November 11, 2011

How Best to Assure the Independence of the ICC Prosecutor?



The independence of the Court as a whole and of the Prosecution in particular, is the cornerstone of the system of justice established by the Rome Statute. By establishing the proprio motu powers of the Prosecutor to open an investigation subject to judicial review, the Rome Statute created a new autonomous actor in the international scene.  The hope was to ensure that the requirements of justice would prevail over political decisions in accordance with the rule of law.

The Rome drafters sought to make sure that the Court’s intervention, including decisions to indict and prosecute, would be based on legal, not political, criteria. To this end, the Rome Statute authorizes the Prosecutor to identify situations to be investigated in accordance with the legal requisites established by Article 53, subject only to the oversight of the ICC’s judges. In an effort to guarantee prosecutorial independence, Article 42 of the Statute further stipulates that the entire Office of the Prosecutor shall act independently as a separate organ of the Court and that the members of that Office shall not be subject to instruction from external sources.

The Assembly of States Parties (ASP) has recognized the significance of maintaining prosecutorial independence.  At its last session, it stressed its respect “for the judicial independence of the Court and its commitment to ensuring respect for and the implementation of its judicial decisions.”*

The Office’s independence is an important contributor to the legitimacy of the Court as a whole.  Some of the Prosecutor’s and the Court’s decisions have created tensions or confronted certain political agendas, most notably in the case against Sudanese President Al Bashir. The Prosecutor and Court decisions generally have been supported by States and relevant actors.  But challenges to the Office’s independence remain.

It is evident that the Court’s and the Prosecutor’s vaulted independence can be jeopardized indirectly, as through the denial of resources, mismanagement, or even efforts to impose oversight.

In its session in December 2011, the Assembly of States Parties selected a new Prosecutor and defined aspects of the institutional framework of the Court, including oversight mechanisms.  The IILJ at NYU School of Law convened an expert meeting to discuss theses issues and their relevance to the independence of the Court and Prosecutor’s Office.


Professor José Alvarez


ICC Prosecutor Luis Moreno-Ocampo on the experience of the first Prosecutor
Professor Hector Olasolo, Professor of International Criminal Law and Procedure Utrecht University, Chairman of the Iberoamerican Institute of the Hague for Peace, Human Rights and International Justice (IHH) on the relations between the ASP, the subsidiary bodies and the Court
Ambassador Christian Wenaweser on the role of the President of the ASP vis-à-vis the ICC Prosecutor