This is the latest post in our joint Justice in Conflict / Opinio Juris symposium. Patryk I. Labuda is a Postdoctoral Scholar at the Fletcher School of Law and Diplomacy. His forthcoming book is ‘International Criminal Tribunals and Domestic Accountability. In the Court’s Shadow’ (Oxford University Press). Don’t miss Jonathan O’Donohue‘s post at Opinio Juris.

According to the ICC’s website, 8 preliminary examinations and 13 investigations are underway. In theory, this means that the ICC is involved in 20 countries (this includes two concurrent situations in the Central African Republic).

In reality, that figure grossly understates the breadth of the Prosecutor’s activities. Three contentious inquiries – Afghanistan, Palestine and Georgia – implicate other states, in particular the U.S., Israel and Russia (some crimes allegedly occurred in Poland, Lithuania and Romania). The Court’s interactive map no longer includes the Gabon and Comoros preliminary examinations, though they remain sub judice. Korea, Honduras, UK/Iraq, and Venezuela have previously been closed (other preliminary examinations may not have been disclosed prior to 2011 when the OTP began releasing annual reports).

And, of course, it is not for lack of trying that the Court is not active elsewhere. Serious efforts have been made to get the Prosecutor involved in Syria, Mexico and Egypt, to name just a few.

Depending on how one tabulates these figures, the Court has formally inquired into crimes allegedly committed by nationals or in the territories of at least 23 member states. That means nearly 20% of the Court’s current membership has already been subjected to some form of scrutiny for Rome Statute crimes. Equally important, it now seems likely the Prosecutor will investigate the crimes of non-member states (see Douglas Guilfoyle’s post in this symposium) more often than may have been anticipated 20 years ago.

What this means is that, unless the next Prosecutor implements drastic measures, there will be ten or more additional countries in his or her sights by the time the next Prosecutor is elected in 2029. Not to put too fine a point on it: this is unsustainable. The next Prosecutor must urgently confront the reality of an overambitious docket. Put simply, he or she must articulate a vision for the gross imbalance of supply and demand that has come to define the OTP’s work.

In this post, I want to propose a few ideas. I do not know what the best way forward is and I understand there all kinds of objections to these proposals. I merely urge states and others involved in the election process to consider these questions when interviewing the candidates about their vision for the OTP – and the ICC as a whole.

The Turn to Managerialism and Transparency. Form over Substance?

There seems to be a growing expectation that all organizations, from universities to the ICC, are run like efficient businesses, accountable to shareholders. While the Court is an inter-governmental organization accountable to states, it must function like a criminal justice institution. It is legitimate to query certain trends that have taken hold at the OTP since 2003.

One such trend is the emphasis on transparency and managerialism in the administration of what is, at the end of the day, a prosecutorial body. Some transparency is unavoidable, given the Assembly of States Parties’ oversight function. However, it should be recognized that the OTP has chosen to frame its mission in a certain way. A high degree of transparency has become an integral element of its modus operandi, arguably to a much greater extent than at other international criminal tribunals.

To take just one example, the OTP has churned out policy papers at a remarkable rate on topics as diverse as ‘interests of justice’ or ‘children’. There are reportedly further policies in the works on ‘cultural heritage’, ‘completion strategies’, ‘preventative statements’ and ‘complementarity’. All of these papers will surely be intellectually stimulating, but one wonders to what extent these policies matter – and, equally important, should matter – in the OTP’s decision-making.

It is difficult to know. Prosecutor Bensouda has shepherded more policy papers to completion than she has initiated trials in her 8 years in office. Policies are not legally binding, and the OTP’s views on seemingly foundational questions such as perpetrator seniority (from ‘greatest responsibility’, in the 2009-2012 strategy, to essentially any perpetrator, in the most recent 2019-2022 strategy) has fluctuated so much that one wonders how relevant this criterion is for the Prosecutor’s case selection. In short, there is a great deal of policy but nothing to test it on. Surely there is a point when one should ask if all this policy-making and transparency is not just a distraction from the Court’s core mandate. I now turn to that mandate.

