The Office of the Prosecutor (OTP) is an independent organ of the Court. It is responsible for examining situations falling within the jurisdiction of the Court in which genocide, crimes against humanity, war crimes and aggression appear to have been committed, as well as for conducting investigations and prosecuting persons who are allegedly most responsible for these crimes. For the first time in history, the international community has empowered an international prosecutor with the authority to independently and impartially select situations for investigation in which particularly grave crimes have been committed or continue to be committed on the territory of states or by their citizens. Like the judges of the Court, the Prosecutor and the Deputy Prosecutors are elected by the Assembly of States Parties for a nine-year term without the right of re-election.
Who is part of the OTP?
The OTP employs about 380 dedicated staff members from more than 80 countries, including lawyers, investigators and analysts, psychosocial experts, specialists in diplomacy and international relations, public information and communication, and others.
Currently, the Prosecutor is Mr. Karim A.A. Khan, King's Counsel from the United Kingdom, and his deputies are Mr. Mame Mandiaye Niang (Senegal) and Nazhat Shameem Khan (Fiji).
How does the OTP begin its work?
Under Article 13 of the Rome Statute, there are three ways to exercise the jurisdiction of the International Criminal Court in cases where crimes falling within the ICC's jurisdiction appear to have been committed. In all three cases, the Prosecutor must conduct an independent and impartial assessment before deciding on further action.
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Any State Party to the Rome Statute may submit a request to the Prosecutor to conduct an investigation. The Prosecutor will initiate an investigation if the legal criteria are met.
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This happened in the Democratic Republic of the Congo, Uganda, the Central African Republic (in two cases), Mali, Palestine, Venezuela and Ukraine;
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The United Nations Security Council (UNSC) may also refer a case to the Prosecutor, who will open an investigation if the legal criteria are met.
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Finally, the Prosecutor may open an investigation on his or her own initiative. The Prosecutor may decide to open an investigation. If the Prosecutor decides to act, he or she must obtain legal authorization from the judges.
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This happened in Kenya, Côte d’Ivoire, Georgia, Burundi, Afghanistan, Bangladesh/Myanmar and the Philippines.
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A State that is not a party to the Statute may also consent to the exercise of jurisdiction on an ad hoc basis by submitting a declaration under article 12(3) of the Rome Statute. An ad hoc declaration is not the same as a referral, and it still requires the Court’s jurisdiction to be triggered, which may occur through a referral of the situation by one or more States Parties or through the Prosecutor seeking authorization from the judges.
The Court’s jurisdiction may extend to any crime within the jurisdiction of the Rome Statute committed on the territory or by nationals of a State Party. The same applies where a State that is not a party to the Statute submits a declaration to the Court.
The only exception to the above is the situation where the UN Security Council considers a situation under Chapter VII of the UN Charter, which may relate to any situations involving any State that is a UN member (including in respect of the territory of a State that is not a party to the Rome Statute).
Preliminary examinations
Any individual, group or State may submit to the OTP information about alleged crimes falling within the Court’s jurisdiction. To date, the OTP has received thousands of such communications, which may form the basis for the Office’s preliminary examinations.
Interested parties, including affected communities, civil society or State bodies, can easily and securely share information with the Office through a digital evidence submission platform called OTP Link: https://otplink.icc-cpi.int/
The Office conducts a preliminary examination to determine whether there are sufficient grounds to open an investigation.
In doing so, the OTP must assess and verify a number of legal criteria. These include, among others: whether the crimes were committed after 1 July 2002, the date of entry into force of the Rome Statute, the Court’s founding treaty; whether the crimes took place on the territory of a State Party or were committed by a national of a State Party (unless the situation was referred by the UN Security Council); whether they amount to war crimes, crimes against humanity or genocide; the gravity of those crimes; whether there are no genuine national investigations or prosecutions for the same crimes; and whether opening an investigation would not be contrary to the interests of justice and of the victims.
