The ICC Prosecutor’s New Draft Strategic Plan

Back in October 2013, I wrote here about International Criminal Court (ICC) Prosecutor Fatou Bensouda’s strategic plan for 2012-2015, which marked a change in direction towards more in-depth, open-ended investigations. Now, her office has just issued a draft of the next strategic plan for 2016-2018, and is seeking outside comments before making it final.

The plan is important because it represents the clearest statement of the Prosecutor’s vision for the ICC, an institution that has been in the spotlight lately as a result of its preliminary examinations in Palestine, Afghanistan, and Georgia, as well as its outstanding arrest warrant for Sudan’s President Omar al-Bashir. The policy of the U.S. is to promote the work of the ICC when it advances U.S. interests and values.

The new plan reiterates many of the objectives of the 2012-2015 strategic plan and even notes that since that plan’s adoption, Bensouda’s office has had more success with its cases at the confirmation of charges stage than before, though it must be said that the available data is still very limited. However, the new plan contains four points (three of which pertain to new strategic goals) that are notable. 

First, the draft 2016-2018 plan acknowledges that there is a cost to the new approach in terms of the speed of the ICC’s response to atrocities. This point is timely and critical because some have already noted that in the first three years of her tenure, Bensouda has not issued a single new public arrest warrant aside from the obstruction of justice charges against Jean-Pierre Bemba and his legal team. There is no question that Bensouda’s office has been extraordinarily busy with ongoing investigations and trials, and several new arrests/surrenders in pending cases (Bosco Ntaganda, Dominic Ongwen, and Charles Blé Goudé) have only increased the workload. But it is also the case that conducting more in-depth and comprehensive investigations will take significantly more time and will therefore impair the Court’s ability to respond quickly to events. So the draft plan candidly notes that:

The positive results achieved by the Office in the past three years have come at a cost. The speed at which the Office has been able to respond to situations calling for its intervention has been affected by its need to prioritise quality over quantity of work. Some necessary investigations have had to be postponed. This has impacted on the Office’s ability to react to ongoing crimes; negatively influenced the perception of the Office; and forced the Office to overstretch its resources creating undue, prolonged pressure on its staff. (para. 5).

The trade-off seems right – though in some cases the prosecutor will undoubtedly want to find ways to move quickly when crimes are ongoing – but it is important to be frank about the costs of in-depth investigations in order to consider how those costs can be managed. One risk of the office’s approach is that the situation country and international community will have “moved on” when charges are finally brought years after events at issue, and it will therefore find diminished support for arrests and accountability in it cases. The Office of the Prosecutor (OTP) and supporters of the ICC will have to continue to consider how to sustain interest and commitment to the work of the Court for the often substantial time required to bring quality cases to court.

Second, the draft plan contains a new strategic goal for the office to “achieve a basic size” that will allow it to do its work effectively and efficiently. In part, this goal represents an ongoing effort to obtain additional, much-needed resources from the member states of the Court. But it also contains within it a judgment about what the “basic size” of the OTP should be, which in turn is dependent on a projection of the expected work of the Court in the years going forward. The document therefore predicts that each year there will be nine ongoing preliminary examinations, one new situation opened for investigation, six ongoing active investigations, nine hibernated investigations (meaning cases where the investigation is largely complete but there are no arrests), five ongoing cases in the pre-trial phase, five ongoing cases in the trial phase, and two cases in final appeals. These numbers are largely consistent with the work of the Court in recent years, and suggest that the Court will continue to do only a few cases in each country or situation where it investigates. But it is also important to recognize that this “prediction” about the Court’s workload is really a choice about that workload, one that is shaped in part by demand (which for the work of the ICC is vast), but also by a realistic assessment of the level of resources the states will provide. Is it the right choice? Is it right to imagine just one new investigation a year arising out of nine preliminary examinations? Is it enough to have five trials running each year? These are all questions that can be debated, and should be debated.

Third, the plan adopts the new strategic goal of developing “with partners a coordinated investigative and prosecutorial strategy to close the impunity gap.” This could be called complementarity 2.0. The ICC is founded on the principle of complementarity, which seeks to encourage national prosecutions of ICC crimes as a first measure and ICC prosecution only as a solution of last resort. Much of the discussion of complementarity to date has been how to encourage states to undertake prosecutions of atrocity crimes and to ensure that they have the capacity to do so. This new plan now takes the next step and begins to think about how this effort could become more coordinated and sophisticated among various actors.

The plan notes that while there are many complementarity initiatives, there is considerable overlap and duplication in these efforts and enormous benefit could be derived from greater coordination and centralization. For example, whenever there is societal breakdown devolving into crimes, multiple first responders act to gather information and evidence (NGOs, journalists, local authorities). These various groups have divergent interests and may even compete with one another, but are there not nonetheless opportunities to cooperate and pool efforts? Similarly, with each crisis comes disparate efforts to train and advise local actors that could be better organized and coordinated to reduce duplication and the constant “reinventing the wheel.”

Further, the OTP’s investigations have shown how the atrocity crimes within its mandate often overlap with many other forms of criminality, such as corruption, human trafficking, arms trafficking, organized crime, etc. The intersection of ICC crimes with these other crimes creates strategic opportunities. In some cases, for example, there might be greater national capacity and political will to target ICC atrocity crimes through the prosecution of other forms of criminal conduct instead of the relying on the ICC crimes themselves.

The OTP recognizes that it lacks the capacity and resources to take charge of promoting greater coordination and strategic thinking among state actors and NGOs, but pledges to contribute to efforts undertaken by others. Specifically, the plan proposes several new institutional structures or coordination bodies that could promote complementarity, including a “knowledge centre” to share training and experience, a central mechanism to preserve evidence from conflicts, an open source crime database, and a platform to exchange confidential information. These are just beginning ideas for now, but they point toward a new generation of thinking and efforts to promote accountability outside of the ICC.

Finally, the plan adopts a strategic goal to “adapt the Office’s investigative and prosecutorial capabilities and network to the scientific and technological environment in which it operates.” In part because of the fragility of witness evidence, the OTP has undertaken a major push in recent years to develop non-witness evidence in its investigations. Technological evidence has already been used to great effect in cases at the ad-hoc tribunals (like the Yugoslavia and Rwanda tribunals) as well as the ICC, including satellite imagery, phone intercepts, and video. And the rapid development and spread of technology have the potential to transform atrocity investigations in the future (in this regard, see the amazing work of Witness). But it should be remembered that at present, and probably for years to come, technological evidence will rarely represent a magic bullet in atrocity cases. Many atrocities occur in circumstances where technology is scarce or limited, and even when it exists, it can be under the control of the targets of the investigation or uncooperative states and therefore unavailable. There is great promise in technology and it is right that the OTP builds capacity and expertise for today’s investigations and those of the future. But cases will continue to require the cooperation and testimony of witnesses and on the ground investigators.

The overall takeaway from the new strategic plan is that the OTP continues to focus on increasing the quality of its present work, while at the same thinking in broad and strategic terms about its mission and the future. It is an admirable piece of work.

  

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).