On December 21, 2010, International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo issued a statement on the situation in Côte d’Ivoire (Ivory Coast). Ivory Coast is now steeped in violence following incumbent president Laurent Gbagbo’s refusal to hand over his office to Alassane Outtara, winner of November’s presidential elections. The situation has not escaped the attention of the United Nations, and was highlighted in a report from Kyung-wha Kang, the UN deputy high commissioner for human rights to a special session of the UN Human Rights council in Geneva. “Between December 16 and December 21, human rights officers have substantiated allegations of 173 killings, 90 instances of torture and ill treatment, 471 arrests and detentions, and 24 cases of enforced or involuntary disappearances,” reported Kang.
In making this statement, the Prosecutor has made a political by exerting pressure with the threat of possible ICC intervention. Ocampo promised that he would open an investigation should any “serious crimes” under the jurisdiction of the ICC be committed. The prosecutor specifically mentioned Charles Blé Goudé, a youth leader who has used incendiary language during daily-televised rallies, warning him of the possible consequences. Ocampo also warned that the UN would respond if its peacekeepers or forces were attacked, which has been a concern.
Ocampo continued by suggesting that African states can find a solution to the problem. But, failing that, “African states could be willing to refer the case to my Office and also provide forces to arrest those individuals who commit the crimes in Côte d’Ivoire.” This last statement appears to be encouraging the domestic institutions to handle the situation by threatening action if they elect not to. This goal falls under the prerogative of complementarity, a principle based on the idea that the ICC is a “court of last resort,” and will only initiate proceedings where domestic jurisdictions are unwilling or unable to investigate and prosecute crimes within the jurisdiction of the court.
This action speaks to the role of politics and persuasion that is, to a degree, an inevitable part of the Prosecutor’s work. While it appears that the Prosecutor’s statement is attempting to advance the call for complementarity and prevent crimes from being committed, States may question whether his chosen method in this instance was an appropriate one. In attempting to force Ivory Coast’s hand in this matter, the Office of the Prosecutor (OTP) is exerting a measure of political pressure. Given that Ivory Coast is not a party to the Rome Statute, the prosecutor would be required to open a case in this situation via ad hoc submission pursuant to Article 12(3) of the Rome Statute or Security Council referral, outlined in Article 13(b). The Prosecutor would likely contend that the ultimate goals, encouraging the intervention of domestic institutions and prevention of further violence, are within his authority. Conversely, it could be debated that the Prosecutor made no mention of whether the Ivory Coast is “unwilling and unable” to handle the matter domestically, a requirement set forth by the Rome Statute. This, combined with statements promising prosecutions prior to the initiation of formal investigations, could lead States Parties to the Rome Statute to question whether the Prosecutor is overstepping his boundaries.
Another concern is whether the Prosecutor’s actions could play against him in court should the OTP proceed with an investigation and eventual prosecution. Potentially, the accused could argue that the Prosecutor has taken a prejudicial stance regarding guilt prior to the initiation of the investigation. Given all of the existing political pressure on Ivory Coast, it is debatable whether potentially circumventing the rules and procedures of the ICC in exchange for additional political pressure advances the ICC’s cause. The Rome Statute does not specifically address this matter, so it is unclear whether the Prosecutor’s actions are an appropriate means to fulfill his duties and responsibilities. Additionally, in future instances, if the Prosecutor were to act in a similarly preemptive capacity, it is unclear how States Parties to the Rome Statute would react. Perhaps it would engender further complementarity, but it is conceivable that this would be another point of criticism for states such as Kenya, which has recently been reluctant to cooperate with the Court, to further question the ICC’s authority and be wary of its constant presence.
The OTP has taken a position to work towards complementarity and to discourage potential violence—both of which are primary goals of the ICC. But the means by which the OTP has acted to achieve these ends are political ones, leaving it vulnerable to further criticism and a continued lack of cooperation from various States.