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.

Continue reading →
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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.

Continue reading →
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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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How do we assess the performance of the ICC’s first Prosecutors?

Posted on April 11, 2020 by PLabuda

Douglas Guilfoyle joins us for this contribution to our ongoing joint symposium with Opinio Juris on the Next ICC Prosecutor. Douglas is Associate Professor of International and Security Law at the School of Humanities and Social Sciences, University of New South Wales Canberra at the Australian Defence Force Academy. Be sure to also check out posts at Opinio Juris from Steven Lamony and Tom Dannenbaum.

(Photo: Justice Hub)

I would like to suggest one metric for assessing the performance of the first two Prosecutors of the International Criminal Court is their impact on institutional legitimacy and effectiveness. This follows from my starting position that the International Criminal Court is best viewed an inter-governmental organisation founded in state party consent – a proposition which may lead me to different conclusions than others in this series.

First, I would like to make the obvious point about results- or effectiveness-based legitimacy. That is, an international organisation’s legitimacy is at least partially dependent upon its success in carrying out the functions (or, in Shany’s terms, achieving the goals) for which it was established. Narrowly, the core functions of the Prosecutor and OTP in relation to the ICC could be defined as something like: investigating and bringing to trial cases which can be fairly conducted with reasonable prospects of success.

The obvious critique to be made here runs something like this: in 22 years of operation the International Criminal Tribunal for Yugoslavia indicted 161 individuals and convicted 99 defendants. In roughly the same period of time, with a comparable annual budget, the ICC has indicted approximately 35 individuals and secured 4 convictions for core international crimes. While this looks poor, the two tribunals are not in directly comparable positions. Importantly, the ICC’s territorial jurisdiction is much wider and it is active in many more situations. At best, thought, this makes an argument for a discount rate on our expectations given the ICC’s more complex job. I would suggest that, despite the ICC’s challenging mandate, a discount rate of over 90% is unwarranted.

Overall, then, it is hard to judge that the first two Prosecutors have succeeded on this metric. Certainly, Prosecutor Moreno Ocampo brought the court its first cases, though he by and large left it to his successor to see them to a conclusion. I have rehearsed elsewhere both criticisms of his investigative and trial strategy and the assessment that Prosecutor Bensouda has been more cautious. I return to these further below.

Beyond these core functions, however, we can ask in broader terms about the legacy of both Prosecutors in bolstering (or not) the institutional legitimacy of the ICC more widely. The first drafts of history here have not been kind to Prosecutor Moreno Ocampo. The OTP’s external expert review into the collapse of the Kenya cases found he had an authoritarian and micro-managing approach to leadership and a ‘target-based approach to investigation and charging rather than an evidence-based approach … [which] forced investigators and prosecutors to try to fit the evidence into cases against pre-determined targets rather than determining targets based on the evidence’. This largely echoes criticisms of him made by former colleagues and, indeed, presented in a New York Times profile. (Moreno Ocampo has challenged the external expert review’s findings, noting it did not interview him.)

Continue reading →

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Evaluating the ICC’s Chief Prosecutor

Posted on April 10, 2020 by Mark Kersten

Geoff Dancy joins us for this contribution to our ongoing joint symposium with Opinio Juris on the Next ICC Prosecutor. Geoff is an Associate Professor of Political Science at Tulane University.

(Photo: ICC)

Systematically evaluating the performance of prosecutors is extraordinarily difficult. Even in the criminal law-obsessed United States, attempts to develop prosecutor performance measures have not really gotten off the ground.

One problem is that publics often do not share a clear conception of what they want from prosecutors, despite the power that these individuals wield in most common law systems. Another problem is that performance evaluation reports can easily get bogged down in an off-putting morass of indicator design and audit culture newspeak.

The challenge of developing shared evaluative criteria and tools of prosecutor assessment, if hard at the domestic level, is even harder at the International Criminal Court (ICC). The job of chief prosecutor is a wholly unique position that has existed for less than two decades. Its occupant serves a much wider group of constituencies than do national or local prosecutors, and she faces radical disagreements on what the office should try to achieve—fueled by well-meaning and not-so-well-meaning observers alike.

On top of that, in June 2021, when the newest prosecutor assumes office, he or she will find limited guidance on how to measure success. As I and others have written, the Court itself has attempted to develop performance benchmarks over the last five years, but mainly produced a collection of 63 loosely configured indicators with little discussion of how they fit into a coherent theory. And it’s doubtful that this year’s much anticipated independent expert review of the ICC will provide a clearer set of evaluative guidelines.

In fact, we should probably accept the reality that there will never be a single, uniform performance framework that can be applied to the Office of the Prosecutor (OTP). Running OTP is less like flying a plane and more like triage. The job cannot be converted into a checklist.

In fact, the way we conduct performance review of the ICC is contingent on our plural worldviews, and the divergent preferences that derive from them. We will never eliminate this pluralism, but we can do better to recognize it, and engage in more systematic thinking when judging the ICC Prosecutor’s work. I have three suggestions in this regard.

  1. Distinguish between performance evaluation and impact assessment

Through they are regularly lumped together by evaluation scientists, gauging how well a person or organization has performed a job is distinct from assessing their broader impact in the world.

