Choosing the Next ICC Prosecutor: Lessons from the Past

James A. Goldston joins us for this contribution to our ongoing joint symposium with Opinio Juris on the Next ICC Prosecutor. James is Executive Director, Open Society Justice Initiative. Aidan Harris, Justice Initiative Advocacy Officer at OSJI, provided essential research assistance. Be sure to also read William Schabas’ post at Opinio Juris.

(Photo: Schmitt Hammer Lassen)

For several months now, the Committee on the Election of the ICC Prosecutor, with the assistance of a panel of experts, has been poring over applications. In considering who should be the next Prosecutor of the ICC, what are the qualities they should be looking for?

The Statute offers only the most basic, if essential, indications. The Prosecutor must be a person “of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases.” (RS 42(3)). They must be someone capable of “act[ing] independently.” (RS 42(1). And they should be able to exercise “full authority over the management and administration of the Office, including the staff, facilities and other resources thereof.” (RS 42(2)).  The ICC’s early experience suggests other desirable qualifications as well, including clear and effective communication, strategic judgment and discretion, the ability to nourish relationships with diverse constituencies, and a commitment to fairness.

But it’s one thing to state attributes in the abstract, quite another to know what they mean in practice.

For that, we must venture beyond the words of the Rome Statute to examine the varied, imperfect and evolving experience of the prosecution of grave crimes as it has been carried out in recent decades. To be sure, the ICC is a court like no other, with special circumstances and rules that both limit and prescribe actions in ways different from those faced by prosecutors in other jurisdictions. Nonetheless, as at the ICC, prosecutors in virtually all criminal justice systems have a major role in deciding whether to initiate prosecutions, against whom and on which charges, as well as in conducting prosecutions before trial and appellate courts. Most prosecutors represent society at large rather than any individual client, and their aim is to ensure that justice is done rather than to achieve a particular result. And in a number of jurisdictions, as in The Hague, prosecutors carry out or supervise investigations, and assist victims and witnesses. In short, the responsibilities of ICC and other prosecutors sufficiently overlap that it makes sense, in considering what is needed from the next ICC Prosecutor, to refer to examples of good practice at other international courts and at the national level.

So what does that lived experience tell us?

Perhaps the most celebrated instance of international prosecution was the first in the modern era – at Nuremberg, where US Supreme Court Justice Robert Jackson excelled at communicating, to the Tribunal judges and the wider world, the fundamental principles at stake. In candidly confronting the accusation that Nuremberg could deliver only victor’s justice, Jackson reminded all, in words that underscored the importance of fairness and impartiality, that “the record on which we judge these defendants is the record in which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.” Jackson’s evident passion and elegant prose went a long way in buttressing the legitimacy of a novel enterprise under global scrutiny.

Jackson is not universally praised. Among other things, he has been criticized for uneven management of his team, and a negotiating posture that, at times, was inflexible. But these shortcomings simply highlight the reality that no single prosecutor can do everything well. Recognition of that fact, and embrace of the complementary talents and skills of other staff, may be yet another essential quality to look for in the next ICC Prosecutor.

***************************

If public communication and the careful use of language are essential skills, strategic judgment is another. Few prosecutors have more effectively seized an opportunity to consolidate political support for a new judicial mechanism than Richard Goldstone. Appointed as first Chief Prosecutor of the International Criminal Tribunal of the former Yugoslavia in 1993, two years before the Dayton Peace Agreement, Goldstone took advantage of a narrow window in the early years of the Bill Clinton U.S. presidency to show that an international tribunal was an effective, and essential, response to the Balkan conflict.

Delegating responsibilities for much of the initial investigation across a capable team, Goldstone journeyed the capitals of Europe and North America seeking vital funding for the court and public backing from leaders anxious to see an end to the conflict but with no clear understanding of how to achieve it.

Demonstrating the court’s potential to achieve concrete results, Goldstone took advantage of an early arrest to deliver an important victory: the indictment and transfer to The Hague in 1994 of the Serb militant, Duško Tadić. Though Tadić was far from a senior player, he had been identified by Bosnian refugees as a direct perpetrator of brutal crimes in the notorious Omarska concentration camp. Subsequently, Goldstone’s well-founded indictment for genocide of Radovan Karadžić and Ratko Mladić made it impossible for them to attend the Dayton talks, further demonstrated the political relevance of the ICTY, denied the Republika Srbska legitimacy, and ultimately hastened the end of the war.

