedings. When it came to catalyzing political will, the OTP's leverage with national authorities appeared to depend on the level of concern these authorities had regarding the prospect of an ICC investigation combined with posture of the OTP and engagement with authorities the OTP undertook. Where authorities simply do not care about ICC intervention, it will be difficult for the OTP to change this perspective. But where a lack of concern stems from a belief that ICC investigations are little more than a remote possibility, this suggests that the OTP should do what it can to counter these perceptions; experience shows that active direct engagement with authorities makes a difference.[5]

Human Rights Watch has identified a number of steps the OTP could take to increase its leverage as a catalyst for political will with national authorities. These same steps are also a form of vigilance, and can be applied in any situation where the OTP has made a commitment to support or monitor credible national proceedings:

1. Sharpen up private and public engagement - To strengthen pressure, the OTP will need at times to take a more confrontational approach with authorities, either privately or publicly. This is especially important given the potential manipulation by national authorities of the court's statutory framework. In Colombia, at the time of Human Rights Watch's research, some government officials indicated that the OTP's manner of engagement had failed to convince them of any serious prospect that an investigation would be opened. With the closing of the preliminary examination in Colombia in 2021, it is even more critical for the Office to keep up the pressure on national authorities to ensure advancements in domestic accountability efforts.[6] This may also mean an increased willingness to seek to open an investigation under article 15 of the Rome Statute, despite the risk of article 18 challenges. In the United Kingdom/Iraq situation, to support its decision not to pursue the opening of an investigation, the Office expressed concern that it would not be able to demonstrate that the UK authorities were unwilling to genuinely investigate and prosecute the allegations. However, Human Rights Watch noted that the Office set a standard for itself that is almost impossible to prove, especially in a preliminary examination when the office lacks full investigating powers-that in each individual case it would have to prove there was an active attempt to shield the perpetrators.[7] The development of case law under article 18 may be helpful to this in the future.
2. Publicly identify benchmarks - One specific way in which the Office can exert stronger pressure is to identify benchmarks for national authorities to demonstrate they are investigating and prosecuting the crimes and make them public. In Guinea, the OTP had publicly referenced particular steps needed in the domestic investigation, namely the need to visit the crime scene and interview key witnesses, and earlier on, called for the authorities to make support available to the judicial investigation and avail themselves of a judicial expert offered by the UN. These were among the factors that, in Human Rights Watch's view, contributed to the Office successfully encouraging advancements in national proceedings in Guinea. In Colombia, by contrast, more general discussions with domestic authorities appeared to have at times lessened the Office's influence. This is an ongoing concern as the agreement signed between the OTP and the Colombian government in 2021 lacks the "teeth" a benchmarking approach might have offered; the agreement was concluded with little to no consultation with civil society organizations and victims' associations.[8]
3. Verify information and invest in strategic alliances - The OTP needs to be able to verify information provided to it by government authorities. The Office, among other steps it takes to verify information directly with authorities, can benefit from alternative sources of information. This highlights the importance of the OTP's investment in strategic alliances, including with civil society, other international justice mechanisms, as well as international and regional organizations, as already reflected in the draft policy. Following through with this commitment will be essential to the successful implementation of the draft policy. Particularly where there are powerful political interests stacked against justice, the OTP needs to have the backing of other influential partners to catalyze political will.
4. Increase transparency - As outlined in further detail in the joint NGO comments to the draft policy submitted by a group of civil society organizations, including Human Rights Watch, transparency regarding the OTP's activities and assessments in different stages of its work is key. Where the OTP is, and is seen to be, engaging national authorities in a strong manner to encourage national proceedings, other actors, particularly in civil society and among a country's international donors, as relevant, can complement its efforts to hold the government to account to taking additional steps.