Benjamin Nutt joins JiC for this guest-post which critically explores issues of selectivity at the International Criminal Court (ICC). Benjamin is an Associate Lecturer in Politics and International Relations at Plymouth University. He has recently completed his PhD, titled: ‘A Search for Justice: An Analysis of Purpose, Procedure and Stakeholder Practice at the International Criminal Court‘.

From ‘victors’ justice’ at Nuremberg and Tokyo to the alleged ‘anti-Serbian bias’ at the International Criminal Tribunal for the former Yugoslavia (ICTY), allegations of unfair selectivity have long shrouded the search for international criminal justice. The International Criminal Court (ICC) is no exception. Whether it be an ‘African bias’ or a focus against rebel leaders and deposed politicians, claims of unfair selectivity by the Office of the Prosecutor (OTP), and subsequently the ICC, are as vociferously purported by the Court’s opponents as they are rebuked by its supporters. It is this binary division that signifies how this debate surrounding the OTP’s practice is framed. By criticising and defending the OTP’s actions in the context of selectivity, selectivity has manifested itself as an issue in itself and something to be avoided, thus creating the impression that universalism in terms of where and who is targeted by the OTP is not only possible but also desirable and synonymous with justice. It is not that simple and it is important to recognise that transactions of justice are, by their nature, inherently and inevitably selective.

Justice transactions involve choosing, or selecting, between competing claims for resources and entitlement. Furthermore, there is often no correct or perfect approach. Different theories or conceptions of justice offer different outcomes and solutions. This reality is demonstrated by Amartya Sen’s ‘flute analogy’, in which three children stake competing claims to a flute. Each of the children’s claim to the flute is championed by a different theory of justice and Sen notes that — absent the possibility of chopping the flute in three and thus rendering it useless — there is no realistic, workable outcome that could reconcile all the children’s claims simultaneously. The point here is that notions of justice are selective by nature. In the context of the ICC, this is particularly relevant as the OTP is selective by design. The OTP has a mandate to be selective, driven by the concepts of complementarity and gravity. In other words, the most pertinent question regarding the OTP’s practice is not if it is selective but how it is selective.

Instead of focusing on selectivity as a primary issue within OTP practice, the debate should be reframed so that consistency and transparency become the chief focus. Consistency and transparency are central elements of just decision-making, underpinning both the processes through which decisions are made and the outcomes they produce. But, of these factors, consistency and transparency of outcomes ranks as the most important with regards to the OTP’s, and subsequently the ICC’s, credibility and legitimacy because, as the most visible component of any justice transaction, outcomes are most vulnerable to criticism.

When analysing the OTP’s actions, it is important to note that the ICC Prosecutor is mandated to investigate and prosecute those individuals responsible for atrocities from the most severe situations and that historically international criminal justice processes have been reserved for situations with high mortality rates. However, concerns could plausibly be raised regarding the seeming inconsistency in the gravity of the situations currently under Full Investigation by the OTP, particularly when gravity is measured quantitatively (in terms of the scale of the crimes committed) and viewed as synonymous with a situation’s death-toll (or a ‘litres of blood’ measurement). For example, there appears to be a large inconsistency between the death-toll statistics for the Democratic Republic of Congo (DRC), Uganda and Darfur situations, all of which are extremely high (hundreds of thousands), and those of Kenya, Central African Republic and Burundi, which are noticeably lower in comparison (a few hundred). These are realities that perhaps serve to highlight inconsistencies in the OTP’s selection criteria and/or practice.

Likewise, concerns could also be raised regarding the apparent inconsistency in the length of time situations have spent at the Preliminary Examination stage (particularly those arising from proprio motu referrals). For instance, there is a noticeable disparity between the time taken to complete the Kenya, Korea and Venezuela examinations and that taken over the Colombia, Afghanistan, Nigeria and Georgia examinations, with the latter situations taking astronomically longer. In fact, although relating to self, and not proprio motu referrals, on 30 November 2006, Pre-Trial Chamber III requested information as to why the CAR I situation had spent much longer under Preliminary Examination than the DRC and Ugandan situations, stating that a Preliminary Examination should be “completed within a reasonable time… regardless of its complexity”. This again brings the consistency of the OTP’s practice into question.

It is fair to say though, that measuring the consistency of ICC situations in terms of death-toll or the length of the Preliminary Examinations is not fool-proof. Students of the ICC would rightly point to a number of political and legal obstacles to consistent action. For example, the gravity of ICC situations are not only measured in accordance with the mortality rates they produce. Instead, qualitative aspects, such as the nature, manner and impact, of the crimes are considered alongside the quantitative scale factor. Similarly, there is no formal criteria for how long Preliminary Examinations should take. They are complex, time-consuming legal processes. Finally, the political context and realities of each situation are unique and some are more complex than others. However, these technical vagaries, identified as obstructions to the attainment of pure consistency, may be lost on non-specialist audiences concerned with the OTP’s practice, an observation that is compounded by the lack of transparency surrounding how the Office operates and why its decisions are made.

Acknowledging that the Court’s opponents will always find reason to criticise its operations, the only way that the OTP, and subsequently the ICC, can attempt to guard itself from avoidable, disingenuous, or unnecessary criticisms, is to ensure that it acts with the greatest degree of transparency possible. Developments under Fatou Bensouda have attempted to make the OTP’s processes, including the selection process, more transparent. This is a welcome development for observers of the ICC. However, transparency of outcomes remains an issue, with the reasons behind certain OTP decisions sometimes unclear to, or even hidden from, both specialist and general audiences.

Both the ICC and those concerned with its practice would benefit from clear and accessible information about the processes and, more importantly, outcomes of the OTP’s decision-making. Of course, data protection, evidence confidentiality, and national security issues may, at times, hamper the quest for specific transparency. However, detail is not always what is important. Sometimes simple explanations or summaries of the information upon which decisions were made could help alleviate concerns and nullify criticisms. Moreover, transparency serves a broader purpose because it breeds consistency by prioritising the adoption of formal policies that can help standardise not only OTP processes but also the outcomes they produce. Transparency is thus key because it not only helps the OTP, and ICC more broadly, defend their actions but it also establishes a solid-base from which to challenge their doubters. 

The search for international criminal justice has always and will forever be selective. But, this inevitable and unavoidable selectivity does not need to be self-defeating. Better transparency and greater consistency with the OTP’s decision-making would make the ICC’s selectivity something that could be understood and debated rather than viewed with hostility, suspicion or disdain.