David M. Crane joins JiC for this second post in our ongoing joint symposium with Opinio Juris on the next ICC Prosecutor. Crane was the Chief Prosecutor of the Special Court for Sierra Leone from 2002 until 2005.
I have had the rare privilege of being one of four individuals to actually found an international tribunal, literally from the ground up, and manage it to success. The international war crimes for West Africa, called the Special Court for Sierra Leone, has been taunted as one of the more successful tribunals in modern history. Why is this so? Like the tribunals for Yugoslavia and Rwanda, each was created by the United Nations with the intent to seek justice of victims of atrocity crimes, yet the Special Court for Sierra Leone stands out from the other two as being more effective and efficient.
There are several reasons—a workable mandate (greatest responsibility), the proper location (at the scene of the crimes in Sierra Leone), a strategic plan along with a prosecution plan. Stated simply the Special Court was better led and managed across the board. Additionally, as a hybrid international tribunal, the Special Court was “of the UN”, not “in the UN”. Therefore the byzantine administrative and personnel rules that is so much of the UN management system did not apply to us. The UN is simply incapable of administering international justice in an effective and efficient manner. Because the Special Court was not tied to these archaic management principles we were able to move fast, with less cost, with a lean dedicated team of people not focused on a UN career (where initiative can be frowned on) but on seeking justice for victims of international crimes. Alas, the International Criminal Court has become somewhat a clone of the UN—more form over substance. I say this with regret.
A successful Chief Prosecutor has to be a diplomat, a politician, someone who can lead and manage effectively, as well as know the law. If one of these attributes is missing it can become a problem. When I founded the Special Court, I did it with decades of diplomatic and political experience. All this came naturally to me and I used it effectively in West Africa. Additionally, I had been leading and managing organizations in the US federal government for three decades. I knew how to be a leader and manager. I was known in the US federal government as someone who could create and manage new organizations to success, to include an office that oversaw a vast majority of the US intelligence community. The then Secretary of State Colin Powell nominated me for the post of Chief Prosecutor based on this fact that I could lead and manage. As a successful leader himself this was of paramount importance to him. It was assumed that I was a good lawyer.
Internationally, there tends to be too much emphasis placed on being a good lawyer and no focus on leading and managing. Large new enterprises and organizations need to have someone that inspires, focuses the team, builds a sense of pride and purpose, all around a centralized theme of seeking justice for victims of horrific crimes. This is done by putting together a strategic plan. This plan is the sheet of music from which all the players follow to accomplish the mandate which in the case of the Special Court was “prosecute those who bear the greatest responsibility for war crimes, crimes against humanity, and other serious violations of international humanitarian law.” That is why we were there.
A strategic plan centers the team on what they are doing on a daily, weekly, and monthly basis, why they are there, and what their job is to advance the plan in seeking justice. Everyone knows the plan and works the strategic plan. The Special Court was unique of all the major tribunals for this. It simply had a plan and it worked the plan until it was finished. The Special Court was the last tribunal to start and the first to finish with great success. It was the strategic plan that made the difference, which the other tribunals simply lacked.
Another important part of an effective and efficient tribunal is an overall prosecution plan. Taking the mandate as well as the extant facts and law, a good prosecutor builds a plan on who to prosecute, how to prosecute, when to prosecute, and why to prosecute. This plan is part of the strategic plan, but it allows an Office of the Prosecutor to come to work every morning knowing exactly why they are doing something at any one given time.
A prosecution plan allows then for appropriate budgetary planning and administrative build up. It’s a “plug and play concept”. You bring on assets as you need them. You build and office around the mandate not build the mandate around the office. This allows for efficient use of personnel. The Special Court managed to successfully achieve its mandate on a fraction of the number of personnel, assets, equipment, and other items at a quarter of the cost than the other tribunals. The Office of the Prosecutor accomplished its mandate following a strategic and prosecution plan with around 70 persons versus the hundreds that walked the halls in The Hague and Arusha.
The ICC is slightly different as it is a permanent court. That presents a different approach, but success still is achieved by having a plan, as well as good leaders and managers who are equally good diplomats and politicians. The bright read thread of international criminal law is politics. It is a naive prosecutor who does not factor in the political and diplomatic ramifications of their decisions on who to prosecute, when, and why? If they don’t they will have problems, even fail. The ICC has historically had a “tin ear” to politics and their record shows for it.
As one of the founders of modern international criminal law, I support a permanent court and all that it stands for over time, but you must understand it is a precious and fragile idea that can shatter at any time without proper leadership and management. The next Prosecutor of the ICC must be that leader and manager, with a proven track record of managing large organizations. That should be a central focus entirely. Individuals who have done nothing but legal work, with little to know experience in management should NOT be considered for this next selection. A future Prosecutor must be that person who inspires, garners immediate respect based on long term experience, and has a vision of where the ICC is or should be going and be able to articulate that vision in concrete and practical ways. A pure jurist or academic has no understanding of these important keys to success. Let’s break the mold and give the ICC a fighting chance. It is an institution worth saving.
