This post, by Elizabeth Evenson and the team at HRW concludes our joint symposium with EJIL:Talk! on the impact of the ICC on national justice. Their opening post is available here. Thanks for tuning in!
Many thanks to the editors and the contributors for making this online symposium possible. Our primary goal with Pressure Point was to identify whether and how the Office of the Prosecutor at the ICC could become more effective in pursuing its policy goal of encouraging national prosecutions through engagement at the preliminary examination stage.
But we also hoped that Pressure Pointcould play a role in bringing broader awareness about this dimension of the prosecutor’s work, and to stimulate others to consider how they might be able to contribute to efforts to spur national prosecutions as part of expanding the reach of justice. In this response, we address some key areas of agreement among the contributors while also addressing some differences in perspective or conclusions.
As we make clear in the report and as Emeric also emphasizes, pursuing national prosecutions is only a secondary goal of preliminary examinations, which primarily are focused on determining whether the ICC should exercise jurisdiction. When it comes to how the prosecutor should approach those determinations, it is clear there are a number of important considerations that go far beyond our report’s focus on positive complementarity. Carsten Stahn’s contribution here impressively covers that vast terrain, and brings in additional voices from the recently published Quality Control in Preliminary Examinationsto set out a number of areas where further consideration is helpful.
We also acknowledge in the report that catalyzing national prosecutions will not be a policy goal that the prosecutor does or should pursue in all situations. The prosecutor was not actively seeking to catalyze national proceedings in the UK, and only to a limited extent in Georgia. We included these case studies in our final report to assess the extent to which conducting preliminary examinations may have passive effects on encouraging national prosecutions even without an active strategy.
When it does come to actively encouraging national prosecutions, Paolina’s piece helpfully distills from past practices by the prosecutor’s office a clear and precise “tool kit” for the prosecutor, highlighting additional examples from other case studies beyond those in our report. She helps to bring additional content to what Camilo describes as the acupuncture needles the prosecutor can use to stimulate national processes, a very apt metaphor for the strategic, informed approach our case studies suggest is essential.
Emeric’s piece queries the extent to which the prosecutor really can or should adopt what he describes as NGO or UN-like advocacy strategies, which we assume includes public statements at strategic moments. He also questions how prescriptive it can be in identifying steps national authorities should take, noting that the prosecutor cannot provide instructions or deadlines.
Our recommendations seek to push the prosecutor in these directions, although we agree that it is not about demanding action as the term “instruction” might suggest, but rather benchmarking, publicly if possible, expected investigative steps. Public benchmarks can also help make the prosecutor’s work more accessible and credible with affected communities. The prosecutor has used these tools, including benchmarks, with particular effect in Guinea. Indeed, our recommendations are really rooted in encouraging the Office of the Prosecutor to be as effective as possible in making use of the tools at its disposal.
Paolina’s tool kit also brings to mind the EU’s tool kit on complementarity, a policy document adopted in 2012 and designed to provide guidance to support national prosecutions of international crimes. As we note, , some of the momentum on positive complementarity has been lost, without adequately considering the role of various actors, including the prosecutor, other court organs, civil society, national governments, the ICC’s Assembly of States Parties, UN agencies and other rule-of-law donors. If the prosecutor is to make the most of its leverage in some situations, it will need stronger alliances and partners.
This ties in to a point Camilo makes—that we have overemphasized domestic political will to the exclusion of a more multidimensional examination of the role of nongovernmental groups, international pressure, judicial leadership, among other factors. We did seek to a holistic approach, recognizing that the prosecutor would be only one actor among many—and we mapped out the roles of political and judicial government entities, civil society, the media, and international partners, independently and as they interacted with other key players. In Colombia, for example, we looked at the prosecutor’s influence on prosecutorial strategies, in addition to political will and discussed several reasons—including, among others, the peace process—that affected the will to move forward.
Marieke, Thomas and Carsten point in different ways to the prosecutor’s limited resources as a constraining factor. We noted these limits too, particularly when it comes to deepening engagement and the need for frequent visits to countries under preliminary examination—a step that seems vital to tailoring its approaches appropriately. We also noted that it may be necessary to shift resources to reach an earlier determination as to whether there are potential ICC cases, given that this determination opens the door to more tailored engagement with national authorities on complementarity. While that engagement on complementarity may prolong the overall duration of preliminary examinations, we believe this earlier phase can be expedited, assuming adequate resources to support the necessary assessment.
A more significant area of disagreement with other contributors—particularly Camilo and Emeric—lies in our conclusions with regard to Colombia.
