International Justice Monitor is asking international criminal justice experts to weigh in on pressing issues facing the ICC. The following commentary was written by Alex Whiting, a professor of practice at Harvard Law School who served from 2010-2013 as investigation coordinator and prosecution coordinator at the International Criminal Court. The views and opinions expressed here do not necessarily reflect the views and opinions of Harvard Law School or of the Open Society Justice Initiative.

The question at the International Criminal Court (ICC) is not whether victims should have a voice in the prosecutor’s investigation, but what kind of a voice they should have. At present, they already have a voice. The Rome Statute mandates that the prosecutor consider the interests of the victims during investigations and the prosecutor’s “Policy Paper on Victims’ Participation” embraces victim input during this phase. The question that has arisen in the Kenya case, however, is whether the victims should have a more formal role and should be able to appeal to the judges to influence or direct the investigation. Specifically, the victims in the Kenyatta case have asked the Pre-Trial Chamber to review and reverse the prosecutor’s decision to temporarily suspend active investigations in the Kenya situation due to Kenya’s lack of cooperation.

The law provides a clear answer, and that is that the victims have no such formal role in the investigation phase. The Appeals Chamber decided squarely in 2008 that victims have no right “to participate in the investigation,” and the Statute grants the victims no right to trigger a review of the prosecutor’s decision not to investigate in a particular case. So the law is clear, but is the law right?

Here I would say yes, without any doubt. It is essential that the investigative function remain solely under the prosecutor’s direction and that the right of the victims be limited to providing input, views and information, but not include the ability to drive or direct the investigation with the assistance of the judges. The prosecutor alone has the information, perspective, experience, and institutional competence to assess and advance investigations.

To maximize impact, make best use of limited resources, and protect the interests of potential suspects and accused persons, the prosecutor must assess the viability and value of investigations at every step of the way. To do this, she relies on an evaluation of all of the evidence and information that has been collected, much of which is confidential and may be available only to her. Experience in investigations allows her to look at what has been done, as well as the leads that remain, to determine where the investigation should go, the prospects of success, and whether it should even continue. A critical check on excessive prosecutorial zeal is the comparative nature of this analysis: the prosecutor must always consider whether resources for any one investigation are justified in light of the investigative demands of other cases. Finally, in theory, the prosecutor is objective and neutral: she has no stake in any one particular investigation succeeding over any other.

The victims, together with the pre-trial judges, have none of these attributes. When they assess an investigation, they look only at that one case, with a partial view of the available facts, and without the professional expertise in assessing investigations. The victims are quite understandably not neutral; they have a deep interest in advancing their case. Neither the victims nor the judges will be required or have the ability to consider whether resources should be spent on the one investigation that is their focus as opposed to other pending or potential investigations. The perspective of the victims is important and should be considered by the prosecutor, but allowing victims to make decisions about investigations, with the help of the judges, is a sure path to the inefficient and unwise use of resources as well as overzealous investigations.

In the United States we learned this precise lesson in a different context, and it is instructive. After Watergate, the Independent Counsel Statute was passed allowing for the appointment of an independent prosecutor in certain cases where official misconduct was alleged. The statute was challenged in court because it took an executive function, the investigation and prosecution of alleged crimes, out of the President’s control. In the case of Morrison v. Olson, the Supreme Court upheld the statute over the sole dissent of Justice Antonin Scalia. At the end of Scalia’s largely formalist opinion, he invoked the risks of putting an independent prosecutor in charge of a single case. Because that prosecutor has sight only on that one case, and is not checked by resource limitations created by the need to attend to other cases, she is incentivized to pursue her subject to the ends of the earth. On this point, Scalia quoted a brief filed by three former Attorneys General:

“[T]he institutional environment of the Independent Counsel – specifically, her isolation from the Executive Branch and the internal checks and balances it supplies – is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of pre-occupation with the pursuit of one alleged suspect to the exclusion of other interests.”

Years later, Justice Scalia’s fears were fully realized when Ken Starr was appointed to investigate President Clinton. In time, many came to believe that Starr was single-minded and overzealous in his pursuit of the president and had lost all sense of perspective and judgment in his investigation. As a result, the Independent Counsel statute was allowed to lapse and was not renewed by Congress.

The same dangers exist in allowing victims to influence investigations with the assistance of the judges. The victims seek justice for their case and their case alone, and have usually suffered indescribable losses. They simply cannot be dispassionate or objective in their approach to the investigation. The Rome Statute has created a careful balance by giving the prosecutor sole and overall responsibility over all of the investigations, and granting the judges the power to stop investigations but not to drive or direct them. Allowing the victims or the judges to have a greater role in advancing investigations would disrupt this balance.

Finally, it is essential that the prosecutor be as open and transparent as possible regarding her decisions, and to date she has done a remarkable job in this regard. During the preliminary examination phase of cases, she regularly publishes reports setting forth in detail the prosecutor’s view of the case, and when charges are put forward or withdrawn, she always provides a detailed rationale for her actions, as did the first ICC prosecutor. In addition, both ICC prosecutors have published policy papers explaining how critical decisions are made. Transparency is essential to protecting the interests of the victims, potential suspects, and other interested parties, and is critical to promoting the success of the court’s mission of ending impunity for international crimes.

There are limits to transparency, however. Investigative decisions are often nuanced and complex, representing the balancing of many different factors. While it is possible to disclose the core rationale, the prosecutor may be less able to reproduce all of the thinking and analysis that contributed to the decision. Further, there are other interests at stake, including the privacy of witnesses and the integrity of ongoing or future investigations. Thus the prosecutor cannot ordinarily simply disclose all of the details of her investigative steps and strategies, and it would not be in the court’s interests for her to do so. Given these limitations, the prosecutor should be credited for the degree of transparency she has provided across all of the cases.