The Office of the Prosecutor is one of the four organs of the International Criminal Court. It is headed by the Prosecutor, who is elected by the Assembly of States Parties and has full authority over the management and the administration of the Office, including the staff, facilities and other resources of the Office. The Prosecutor is
Mr. Luis Moreno-Ocampo who took office on 16 June 2003 by pledging his solemn undertaking as required by article 45 of the Rome Statute.
Mrs. Fatou Bensouda (Prosecutions) was elected Deputy Prosecutor by The Assembly of States Parties on the 8th of September 2004, following the publication of a call for applications or nominations of candidates to that post.
The mandate of the Office is to conduct investigations and prosecutions of crimes that fall within the jurisdiction of the Court, that is, the crime of genocide, crimes against humanity and war crimes. At a later stage, once the States Parties have agreed to a definition of the crime of aggression, the Office will be empowered to investigate and prosecute this crime.
By conducting investigations and prosecutions, the Office contributes to the overall objective of the Court – to end impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, and thus to contribute to the prevention of such crimes.
The Prosecutor may start an investigation upon referral of situations in which there is a reasonable basis to believe that crimes have been or are being committed. Such referrals must be made by a State Party or the Security Council of the United Nations, acting to address a threat to international peace and security. In accordance with the Statute and the Rules of Procedure and Evidence, the Prosecutor must evaluate the material submitted to him before making the decision on whether to proceed.
In addition to State Party and Security Council referrals, the Prosecutor may also receive information on crimes within the jurisdiction of the Court provided by other sources, such as individuals or non-governmental organisations. The Prosecutor conducts a preliminary examination of this information in every case. If the Prosecutor then decides that there is a reasonable basis to proceed with an investigation, he will request the Pre-Trial Chamber to authorise an investigation.
As a consequence of its mandate, the Office of the Prosecutor comprises three divisions. The Investigation Division is responsible for the conduct of investigations (such as collecting and examining evidence, questioning persons being investigated as well as victims and witnesses). In this respect, the Statute requires the Office to extend the investigation to cover both incriminating and exonerating facts in order to establish the truth. The Prosecution Division has a role in the investigative process, but will have principal responsibility for the litigation of cases before the various Chambers of the Court. The Jurisdiction, Complementarity and Cooperation Division (JCCD) analyses referrals and communications, with support from the Investigation Division, and helps secure the cooperation needed for the activities of the Office. The JCCD is led by Mrs. Silvia Fernandez de Gurmendi.
The principle of complementarity
The Preamble of the Rome Statute recognises that the Court itself is but a last resort for bringing justice to the victims of genocide, war crimes, and crimes against humanity. It therefore calls upon all States to take measures at the national level and enhance international co-operation to put an end to impunity, and reminds States of their duty to exercise criminal jurisdiction over those responsible for such crimes. Thus, the Rome Statute assigns the Court a role that is complementary to national systems.
Emphasising the primary responsibility of States to investigate and prosecute international crimes, the Statute provides that a case is inadmissible before the Court where the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Prosecutor is obliged to consider this requirement of the Statute when deciding whether or not to start an investigation.
The Rome Statute provides that the Office of the Prosecutor shall act independently. Consequently, a member of the Office of the Prosecutor must not seek or act on instructions from any external source, such as States, international organisations, NGOs or individuals.