Sergey Vasiliev joins JiC for this guest-post on the future of the Office of the Prosecutor of the International Criminal Court. Sergey is an Assistant Professor at the Department of Criminal Law & Amsterdam Center for International Law, University of Amsterdam. 

The International Criminal Court (Photo: ICC)

OTP transition in context

The world that the ICC will be navigating as its third Prosecutor makes a solemn undertaking in 2021 will be a less hospitable place than it was in 2012 when the current holder of the office commenced her mandate. The era of ‘global cosmopolitanism’ to which international criminal justice has owed its revival and ascent since early 1990s is a matter of nostalgic past. Even before the current pandemic crisis, the international climate was hardly conducive to multilateral projects; it will likely get even less so. As States Parties attend to more pressing matters, their commitment to the Court is pushed to the side and seemingly on the wane. The sluggishness and paucity of reactions (11 by my count) to the US Secretary of State Pompeo’s latest series of insults against the ICC and threats to OTP staff and their families may indicate as much.

Time will show whether this dynamics can be reversed. But there is no doubt that the incoming Prosecutor will be facing skyrocketing expectations and diverging demands as well as political and operational challenges of a different magnitude than nine years ago – without a commensurate growth in resources and political backing. OTP 3.0 will need to step up its investigative and prosecutorial game across situations (which are likely to multiply) while reckoning on no more than nominal or lukewarm support by States Parties at best — and having to put up with their foot-dragging and recalcitrance at worst. It will also be expected to make headway in the ‘no-go’ situations of Georgia, Afghanistan and possibly Ukraine and Palestine; all implicating major powers and their satellites from among states not party which are hostile to the Court.

To wade its course in these perilous waters, the Office will need all the resilience, courage, and creativity it can muster. It would be amiss to discard the ‘lessons learned’ over the past eighteen years, although that experience is no silver bullet to overcome the obstacles the Prosecutor will face; nor should it fetter the maneuverability that mission requires. The incoming principal should not only build upon whatever warrants preservation in the Office  but also apply surgical solutions to spearhead the necessary changes. The key task will be to strike the right balance between continuity and renewal in OTP structure, strategies, practices, and culture. The only transition in the Office so far provides limited experiential knowledge for the third Prosecutor to fall back on. In due course, the ongoing Independent Expert Review will offer some guidance as part of its work on issues within Clusters 1 and 3. The lessons that can be gleaned from the OTP’s second term will certainly prove instructive.

OTP 2.0: Continuity…

In some respects, continuity has been the OTP’s default modality during the second Prosecutor’s tenure. Consider the continuity of case docket and of staff, which are interrelated variables. Before she took the helm of the Office, between 2004 and 2012, Fatou Bensouda served as Prosecutor Moreno Ocampo’s Deputy in charge of prosecutions. As such, she played an important role in strategic planning and decision-making during that period. This is when some of the ‘problem cases’, which would later come to haunt her office as ‘failures’, materialized: Kenyan cases (charges withdrawn or no case to answer acquittal), Bemba (acquittal on appeal), and Gbagbo and Blé Goudé (no case to answer acquittal; appeal pending). Although it is said sometimes that Bensouda ‘inherited’ them from her predecessor, it is more accurate to see them as being as much of her own.

Other than the Katanga (controversial) conviction, much of the first half of the Bensouda term was consumed by the unraveling of the Kenyan cases and ultimately futile attempts to salvage them; the second half was marked by the high-profile acquittals of Bemba and Gbagbo and Blé Goudé. To balance this off, one should mention the convictions of Al Mahdi and Ntaganda (appeal pending), as well as the recently completed Ongwen and the ongoing Al Hassan and the Yekatom and Ngaïssona trials – the cases which with the exception of Ntaganda and Ongwen can be ascribed exclusively to Bensouda’s tenure. Otherwise, as others noted, the Office under her tenure brought only a few cases to the Court. It is not that Bensouda’s Office stuck to her predecessor’s formula positing the lack of cases at the ICC as a measure of its success. Rather, the ‘too few cases’ critique should acknowledge that this was not for the lack of trying. Several cases she initiated—e.g. Mudacumura (DRC) and Khaled and Al Werfalli (Libya)—did not progress further due to States’ failure to arrest and surrender suspects.