Camilo questions our decision to focus on false positives—just one of several aspects of the prosecutor’s preliminary examination), citing the damage done to perceptions of the ICC’s impartiality where it has pursued cases against only one party where other parties are also alleged to have committed international crimes in a given conflict or situation. . We couldn’t agree more, and our 2011 report Unfinished Businessmakes this point. Our exclusive focus on false positives is not meant as a prescription for ICC investigations. Rather, as we explain (page 26), given the breadth of the crimes allegedly committed in Colombia, the scope of relevant domestic proceedings, the prosecutor’s long preliminary examination there, and that justice for these killings has been a specific focus of Human Rights Watch work since 2011, we limited our analysis to the issue of “false positive” killings.
Camilo also questions our choice not to examine the impact of the prosecutor’s engagement on the peace accord, and Emeric points to recent developments before the Special Jurisdiction for Peace. But as we explained in our report, (page 27), we considered that with the Special Jurisdiction for Peace not yet operational, it would be premature to draw conclusions. The peace accord was still being negotiated when the bulk of our research for the Colombia chapter was carried out. The recent developments cited in Emeric’s piece are preliminary hearings.
Both contributors suggest that—perhaps as a result of these choices—we have underestimated the prosecutor’s impact. We acknowledged in the report that the prosecutor’s engagement has been an important factor in keeping the need for accountability in these cases on the radar screen. It has had a positive effect on the development of relevant prosecutorial strategies in Colombia, and countered at least one legislative proposal that might have undermined prosecutions.
But the prosecutor’s engagement had not been sufficient to decisively overcome resistance to prosecuting the kinds of cases that would otherwise come before the ICC—that is, cases against those most responsible for what has been one of the worst episodes of mass atrocity carried out in South America in recent times.
While we cannot say whether different approaches by the prosecutor would had led to more results given the objective challenge, our research turned up several opportunities for the prosecutor to apply additional pressure. As we noted,the Office’s increasingly clearer messaging over the course of 2017 and continuing in 2018, including the first visit of the current prosecutor, Fatou Bensouda, to Bogota are welcome developments.
Carsten and Marieke raise tough questions regarding whether our recommendations for more transparency in ICC preliminary examinations are on track. We expected that positive complementarity would benefit from greater transparency in preliminary examinations, for example, by clearly and publicly benchmarking the court’s expectations through the media.
But the UK case study suggested that depending on the media landscape—and the prosecutor’s ability to navigate that landscape—it could be counterproductive. What may have been necessary in the UK first was more basic public information efforts to increase awareness about the ICC. Our recommendations reflect this, calling for strategic engagement with the media. Getting this balance right may be different in each situation.
Finally, and most fundamentally, Thomas, Carsten, and Marieke ask to what extent “positive complementarity” ought to be considered an achievable or even desirable goal.
Marieke notes that it has yet to yield results and cites a number of uphill challenges for the court, including the risk we also cite—and Emeric acknowledges—of manipulation by national authorities to project progress on accountability that never actually materializes. Marieke also considers our approach to be too narrow—advocating criminal justice at the expense of victims’ other priorities, like reparations. Our advocacy for justice for atrocity crimes is embedded in a broader set of human rights goals, and debate about how those goals fit together is better left to another day. At the very least, the ICC should not lose sight of victims and affected communities as its key constituency. And Thomas and Carsten also suggest a danger in positive complementarity by encouraging domestic responses that are designed to satisfy the ICC rather than substantively advancing justice, with Carsten describing our findings as a “call of caution.”
Indeed, our conclusion is that there is significant room for caution. Developments since we published our report in the two case studies in which the prosecutor is actively pursuing complementarity—Colombia and Georgia—remain mixed. In Colombia, a series of legislative proposals—some adopted but still subject to judicial review—have raised serious concerns as to whether false positive cases against high-ranking officials will see the light of day.
In Guinea, though a steering committee was formed to oversee organizing the trial in early 2018, it only met twice in its first six months. Yet, in October—coinciding with a visit of ICC staff, and in the wake of a surge of advocacy around the September 28, 2009 massacre anniversary by local and international groups, including Human Rights Watch—the committee met and set a trial location and general budget. Time will tell if these more recent positive steps signal a trial is in fact on the way.
We remain convinced that it is necessary to make the most of whatever leverage the prosecutor may have with national authorities. This is necessary to build out opportunities for victims to get justice, beyond what the ICC itself can or should provide, especially since some countries stubbornly refuse to provide the ICC with the resources it needs. The prosecutor’s capacity to build on its efforts, including through strategic alliances with other partners, is key to realizing further gains.