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contribution 03 - ARBIA Silvana

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Whom to prosecute?

Silvana ARBIA

transtlated version

Thank you very much. It is not dealing with training per se, but it is about the need to put a link between investigations and the prosecution. At the beginning of our work as a Prosecutor, we had to deal with the simultaneous work of the investigator and the prosecutor who was in charge of preparing the case.
The investigator will collect the material and prepare the file, but it was not linked with the Prosecution strategy, I mean the case as would be presented in court. As we began together with Mrs Del Ponte, she was the chief Prosecutor, we thought to give an additional duty to the senior trial attorney, that is, to lead the investigations and to guide the investigators in order to prepare the evidence for the trial.

As James said, it did a big change. Because the investigator is not necessarily an expert in international criminal law. For matters of genocide, there is specific evidence to sort, given that it needs to prove the special intention. And on that note, it was a very positive experience.

Training is important for all investigators, in general. To that I may add the experience of the ICC which came after the ICTR.
At the ICC, there is a list of trained invesigators for the Defence team, which may help. I have noted that the investigation can determine the outcome of a case. That’s what I can say about training.

Now, I would like to add a comment on politics. As you are aware, the challenges of international prosecution, - especially in the ICTR, I do not know if it is the same for the ICTY - relate to the competing nature of the job of the Prosecutor in regard of the national level. The international Prosecutor competes with the national Prosecutor. There are situations where the national Prosecutor, or the examining magistrate, as applicable, could be well advanced in his investigation. It could influence the choice of the international Prosecutor: which will be the priority? Can the international Prosecutor invoke the primacy of his jurisdiction and confirm the investigation that has been already been carried out by a Prosecutor from a national level? Does he need to let the case to a national judge? That may also determine the policy of an international Prosecutor, as he is not alone like a national Prosecutor would be.

How does the Prosecutor start his work at international level? Despite this competition, it works like at the national level: information that he can find in the official reports. First of all, there is no investigation but the definition of certain events that can influence the choice of the Prosecutor regarding the priority for one or another investigation. Regarding the ICTR, Rwanda had already conducted a lot of investigations. There was a long list of suspects that the international Prosecutor could examine and that could actually determine the choice to prosecute some persons.

An other point which is really important at the international level relates to the political undertones of an investigation or of a prosecution. For instance, do you need to draft a confidential or a public indictment? Should an arrest be a matter of a confidential or public request? I think that aspect is very interesting, as we always have to think about the consequences on the victims or political consequences, and clearly there is a very sensitive strategy, very sensitive choices to make at the international level.


Is anybody else willing to discuss Prosecution matters, namely, the matters that have been raised by Mrs Arbia? In your statement there are two issues that came up. Can the International Criminal Court exercise its primacy? If so, how?
And when you have competing jurisdictions, like in Rwanda, how are tasks shared out between the international courts and the national courts? How did you address that issue?

Silvana ARBIA

It is not a problem that can be solved by once. You know, investigations can start or triggered by a complaint, or you can have an official UN report, or you can have a report of a Commission of Enquiry. And after receiving such, a decision is made on a case by case basis to determine whether that falls under the jurisdiction of the international Tribunal, because the mandate of the international court is based on certain conditions. What would be my choice, before all, I will have to determine the case at hand and check if the evidence is compelling, if the facts are serious enough and the case complete enough to warrant prosecution by the international court.


If I understand you properly, you have said that it is based on a case by case basis. It is quite understandable but that choice is guided by factual matters, namely, the gravity of the case and the available evidence. But don’t you have an alternative approach in respect of the position of the person involved?

Silvana ARBIA

Certainly. I have referred to the mandate of the International Criminal Court which requires the Court to handle the more serious cases and the gravity is not an easy criterion to determine. It can be based in respect of victims, in respect of the gravity of the crimes, in respect also of the authority wielded by the perpetrator. You have several criteria which would warrant the jurisdiction of the court to be exercised.


In the forms that were handed out this morning, there were some questions that relate to what you have said, and they also come to supplement your statement. This morning the term a "big fish" was used. What is a "big fish" to the International Criminal Court? What is the criterion used? This issue of a "big fish" appeared also at the ICTY. So, which are the criteria to determine that the case is about a “big fish”?

Mr Othman, I think you raised that question in your memo.