National authorities bear the primary responsibility for investigating and prosecuting those most responsible for mass crimes. The Court will initiate investigations in accordance with the legal criteria set out in the Rome Statute only if national authorities have failed to fulfil that primary duty and if no proper investigation has been conducted at the national level.
The Rome Statute does not set time limits for completing a preliminary examination. Depending on the facts and circumstances of each specific situation, the Prosecutor may take one of the following decisions: (i) to decline to open an investigation; (ii) to continue gathering information about the crimes and relevant national proceedings in order to decide; (iii) to open an investigation subject to the relevant judicial authorization.
Preliminary examinations also enable the OTP to urge national authorities to fulfil their primary duty to conduct national investigations and prosecutions. If the OTP decides that an investigation must be opened in accordance with the criteria of the Rome Statute, it will do so without hesitation. In taking decisions, the Office is never guided by political considerations.
Investigations
To conduct investigations, UNODC, as a rule, sends missions to the relevant countries, usually consisting of investigators, cooperation advisers and, where necessary, prosecutors. The missions collect and examine various types of evidence, and also interview various persons — from those who are the subject of the investigation to victims and witnesses. To carry out this activity, UNODC relies on the assistance and cooperation of States parties, international and regional organizations, as well as civil society.
In the process of collecting evidence, the Crime Division identifies the most serious crimes and the persons guilty of committing them. The Crime Division is obliged to collect both incriminating and exculpatory evidence in order to establish the truth in a specific situation. Exculpatory information will be provided to the defence within the framework of the judicial proceedings.
Once the Crime Division decides that it has sufficient evidence to prove in court that a specific person is guilty of committing a crime falling within the jurisdiction of the court, the Division will ask the judges to issue an arrest warrant or a summons to appear in court.
Filing an application for an arrest warrant or a summons to appear in court
On the basis of the evidence collected during the investigation, the Prosecutor's Office may send a request to the ICC judges asking them to issue an arrest warrant or a summons to appear in court.
Once the judges establish that there are grounds to believe that a person has committed a crime falling within the jurisdiction of the court, they will issue an arrest warrant to ensure the person's appearance in court, to guarantee that the person will not obstruct or pose a threat to the investigation or judicial proceedings, and also to prevent the further commission of a crime.
After an arrest warrant is issued, even in cases where the arrest is delayed, the warrant remains valid for life. After arrest, suspects are held in custody in the detention facility at the court.
Alternatively, the judges may issue a summons to appear in court if there are grounds to believe that a summons will be sufficient to ensure the person's appearance in court. Defendants who have received a summons to appear in court appear in court voluntarily and are not subject to arrest or detention at the court.
Prosecutions
Once a person in respect of whom an arrest warrant or a summons to appear in court has been issued is taken into custody or decides to appear in court voluntarily, the Prosecutor's Office must first convince the judges at the pre-trial stage that it has sufficient evidence to refer the case to court. At this stage, the judges must decide whether to confirm, dismiss or revise the charges brought by the Prosecutor's Office against the defendant.
If the judges confirm the charges, the case is referred to court. In court, the Prosecutor's Office presents its evidence first and bears the burden of proving the accused's guilt beyond all reasonable doubt.
The prosecution may present evidence in the form of documents, other physical objects or witness testimony. Prosecution witnesses are also questioned by the defence, and vice versa.
Within the framework of the judicial proceedings, the Prosecutor's Office discloses to the defence both incriminating and exculpatory information. The Prosecutor's Office is obliged to collect both in the course of the investigation in order to establish the truth in a specific situation.
After the Prosecutor's Office has presented all its evidence, it is the turn of the accused and his or her defence counsel to present their version of the defence.
The Terrorism Prevention Branch, in cooperation with the Sanela Diana Jenkins Human Rights Project at the UCLA School of Law, has launched the online forum "Human Rights and International Criminal Law", which promotes open discussion of complex issues of international criminal law faced by the Terrorism Prevention Branch. Please visit the forum at: ICCForum.com