Goldstone understood the importance of maintaining a judiciously high public profile in the early days of the court – he undertook more than two dozen media appearances in his first month – in order to establish credibility not only with international partners, but with those accused of crimes. In doing so, he made the fledgling court a force that could not be ignored. As important, he accomplished this without compromising his own, or the court’s, appearance of impartiality and independence. By showing initiative and resolve, acting quickly at opportune moments, and capitalizing on his own well-deserved reputation for integrity and professional competence, Goldstone demonstrated the constructive role that a competent, and adequately resourced, court could play in the tendentious politics of the Balkan wars.  

***************************

The ICTY delivered the first war crimes indictments since Nuremberg, and over its long history it has served as a platform for some of the best prosecutorial traits. One of Goldstone’s successors, Carla Del Ponte, is particularly worth mentioning. Her tenure as Chief Prosecutor during the newly established peace necessitated different, but no less desirable, qualities.

In the aftermath of the Dayton Accords, NATO commanders were wary of mission creep and wanted to focus their efforts on peacekeeping rather than pursuing fugitives. Yet within her first year at the ICTY, Del Ponte saw an undeniable opportunity, as fresh elections in Serbia and Croatia in 2000 raised expectations of new relations with the EU.

Del Ponte believed strongly that there could be no peace dividend until indicted war criminals were brought to justice. Under her tenure, the ICTY wrote regular reports on the degree of cooperation received from Balkan governments, which del Ponte ensured enjoyed wide readership in Brussels and Washington. She doggedly pursued western governments to insist on conditionality, one time even jumping uninvited into Condoleezza Rice’s official car to press her on the matter.

The strategy worked. In May 2006, the EU froze negotiations on the Stability and Association Agreement, a crucial pre-accession milestone, with Serbia. Gradually, as more cooperation was forthcoming and western intelligence agencies and NATO special forces warmed to the idea of catching fugitives, arrests were made. Ultimately, out of 161 indictments issued by the Court, 111 suspects were tried in The Hague. Del Ponte’s tenacity proved critical in preventing short-sighted governments from sacrificing accountability on the altar of stability.

***************************

After securing a conviction in a high-profile case following a nine-year trial, many prosecutors might simply pack up and go home. But in Sierra Leone, Brenda Hollis understood that the conviction of former Liberian president Charles Taylor and other achievements of the Special Court would not be secure unless they resonated with ordinary people. She embarked on an exhaustive round of engagements across the country, explaining to communities what the court had achieved and, most importantly, thanking victims for their courage and patience in the long fight for justice.

It was indicative of the court’s approach since its inception. At the outset, in line with the Court’s publicly declared mission to “link the people of Sierra Leone with the Special Court,” prosecutor David Crane participated in a series of nationwide town-hall meetings and took part in radio and television programs to explain the court’s work. He paid special attention to vulnerable communities, women, children and persons with disabilities who lived with the permanent effects of the war’s brutality.

In a country where conflict had divided neighbors and communities, the prosecutor’s participation in an outreach campaign was essential in contributing to shared public understanding of the court’s potential and limitations. The outreach provoked questions from a populace hungry for answers: Why were some people on trial but not others? Why had the effects of the war not been more quickly addressed? Wasn’t there a risk that trials could reignite conflict? Often, prosecutors and other court officials had only inadequate answers. But this discussion affirmed the value of outreach as a critical component of criminal prosecution. By modeling public engagement at the heart of the court’s mission, SCSL prosecutors helped ensure that its decisions – incomplete and imperfect, but necessary – resonated widely.

***************************

Prosecutorial independence is easy to proclaim, but hard to maintain, particularly in a context as fraught as Guatemala. Claudia Paz y Paz, Guatemala’s first female Attorney General, was also the first to tackle head-on the legacy of impunity that had poisoned political life since the end of the country’s 30-year civil war. Standing up to fierce attacks from powerful opponents threatened by her integrity, Paz y Paz successfully built a professional, independent-minded prosecution team in a body that had previously been compromised by pervasive corruption and institutional inertia.

In the mid-2000s, the United Nations considered that Guatemala’s security and justice systems were unable to address impunity in the security sector or tackle organized crime. Cooperating closely with an innovative UN partner (CICIG, the International Commission against Impunity in Guatemala), Paz y Paz charted a new path and secured substantial results. She suspended 286 prosecutors and other officials found to be corrupt or inept. She secured vital technical assistance, including for training of prosecutors and investigators in modern evidence techniques, case-building and witness examinations. Under her tenure, the prosecutor’s analysis unit grew seven-fold, and prosecutors became more effective and operated more independently of political actors. 

In her first year, Paz y Paz oversaw the arrest of key figures of the Mexico-based Sinaloa and Zeta drug cartels. More drug traffickers were arrested in the first six months of her term than in the previous ten years. Dozens more drug arrests followed, including the capture and extradition of five organized crime bosses. Before Paz y Paz’s arrival, just five percent of recorded murders in Guatemala resulted in criminal prosecution. By the end of her term in office, the rate stood at 30% while overall crime had dropped nine percent.  

