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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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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The Chief Prosecutor: Diplomat, Politician, Leader, Manager, and Lawyer

Posted on April 8, 2020 by Mark Kersten

David M. Crane joins JiC for this second post in our ongoing joint symposium with Opinio Juris on the next ICC Prosecutor. Crane was the Chief Prosecutor of the Special Court for Sierra Leone from 2002 until 2005.

David Crane during hearings at the Special Court for Sierra Leone (Der Spiegel)

I have had the rare privilege of being one of four individuals to actually found an international tribunal, literally from the ground up, and manage it to success. The international war crimes for West Africa, called the Special Court for Sierra Leone, has been taunted as one of the more successful tribunals in modern history. Why is this so? Like the tribunals for Yugoslavia and Rwanda, each was created by the United Nations with the intent to seek justice of victims of atrocity crimes, yet the Special Court for Sierra Leone stands out from the other two as being more effective and efficient.

There are several reasons—a workable mandate (greatest responsibility), the proper location (at the scene of the crimes in Sierra Leone), a strategic plan along with a prosecution plan. Stated simply the Special Court was better led and managed across the board. Additionally, as a hybrid international tribunal, the Special Court was “of the UN”, not “in the UN”. Therefore the byzantine administrative and personnel rules that is so much of the UN management system did not apply to us. The UN is simply incapable of administering international justice in an effective and efficient manner. Because the Special Court was not tied to these archaic management principles we were able to move fast, with less cost, with a lean dedicated team of people not focused on a UN career (where initiative can be frowned on) but on seeking justice for victims of international crimes. Alas, the International Criminal Court has become somewhat a clone of the UN—more form over substance. I say this with regret.

A successful Chief Prosecutor has to be a diplomat, a politician, someone who can lead and manage effectively, as well as know the law. If one of these attributes is missing it can become a problem. When I founded the Special Court, I did it with decades of diplomatic and political experience. All this came naturally to me and I used it effectively in West Africa. Additionally, I had been leading and managing organizations in the US federal government for three decades. I knew how to be a leader and manager. I was known in the US federal government as someone who could create and manage new organizations to success, to include an office that oversaw a vast majority of the US intelligence community. The then Secretary of State Colin Powell nominated me for the post of Chief Prosecutor based on this fact that I could lead and manage. As a successful leader himself this was of paramount importance to him. It was assumed that I was a good lawyer.

Internationally, there tends to be too much emphasis placed on being a good lawyer and no focus on leading and managing. Large new enterprises and organizations need to have someone that inspires, focuses the team, builds a sense of pride and purpose, all around a centralized theme of seeking justice for victims of horrific crimes. This is done by putting together a strategic plan. This plan is the sheet of music from which all the players follow to accomplish the mandate which in the case of the Special Court was “prosecute those who bear the greatest responsibility for war crimes, crimes against humanity, and other serious violations of international humanitarian law.” That is why we were there.

A strategic plan centers the team on what they are doing on a daily, weekly, and monthly basis, why they are there, and what their job is to advance the plan in seeking justice. Everyone knows the plan and works the strategic plan. The Special Court was unique of all the major tribunals for this. It simply had a plan and it worked the plan until it was finished. The Special Court was the last tribunal to start and the first to finish with great success. It was the strategic plan that made the difference, which the other tribunals simply lacked.

Another important part of an effective and efficient tribunal is an overall prosecution plan. Taking the mandate as well as the extant facts and law, a good prosecutor builds a plan on who to prosecute, how to prosecute, when to prosecute, and why to prosecute. This plan is part of the strategic plan, but it allows an Office of the Prosecutor to come to work every morning knowing exactly why they are doing something at any one given time.

A prosecution plan allows then for appropriate budgetary planning and administrative build up. It’s a “plug and play concept”. You bring on assets as you need them. You build and office around the mandate not build the mandate around the office. This allows for efficient use of personnel. The Special Court managed to successfully achieve its mandate on a fraction of the number of personnel, assets, equipment, and other items at a quarter of the cost than the other tribunals. The Office of the Prosecutor accomplished its mandate following a strategic and prosecution plan with around 70 persons versus the hundreds that walked the halls in The Hague and Arusha.

The ICC is slightly different as it is a permanent court. That presents a different approach, but success still is achieved by having a plan, as well as good leaders and managers who are equally good diplomats and politicians. The bright read thread of international criminal law is politics. It is a naive prosecutor who does not factor in the political and diplomatic ramifications of their decisions on who to prosecute, when, and why? If they don’t they will have problems, even fail. The ICC has historically had a “tin ear” to politics and their record shows for it. Continue reading →

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The Challenges for the Next ICC Prosecutor

Posted on April 8, 2020 by Mark Kersten

Luis Moreno Ocampo joins JiC and Opinio Juris for this opening foray into our online symposium on the next ICC Prosecutor. Moreno Ocampo is the Founding Chief Prosecutor of the ICC (2003-2012).

Former ICC Prosecutor Luis Moreno Ocampo speaks at a news conference as Fatou Bensouda, his former Deputy Prosecutor and current ICC Prosecutor watches on (Photo: D+C)

In late 2020, the third International Criminal Court (ICC) Prosecutor will be appointed. One thing is certain: she/he will face new challenges. Should the new Prosecutor open an investigation in Venezuela? Or against British personnel in Iraq? Burundi, Philippines or Georgia? What should be the focus of the Afghanistan and Palestine investigations?

