“There is great mistrust of the International Criminal Court because of the lack of results”

The career of Spanish prosecutor Carlos Castresana, 63, spans four decades, half of which has been spent on international investigations. A pioneer in the fight against corruption in Spain, in the 1990s he managed to bring to justice Jesús Gil, the controversial property tycoon, president of Atlético de Madrid soccer club and later mayor of Marbella. He was also the driving force behind the trial against the Chilean dictator Augusto Pinochet and intervened, among other cases, in the prosecution of Guatemalan President Alfonso Portillo. He is currently working at Spain’s Audit Court and is a candidate, along with eight others, for the position of chief prosecutor at the International Criminal Court (ICC), based in The Hague. The decision on who will replace Fatou Bensouda, whose mandate ends on June 15, is expected in February.

The ICC “needs reforms, to be more agile, more efficient; in a certain way it has been a little engrossed in an experience that is a direct heir of the tribunals of the former Yugoslavia and Rwanda,” said Castresana in a telephone conversation from his home in Madrid. In his opinion, it is necessary for the court to incorporate 21st-century investigative tools. “Until now, accusations have been based mainly on testimonial and documentary evidence, when today’s technology offers much more efficient, cheap and fast evidentiary procedures,” he points out.

He also advocates setting up a network of cooperation with national prosecutors’ offices (which have the tools to tap phones or emails, block accounts or make arrests), and reorganising the ICC. “Fully 62% of staff [out of 300 prosecutors] come from Western Europe, Canada, Australia and New Zealand, compared to, for example, 17% from Africa. I think we need to bring experts from other countries to the court, and also get the Office of the Prosecutor (OTP) out of The Hague and into the territories where the problems are,” he argues. “Where it is materially impossible for security reasons, there must be field offices to bring the investigations closer to the victims, the facts and the evidence, and wherever possible there should be mixed teams of international and national investigators set up to build a lasting capacity in those territories,” which would result in greater protection for the victims.

We have to recover the spirit that justice is an indispensable element of international relations

So far 123 countries, or “two-thirds of the international community,” as Castresana stresses, have ratified the Rome Statute, which in 1998 gave rise to an International Criminal Court that has been judging genocide, war crimes, crimes against humanity and aggression since 2002 under the principle of universal justice. Among the states outside its jurisdiction are, on the one hand, those that signed the treaty but never ratified it, such as the United States, Russia, Israel, Iran and Syria, and, on the other, countries like China, India, Saudi Arabia and Turkey, which rejected their accession from the outset.

“There has been a North-South divide, and this dialogue in relation to the ICC is indispensable and must be restored”, he states. “At the same time, there has also been growing conflict with countries that are not States Parties,” he acknowledges. In one of the most striking cases, the administration of President Donald Trump has in recent years boycotted the court’s investigation into action by US troops in Afghanistan, and last June it issued an order to block the assets of the court’s employees and prevent them from entering US territory. Castresana says he hopes relations will change with the imminent arrival of Democrat Joe Biden at the White House, and recalls the collaboration with the first US governments following the creation of the court. “We need to get back to that scenario as soon as possible. We can, but we have to work hard”, he defends without going into detail, arguing that political negotiation is the responsibility of the Assembly of States Parties, the ICC’s governing body.

Castresana believes, however, that steps must be taken to attract some of the powers that remain outside the ICC’s reach. “We must avoid opening investigations in territories where jurisdiction is not clearly established, because that is a boomerang that ultimately has counterproductive effects. But at the same time, we must be very efficient in those territories and with regard to people over whom we do have jurisdiction. There have been very few convictions over the past years. If there were more, if we had a real deterrent capacity, we would be gaining the respect of those states that are not within the ICC, because right now there is a great deal of mistrust, not only because of the lack of results, but also because of the accusation, which is normally unfounded, that the court is overstepping its jurisdictional framework and investigating those who have not ratified the Statute,” he maintains.

Regarding the preliminary examinations to investigate crimes in Venezuela, the Philippines or Israel, the prosecutor prefers not to voice an opinion yet, but considers that there are too many fronts open, that resources are “insufficient,” and that such lengthy preliminary investigations are not sustainable. If he does take office, Castresana says he intends to review all files in six months and “prioritize” the cases most likely to succeed. He also plans to create a section dedicated to financial investigations and another one concentrating on telecommunications; he also wants a new focus on gender-based violence with new perspectives on issues that cut across many lines, such as trafficking in women.

“We have to recover the spirit that justice is an indispensable element of international relations,” he says, noting that his candidacy is a personal and professional challenge, but above all “an opportunity to contribute to recovering that spirit” that was present in the 1990s and which allowed, among other things, the Pinochet case to go ahead or the ICC itself to be born.