Less Focus on Preliminary Examinations

The preliminary examination (PE) is one of the most significant innovations in the OTP’s practice to date. As is well known, the Rome Statute provides little statutory guidance on PEs beyond a token mention in Article 15. Yet the OTP has put in place an entire institutional machinery dedicated to PEs (formalized in this – you guessed it – policy paper). Beginning in 2011, the OTP has released annual reports on the progress of PEs in situations that may require investigation.

PEs are, of course, an eminently practical response to a very real practical need (how do we ascertain where and when to open an investigation?). However, it is another one of the OTP’s policy interventions where transparency is assumed to be a virtue rather than a cost. There are growing critiques of the PE process, in particular the seemingly contradictory interpretation of core criteria that underpin OTP assessments. Why has the Colombia PE taken so long? What, if anything, is Nigeria doing that prevents the OTP from opening an investigation? Why did the Prosecutor not wait longer to open an investigation in Kenya?

These are all valid questions, but what is lost in all the commotion and speculation over PEs is that, at least in the public eye, the preliminary phase of investigation is increasingly marginalizing the actual investigation phase. I would even go so far as to suggest that the Prosecutor’s performance is frequently rationalized in terms of his/her handling of PEs rather than – or, at least, co-equally with – investigations.

There are at least three reasons for this. First, reeling from the growing backlash from African states in the early 2010s, the OTP deliberately tried to shift the conversation away from all its African investigations toward the admittedly more diverse pool of PEs outside the African continent. PEs became a useful tool for countering the neo-colonial critique. Second, there have only been a handful of proceedings in the past decade, most of them in African situations (CAR II, Mali, DRC and Uganda) that are considered more distant, and certainly less familiar to Western audiences, than hotspots like Palestine (and, until recently, Afghanistan), where Western powers have direct interests. Third, PEs are a practical response to affected populations’ legitimate expectations of ICC intervention.

I am not arguing against PEs. Whatever we call them, some form of inquiry into potential situations will be required, just like the next Prosecutor will have to decide whether to open PEs in the first place, based on thousands of Article 15 communications (for which there is, thankfully, less public deliberation, though even Phase 1 is now sometimes in the annual PE reports). However, in devising the PE policy paper and publishing annual updates, the OTP has voluntarily created an expectation that we can and should engage in protracted debates over PEs, speculate about the deterrent effect of OTP statements, and deliberate whether and how to engage state actors before there is any formal investigation. The next Prosecutor should reassess how PEs are conducted, how much transparency is really necessary, and in particular why there are only annual reports on PEs but not on actual investigations. Also worth pondering is whether the Prosecutor should spend more time on the ground investigating crimes. I now turn to investigations.

Focusing on Investigations

One of the mantras that has taken hold at the ICC since 2003 is that it is a court of limited means that will only prosecute two or three, maybe four, cases in each situation. With the exception of the DRC, Prosecutors Ocampo and Bensouda have failed to reach even this low threshold.

One has to urgently re-consider whether the 2-to-4 cases per situation approach is the way forward. I explore these questions in greater depth in my forthcoming book, but I would suggest that there are at least two problems with the current approach.

First, it assumes that the Prosecutor can conduct ethical and professional investigations that produce evidence of guilt beyond a reasonable doubt at trial against a few isolated targets. Ewan Brown and William Wiley explain the perils of target-driven investigations and the problems of crime base, linkage and contextual evidence. Suffice to say that there are concerns whether the Prosecutor will ever be able to successfully prosecute 2-to-4 cases without conducting more robust in-country investigations against a wider range of targets than has hitherto been assumed.

