ICC prosecutor to review all his cases
Investigations with no realistic prospect of conviction will be dropped
The prosecutor of the International Criminal Court has confirmed that he will review all the cases in the court’s docket before deciding whether they should go ahead. Karim Khan QC was speaking in The Hague this afternoon at the first news conference he has given since his appointment earlier this year.
Khan said a “degree of realism” was needed about the caseload he had inherited. His office is currently investigating 16 cases. A further 11 cases are at the preliminary examination stage. Each case could potentially lead to to the prosecution of several individuals.
Asked by a reporter about what the court calls the situation in Palestine — one of the cases under investigation — Khan said that was a matter his office was reviewing along with its other priorities and issues. “And it requires, of course, some considerable thought and assessment as we move forward.”
I then asked the prosecutor whether that particular investigation might be terminated before anyone was charged. Indeed, would he now be reviewing all cases under investigation or preliminary examination? This was his reply:
I think if I answer your question directly in the way that maybe it was presented, it would give a wrong indication in terms of a headline.
It is correct — and I think it was to be expected and indeed [it is] incumbent upon me to seek to review all the cases, situations, preliminary examinations that are in the court’s docket.
That doesn’t mean that there’s any predetermination. But, of course, I will only go forward in cases that have a realistic prospect of conviction.
I’ve already asked, in terms of the cases that are before the court, for the senior trial attorney to attest in writing, to me, their judgement that there is a realistic prospect of conviction.
Khan said he had instructed his staff that this standard — the test used by the Crown Prosecution Service in England and Wales, where he worked for three years — had to be adopted “even before any arrest warrant application is made or any request for a summons is issued”.
Generally speaking, he continued, evidence didn’t get any better after that stage:
And there’s a whole variety of reasons why the evidence gets can be eroded or be challenged, because of extraneous circumstances… But of course, there may also be situations where there is evidence; and then we have to prioritise…
In the criminal sphere, any investigator, any police officer, and certainly any lawyer should keep the evidence under continuous review. And I will try to ensure that there are processes to make sure that is the case.
You don’t just fire and forget. One must make sure that one constantly has one’s finger on the pulse. And this change of organisation — in terms of the two deputy prosecutors and the new systems I’m trying to put into place — hopefully will increase the quality control to make sure we go forward on cases that have a solid legal and evidential foundation.
Khan’s comments are no more than you would expect from any competent prosecutor. But his two predecessors were reluctant to abandon any case once a formal investigation had begun.
He made it very clear that the prosecutor’s office had spread itself too thinly in the past. It was wrong to raise expectations, only for them to come crashing to earth. It was essential, Khan said, to concentrate the court’s limited resources on investigating and prosecuting the most serious crimes.
It follows that some cases currently under investigation may not proceed.
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Better still, as the festive season is upon us:
This is interesting. Of course, by normal prosecutorial standards, Karim Khan is absolutely right. Those accused of crime should not be subject to long drawn-out proceedings if the chances of conviction have diminished.
But his decision will disappoint many. For those who feel they have suffered at the hands of high-level political actors, even declaration of an intent to prosecute can feel like a step towards justice. It signals the ‘end to impunity’, a slogan that captured the imagination of millions in Kenya, when the ICC prosecutor declared his intent to charge those accused of inciting violence during the 2007 elections. Even if the cases were later dropped, the very fact that the ICC had taken them seriously was a signal that the world had noticed.
The ICC is no normal court. It’s role is, above all, symbolic. Successful prosecutions are hardly likely to deter future crimes, but they do make statements about justice. And for many people, so, too, does the mere fact of prosecution.
But whether any of this should affect prosecutorial decisions is a very difficult question.