Critically, Paz y Paz did not shy away from politically controversial targets. She successfully prosecuted special forces soldiers responsible for the infamous Dos Erres massacre of more than 200 people in 1982. Perhaps most significantly, she secured the conviction on charges of genocide and crimes against humanity of Efraín Ríos Montt, Guatemala’s former Head of State. Though the conviction was overturned in a much-questioned ruling days later, the prosecution shined an international spotlight on the country’s search for justice and showed victims and their allies what was newly possible.

Paz y Paz’s intrepid determination to end impunity attracted reprisals and counter-measures which ultimately ended her tenure. While the shifting political climate in Guatemala has made it increasingly difficult to accommodate a prosecutor committed to the rule of law for all, Paz y Paz’s tenure serves as an enduring example of courage and independence. 

***************************

Even at the Extraordinary Chambers in the Courts of Cambodia, a court established to try Khmer rouge crimes that has been widely criticized for politically-tainted decision-making and uneven performance, Nick Koumjian won public regard as international co-prosecutor. By engaging not only as a ceremonial figurehead, but as an active participant in trial proceedings, Koumjian paid respect to the Khmer Rouge’s numerous victims and offered an example of prosecution unfamiliar to most Cambodians. During the trial against former Khmer Rouge leaders Nuon Chea and Khieu Samphan, Koumjian was not only present in the courtroom; he led the argument of difficult legal issues and questioned important witnesses. In displaying a command and in-depth understanding of the facts, and modeling professional skills, Koumjian raised the profile of the case and underscored how much it mattered for Cambodians and the international community.  In addition, Koumjian reversed the ECCC’s prior reluctance to address crimes of sexual violence. Even though it was late in the life of the court, and only after his predecessors had endured substantial criticism for giving inadequate attention to gender crimes, Koumjian pressed for inclusion in two cases of crimes of sexual violence, including forced marriage and rape both inside and outside of forced marriage.

***************************

The Prosecutor of the Special Criminal Court in the Central African Republic (CAR), Toussaint Muntazini Mukimapa, is pioneering the pursuit of justice in the context of a war still raging. As CAR’s militant factions merge and split, broker peace and renew hostilities, impunity itself has become a tradable commodity among those negotiating the shifting divide between peace and war.

Muntazini’s attempt to use the threat of punishment as a deterrent to further criminality in CAR stems from his background as Attorney General for the Armed Forces in the Democratic Republic of the Congo (DRC). There, Muntazini achieved notable success in prosecuting military officers for sexual violence and other crimes, even as he spearheaded the use of technology to improve courts’ efficiency without compromising on fundamental fairness. In the DRC, Muntazini won respect among civil society groups, government officials, international donors and even some criminal defendants by keenly listening to all sides, not over-promising on what he would deliver, and demonstrating consistently his commitment to the professional conduct of investigation and prosecution. Since the establishment of the Special Criminal Court, Muntazini has forged strong relationships with civil society, as well as with national judges and prosecutors whose support is essential for the SCC’s effectiveness and legacy. And at a time when the ICC has been under attack in parts of Africa, Muntazini has shown political dexterity in building connections with Court officials in The Hague while underscoring through his work the possibility that an African court can deliver meaningful justice for crimes of war and other atrocities.

***************************

None of these individuals can be said to embody a notion of ideal conduct for a prosecutor in any jurisdiction, let alone at the ICC. Like other human endeavors, most prosecutions are complicated, with positive and negative features. In addition, these examples do not purport to offer a comprehensive account of all that is required. Among other gaps, they do not reflect the geographic, gender, racial and other aspects of diversity that must be considered in choosing the next ICC prosecutor. Nor do they account for all necessary qualities, such as a candidate’s record in addressing sexual harassment as a central component of moral character. The #MeToo movement has yet to reach the field of international criminal justice. But it will. States must ensure that, as an overdue reckoning arrives, the integrity of the newly elected ICC prosecutor is beyond reproach.

Taken together, however, these brief profiles suggest that, even amidst challenging circumstances, a number of prosecutors in the period since the Second World War have demonstrated in concrete terms what it means to act with independence, courage, judgment and high professional standards. Those responsible for selecting the next ICC prosecutor should bear in mind this real-life experience in identifying the best-qualified person for the job.

About Patryk I. Labuda

Patryk I. Labuda is a Postdoctoral Scholar at the Fletcher School of Law and Diplomacy and a Non-Resident Fellow at the International Peace Institute.
This entry was posted in Uncategorized and tagged , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s