Electing the Next ICC Prosecutor: A Generational Opportunity

Christian De Vos and Mariana Pena join JiC for their contribution to our joint symposium with Opinio Juris on the Next ICC Prosecutor. Christian is a senior advocacy officer with the Open Society Justice Initiative and author of the forthcoming book, Complementarity, Catalysts, Compliance: The International Criminal Court in Uganda, Kenya, and the Democratic Republic of Congo. Mariana is a senior legal officer with the Open Society Justice Initiative, has 15 years of experience in the field of international justice. They write here in their personal capacity. Be sure to also check out the latest contribution at Opinio Juris, by Liz Evenson: The Next ICC Prosecutor Should Resolutely Hold the Most Powerful to Account.

ICC prosecutor Fatou Bensouda shakes hands with Stephane Bourgon, Bosco Ntaganda’s defence counsel (Photo: ICC)

It would be hard to overstate the importance of the forthcoming election for the International Criminal Court’s next prosecutor. As December looms, the responsibility is on states parties to elect an individual that meets not only the “high moral character,” competence, and practical experience that the Rome Statute requires, but also the good judgment and managerial skill that the office demands.  As a leader and top manager, the new prosecutor must also embody—and be committed to—the highest standards of respect and integrity.

The prosecutor’s election also arrives amidst an ongoing, state-supported review of the ICC’s performance and its place within a larger and ever evolving global justice system. If done well, that review process, which should culminate in late 2020, could offer both a political window and a potential roadmap to consider the kind of structural changes that the ICC has thus far largely shunned.

It is equally hard to overstate the critical role that the Office of the Prosecutor (OTP) plays in shaping and executing the work of the ICC. As the organ responsible for investigating the situations and prosecuting its cases, the OTP is the engine of the Court: it defines not only what populates the Court’s docket but also, and perhaps more critically, what does not. The principle of complementarity, and to a lesser extent the gravity requirement, have consumed much of the debate to date about where the OTP engages. However, fundamental questions about the role of prosecutorial discretion, political judgment, and resource allocation are actually at the core of situation and case selection. For an institution facing an environment far more hostile to its mission than that which welcomed its establishment, these questions go to the heart of the prosecutor’s job.

All of this makes the election of the third ICC prosecutor part of a unique, generational opportunity. That opportunity is even more pressing given the Court’s diminished role in the global political landscape. Propelled by the enthusiasm and optimism of a generation that cried out “never again” for mass atrocities, the Rome Statute entered into force in record time and the Court enjoyed political support from many states – and begrudging tolerance from others – in its initial years. But internal and external developments have resulted in a dramatic change of circumstances for the ICC and the field of international justice more broadly. Internally, states parties have grown impatient with the Court’s limited successes and its institutional inefficiencies, leading to more state interventionism and less financial support. Externally, the Court’s mere existence and, increasingly, its proposed investigations in certain countries have brought unprecedented attacks that seek to curtail its independence. Once supported and cheered, the ICC now faces limited cooperation and hostility.

Finally, this election unfolds under the long shadow still cast by the first person to hold the office: Luis Moreno Ocampo. Though initially praised by some for building up an office from scratch and pioneering important concepts like “positive complementarity,” his tenure can only charitably be described as rocky. Criticized for his authoritarian management style [PDF] (one that saw an early exodus of several senior staff from the OTP), penchant for institutional turf battles, and a record of poorly developed cases [PDF] that were insufficiently grounded in evidence and badly staffed, the damage done to both the Office and the ICC in these early, pivotal years cannot be underestimated.

Nor can many of the critical institutional design decisions that were taken during that time be easily undone. The ICC’s second prosecutor, Fatou Bensouda, has been praised for turning some of this chaos around but, with very few new cases coming to trial since her 2011 election, there has been little display of what that those changes mean for actual cases. And while the priority she has given to the adoption of important new policies (e.g., those on sexual and gender-based crimes and on children) is noteworthy, few of these policies have been publicly tested due to the limited number of new cases. There has also been, it is worth noting, significant continuity amongst OTP personnel. Bensouda herself was Moreno Ocampo’s deputy from 2002-2011, while many of the Office’s senior officials have remained the same since the ICC’s early years.

Against this backdrop, the new prosecutor has both an opportunity and the responsibility to (re)design an office that can help the Court rise to the challenges before it. The report of the independent expert review – the body of experts established by the Assembly of States Parties (ASP) in December – will provide added opportunity and responsibility for the prosecutor to implement changes, but he or she will also need to make his or her own assessment of the OTP’s strengths and pitfalls, revisiting basic assumptions and making hard decisions along the way.

