The Selection of the “Worst of the Worst”

“International law should not be wielded as the big stick by strong nations used to pummel the weak ones. We are against selective justice.”

As quoted by Jean Ping, former Chairperson of the African Union, the International Criminal Court (ICC) has been accused multiple times of pursuing “selective justice”, especially by African countries. Gambia, for example, called it the “International Caucasian Court”. The accusations by African countries and the Policy Paper on case selection and prioritisation lead to the questions: What is selective justice, and how does it compliment the case selection process of the ICC?

Selective Justice – Any Justice at All?

Selective Justice is discussed in many academic works. However, a clear definition has yet to be determined. When does the selectivity begin? How is justice defined in the context of international criminal law?

Justice is generally associated with fairness, as explained by John Rawls in Justice as Fairness: Political not Metaphysical (Vol. 14 Philosophy and Public Affairs [1985] 223-251). The determination, whether a process is fair, is often based on the “burden, benefits, punishment and reward [of the process], all while considering the reciprocity and mutuality of the final outcome.”

In The Theory of Justice, Rawls defined justice in the context of procedures by differentiating between three types: perfect, imperfect and pure. The Office of the Prosecutor (OTP) has long emphasised that its selection process is based on strict factual conditions with no political influence – de facto claiming pure procedural justice (Kotecha, The International Criminal Court’s Selectivity and Procedural Justice, JICJ 18 (2020), 107-139). A procedural justice is pure, “when there is no independent criterion for the right result, instead there is a correct or fair procedure such that the outcome is likewise correct or fair, provided that the procedure has been properly followed.”

Selectivity Remains

To define procedural justice, the examined process must be dissected. When does the selectivity process start at the ICC?

After a case is referred to the OTP in accordance with the three potential methods Article 13 of the Rome Statute describes, the OTP must determine whether that case falls under the jurisdiction of the Court. Subsequently, the OTP must decide whether there is a reasonable basis for an investigation.

This process therefore heavily relies on decision-making by the OTP. And how exactly the decisions for case selection are made, has been unclear for some time. In order to address this,  the OTP – in line with the principle of pure procedural justice – published  a Policy Paper on case selection and prioritisation (PPCP) in 2016. The paper’s goal is “to ensure clarity and transparency in the manner in which it applies the requisite legal criteria and exercises its prosecutorial discretion in accordance with its mandate under the Statute” (p. 3, PPCP).  

The PPCP aims to make the practice of case selection by the ICC more transparent. As has been described above, the criticism the ICC has received, especially being accused of solely picking on weaker states, has made the publication of the PPCP an understandable strategic decision. It is a well-known practice of the ICC prosecution to publish papers regarding policy and strategy to strengthen transparency in their decision-making process.

A Policy Paper as Universal Remedy?

The PPCP has four main sections: general principles, legal criteria, case selection criteria and case prioritisation criteria.

In its general principles, it states that the ICC prosecution must be independent, impartial and objective. Independence is described as acting “independently of instructions from any external source” (p. 7, PPCP). The principle of impartiality ensures that the OTP “will apply consistent methods and criteria, irrespective of the States or parties involved and or the person(s) or group(s) concerned” (p. 8, PPCP). The last general principle, objectivity, guarantees an “information and evidence-driven process” in which “incriminating and exonerating circumstances” (ibid.) will be equally considered.

In the section on the legal criteria, the paper mainly describes when the ICC has jurisdiction over a case and which cases are admissible. The most interesting part comes at the end of the section, in which the paper states that “interests of justice will […] be assessed on a case-by-case basis by the Office as a matter of best practice in the exercise of prosecutorial discretion over case selection”, including the interests of victims and their protection.

The case selection criteria mentioned are the gravity of the committed crime (p. 11 et seq., PPCP) as well as the degree of responsibility of alleged perpetrators (p. 14 et seq., PPCP). Furthermore, the aim to have a representative sample of crimes in each conflict (p. 15 et seq., PPCP) should be considered.

To determine which of the selected cases is to be prosecuted first, the OTP has another two lists of factors which have to be considered. The first list can broadly be described as containing strategy-related factors, such as prior prosecution of the individual(s), possible impact of the investigation on the victims or other ongoing prosecutions and a comparison to other selected cases (p. 16, PPCP). The second list describes operational factors, such as quantity and quality of exonerating evidence, international cooperation with the prosecution and the ability to secure the appearance of suspects before the Court (p. 17, PPCP).

Main Issues Still Unaddressed?

If one reads the PPCP without the criticism of the ICC in mind, it seems very agreeable. The abstract ideas – such as the aim to prosecute the “worst of the worst” in an effective way – are in line with the usual understanding of the ICC and the concept of selective justice made above. And – if you consider the PPCP as an abstract roadmap to guide the decisions of the OTP – it certainly fulfils its goal.

However, the ICC published the policy paper to “ensure clarity and transparency”. And recalling this goal, the PPCP leaves out many important factors:

First, it does not include any specific examples in which the OTP used these criteria in the decision-making process. Seeing these principles being used in concreto would give the public a clearer sense of how the criteria engage with each other. Furthermore, using examples of previous decisions by the Court could have been an opportunity to offer more transparency regarding the decision-making process to those who question it (especially international actors such as the aforementioned African Union). Examples for such questionable decisions are the choice to mainly target non-state actors or findings related to situations where the Court’s jurisdiction was exercised due to a self-referral. These situations (e. g. Uganda or Mali) are perfect illustrations of the interaction of the operational and strategic factors.

Second, the separation between case selection and case prioritization seems artificial. As can be noted by the summary above, the first decision is to select a case, and then it can be prioritized. However, given the limited resources of the OTP, it is more likely that these points are interlinked (Ambos, International Legal Materials, Volume 57, Issue 6, December 2018, pp. 1131-1145). Considering the aim of the PPCP (“transparency”), this most likely manufactured separation might mislead the public, especially those affected by the decision of prioritisation.

Third and as the last criticism, one must take a broader look at the role of the OTP: They have wide discretion and are subject to limited judicial review. This creates a peculiar situation for the ICC, especially in comparison to other international courts, namely that the international reputation lies predominantly in the hands of the prosecution. To fulfil this extensive task and shield itself from criticism, the OTP must implement practices that explain clearly which considerations lead to which decision. The policy papers that the OTP has released could become an important tool – not only to combat criticism of past decisions, but also to create a clear record that the ICC – and especially the OTP can be held accountable for. By releasing vague guidelines about their decision-making process, the OTP cannot achieve these goals. Substantiating this point, these guidelines have basically disappeared in the broader discussion of the ICC and selective justice.

One Could Call It a Start

All in all, the PPCP largely gives abstract agreeable principles but does not explain how the OTP uses these principles in practice. In addition, the OTP which follows the philosophy of pure procedural justice, cannot have a “correct or fair procedure”, when the procedure itself is unclear.

Hence, one must come to the conclusion that the criticism of the ICC exercising selective justice cannot be dismissed as an empty claim due to the lack of the highly desired transparency.

With the policy paper, the ICC and more specifically the OTP could have received the support of those who criticise its case selection process – maybe it would not be described as the International Caucasian Court or as “the toy of declining imperial powers” and its “selective justice” would not have been seen as something negative per se, but as something that is done based on objective and reasonable qualities and conditions. This lack of transparency keeps us wondering: Who is the OTP going to choose next, and why?