Performance evaluation simply means determining the worth of a thing. Worth, or value, is subjective, so this task necessarily introduces normative judgment. In the case of OTP operations, performance evaluation usually involves weighing how well the chief prosecutor makes decisions in situations of discretion.

Ordinarily, critics conduct such evaluations by approving or disapproving of “outputs” produced by prosecutorial choices. These choices include how long to engage in preliminary examination, which investigations to pursue, which individuals to target, which charges to bring, whether to seal an arrest warrant, how to collect evidence, and how to present evidence. Negative evaluations, which seem most common, usually take the following form: “X action by OTP was not ideal.” This implies that things would have been more “just, right, equitable, or reasonable” if the Prosecutor would have done thisinstead of that.”

Impact assessment is different. It means studying how the outputs of particular decisions translate into observable changes in society. By definition, this must include some kind of causal inference.

For example, it is widely accepted that Luis Moreno Ocampo’s decision in late 2010 to charge rival Kenyan politicians Uhuru Kenyatta and William Ruto – for crimes against humanity related to election violence from three years prior – inspired the two to form an unexpected anti-ICC coalition. Forces combined, they came from behind to win the 2013 presidential election and allegedly used their new power to intimidate witnesses and promote African non-cooperation with the Court. From this, many contend (e.g., here and here) that the ICC intervention had perverse effects: it entrenched the impunity of perpetrators, caused harm to victims and witnesses, and undercut the Court’s general legitimacy. Continue reading →

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Electing the Next ICC Prosecutor: A Generational Opportunity

Posted on April 9, 2020 by Mark Kersten

Christian De Vos and Mariana Pena join JiC for their contribution to our joint symposium with Opinio Juris on the Next ICC Prosecutor. Christian is a senior advocacy officer with the Open Society Justice Initiative and author of the forthcoming book, Complementarity, Catalysts, Compliance: The International Criminal Court in Uganda, Kenya, and the Democratic Republic of Congo. Mariana is a senior legal officer with the Open Society Justice Initiative, has 15 years of experience in the field of international justice. They write here in their personal capacity. Be sure to also check out the latest contribution at Opinio Juris, by Liz Evenson: The Next ICC Prosecutor Should Resolutely Hold the Most Powerful to Account.

ICC prosecutor Fatou Bensouda shakes hands with Stephane Bourgon, Bosco Ntaganda’s defence counsel (Photo: ICC)

It would be hard to overstate the importance of the forthcoming election for the International Criminal Court’s next prosecutor. As December looms, the responsibility is on states parties to elect an individual that meets not only the “high moral character,” competence, and practical experience that the Rome Statute requires, but also the good judgment and managerial skill that the office demands.  As a leader and top manager, the new prosecutor must also embody—and be committed to—the highest standards of respect and integrity.

The prosecutor’s election also arrives amidst an ongoing, state-supported review of the ICC’s performance and its place within a larger and ever evolving global justice system. If done well, that review process, which should culminate in late 2020, could offer both a political window and a potential roadmap to consider the kind of structural changes that the ICC has thus far largely shunned.

It is equally hard to overstate the critical role that the Office of the Prosecutor (OTP) plays in shaping and executing the work of the ICC. As the organ responsible for investigating the situations and prosecuting its cases, the OTP is the engine of the Court: it defines not only what populates the Court’s docket but also, and perhaps more critically, what does not. The principle of complementarity, and to a lesser extent the gravity requirement, have consumed much of the debate to date about where the OTP engages. However, fundamental questions about the role of prosecutorial discretion, political judgment, and resource allocation are actually at the core of situation and case selection. For an institution facing an environment far more hostile to its mission than that which welcomed its establishment, these questions go to the heart of the prosecutor’s job.

All of this makes the election of the third ICC prosecutor part of a unique, generational opportunity. That opportunity is even more pressing given the Court’s diminished role in the global political landscape. Propelled by the enthusiasm and optimism of a generation that cried out “never again” for mass atrocities, the Rome Statute entered into force in record time and the Court enjoyed political support from many states – and begrudging tolerance from others – in its initial years. But internal and external developments have resulted in a dramatic change of circumstances for the ICC and the field of international justice more broadly. Internally, states parties have grown impatient with the Court’s limited successes and its institutional inefficiencies, leading to more state interventionism and less financial support. Externally, the Court’s mere existence and, increasingly, its proposed investigations in certain countries have brought unprecedented attacks that seek to curtail its independence. Once supported and cheered, the ICC now faces limited cooperation and hostility.

Finally, this election unfolds under the long shadow still cast by the first person to hold the office: Luis Moreno Ocampo. Though initially praised by some for building up an office from scratch and pioneering important concepts like “positive complementarity,” his tenure can only charitably be described as rocky. Criticized for his authoritarian management style [PDF] (one that saw an early exodus of several senior staff from the OTP), penchant for institutional turf battles, and a record of poorly developed cases [PDF] that were insufficiently grounded in evidence and badly staffed, the damage done to both the Office and the ICC in these early, pivotal years cannot be underestimated. Continue reading →

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