ICC Prosecutor Announces Important Changes in New Strategic Plan

The Office of the Prosecutor (OTP) has just released its new strategic plan for 2012-2015, signaling important changes in the direction of the Office that reflect the lessons learned from the first ten years’ of operation of the Court as well as the new leadership of the OTP. The document is the result of considerable deliberation within the Office and consultation with outside partners over the last year. It is the clearest articulation yet of Prosecutor Bensouda’s vision for the OTP and, if implemented, has the potential to move the office in a very positive direction. The United States has increased its constructive engagement with the Court during the Obama administration and has supported it with respect to particular cases – Uganda, Libya, Congo, and Darfur, for example – and therefore has an interest in seeing it become more efficient and effective.

The plan starts by acknowledging the successes of the first years in line with the previous strategic plan (2009-2012), which emphasized focused investigations and maximizing the impact of the Office. As the document states:

During the first nine years, the Office was able to create a functioning organization, and to respond to high demand by using a strategy of focused investigations and prosecutions combined with the practice of rotating staff to cases with the greatest needs. This strategy established the Office as a relevant actor in the international arena and resulted in the first signs of its impact….

At the same time, the results of some of the Office’s early efforts have demonstrated a need for some important changes in approach which are plainly and frankly set forth in the document.

First, the Plan announces a change to the policy of “focused investigations,” replacing this formulation with a principle of “in-depth, open-ended investigations while maintaining focus.” The initial focused investigations approach certainly made sense. A frequent criticism of the ad-hoc tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) was that the cases presented were too big and sprawling. Moreover, unlike the ad hocs, the ICC cannot focus on just one conflict or set of conflicts for a prolonged period. Rather, it must, with roughly the same resources, investigate and prosecute cases across a range of situations around the world. Thus it was essential that the OTP focus its investigations and prosecutions as much as possible.

However, there are three risks to “focused investigations.” First, if the investigation is too focused, there is a danger that it will become too targeted and the Office will fail to correctly identify those responsible for crimes (or the full circumstances of their culpability). Second, a focused investigation can become a thin investigation, with inadequate evidence to carry the Office through all of the stages of the prosecution, including the trial. Third, at the prosecution stage, if cases are too narrow it can be difficult to prove the criminal responsibility of the accused, particularly if that person is higher-up in the chain of command. A broad range of criminality over time often compels the inference that the crimes were organized from the top. On the other hand, if the Office presents only a narrow set of crimes on the ground, it can be easier for the accused to blame them on the rogue actions of lower-level actors.

Therefore the new policy of “in-depth, open-ended investigations while maintaining focus” attempts to recalibrate the balance. It mandates deeper investigations without prematurely narrowing on a particular target, while at the same time guarding against limitless and unfocused inquiries that could waste resources and result in unmanageable cases. This new, adjusted approach should result in stronger cases supported by more substantial evidence.

Second, the new strategic plan commits the Office to insuring that its “cases at the confirmation hearing … are as trial-ready as possible.” A bit of background is necessary to appreciate this point. Some of the pre-trial judges have reacted to cases they believe are weak by insisting that the Prosecution essentially be trial ready by the time of the confirmation hearing, the intermediate stage that occurs between arrest (or surrender) and the trial. While having a trial ready case early on is certainly a laudable goal, these pre-trial judges have gone too far in mandating that the Prosecution reach this stage by the confirmation hearing, unless it can show exceptional circumstances requiring additional investigation. This requirement is nowhere found in the Rome Statute, and is simply unrealistic and impractical in the international criminal context, where the OTP has few tools to investigate in a dynamic and volatile context. While it is essential that the core elements of the charges remain fixed so that the defense has proper notice, attempting to freeze in place the evidence at some point before the trial is unworkable and will ultimately undermine the goal of the Court to uncover the truth.  The ad hoc tribunals, often cited as a model to be emulated by the ICC, never imposed such a rigid requirement on the Prosecution, instead allowing it to continue investigating its cases up to trial (and even sometimes during trial) while insuring that the defense had proper notice and time to answer the charges and the evidence.

In light of these judicial developments, the OTP has attempted to strike the proper balance in its new strategic plan.  It will “aim” to be “as trial-ready as possible” at the confirmation hearing, while at the same time recognizing that in some cases it will have to continue to investigate even after the hearing and up to trial.  In such cases, however, it will only proceed “if there are sufficient prospects to further collect evidence to be trial-ready within a reasonable timeframe.” This considered approach should ensure that the Office brings only strong cases without overly restricting its ability to continue to gather information as it becomes available. If the Prosecution can demonstrate that it can strike this balance correctly, the judges may refrain from further attempts to micromanage the work of the OTP.

Third, the new strategic plan adjusts the policy of investigating and prosecuting those most responsible for crimes within the jurisdiction of the Court, an approach that featured in the previous strategic plan as well as other policy documents of the OTP. Although the Rome Statute does not require the Prosecutor to focus on those most responsible, most agree that this goal reflects the spirit and purpose of the Statute and will help to maximize the impact of the Court. At the same time, experience has shown that the limited tools of the OTP, as well as its dependence on state cooperation to achieve investigations and arrests, mean that charging the most responsible can sometimes be a bridge too far. Therefore, the new strategic plan makes an important change to this approach:

The required evidentiary standards to prove the criminal responsibility of those bearing the greatest responsibility might result in the OTP changing its approach due to limitations on investigative possibilities and/or a lack of cooperation. A strategy of gradually building upwards might then be needed in which the Office first investigates and prosecutes a limited number of mid- and high-level perpetrators in order to ultimately have a reasonable prospect of conviction for those most responsible. The Office will also consider prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety.

The Office, therefore, is not abandoning its focus on the most responsible, but is nonetheless acknowledging that sometimes less is more, and that in some cases it will have to start with lower-level cases in order to build to the top. Further, this new approach should allow the institution to process a set of more mid-level, manageable cases in these still early years, which could help the parties and the judges develop a stronger practice of efficiently and effectively adjudicating cases.

Finally, the policy makes a number of significant changes to the organization and structure of the OTP, which should allow the Office to function more efficiently and effectively.

Prosecutor Bensouda and the OTP should be commended for the careful, deliberative process that has produced this new strategic plan. They listened carefully to the judges and outside commentators, and embraced significant changes and reforms going forward. But of course good ideas are almost as common as raindrops in The Hague. The real challenge will be in following through and implementing all of these changes. The Office will have to focus its energies on this work over the next years, all while moving forward on its challenging cases. Outside supporters should now begin to think about how they can support and help the Office with this project. For the Assembly of States Parties, which meets in November, this means ensuring that the Office has the adequate resources to do its work, a step that the strategic plan identifies as essential to its success. 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).