Between Continuity and Renewal: ICC Office of the Prosecutor, 3.0

Posted on April 23, 2020 by Mark Kersten

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. Continue reading →

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Vindicating Rights and Ending Impunity: Palestine, Statehood, and the International Criminal Court

Posted on April 22, 2020 by Mark Kersten

Pearce Clancy joins JiC for this guest post on the International Criminal Court and the question of Palestinian statehood. Peace is a Legal Researcher for Al-Haq, a Palestinian human rights organisation, and holds an LL.M in international law from the Irish Centre for Human Rights.

(Photo: BBC / Reuters)

On 16 March 2020, amicus curiae briefs were submitted to the International Criminal Court (ICC) arguing whether the ICC’s jurisdiction in Palestine encompasses the West Bank, including East Jerusalem, and Gaza. According to Article 12(2) of the Rome Statute, which sets out the scope of the Court’s territorial jurisdiction, statehood is established as a prerequisite:

“… the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute …:

The State on the territory of which the conduct in question occurred …”

Having acceded to the Rome Statute, Article 12(2)(a) should therefore allow for the Court to be conferred by Palestine, with the necessary jurisdiction satisfied for the Prosecutor to open an investigation into international crimes committed within Palestinian territory. But some do not consider Palestine to be a State, and thus object to the applicability of Article 12(2)(a) in the first place. While a number of amici were submitted to this effect, the brief submitted by Professor Malcolm N Shaw provides perhaps the most concise and striking representation of this position, and thus serves as a useful reference point for efforts to thwart an ICC investigation in Palestine.

Recognition and the Right of Self-Determination

Shaw contends that “[t]he determination of statehood is one of the key functions of international law.” So much so, he asserts, that a lack of “precision and certainty in this critical task” may not be excused (para 6). Seemingly in recognition of the impossibility of determining statehood in the context of Palestine with the precision of a box-ticking exercise, however, Shaw further notes that the so-called normative criteria of statehood found in Article 1 of the Montevideo Convention may be supplemented by recognition and the principle of self-determination (para 17).

In essence, Shaw argues that only two types of recognition are sufficient to supplement a lack of effective territorial control as the determining factor of statehood: United Nations (UN) membership (para 18-19), and the “widespread recognition of leading states representative of the international community” (para 18). Moreover, the right of self-determination has been recognised by the International Court of Justice (ICJ) as a fundamental norm of the international legal system, which creates obligations on all States to bring the illegal situation to an end. Shaw is aware of this, and notes that this right creates a choice as to how a subjugated people may organise politically (paras 21, 33). What is not appreciated is that this choice has been made by the Palestinian people, who have decided to organise in the form of a State of Palestine.

It is not the possibility of statehood as a result of self-determination which is contested; instead, Shaw links the attainment of statehood to recognition, either by what he deems to be “important” States, or through UN membership. This is best illustrated through his use of the examples of Bangladesh (para 19) and Guinea-Bissau (para 22), the statehood of which were only conclusively affirmed following their admission into the UN (i.e. recognition by the Security Council), and that of Kosovo, which “remains controversial” due to not attaining UN membership, nor recognition by “important States” such as Serbia, Russia, China and India (para 19). For Palestine, however, Shaw goes further, mirroring the official Israeli position, and suggests that the journey towards statehood is of a somewhat sui generis character which must be concluded through an agreement with Israel (para 34). Continue reading →

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The Next ICC Prosecutor Must Embody Integrity in the #MeToo Era

Posted on April 18, 2020 by Mark Kersten

This post by Danya Chaikel originally appeared at Opinio Juris as part of our symposium on the Next ICC Prosecutor. Due to the urgency and immediacy of the issues raised in it, I have decided to publish at JiC as well. Danya is an international lawyer who has worked for 15 years across several international criminal courts, tribunals, NGOs, professional bodies and the UN. She is the Secretary of the International Bar Association’s War Crimes Committee and coordinated the International Association of Prosecutor’s Forum for International Criminal Justice for nine years. She began her career in The Hague at the ICC in 2010 in the Investigation Division of the Office of the Prosecutor and later worked for the ICC Presidency and Secretariat of the Assembly of States Parties.

