Douglas Guilfoyle joins us for this contribution to our ongoing joint symposium with Opinio Juris on the Next ICC Prosecutor. Douglas is Associate Professor of International and Security Law at the School of Humanities and Social Sciences, University of New South Wales Canberra at the Australian Defence Force Academy. Be sure to also check out posts at Opinio Juris from Steven Lamony and Tom Dannenbaum.

I would like to suggest one metric for assessing the performance of the first two Prosecutors of the International Criminal Court is their impact on institutional legitimacy and effectiveness. This follows from my starting position that the International Criminal Court is best viewed an inter-governmental organisation founded in state party consent – a proposition which may lead me to different conclusions than others in this series.

First, I would like to make the obvious point about results- or effectiveness-based legitimacy. That is, an international organisation’s legitimacy is at least partially dependent upon its success in carrying out the functions (or, in Shany’s terms, achieving the goals) for which it was established. Narrowly, the core functions of the Prosecutor and OTP in relation to the ICC could be defined as something like: investigating and bringing to trial cases which can be fairly conducted with reasonable prospects of success.

The obvious critique to be made here runs something like this: in 22 years of operation the International Criminal Tribunal for Yugoslavia indicted 161 individuals and convicted 99 defendants. In roughly the same period of time, with a comparable annual budget, the ICC has indicted approximately 35 individuals and secured 4 convictions for core international crimes. While this looks poor, the two tribunals are not in directly comparable positions. Importantly, the ICC’s territorial jurisdiction is much wider and it is active in many more situations. At best, thought, this makes an argument for a discount rate on our expectations given the ICC’s more complex job. I would suggest that, despite the ICC’s challenging mandate, a discount rate of over 90% is unwarranted.

Overall, then, it is hard to judge that the first two Prosecutors have succeeded on this metric. Certainly, Prosecutor Moreno Ocampo brought the court its first cases, though he by and large left it to his successor to see them to a conclusion. I have rehearsed elsewhere both criticisms of his investigative and trial strategy and the assessment that Prosecutor Bensouda has been more cautious. I return to these further below.

Beyond these core functions, however, we can ask in broader terms about the legacy of both Prosecutors in bolstering (or not) the institutional legitimacy of the ICC more widely. The first drafts of history here have not been kind to Prosecutor Moreno Ocampo. The OTP’s external expert review into the collapse of the Kenya cases found he had an authoritarian and micro-managing approach to leadership and a ‘target-based approach to investigation and charging rather than an evidence-based approach … [which] forced investigators and prosecutors to try to fit the evidence into cases against pre-determined targets rather than determining targets based on the evidence’. This largely echoes criticisms of him made by former colleagues and, indeed, presented in a New York Times profile. (Moreno Ocampo has challenged the external expert review’s findings, noting it did not interview him.)

Nonetheless, the core criticism offered of Moreno Ocampo’s tenure often appears to be that he prioritised symbolism and the message a case would send, attempting to leverage the moral authority of the Court to get results. As noted, and if true, such an approach may prioritise target selection rather than the forensic work of evidence gathering and case-building. Such a cart-before-the-horse strategy has obvious risks, and may contribute to case collapses.

However, such a conclusion might seem unfair. As Mikkel Jarle Christensen notes: to some extent all that international prosecutors have to work with is their symbolic authority, and this is most readily deployed (and bolstered) by pursuing big, high-profile cases. A Prosecutor may have no option but to harness the court’s symbolism to bootstrap or jump-start it into effectiveness. However, if such high-profile cases fail they may also come to undermine the legal-rational authority of the institution and lead to criticism of the Prosecutor’s managerial skills. Perhaps, then, as Prosecutor you are dammed if you do and dammed if you don’t. While it’s a fine line, there are arguably examples of that line having been more successfully walked by other international prosecutors (for example, Richard Goldstone at the ICTY).

What will be the institutional legacy of Prosecutor Bensouda? As an internal appointment to the top job, one would always have expected her to be more of a continuity than a change candidate. Certainly, she’s shepherded more cases to a successful conclusion and her change in investigatory practice, towards more in-depth and open-ended ‘holistic’ preliminary examination investigations, has generally been well received. I have noted before that fewer cases have been mounted in her tenure, perhaps confirming the suggestion of a more cautious approach (of about 40 odd ICC defendants by my count only 8 were indicted by her OTP).

However, also on Prosecutor Bensouda’s watch the OTP has sought to open investigations – or sought rulings from Pre-Trial Chambers’ about ICC jurisdiction – in a number of contentious cases: Afghanistan, Bangladesh, and Palestine. What each of these cases has in common is that they necessarily implicate the conduct of government officials of states which are not a party to the Rome Statute.