At the beginning of the Office of the Prosecutor (OTP)’s operations the context was completely different: there were doubts about the viability of the entire Rome Statute. The George W. Bush Administration was campaigning against the ICC and even those working at the Court had doubts about its feasibility. David Bosco reminds us (at 81) that one of the first judges and his colleagues “were not at all sure about whether this new baby would be able to survive all the hostility shown by the big powers.”

The third ICC Prosecutor will work in a completely different environment. After more than 17 years, the Rome Statute is part of the international landscape, the Court’s existence is no longer at risk. What remains up for debate, however, is its relevance, and more broadly, the relevance of international law to manage violence and protect individuals in the 21st century.

The OTP has enormous responsibilities. It identifies the situations and the suspects involved in Court proceedings and obtains the evidence to put them to trial, but we must not forget that the relevance of the Rome Statute is largely defined by decisions taken outside the court room by political leaders, state representatives, regional organizations and the UN Security Council.

In the last few years, the Secretary General of the Organization of American States has been demanding the ICC’s intervention in Venezuela. Chile, Argentina, Paraguay, Canada and Peru referred the Venezuela situation to the Court, and recently, Nicolas Maduro also referred the situation to the ICC requesting the investigation of the impact of the US sanctions in Venezuela. Palestine and Ukraine are requesting investigations that could involve citizens from Israel and Russia, and both countries are refusing to recognize the legitimacy of the Court’s intervention. The CIA’s personnel could be investigated in the Afghanistan situation and the current U.S. government is threatening the Prosecutor and Judges. Furthermore, a negotiation to end the conflict was just signed between US and the Taliban and the investigation could affect its implementation. A case against UK personnel involved in war crimes in Iraq and Afghanistan could also trigger more political conflicts. There are debates in Sudan on surrendering the former President Al Bashir to the ICC. Philippines and Burundi withdrew from the Rome Statute, but the Prosecutor is analyzing or investigating the alleged crimes committed before the withdrawal. The interaction with those former state parties will, without a doubt, be complex. On the other hand, Kiribati, a small country from the Pacific Ocean, became the 123rd state party in February 2020.

The next Prosecutor

In this context, what will be the role of the new ICC’s Prosecutor? She/he will inherit an Office with more than 350 dedicated staff managing ongoing investigations and trials in accordance with Regulations, policy papers and a detailed Operational Manual based on almost two decades of practice. The Prosecutor’s role is similar to that of an orchestra director. She/he will have to harmonize the work of those 350 players coming from more than 90 different countries, who have different traditions, and expertise, including international law, investigations, security and international criminal law. The new Prosecutor could direct the OTP “orchestra” by reviewing the Office’s Regulations and the Operational manual. Or she/he could modify the organization of the work, appoint new players, and move the current players to different positions. She/he should also integrate the OTP’s ensemble with a variety of other players directed by the Registrar, like the victim unit and the witness protection unit, or states parties representatives which are following their own partiture, to obtain cooperation and arrest individuals sought by the Court. During the litigation phase, the OTP’s “orchestra” will interact with the suspects, and victims’ lawyers, who are presenting simultaneous and different arguments, like in a polyphonic music, with two or more independent but related melodies. In any case, the judges of the different Chambers, who are still consolidating the ICC’s jurisprudence, are the directors of the litigation process and will make the final decisions on the individual responsibility of the accused.

The ICC Prosecutor’s role

To clarify the Prosecutor’s specific challenges, it is important to respect the legal architecture adopted by the Rome Statute, to distinguish the roles it provides to the different players and the three substantial activities that should be exclusively performed by the OTP. Firstly, like no other previous prosecutor in the world, neither national, nor international, the ICC Prosecutor has the independent and exclusive authority to propose where and when the Court should intervene; the OTP is ‘the gatekeeper’of the entire Rome Statute connecting the national system with the Chambers of the Court. Secondly, as in some national jurisdictions and in the ad hoc international tribunals for the former Yugoslavia and Rwanda, the ICC Prosecutor must conduct the investigations. Thirdly, like any national prosecutor, the OTP has to litigate before the Chambers of the Court. The Prosecutor’s autonomy to direct the OTP’s “orchestra” is almost absolute regarding the decisions to conduct preliminary examinations and to trigger or not the Court jurisdiction. It is still broad during the investigation phase where the Office will identify the suspects. But it is very limited during the court proceedings, and the Judges have the exclusive authority to decide on the issuance of arrest warrants and the individual responsibility of the defendants.

Preliminary examinations

The new ICC Prosecutor will find that the Office has dedicated enormous efforts to developing a specific technical area to identify situations under the jurisdiction of the court, clear standards and a transparent process. The evaluation is conducted by the Situation Analysis Section. A policy paper on preliminary examinations defines in detail the procedure to apply in following the Rome Statute. Since 2011, the Office has been publishing a public report every year summarizing its findings on the different situations under analysis. Continue reading →

Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, The ICC’s Impact on National Justice Symposium | 1 Comment