The ICC Prosecutor is first and foremost a leader, who needs to stimulate a work culture that empowers personnel in a safe and supportive environment – so that they can investigate and prosecute with excellence. Not only must the next ICC Prosecutor effectively tackle all forms of misconduct, they must also have a clean record.

In December, the ICC Staff Union Council called on States Parties to give full meaning to the provisions on high moral character of elected officials, including judges and the next Prosecutor, stating that unethical behaviour has “already shown to negatively affect the wellbeing and health of the staff of the Court.” I have also read a 2018 Staff Union report which details an unpublicised survey of 128 staff members – 48.4% of respondents said they had been victims of at least one of the following at the ICC: discrimination, (sexual) harassment, abuse of authority or misconduct. The results also showed low levels of reporting.

The #MeToo movement has thrust these issues into the mainstream, and we are coming to grips with how widespread harassment and mistreatment are within the legal profession and international institutions. The discussions have focussed on sexual misconduct against women who are disproportionately affected, and now the conversation is broadening to cover a range of unethical behaviour across genders, from the minor to the egregious, such as: inappropriate jokes, sexually suggestive comments, threats, abuse of authority, racism, homophobia, gaslighting, sexual assault and other forms of violence.

States Parties should conduct a thorough assessment of the final 6 candidates

Recent civil society campaigning on the upcoming election has focussed on how an assessment of the next Prosecutor’s “high moral character” must take into account past sexual (and other) misconduct. An OSJI article I was quoted in led to a woman approaching me for help with her sexual misconduct complaint, about one of the likely ICC Prosecutor applicants. Her attempt to tell her story is still unfolding, as we know how incredibly daunting it is to make such a claim against a senior member of the international criminal law field. Over the past few months, she’s written that her “stress level was super high”, she feels “stupid to be afraid” and that she will be depicted as “asking for it”. Her fear is palpable.

I mentioned the challenge of supporting this woman to an ICC staff member who warned this could play into the hands of ICC naysayers to further discredit the institution. This is part of a culture of denial – something I have witnessed numerous times in The Hague, and also when my own sexual harassment claim was silenced, as a lawyer in Canada.

The main reason this woman has not yet disclosed her name and full claim to the Committee on the Election of the ICC Prosecutor is because they do not have a comprehensive procedure to process such complaints. The uneven power dynamics in terms of gender, status, wealth and age in this claim are clear. Understandably the woman assumed there would be a procedure providing her protection from retaliation, or a potential defamation lawsuit. She has also made it clear that the due process of the applicant should be upheld so her claim is fairly considered.

The Committee takes these issues seriously and has indicated its willingness to accept credible information. While praiseworthy, this is not enough when the stakes are high, and few people have the courage to come forward. After the longlist of 16 candidates are interviewed by the Committee, States Parties still have the chance to assess the final six candidates before the election of the next Prosecutor. Even though the Committee’s mandate will come to an end, there is still time for States Parties to conduct thorough background checks and to facilitate a fair, transparent and safe procedure for complaints. Continue reading →

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What to Look for in the Next ICC Prosecutor

Posted on April 17, 2020 by Mark Kersten

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!

(Photo: ICC)

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. Continue reading →

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ICC Prosecutor Symposium: The Prosecutor’s Commitment to Ensuring Gender Equality

Posted on April 16, 2020 by Mark Kersten

The latest contribution in our ongoing symposium on the Next ICC Prosecutor comes from Valerie Oosterveld. Valerie is a Professor at Western Law in London, Ontario. Her research and writing focus on gender issues within international criminal justice. In 1998, she was a member of the Canadian delegation to the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC. In 2010, she served on the Canadian delegation to the Review Conference of the Rome Statute of the ICC in Kampala, Uganda. Be sure to also check out Danya Chaikel’s piece on the #MeToo movement and the Next ICC Prosecutor.

Survivors of sexual and gender-based violence who received psychological rehabilitation support through the Trust Fund for Victims’ assistance programme in Bukavu, South Kivu province, eastern Democratic Republic of the Congo (Photo: ICC)

The Vacancy Announcement for the position of ICC Prosecutor indicates that candidates should have a range of experiences, skills and attributes, including a “commitment to … ensuring gender equality”. This particular aspect of the call for applications goes far deeper than a stated dedication to ensuring prosecution of sexual and gender-based violence (SGBV) crimes.

A commitment to ensuring gender equality has two crucial aspects.