A different type of legitimacy-based question is in play here, one which lawyers usually shun: what is the moral or political authority of the ICC to judge the conduct of officials or nationals of non-state parties? (My answer here leans heavily on the work of Tom Dannenbaum.) The question goes to the very conception of the role of the Court. As Dannenbaum notes, two forms of court design for the ICC were possible: a universal court, endowed with universal jurisdiction, prosecuting crimes only as they were understood in customary international law; or a club of member states (a kind of supra-regional court), with national and territorial jurisdiction, prosecuting treaty-defined crimes diverging in some respects from universally binding customary definitions.

The ICC is the second type of court, which makes its relationship with non-state parties ticklish. Certainly, doctrinally and legally sound arguments can be made that any crime committed on the territory of a state party gives the Court jurisdiction over the totality of the crime and all persons involved (objective territorial jurisdiction) and such jurisdiction need not be confined to crimes commenced and completed in the one state’s territory (subjective territorial jurisdiction). However, legal authority can run ahead of moral or political legitimacy. The Court’s claim to have legitimate authority to try a particular suspect is obviously at its strongest as regards crimes committed exclusively on the territory of a state party and/or exclusively by the nationals of state parties. All else is potentially peripheral to the moral/political mandate conferred by member-state consent, even if its legally justifiable.

Of the controversial cases, Afghanistan is plainly within this core mandate, concerning as it does principally the alleged crimes of State party nationals (Afghanis) on the territory of State party (Afghanistan). To the that extent US nationals engaged in alleged acts of torture in Afghanistan and ‘torture flights’ connected with the war and implicating activities in Lithuania, Poland and Romania they did so on the territory of a State party in full knowledge of the applicable law including ICC jurisdiction. Whether it was wise for the OTP to seek to investigate foreign non-party nationals (ie US nationals) without also referring to crimes allegedly committed by foreign State-party nationals in Afghanistan (eg Australian and British nationals) is an open question. One might have thought a State-party based Court should prioritise investigating the conduct of parties which have signed up to its values. Still, the symbolic weight of US involvement in Afghanistan probably made it another damned if you do, damned if you don’t case for the OTP. Bensouda may be judged kindly by history for having tried. Of course, if she succeeds in opening an Afghanistan investigation, then the task of executing it passes to her successor. Rightly or wrongly, she will not be judged for the Court’s successes or failures in Afghanistan.

In Bangladesh/Myanmar, in particular, the OTP has pursued ambitious claims of objective territorial jurisdiction under which a border-crossing course of conduct (and all actors involved) fall within ICC jurisdiction so long as a crime culminates in a member State’s territory. Such assertions of jurisdiction are legally possible but, as I’ve argued elsewhere, they are not inevitable and may be poor judicial or institutional policy. While it would have been unpopular, the Court could, for example, have held it enjoyed only subjective territorial jurisdiction (as is plainly the case for the crime of aggression). An expansive approach to jurisdiction results in the kind of cases least likely to be successfully prosecuted and most likely to turn into an ongoing quagmire for the Court. The jurisdictional claims involved are at best the opening gambit in a process of norm creation or entrenchment which relies on States generally accepting the legitimacy of the proposed rule (ie an expansive approach to the Court’s territorial jurisdiction) in order for it to be effectively entrenched.

The Palestine situation, if it goes ahead may present both types of problem: the actions of non-state party nationals in the territory of a party; and, perhaps, adjudicating transboundary conduct originating in the territory of a non-party.

The critical difficulty in all such cases, whether they fall in the core or peripheral mandate of the Court, is the necessary involvement of non-party states with no legal obligation (or incentive) to cooperate with prosecutions. Such cases are those least likely to succeed and are therefore high-risk for the institution’s effectiveness-based legitimacy.

If the Court in its third decade continues to struggle, one cause may well be through continued pursuit of cases which drawn in non-parties to the Statute. While such cases will often be within the Court’s legal mandate, they may be at the periphery of the moral or political authority conferred by State consent, and where such cases fail they may undermine the Court’s effectiveness-based legitimacy. This is equally true of Security Council referrals, replete as they are with the moral problem of allowing non-party permanent members to refer States to the ICC while never subjecting themselves to its jurisdiction. If so, the clutch of such situations pursued by Bensouda may come to haunt her legacy, and future histories may be kinder to Moreno Ocampo’s studious attempts to avoid such entanglements.