The following contribution to our ongoing symposium on the next ICC Prosecutor was written by Mark Kersten, the founder of Justice in Conflict and a Senior Consultant at the Wayamo Foundation. Be sure to also head over to Opinio Juris to see Beth Van Schaack’s contribution on then need for the next Prosecutor’s to engage the US public. 

ICC Prosecutor Fatou Bensouda meeting with (former) DRC President Joseph Kabila in New York, in 2017 (Photo: ICC)

The contributions to this symposium have offered incisive and cogent insights into what qualities the next Prosecutor of the International Criminal Court (ICC) should have. One constant thread relates to competing visions of the Prosecutor as a political versus legal actor. That tension won’t soon be resolved. It is simply impossible to separate the legal from the political at the ICC. The institution will always be both an international organization, replete with the politics that come with the territory, as well as a criminal court, seeking to do its work – and justify it – by the letter of the law.

The Prosecutor walks a tightrope between playing politics and pretending that they don’t exist within the confines of the Office that they run. Indeed, the Office of the Prosecutor exhibits a certain phobia to being seen as political. Given the political realm in which the Court exists and the impossibility of abstracting prosecutorial decision-making from the institutional politics of the ICC or the political repercussions of any given decision, it would be wise for the Court to ditch this attitude. Doing so would allow the Prosecutor’s Office to improve on its own politics as well as its political effects it has (see Patryk Labuda’s post on this too). In a nutshell: to be better at politics, you have to acknowledge that what you’re doing is politics. That, in turn, would could lead the ICC to better understanding the conflict and post-conflict contexts in which it intervenes.

The Focus Shouldn’t be on Major Powers 

With a few exceptions, the focus of many of the submissions in this symposium has been on how the next Prosecutor will manage the Court’s current and future confrontations with major powers (see here, here and here). How the Prosecutor handles high-profile preliminary examinations and investigations into Afghanistan and Israel, as well as the blowback from Washington and Tel Aviv, will shape the future of the Court. Both legally and politically, the ability of the next Prosecutor to stick-handle through these sticky situations will determine whether the Court remains an ‘audacious’ or ‘aspirational’ institution.

The relationship between the likes of US, UK, Russia, and Israel with the ICC deserves scrutiny from scholars as well as Prosecutor candidates. The overblown theatrics and political hissy-fits from Washington and Tel Aviv also make it hard to just keep calm and carry on. But too much of a focus on the Court’s relationship with major powers may inadvertently give the impression that the Court’s relationships with powerful states are its most important. There is a real risk that an overemphasis on major power relations will reaffirm the problematic but popular belief that that the ICC’s priorities reside in managing relations with the most powerful.

It is important to recall that the most glaring political challenge that has faced the ICC is not the result of any confrontation with major powers. The Court’s most crucial relationships remain with the countries in which the ICC has intervened. These largely pertain to contexts where major power geopolitical interests are entirely absent, minimal, or in line with the Court’s.

The Court’s most persistent problem remains the asymmetrical selection of cases within the situations in which the Court intervenes; this is an issue that has already outlived multiple rounds of major power confrontations with the ICC – and will outlive the latest bout of Washington’s hysteria too.

The issue of in-situation selectivity has received an enormous amount of critical attention in recent years. But the pattern remains the same: following self-referrals or Article 12(3) invitations to investigate, the ICC only targets non-state actors for prosecution. Following UN Security Council referrals of particular conflicts, the Court homes in on state actors as its targets. This selectivity of cases is just as problematic for the ICC as the geographic distribution of the situations it investigates. Even in situations where the Prosecutor’s office repeatedly promised that it would prosecute all sides, as in Ivory Coast, it has done nothing of the sort.

The eyes of avid observers and readers might be glazing over at this point. The politics of selectivity is well-trodden ground. I have written elsewhere about how the ICC’s selection practices are tethered to its institutional interests. While it may be understandable, however, it is hardly justifiable in principle (although see here for a thoughtful attempt to do so via utilitarian logic). If there is any singular take-away from this post it is this: the real and potential costs of selectivity remain as high as ever. I do not mean this in an abstract sense, that selective ICC justice is somehow unjust, though of course it is. Rather, selection practices will continue to have profound empirical effects on the political situations in which the ICC intervenes, delegitimizing those it targets while legitimizing those that avoid the Court’s ire.