First and foremost, the ICC’s Prosecutor must possess a solid understanding of the term ‘gender’ and its meaning for the substantive work of the Office of the Prosecutor (OTP). Gender is a social construct that differs from place to place, and even within cultures. Societies have overt or implicit (sometimes discriminatory) expectations of what ‘femaleness’ and ‘maleness’ means. As the OTP’s 2014 Policy Paper on Sexual and Gender-Based Crimes observes, the term ‘gender’ takes into account the “roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys” in given societies. During times of heightened violence and the breakdown of the rule of law, these categories can shape who is targeted, who does the targeting, and in what manner. Those considered to fit the ‘maleness’ social construct in their society may be targeted for death, different forms of torture (including sexual torture), and particular types of physical forced labour. Those considered to fit the ‘femaleness’ social construct may be targeted for rape, sexual slavery, forced marriage, forced caregiving and forced domestic labour. Those who are viewed by perpetrators as not fitting into either social construct, such as LGBTQ+ or disabled individuals, may be targeted for specific humiliation and death. In other words, gendered assumptions by perpetrators about victims can inform almost every aspect of crimes committed during a conflict or mass atrocity.

Similarly, a society’s gender constructs can enhance, or overlook, harm done to victims. For example, a highly patriarchal society with deeply embedded discrimination against girls and women may react to sexual violence committed against its female members by rejecting survivors, further deepening the negative effects of the crimes. Perpetrators may count on these socially embedded responses to ensure the destruction of communities. At the same time, these girls and women may be narrowly categorized as ‘sexual violence victims’, even though their lived experiences are far more nuanced as survivors of a wide range of crimes directed at them, their family, and communities.

Harmful, incorrect or uninformed gendered assumptions can replicate themselves in the ICC’s investigations and prosecutions (and have done so in the past). These assumptions can, and have, unnecessarily limited investigations, prosecutions and judgments. This is why the OTP’s Policy Paper on Sexual and Gender-Based Crimes indicates that the OTP must take a “gender perspective” on investigations and prosecutions. Despite a very rocky start, the ICC’s OTP has made significant improvements since 2014, under Fatou Bensouda, in integrating gender into its working methods. The Policy Paper mentioned above was a significant step and was the first policy of its type in any international court or tribunal. The OTP’s 2019-2021 Strategic Plan recognizes the need to stay the course in implementing this policy. Strategic goal 4 indicates that the OTP will continue to refine and reinforce its approach to SGBV victims, among others, and “evaluate the implementation and effectiveness of these policies in practice”.

In other words, it is a fundamental job requirement that the ICC’s Prosecutor have a firm understanding of gender as a social construct, how gender informs and interacts with mass atrocities, and gender-sensitive justice response to those atrocities.

A second key aspect to a commitment to ensuring gender equality is that the Prosecutor must be a gender-competent leader and manager within the ICC. As a leader, the Prosecutor is not only the top prosecutor among many prosecutors; that individual is a leader who has the power to set and maintain the gender-sensitive tone and focus of the office, model appropriate behaviour, create policy and ensure that policy is practice. As a manager, the Prosecutor should ensure that s/he has in place gender-competent individuals throughout the OTP, including at the highest levels, to guide the work of the office. As indicated by the Women’s Initiatives for Gender Justice, this requires attention to gender mainstreaming, appointment of senior staff responsible for gender equality and the empowerment of female staff, support for the appointment of a Court-wide Gender Focal Point, gender balance in the OTP’s staff, ongoing training of OTP staff (including the Prosecutor) on gender issues, and an office culture in which gender analysis is standard from preliminary examinations through to appeals. Continue reading →

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Coming full circle: Should the third Prosecutor try to solve the ICC’s “Africa problem”?

Posted on April 15, 2020 by Mark Kersten

The latest contribution to our ongoing symposium on the next ICC Prosecutor was written by Kate Gibson. Kate has represented accused before the international criminal courts and tribunals since 2005, including as co-counsel for Radovan Karadžic and Charles Taylor, and as lead counsel for Justin Mugenzi before the ICTR. She is currently the co-counsel of Bosco Ntaganda before the ICC, where she also represented Jean-Pierre Bemba between 2009 and 2018.