To illustrate my initial points above, I offer the following thoughts and vignettes in response to some of the questions posed by the symposium organizers.
1. What is/should be the role of prosecutors in international criminal tribunals?The key role is leader that inspires with a focused plan that his/her team can follow with focus and purpose.
Vignette: Just after my selection to be Chief Prosecutor of the Special Court for Sierra Leone I developed a ten-phase strategic plan with built in metrics, timeline, budget, and staffing needs. I briefed that plan to various constituents in May of 2002 at the US Institute of Peace. I used that plan throughout my tenure as Chief Prosecutor. This was a key for success and for the efficient creation of the Court.
2. How should the Prosecutor engage states parties and non-states parties? As a respected partner who informs and seeks perspectives and points of view, with an intent to be inclusive and collaborative.
Vignette: I had signed the indictment of then sitting President Charles Taylor on 3 March 2003 just 6 months after my arrival in Freetown, as part of phase 4 of my strategic plan. He was one of 6 indicted at the time, the leadership of all the warring factions. After the take down of all the indictees (save Taylor as I had sealed the indictment for later unsealing at the right political moment) I quietly/secretly travelled across West Africa and met with a majority of the Presidents, Prime Ministers, Foreign and Justice Secretaries asking them about the Court, their perspectives of justice for the victims, and what I should do about Charles Taylor. I listened respectfully taking in their perspectives and thanking them for their views. I showed them respect and interest. They ALL told me that Charles Taylor should be handed over to the Special Court for trial, but they cautioned that they couldn’t say it publicly. I told them that I understood but I asked them SHOULD he be indicted and handed over that they say nothing publicly about it and certainly not say anything negative. They agreed to a man and if you look at the record on 4 June none of them came out publicly against me when Taylor’s indictment was unsealed. Nigeria was never consulted and in a surprise move Thabo Mbeki President of South Africa is the only African head of state who denounced my actions.
3. How, if at all, should the next Prosecutor confront major powers in the world?As an equal, who seeks their support for developing an international consensus on equal justice for victims of atrocity crimes.
Vignette: For almost three years I courted the Chairmen of the House International Relations Committee and the Senate Foreign Relations Committee meeting with them regularly and briefing them on our strategic plan and where we were on our timeline. They appreciated the courtesy and were an important political counterweight to the Bush Administration who were not supportive of my take down of President Charles Taylor and took various actions to delay or stop my work. These two committees in a very bi-partisan way stepped in forcing the Bush administration to support the Special Court and me personally in our work in West Africa.
4. What role should the next Prosecutor play in reforming the OTP?/Court? As an experienced leader. The face of the ICC is the Prosecutor and a respected and experienced leader who has a “presence” when walking into a room is essential. The Prosecutor must be the conscience of the world related to inhumanity, a respected conscience.
Vignette: Every quarter I would brief all of the major countries who contributed money and political support to the court. I would brief my strategic plan, our metrics, our budget etc. I also made them feel comfortable that the money and efforts they all expended was being spent efficiently. I even gave them line by line list of our expenditures and our future fiscal year needs.
5. What can and should the next Prosecutor do to improve the ICC’s investigation techniques? Bring on experienced investigators who are following a realistic, well thought out, and politically sensitive investigation.
6. Should the next Prosecutor address the Africa-ICC relationship? If so, how?Traveling the continent seeking perspectives and views on how the ICC and Africa can work together. Showing respect and interest in a mutually supported plan for justice with a focus on regional efforts would go a long way to repair a shattered relationship.
7. How do we assess the Prosecutor’s performance? In an annual review from a committee picked by the States Parties consisting of former prosecutors from the various courts and tribunals.
8. What is your assessment of the first two ICC Prosecutor’s performance? What did Luis Moreno Ocampo and Fatou Bensouda get right/wrong? Both did the best they could in a challenging situation of competing interests. They are laudable individuals who tried their best. The Achilles heel is understanding how important politics and diplomacy is in international criminal law and considering all this in decisions to investigate.
9. What methods do we use to hold the Prosecutor accountable for his/her performance? Leadership, respect, efficiency, effectiveness. Insist on a plan for every investigation, metrics, budget, personnel required, and a political/diplomatic plan that ensures that constituents understand in a general sense the purpose and direction of the investigation.
10. How should the next Prosecutor deal with the OTP’s ongoing preliminary examinations? Develop a plan and process and efficient procedures to develop and execute in a realistic and politically sensitive manner.
15. Who should be the next Prosecutor? Desirable experience/background. Someone who is an experienced practitioner with a proven record of leadership and effective management abilities. DO NOT pick a pure jurist or academic as they generally have not managed or lead organizations… they certainly don’t understand the political and diplomatic dimension of the position.