Second, the 2-to-4 approach assumes that the Court’s main audience is the international community, while effectively ignoring how a few ‘expressive’ prosecutions impact – or not – societies that have experienced international crimes. Much has been said about positive complementarity, the idea that the ICC’s shadow catalyzes domestic accountability in situation countries. However, there is little evidence that the OTP still considers this part of its core mandate, at least not in open investigations. In fact, I argue that one of the most important but overlooked developments under Prosecutors Ocampo and Bensouda is the degree to which positive complementarity has come to be rationalized as a core function of preliminary examinations (where the OTP has no formal powers) rather than actual investigations (where the Prosecutor can actually investigate and make a direct contribution to domestic justice). One should urgently revisit this assumption.

Articulating A Vision of Impact for Selected Situations

The next Prosecutor should refocus her work on a handful of priority investigations. I say this because I take for granted that, even if the OTP apprehends its 10 fugitives (plus individuals for whom there are presumably sealed arrest warrants), the ICC’s impact in most – if not all – its situations will be dubious at best. Put differently, one can agree – and I do – with Geoff Dancy, and still believe that the 2-to-4 model is not a recipe for success according to any meaningful metric of impact.

Prioritizing investigations means closing some situations. This will be very contentious, but prime candidates are self-referrals like Uganda, DRC, and maybe dormant situations like Kenya. No one seriously doubts that if Kony is finally arrested, he will be prosecuted by the Ugandan judiciary. If the OTP does not finally bring cases against Kabila loyalists in the DRC, that situation should be closed, too. DRC courts do not need ICC help prosecuting non-state actors.

Valuable work has begun on Completion Strategies. I will not summarize the helpful proposals made thus far. My main quibble is that the discussion around ‘Completion’ should be a larger debate about ‘Opening’ investigations in the first place. The next Prosecutor needs to give much more thought to what her vision of impact is for the Court generally and in each situation specifically.

Generally speaking, the Prosecutor needs to move beyond a simplistic vision of investigation which revolves around a few cases that will be prosecuted internationally. There is a reason the Rome Statute does not give the ICC primacy. Yet the OTP has, with the help of the Court’s judges, produced a version of complementarity that makes its own case selection the final word on arrest warrants in most situations. Not only is this de facto primacy and violates the spirit of the Rome Statute (especially in situations arising from self-referrals); it has resulted in too many investigations prioritizing trials in The Hague rather than the potential benefits of targeting some suspects over others in situation countries.

A vision of impact for each investigation must move beyond questions relating to the ICC’s caseload. It requires a holistic plan with benchmarks vis-à-vis governments, a robust consultation process with affected populations, and clear messaging on goals, obstacles and achievements. While no two situations are the same, the types of questions worth asking overlap with the OTP’s complementarity and interests of justice assessments in preliminary examinations. However, the difference is that the OTP, judges – and, crucially, Court supporters – need to 1) re-focus their work on investigations; and 2) re-think what may plausibly be considered a ‘success’ in each situation, also from the standpoint of affected populations. The answers are likely to be different for each country, and they should only partly revolve around how many trials are eventually conducted in The Hague.

Conclusion

There are, of course, all kinds of objections to these proposals. Some will find them ill advised (are not preliminary examinations where the Prosecutor can have the greatest impact?), insensitive (what about victims in countries where the ICC will not be present?) or counter-productive (are not the risks of failure in a few investigations even greater than in ten?). Which situations do we close and how? How do we convince states parties to pay for a court whose performance is assessed by something other than international trials?

I acknowledge these very real dilemmas and I do not doubt the next Prosecutor will have to make difficult choices (see William Schabas). My view is that the OTP cannot continue opening investigations (and advertising preliminary examinations) at the current rate. This is a road to nowhere. Each year, the Court pleads for more money and, each year, the ASP refuses these requests. While this practice is unconscionable given the ICC’s needs (see Jonathan O’Donohue), the wrangling over the budget misses a basic fact. Even if the Court’s budget is tripled, this alone – if all other factors remain constant – will not change the dynamics of ICC interventions around the world.

The next Prosecutor should prioritize a few investigations, reduce public discussion of preliminary examinations, and think outside the box on how the OTP expects to make a difference in situation countries. This may not be a popular vision for the Court, not immediately at least, but as the saying goes: sometimes less is more.