Former ICC Prosecutor Luis Moreno-Ocampo on a visit to the DRC (Photo: ICC)

The perception that the ICC Prosecutor has unfairly – or at least disproportionately – targeted accused from African states is one that Prosecutors Ocampo and Bensouda have been unable to shake. The question faced by their successor is whether she should wade into this debate. Is there anything to be gained by attempting to improve the relationship between the Court and its first (but former) champions? And, if so, how could it be done?

Certainly now in 2020, the relationship between the Court and its African States Parties is less fraught than it once was. The first huge rift appeared in 2009, when Prosecutor Moreno Ocampo failed, but then succeeded, in bringing genocide charges against a sitting head of state, President Omar Hassan Ahmad Al Bashir of Sudan. Almost outrageous in his defiance, President Bashir announced to crowds burning effigies of the Prosecutor that the ICC could “eat” his indictment. Significantly, his claims that the African Union, Arab League, and countries of the Non-Aligned Movement had lined up behind him – and against the Court – was strengthened by his unimpeded travel to Nigeria, Egypt, Ethiopia, Kenya, South Africa, Qatar and China, among others. The silence of African heads of state when the Prosecutor pursued rebel leaders and political opponents, gave way in spectacular fashion when a fellow President was put in the cross-hairs. The narrative of a “’racist” ICC targeting Africans was born, and took hold.

Tensions peaked in late 2016, when it appeared for a period of several weeks that a mass withdrawal of African States Parties was likely. On 19 October 2016, following its rebuke from the ICC for allowing President Bashir to attend the 2015 African Summit in Johannesburg, South Africa notified the UN Secretary General of its intention to withdraw from the Rome Statute. A few days earlier, the Burundian parliament had voted in favour of doing the same. The Gambia, Uganda and Namibia also announced an intention to withdraw. The complaints, which by then ran deeper than the well-worn neo-colonial critique, and the right of sovereign states to prioritise peace over justice, were consistent and virulent.

There is no question that the optics at the time were unhelpful. Nine of the first ten Prosecution investigations had been in African states: the Democratic Republic of Congo (DRC), Uganda, the Central African Republic, Libya, Kenya, Côte d’Ivoire, Mali and Sudan. Only Africans had been detained. Only Africans had been tried. Only Africans had been convicted. And only in 2016 did the Prosecutor open the first situation in a non-African state relating to alleged crimes in Georgia. The comparatively limited number of Prosecution trial attorneys and legal officers who were nationals of African states did not improve this picture. In that context, the “European Court for Africa” label was always going to be difficult to dislodge.

Even had Prosecutor Bensouda wanted to avoid addressing this controversy, it was no longer possible. In the face of direct questions, she attributed the lack of geographical spread in the ICC’s cases to the number of self-referrals from African states in the Court’s early years, and their continued cooperation with the Court to allow successful investigations and prosecutions. For her, claims of racism were “far from the reality”. This echoed, in subtler terms, Prosecutor Ocampo’s stance that allegations of racism were “propaganda” and the focus on Africa was due to the fact that “there were serious crimes there and the leaders requested our intervention”.

Should the next ICC Prosecutor continue down this path and, in particular, continue with this narrative?

Consider first, that the direct engagement by Prosecutors Ocampo and Bensouda did not silence detractors. The position that the Court was doing nothing more than engaging with African states that had engaged with it, was countered with the claim that Prosecutor Ocampo had encouraged these states to refer situations to the ICC (and arrest and produce suspects), as part of an understanding that their leadership would be immune from prosecution. The selective nature of the Prosecutor’s investigations in Uganda and the DRC, which neatly circumvented the cooperating regimes, gave support to proponents of this view. Continue reading →

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The Politics of a Prosecutor: Getting the Context Right

Posted on April 15, 2020 by Mark Kersten

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. Continue reading →

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Less is More: Rediscovering the Prosecutor’s Core Mandate

Posted on April 14, 2020 by PLabuda

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.

Author’s photo – Makala prison, Kinshasa 2011.

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.

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What can and should the next Chief Prosecutor do to improve the ICC’s investigation techniques?