Getting the Context Right, or at Least Better

In his contribution to the symposium, William Schabas’s observes that: “[t]he initiatives and the decisions of the ICC Prosecutor are often made in the midst of sensitive transitional justice processes, where an acute understanding of the history of a conflict and of the political dynamics is essential.” Much of ‘getting it right’ boils down to context. It’s no secret: the ICC has not had a good grasp on the complex political situations in which it has intervened. In some instances, such as Uganda or the Democratic Republic of Congo, it is has fundamentally misunderstood them to the point where it bolstered the legitimacy of dictators themselves accused of mass atrocities. While it receives far less scholarly attention, the same is likely to hold true, to varying degrees, in Mali, Cote D’Ivoire, and the Central African Republic.

The problem is that if the Office of the Prosecutor is institutionally allergic to being seen as political, then being sensitive to the political contexts in which it is intervening becomes immensely difficult, if not impossible. If the Prosecutor can’t act in a politically coherent manner, they will risk getting the context wrong: intervening at the wrong time, consulting and meeting the wrong people, pursuing the wrong cases, saying the wrong things, and legitimizing the wrong personalities and politics. A Prosecutor who is more ‘a minister of justice or an attorney-general’ than ‘district attorney or prosecutor’ would be highly welcome. But it seems unlikely. Indeed, it’s an open question as to whether states, including those most supportive of the Court, have an interest in the ICC denying its own politics and political role in international relations.

Would it be possible to get someone who is both deft at politics and a remarkable legal prosecutor? Probably not; there aren’t many judicio-political polymaths out there – and probably even fewer who want the Court’s top job. The ICC world is full of exceptional legal minds. Getting someone highly capable at playing politics is much more difficult. And if they won’t or can’t be political, that doesn’t mean that they can’t assemble people around them with political experience and knowledge. I therefore thought it would be useful to revisit a proposal that I originally made in 2012.

My suggestion is that the ICC Prosecutor create an arm’s length, independent, and voluntary body called a Situation Review Panel (SRP). The role of the panel would be to critically assess situations where the ICC is considering an investigation or has already opened one. The panel would be comprised of a team of experts. Crucially, they would not only come from personalities in international criminal law with knowledge of previous ICC interventions and the relevant lessons learned. Essential to the Panel would be experts in the politics and the particular conflicts of the situation(s) being considered. It would report to, but not be composed of any, ICC staff.

The panel would have a mandate to assess the potential legal and political risks and drawbacks of interventions and targeting particular actors in each context. It would think through different options and the possible effects on the ground, including opportunities to bolster meaningful complementarity: not just focusing on the same perpetrators and crimes as the ICC, but building and enforcing relevant legal capacities in situation countries. They would also map how particular courses of action would affect the Court’s real and perceived legitimacy and independence. They would, of course, have to consider that the ICC’s effects are invariable mixed; no intervention or arrest warrant will lead to solely positive or negative outcomes. If they had the resources or they worked within research institutions, the SRP could also engage in conducting studies into the attitudes of people likely affected by ICC action or focus groups with interested parties; this would be crucial in crafting effective messaging and outreach strategies for the Prosecutor and other ICC organs.

Of course, the SRP’s findings would be advisory. But its conclusions could be made public with comments from the Prosecutor. Doing so would foster transparency as well as provide an additional forum to continue strategizing how best to pursue the ICC’s mandate while minimizing harmful in-situation effects. In that sense, the SRP could galvanize interest and action like the yearly Preliminary Examination Reports do. As those reports have, the SRP would demonstrate the continued institutional maturity and an interest in critical self-examination on the part of the ICC Prosecutor. Above all it would be a significant public commitment to getting the context right.

Think Big

To borrow from Schabas again, the role of the Prosecutor is one for a visionary. This is not a moment for a timid Prosecutor or one that acts on whims. But it is also important to remember that the next Prosecutor won’t be perfect. For some, they’ll be too political; for others, too legal. They’ll be both too deferential and not deferential enough to political actors and contexts. Rather than hoping for a perfect Prosecutor and being disappointed, proponents of the ICC should also imagine what institutions, personalities, and bodies might help ‘fill the gaps’. When it comes it getting the context right, a Situation Review Panel could certainly help.