From our perspective, there are at least four key issues that the new prosecutor should prioritize:

  1. Field-based examinations and investigations. Much of the ICC’s poor performance cannot be divorced from its lack of proximity to the situations that populate its docket. Presently, approximately 80 percent of Court staff are based in The Hague, while only 20 percent are in “situation countries.” Moreover, under the first prosecutor, investigators would spend a very limited amount of time on the ground, often less than one week, which had significant financial costs, resulted in limited understanding of field dynamics, and undermined investigations. While Bensouda implemented a significant shift to supporting more prolonged field presence, the next prosecutor will need to further prioritize this shift. Such a shift demands a series of actions ranging from more place-based (or proximally based) examinations and investigations, to more support for early and comprehensive implementation of the Court’s outreach programs, as well as for greater use of in situ In short, a significant effort to decentralize the ICC overall is needed and the next prosecutor should lead by example.

  2. New structures and management. This will surely be amongst the most challenging tasks, given larger, structural constraints that exist (including, notably, contract obligations and the ICC’s participation in the UN common system of salaries, allowances, and benefits for staff). But the next prosecutor will need to assess whether the Office’s structure into three divisions (the Jurisdiction, Complementarity and Cooperation Division; the Investigation Division; and the Prosecutions Division) continues to make sense in light of its uneven track record in court. Further integrating these functions to ensure involvement of investigators from very early stages, including preliminary examinations, is paramount. In addition, a more robust cooperation unit reporting directly to the prosecutor might be best suited to address the ICC’s major cooperation challenges, including to secure arrests. The next prosecutor will also have to balance the value of preserving the Office’s “institutional memory,” while bringing new people into senior management roles and reconsidering existing management structures.

  3. Responsible entry and completion strategies. The Court’s current docket of situations and preliminary examinations is expansive and expanding, having grown at a pace wildly disproportionate to its budget. While the OTP’s willingness to prolong engagement over time can be effective in certain circumstances, its lack of attention to closing situations is worrisome. While we are not suggesting that the prosecutor should bend to the ASP’s insistence on a “zero-nominal growth” budget policy (indeed, the prosecutor should continue to insist on the resources the Office actually needs to do its work well), a more disciplined approach for planned, responsible entry and exiting of situations could result in more strategic use of resources and, ultimately, more impactful interventions. The OTP should work together with other parts of the ICC to develop completion strategies that design the Court’s intervention in a given situation and set the Office’s and other organs’ goals, as well as what measures or benchmarks should be in place before the Court exits a particular country or region.

  4. Complementarity and cooperation. Striking the right balance between encouraging domestic prosecutions and avoiding manipulation and delaying tactics by states is not easy. The new prosecutor will need to grapple with this perennial question as s/he decides whether to establish timelines or find other ways to review the length of preliminary examinations, in particular. Mindful of these perils, the OTP (and the ASP) should nevertheless consider a more robust investment in the cooperative dimensions of the complementarity principle, focusing on how the ICC itself can help strengthen domestic capacity and commitment, particularly in situations where there is will (even limited will) to prosecute grave crimes. Ensuring robust cooperation with other hybrid entities whose jurisdiction overlaps with the Court—as those in the Central African Republicor Myanmar currently do—offer additional opportunities for synergy and burden-sharing. While this goal remains part of the OTP’s new 2019-2021 strategy, the new prosecutor should ensure that the positive vision for complementarity first championed by Moreno Ocampo (rhetorically, at least) remains a central feature of the Office’s work in practice.

 There are of course other important responsibilities, such as collaborating with other organs of the Court to implement a more robust public information and outreach strategy. The next prosecutor should also commit to learning lessons from past failures, admitting (and communicating) mistakes, and constantly improving the Office’s working methods.

To be clear, the election of one person alone, even if that person is the prosecutor, will not turn the tide for the ICC. The ASP’s cautious vocabulary of “review” rather than what is actually needed – reform – suggests that states parties and ICC officials alike have yet to fully reckon with the scope and scale of change required for the Court. But this moment of opportunity will be squandered if diplomacy fails to confront a painful truth: unless there is fundamental change to its structures and concrete improvement in its performance, the ICC faces irrelevance. Even civil society actors, once amongst the Court’s most ardent supporters, have said as much. Major, structural change is urgently needed. Good leadership – experienced, ethical, honest, and bold – is where that change should begin.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Next ICC Prosecutor, Next Prosecutor Symposium and tagged , . Bookmark the permalink.

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