Alex Whiting joins us for this latest contribution in our ongoing symposium on the Next ICC Prosecutor. Alex is the Head of Investigations at the Specialist Prosecutor’s Office. He is also a Harvard Law School Professor of Practice, former ICC and ICTY prosecutor, former Assistant U.S Attorney and criminal civil rights division prosecutor. Be sure to check out Priya Pillai’s contribution to the symposium over at Opinio Juris!
The contributors to this symposium will likely agree that the ICC has failed to live up to expectations and that changes are required, urgently. They will also likely share the view that the primary mission of the ICC is to prosecute those most responsible for the crimes of genocide, crimes against humanity, and war crimes, consistent with due process norms and the rights of the accused. But how to achieve this goal? In selecting the next Prosecutor, the selection committee and Assembly of States Parties (ASP) will have to think about the strategy for change proposed by each candidate, as well as how his or her profile is suited to the task.
With respect to strategy, there may be differing perspectives on what constitutes success for the ICC. However, I will suggest one measure that should be fundamental to anybody’s approach. The ICC needs cases, meaning successful cases. More of them. Without more successful cases, none of the hopes for the ICC — deterrent, expressivist, symbolic — will be achieved. It is not enough to begin preliminary examinations or open investigations. It is not enough to make speeches or threats, issue reports, or embrace ambitious strategies. It is not enough to bring charges, if in the end nobody is arrested. The ICC is not a naming and shaming organization. It is a judicial institution that can only succeed if it has accused persons in the courtrooms. Empty courtrooms, and the ICC fails, by any measure.
That cases are essential to the ICC’s existence might seem like an obvious point, but in fact getting cases, let alone successful ones, has been a central challenge throughout the ICC’s existence. Since it came into force nearly 18 years ago, only four persons have been convicted of the ICC’s core crimes (Lubanga, Katanga, Al Mahdi, and Ntaganda, the last one currently on appeal). The trial of another accused (Ongwen) has just been completed, and the case against two others (Gbagbo and Ble Goude) was dismissed by the trial chamber, a result now under challenge by the prosecution. Two other cases (Al Hassan and Yekatom/Ngaissona) are awaiting trial. And that’s it. Having a nearly empty pipeline of cases threatens the relevance of the ICC. Without trials, states will see the institution as a failure and a waste of money, victims will become disillusioned, and potential accused will not take it seriously.
So how can the ICC get more cases? The selection committee and ASP should ask each prosecution candidate this question. The answer should begin by a commitment that every single activity by the Office of the Prosecutor (OTP) will be oriented to this goal. Every meeting, every trip, every investigative step, every staff person. The new Prosecutor should announce that if it’s not about getting more cases, he or she does not want to hear about it.
Second, the Prosecutor will have to take steps to improve the effectiveness and efficiency of the prosecution’s investigations by examining investigative strategies and priorities, methods, decision-making processes, organizational structures, staff profiles, and performance. Much of what affects the success of ICC investigations and prosecutions is outside of the court’s control, but the institution can and must do better. More on this point below.
Third, the Prosecutor should accept that in some cases it is more important to bring cases against mid-level commanders responsible for serious crimes who can be brought to The Hague, rather than high-level actors who are beyond the court’s reach. Sometimes this debate has been framed as a choice between an ambitious court and a modest one. But that is a false choice. The court has to be both. It should always aim to prosecute those most responsible and pursue those cases when it can. It should never abandon this ambition. But it must also be modest in assessing what is possible with the tools it has and in the environment in which it operates. It is not a super court, and it will not succeed by pretending to be one. If it focuses on investigations in situations or against persons where it cannot succeed, only the court will be blamed, and only the court will suffer the consequences (along with the victims whose interests will be left unvindicated). There will be no glory in failure.
On the other hand, if the court focuses on bringing cases, even if it means a willingness to charge more mid-level actors, the court can begin to build itself towards being a credible institution. First, any case that is brought at the ICC will vindicate the interests of victims, both directly and symbolically. Think of some of the cases already brought at the ICC. The Lubanga case brought attention to the enlistment and conscription of child soldiers, and their suffering, and the Al Mahdi case shined a spotlight on the crime of destruction of cultural property, which can have devastating effects on communities and be the seeds of greater atrocities. Second, starting with mid-level cases can be an effective way to build towards higher-level accused. Experienced international criminal prosecutors will tell you that starting at the top is almost always a recipe for failure. Third, by having cases, the court will learn how to be a more effective and efficient institution. It will learn what works and what doesn’t, what investigative approaches are fruitful, how to run trials effectively. And it will develop jurisprudence both on the procedures and the crimes that will strengthen the foundations of the court and help guide it in the future.
Whatever cases the Prosecutor brings, there will be criticisms, to be sure. But the Prosecutor can maintain legitimacy in two ways. First, the Prosecutor has to ensure that whatever cases he or she brings are righteous and defensible in their own right, i.e. that the targets have committed serious crimes within the jurisdiction of the court and that the evidence is convincing. One will always be able to complain that others were not prosecuted, but the Prosecutor should be able to show that the cases that he or she did bring are meaningful. Second, the Prosecutor should never abandon the ambition to prosecute those most responsible and to ensure that perpetrators on all sides of a conflict are prosecuted. Every international criminal tribunal that has ever existed achieved these goals imperfectly, and it will be the same at the ICC, at least for the foreseeable future. The key will be if the court has results that can be defended and if it is always seen as striving to achieve maximum and fair justice. At the end of the day, the ICC can survive criticisms of cases that it brings. It will not survive if it brings no cases.
That is strategy. Now what kind of person should the selection committee and ASP be looking for to achieve these results? A successful Prosecutor of the ICC will need to be both an experienced prosecutor and a successful manager of international organizations. Why? Because the next Prosecutor will need to confront two constituencies in pursuit of achieving better results. First, the Prosecutor will need to engage the Office of the Prosecutor itself. The OTP is now an entrenched bureaucracy with over 350 staff, many of whom have been in the office for many years, and an annual budget of over 47 million euros. It operates in multiple environments subject to complex rules. It has developed established practices and policies, and as in any organization, the instinct of many within the office will be to defend those practices and policies. When the next Prosecutor seeks to improve investigative strategies and priorities, methods, decision-making processes, organizational structures, staff profiles, and performance, he or she will inevitably encounter resistance and claims that how things are done are how they must be done. To succeed, the next Prosecutor will have to walk in on day one with the prosecutorial and managerial experience to evaluate what works and doesn’t work across all of these dimensions and to bring about the necessary changes with credibility both within and outside the office. It will be an enormously challenging reform process that has to be driven from the top — it cannot be delegated downward — and there will be no time for the Prosecutor to learn on the job.
Second, the next Prosecutor will need to engage the states or non-state actors where the OTP is investigating. The ICC has few independent investigative powers and is largely dependent on state cooperation. And states and non-state actors do not necessarily prioritize such cooperation, even when they are not themselves under investigation, particularly in the current climate in which many states have turned away from international engagement. The ICC will need a Prosecutor who is skilled in obtaining international cooperation for investigations of atrocity crimes.
In sum, the selection committee and ASP should look for someone with experience in the international environment, both prosecutorial and managerial, that convinces them that he or she will have the ability to bring about necessary reforms. But experience is not enough. The successful candidate for Prosecutor should also have a vision and a plan for how to bring about change. The future relevance of the ICC may depend on it.