That said, the fact remains that OTP 2.0’s docket has consisted largely of cases arising from the first term. Concomitantly, OTP 2.0 has been characterized by a high degree of staff continuity vis-à-vis the first-term OTP. The time after Bensouda assumed office was opportune for carrying out a comprehensive internal review of the OTP strategy and evidence in the ongoing cases. A critical appraisal of the organizational structures and competence levels of the senior OTP staff should have also taken place. However, that does not appear to have happened. This personnel policy served to reinforce the OTP’s ‘path dependency’ in respect of the investigative and prosecutorial approaches which had been adopted in those cases. While it is true that new highly competent and committed staff members were recruited into all of the three Divisions, many on the senior and intermediate management level continued serving in their positions or were promoted. While being perhaps a special case, it is notable that the Head of the Investigation Division has occupied this position since 2006.

Limited staff mobility and ossified managerial structures may pose an obstacle to a critical revision of investigative and prosecutorial practices and render reforms difficult to implement. Permanence of management comes with a risk of institutional stagnation as (senior) staff get set in their ways and may be reluctant to do things differently, review positions previously taken, be genuinely receptive to criticism, and acknowledge and learn from past mistakes. If the inter-term transition in the OTP had involved a closer scrutiny of the staff competence levels and, if appropriate, personnel changes, some of the first-term cases could have possibly been shed sooner – instead of trying to salvage them by all means. This would have spared it demoralizing fiascos and freed up resources for other cases.

…or rupture?

Of course, none of that is to say that OTP 2.0 has been completely stagnant and impregnable to change. On the contrary, there have been serious, bona fide efforts to critically evaluate and enhance the OTP performance in relation to its core business and the institutional sphere. Under Bensouda, the Office has reportedly carried out a number of internal self-assessment and milestone-triggered lessons learned initiatives and case-specific evidence reviews. It also commissioned an external expert review of its performance in the Kenya situation. The OTP 2.0 leadership invited external feedback on strategic issues, was transparent about setbacks, and engaged publicly with its critics in a spirit of dialogue. While somedefensiveness is perhaps unavoidable, the OTP’s public engagements and exchanges with stakeholders have overall been constructive and served to enhance its credibility.

One area where Bensouda’s Office contrasts positively with that of her predecessor, is the demonstrated commitment to ensuring high standards of integrity and professional conduct and to the strengthening of disciplinary mechanisms for her staff. The OTP Code of Conduct, the adoption of which had been held up during the first Prosecutor’s tenure, was finally passed in September 2013, i.e. some 10 years after the OTP commenced its activities and one year after Bensouda assumed office. In that same year, it also became possible to extend the investigative mandate of the Independent Oversight Mechanism (IOM) to the OTP personnel. The earlier attempts to do so had failed because of the first Prosecutor’s being opposed to the notion that the IOM could investigate OTP staff without his prior sanction with reference to prosecutorial independence.

The extension of IOM prerogatives went some way to narrowing the accountability gap within the Office. Its existence became apparent in September 2017 when the European Investigative Collaborations (EIC) and participating media outlets publicised allegations of misconduct by the former Prosecutor and two serving OTP staff. These claims damaged the Court’s credibility and became a matter of concern for States Parties and other stakeholders. As the Prosecutor reported in 2018, she referred the allegations concerning the two staff members to the IOM. The Mechanism investigated these cases and the Court’s Disciplinary Advisory Board was seized, leading to the Prosecutor’s decision to separate them from service (which they then appealed to the ILO Administrative Tribunal). While the Court’s legal and disciplinary framework governing the conduct of sitting officials is in the OTP’s view adequate and sufficient, there is a legal gap regarding former staff or elected officials, whose alleged misconduct can neither be investigated nor effectively penalised, which is for States Parties to address. Other than recourse to Article 70, former Prosecutors and staff remain out of reach, subject neither to the IOM’s investigative powers nor the Court’s disciplinary authority.