Posted on April 13, 2020 by PLabuda

Our joint symposium on the next ICC Prosecutor continues. Ewan Brown is Senior Analyst at the Commission for International Justice and Accountability; his prior service includes appointments as head of the Military Analysis Team at the ICTY-OTP, as Darfur Team Leader at the ICC-OTP and as an officer in the British Army. William H. Wiley is the Executive Director of CIJA; he has also served variously as an intelligence analyst, investigator and legal advisor with the Canadian war-crimes program, the ICC-OTP, the ICTY-OTP, the ICTR-OTP and the Iraqi High Tribunal, in addition to his service as a Canadian Army officer. Be sure to also read Kate Vigneswaran and Melinda Taylor at Opinio Juris.

(Photo: Justice Hub)

The collapse of the prosecution cases against Mr. Laurent Gbagbo and Mr. Charles Blé Goudé constituted the latest serious setback for the ICC’s Office of the Prosecutor (OTP) which, since 2003, has experienced a great deal more defeat than victory.  Factors unique to any given casefile will explain why (i) an investigation does not give rise to a prosecution and, where allegations are brought before a panel of judges, (ii) the prosecution fails to see charges confirmed and convictions registered.  That noted, a consistent pair of shortcomings invariably inform unsuccessful ICC-OTP investigations and prosecutions: an insufficiency of evidence as well as the failure of the OTP to assess properly such prima facie evidence which it has chosen to adduce. 

It is undoubtedly the case that the reasons for this undesirable state of evidentiary affairs do not all lie with the OTP.  The OTP is often compelled to operate within politically unstable environments which present significant physical-security challenges; to its credit, over the last two to three years the OTP Investigations Division has responded deftly to these realities, often through increasing cooperation with non-State actors, including private investigative entities, which have shown themselves to be capable of collecting information of ostensible probative value.  That noted, Gbagbo and other prosecutorial failures would suggest that the OTP continues to struggle in its efforts to conform to the highest standards of information-cum-evidence collection planning, collection management and evidence review.  This post will address in turn each of these pillars of successful international criminal investigations and prosecutions.

Evidence Collection Planning

The practice of international criminal and humanitarian law (ICHL) has long distinguished between crime base and linkage evidence, with OTPs – including that of the ICC – showing, in most cases, a marked inclination towards the over-collection of crime base materials and the under-collection of linkage information with evidentiary value.  This injurious practice reflects the failure of the profession of international criminal investigations and prosecutions to implement rigorous evidence collection planning protocols.  If the ICC-OTP does not address this shortcoming, it will continue to see a great many of its investigations and prosecutions come to grief. 

Crime Base Evidence

Crime base evidence is used to satisfy the physical elements of the offences alleged; as such, it does not concern itself with the mental elements of crimes nor the mental and material legal requirements of the modes of liability set out in ICHL.  Given its limited scope, prima facie crime base evidence is relatively easy to secure.  This, in part, explains the widespread tendency towards its over-collection.  For this and other reasons, not least finite-resource considerations, it is essential that crime base information-cum-evidence should be sought in accordance with properly prepared and detailed collection plans.

Linkage Evidence

Linkage evidence can be defined as that which is required to meet the mental and material elements of the alleged modes of liability as well as the mental elements of the offences. Given that, in the first instance, international criminal investigations should not be individual-target driven, and failed cases have often been the result of poor quality linkage evidence, the bulk of the initial collection effort should be assigned to ensuring a comprehensive understanding of key linkage themes, including: the relevant military, security, political and paramilitary structures and their activities; the commanders, staff officers and other key governmental, party-political and security personnel operating within these structures; the command, control and communications (C3) apparatus linking command and staff headquarters to deployed units; and the disciplinary procedures at the disposal of the command, both de jure and de facto. Within these themes it is the detail that matters and the collection of exhaustive linkage evidence needs to be fully understood by all involved. Convictions can only be gained through a fundamental understanding of linkage evidence, placing linkage collection at the heart of investigations, through the imaginative use of multiple sources and the work of professional collection managers.

The building of linkage cases against high-ranking suspects requires considerable collection and analytical capacity. However, once the functioning of the relevant structures has been understood in significant detail – an effort which should absorb the overwhelming majority of the resources assigned to a complex criminal investigation – it is a relatively straightforward matter to identify the top leaders of the said structures and, in turn, link them through the C3 arrangements to underlying criminal acts.

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Choosing the Next ICC Prosecutor: Lessons from the Past

Posted on April 12, 2020 by PLabuda

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?

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