On the Independence of International Prosecutors

Richard J. Goldstone is a former Justice of the Constitutional Court of South Africa. He was the first Prosecutor of the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia.

David Bosco’s book Rough Justice contains an excellent survey of the first decade of the International Criminal Court (ICC) and, in particular, of the role played by its first Chief Prosecutor, Luis Moreno Ocampo. Ocampo’s sometimes active and sometimes passive role with regard to each of the nine situations presently before the Court are carefully and comprehensively described and analysed.

The central theme that runs throughout is the role of politics and especially major power politics with regard to the decisions taken by the prosecutor and its influence on the successes and failures of the Court. The development of that theme is set against the history of the international criminal tribunals that preceded the ICC.

In setting up the two UN ad hoc tribunals for the former Yugoslavia and Rwanda, the major Western powers, and especially the United States, played an indispensable role. As the cold war had ended and atrocities were again being perpetrated in Europe, in 1992 Russia and China were prepared to support an ad hoc war crimes tribunal under the auspices of the Security Council. When, soon after, Rwanda initiated a call for a similar tribunal in response to the genocide committed in its country in the middle of 1994, the Security Council could hardly refuse. Importantly, both of those tribunals were in no way inconsistent with the foreign policies of the P5 members of the Security Council.

The successes of the ad hoc tribunals and of the “hybrid” Special Court for Sierra Leone encouraged a number of less powerful nations, under the leadership of Canada, to call for a permanent international criminal court. They found it to be unacceptable that the final decision on whether to investigate atrocity crimes should be left to the Security Council subject to the veto power of the P5. The United States, China and Russia had some misgivings about such a court. They realised that it would operate outside their direct control. With the international courts established by the United Nations they were able to exercise a large measure of control over the jurisdiction, reach and powers of the court. They could not necessarily dictate policy to independent prosecutors and judges but they could certainly control their jurisdiction, resources and, to a large extent, the implementation of their orders and responses to their requests.

I feel more strongly than does Bosco about the extent to which international prosecutors have acted independently of the views of the major powers. He does refer to the actions of Ocampo in calling for an arrest warrant for President Omar al-Bashir of Sudan in the face of objections from all of the P5 members of the Security Council. However, he raises some doubts about the reasons for other decisions such as the decision by the ICTY prosecutor deciding not to investigate alleged NATO war crimes in Serbia during 2000; the ICTR prosecutor deciding not to investigate war crimes allegedly committed by the RPF during 1994 in Rwanda; and some of the investigations abandoned by Ocampo. I will respond briefly.

With regard to alleged war crimes committed by NATO during its bombing campaign in 2000, the Prosecutor (Carla del Ponte) accepted the advice given her by the ICTY’s chief international lawyer to the effect that the evidence available was not sufficient to justify a formal investigation. In particular he came to the conclusion that there was no basis upon which indictments could be issued against individual officials. The evidence was clear that the NATO leaders, political and military, were at pains to avoid, to the extent possible, targeting civilians. At worst, the allegations of civilian casualties were a consequence of negligence or errors of judgment. There was no evidence at all to suggest intentional targeting of civilians. In any event, war crimes that might nonetheless have been committed by NATO were substantially less grave than those that were being investigated by the ICTY against the Serb military. Serbia, under Slobodan Milosevic, had been conducting an egregious campaign of ethnic cleansing against the Albanian population of Kosovo. Even if, as Bosco, suggests, NATO was unwilling to furnish information to the prosecutor concerning its conduct, I would suggest that Del Ponte’s decision was a justifiable one.

The case of RPF crimes allegedly committed in Rwanda is a more complex and unhappy one. As Bosco points out, the allegations of crimes committed against civilians were serious and merited the attention of the prosecutor. While they were not committed with genocidal intent, some of them appear to have reached the level of crimes against humanity. At the time that the allegations emerged it must have been obvious to both Louise Arbour and Carla del Ponte that if an investigation had been launched, the Government of Rwanda would have severed its relationship with the ICTR. In that light, the choice would have been to proceed with the RPF investigation in the knowledge that the response from Rwanda would effectively have brought the life of the tribunal to a premature end. It could not have proceeded with trials without witnesses and evidence from Rwanda. The mission of the ICTR was to investigate the genocide committed in 1994. I would suggest that the prosecutor was justified in abandoning the RPF investigation in order to enable her to continue with the primary mission of the ICTR. That this was not stated openly is a matter for regret.

With regard to the record of the prosecutions initiated by Ocampo, Bosco’s conclusion reads as follows:

“There is no “smoking gun” evidence that the prosecutor has made these choices because of perceived major-power preferences or out of a desire to avoid entanglement with them. There are plausible nonpolitical arguments against investigations in each of these cases. Because the prosecutor has only infrequently explained a decision not to open an investigation, moreover, there is little documentary evidence to assess. But the overall pattern strongly suggests that the prosecutor’s office has, to this point, used its discretion on where to open investigations strategically.”

That prosecutors take into account the support that one or other investigation and prosecution will receive from relevant governments seems to me to be obvious. It would indeed be folly to leave that out of account. There are many issues and considerations that dictate whether this or that investigation is appropriate. They include the gravity of the alleged crimes, the evidence available or likely to become available, the official position of the alleged perpetrators and the time, effort and expense of the investigation and prosecution. There are others. One is certainly the prospect of cooperation from relevant governments. It is in this respect that the United States is of particular importance. The intelligence information that it furnished to the prosecutor of the ICTY is well known.

In conclusion, the success of any international court will depend upon its independence and especially from the great powers. It was primarily for that reason that the ICC was established. The selection of its judges and their actual and perceived independence are crucial and no less that of the prosecutor. It is in this context that the issues raised and objectively analysed by Bosco are so important.