Around the time and in the aftermath of EIC allegations, the Prosecutor took more pronounced steps to rupture the continuity which cast shadow over OTP 2.0 and to distance herself from her former boss. She was also compelled to address the nature of their communication after June 2012. After stating initially that the Office “has not initiated contact, sought advice or collaborated with the former ICC Prosecutor … in relation to any of the situations or cases being handled by the Office or the Court since [she] assumed office as Prosecutor”, the Prosecutor later acknowledged that such communication did in fact take place, even though it did not amount to seeking instructions and hence did not compromise her independence:

When assuming office, I took carriage of all of the situations and cases that Mr Ocampo had opened and on occasion communication between us with respect to these was to be expected and is entirely normal. … However, the point is that I work in an independent manner, and have always taken my own decisions in an independent, impartial and objective way, respecting the discharge of my responsibilities.

The Prosecutor also emphatically assured States Parties that the Office had undergone profound changes during her tenure, referring among others to various endeavours to improve the work climate within the OTP and establish the Core Values of the Office. The following excerpts from her 2018 briefing are self-explanatory:

35. The OTP has been transformed in many ways since, by my personal efforts and those of my committed and principled team. I earnestly believe it is this transformation that should be the focus and this new reality should provide you with all of the re-assurance that you need. …

36. The OTP today is a different Office which is shown through its results in and outside of the courtroom and has in place a different organization and culture.

The sentiment of ‘breaking with the past’—amid reiterations of commitment to a ‘culture continuous learning and improvement’ and to bolstering ‘internal quality control mechanisms’—similarly imbues the Prosecutor’s November 2019 statement on the internal review of the lessons learned from the Kenya situation, released along with the executive summary of the above-mentioned independent external experts’ report. The statement reproduces in painful detail their conclusion that the former Prosecutor’s ‘autocratic leadership style’ was one of the causes of the OTP’s fiasco in Kenya; his monosyllabic reply was annexed, ‘speaking for itself’.

The stated purpose of this review exercise was not to ‘lay blame or to criticise anyone’. Yet, the statement leaves an aftertaste, that of blame-shifting and legacy-whitewashing. Between the lines, one reads that, firstly, the problems OTP 2.0 faced were attributable largely to the former Prosecutor and, secondly, that those problems have all been fixed since the issue of the report in February 2018, meaning that, as refrain goes, ‘clearly, the OTP is on the right track.’ (p. 19). But it had been seven years since Moreno Ocampo was gone; he cannot be blamed for every setback which beset the Office after his departure. As he noted, the Prosecutor and some of her Directors were part of the Executive Committee that took all key decisions in Kenya case. As has been rightly observed, true leadership means accepting personal responsibility for the functioning of the office, as opposed to finger-pointing or buck-passing. Indeed, one cannot learn from her mistakes without owning up to them first.

Takeaways for OTP 3.0

Regardless of who becomes the next Prosecutor, they cannot avoid positioning themselves towards their predecessors and deciding which parts of their legacy are best left in the past and which are to be carried forward. Much depends on the wisdom of those choices and the new principal’s readiness to take full responsibility for them. What could be learned from the experience of the only transition in the OTP so far?

First, the Prosecutor should consider instituting a rotation system or term limits (4-5 years) for the OTP staff in senior management positions, i.e. at the level of Directors of divisions and possibly heads of sections. This would enable a regular inflow and circulation of fresh ideas in the Office while fostering staff diversity and mobility as well as offering prospects of career advancement to deserving individuals.

Second, upon assuming office, the new Prosecutor should carry out an assessment of whether the competence levels of OTP staff members correspond to the requirements of their positions. If not, appropriate solutions should be identified in individual cases and staffing decisions made accordingly.

Third, the Prosecutor will be well-advised to take a hard look at the cases from the previous terms and undertake a comprehensive evidence review (to be repeated at milestones as appropriate).

Fourth, the incoming Prosecutor should continue efforts to improve the work climate and culture within the Office. They should invest further in strengthening compliance with, and enforcement of, the standards of professional conduct for the OTP members and lending support to the ongoing inter-organ review of ICC rules of professional ethics and disciplinary mechanisms, including in respect of former staff members and elected officials.