Some Thoughts on the ICC OTP Strategic Plan: Trying to Build the Future on the Failures of the Past

On October 11th of this year, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) issued its Strategic Plan for 2012-2015. This roadmap for the conduct of activities of the OTP of the first permanent international criminal tribunal has received surprisingly little attention among court followers and commentators, with the notable exception of Alex Whiting who published his own take on it last week here on Just Security. The following remarks are partly a response to Alex Whiting, whose general optimism I do not share.

1)     The general narrative and language of the Strategic Plan

Before discussing some particular aspects of the Strategic Plan, it is necessary to make a remark on the general tone of the document. This might seem like an obvious point to make, but we must not forget that this is essentially a PR exercise of the OTP to get an increase in budget before the forthcoming Assembly of State Parties. This is made very clear in the Plan, which claims: “there are no defensible alternatives to the increase in resources” (§25). In this sense, one can certainly not expect a large amount of self-reflection on past errors and anything more than a cursory attempt at self-criticism. But even with that in mind, as PR exercises go, this one seems to me to be particularly empty.

It is replete with grand statements about the role, function and mission of the OTP, which mostly seem to be common sense. For example, the first strategic goal for 2012-2015 is to “conduct impartial, independent, high-quality, efficient and secure preliminary examinations, investigations and prosecutions” (§32). How is that a “strategic goal,” rather than just the OTP’s job? The same is true about protecting human rights and the presumption of innocence (§11) or the recognition that there is a need for accountability for OTP conduct (§32).

Moreover, the OTP continues to refer to missions, which are, in my opinion, beyond the function of the OTP. For example, I do not think that an “OTP-specific mission” is to promote peace (§9). Its mission is to prosecute, irrespective of the effects on peace because that is what the Rome Statute mandates it to do (and I do not think that the famous “interests of justice” provision of the Rome Statute changes this fact, contrary to what some argue).  The same holds true, to some extent, with positive complementarity. While I regret, like others, that the OTP has fought every single admissibility challenge so far, I do not necessarily think that specific OTP resources should be devolved to promoting national prosecutions of international crimes. If this is in any way the ICC’s role (which it arguably isn’t) it should be done by the Registry rather than on limited OTP resources.

2)     The “new” policy in terms of investigations

In terms of investigations, and as noted by Alex Whiting, there seems to be a shift in OTP policy, from “focused investigations,” as described in the 2009-2012 Strategic Plan, to “in-depth, open-ended investigations while maintaining focus.” What does that mean in plain English? Apparently, it means two things. First, this would mean that the focus on those who bear the greatest responsibility will be replaced with a bottom-up approach starting with lower level perpetrators in order to pave the way for the prosecution of leaders.  Second, this would mean that the focus would be broader in terms of crimes being considered, rather than the previous supposedly narrower approach (based on gravity for example). Two comments can be made in relation to this.

First, does this really change anything? Lubanga, who was essentially prosecuted for one crime, is in fact an isolated example, other indictees having been charged with a long list of counts that resembles more closely the practice of ad hoc tribunals. The same is true of the open-ended investigation question: how have current investigations not been open-ended? Not one situation has been “closed” so far, and it is therefore difficult to imagine what visible change this new policy will effectuate.

Second, I’m not sure that this bottom-up approach is in fact really a good idea. The issue was of course vigorously debated at the ICTY, where the Chief Prosecutor Richard Goldstone had initially adopted such a strategy. Judge Antonio Cassese describes in a fascinating interview how he called Goldstone in his office and told him that with this approach, it would take forever to get to Karadzic and Milosevic. While either position might have been acceptable for a tribunal dealing with just one situation, I think that it is entirely unrealistic to apply the bottom-up approach at the ICC, which is investigating more than 10 situations (preliminary or otherwise). This will consume invaluable resources to prosecute low-level criminals, whose removal from the situation will most likely not really change much, and, it will be years (if at all), before the ICC prosecutes the leaders. If the ICC is going to make any impact on peace (as the OTP claims it should), having a country wait for years to know if and when the organizers of crimes will be prosecuted surely cannot be the right way to proceed.

3)     The “new” policy in terms of preparing the confirmation of charges

One important dimension of the Strategic Plan is that the OTP seems to have decided to change its strategy in terms of preparation of the case, in order to be as trial ready as possible at the confirmation of charges. It seems the OTP considers this to be necessary because of heightened expectations on the part of the Judges, and more generally due to the evolving nature of the work of the OTP after its first 9 years of experience.  Alex Whiting also presents the issue in this way.

However, the need to change this policy stems not from higher expectations of judges, but from the failures of the Prosecutor in the past. It would be too cumbersome to list these here, but examples are depressingly numerous, from the misuse of intermediaries in the Lubanga case (on which I commented on here and here), to the failure in the Abu Garda confirmation of charges or the train-wreck of the Katanga and Chui case, with Chui acquitted and with only Katanga still in jail through the debatable change of the mode of liability by the Trial Judges a mere few weeks before the final Judgment.

You could of course tell me that these difficulties are recognized implicitly through some of the statements in the Strategic Plan. For example, the Prosecutor promises to “expand and diversify its collection of evidence” (§23). But once again, this is “to meet the expectations of the Chambers,” rather than the natural consequence of the apparently shocking concept (for the OTP) that a Human Rights Watch or a UN report does not constitute sufficient evidence for a criminal trial.

Another quite notable claim is that the OTP “will apply multiple case hypotheses – incriminating and exonerating – throughout the investigation which will further strengthen decision-making in relation to prosecutions.” In other words, the OTP is finally aware that it has a statutory duty (Article 54) to investigate incriminating and exonerating circumstances equally, and the Strategic Plan is a somewhat veiled acceptance that this was not respected in the past.

But veiled admissions cannot be enough in light of the amount of mistakes that have been made. Some acknowledgment that something needs to change at the OTP simply because things were not being done correctly before would have therefore been welcome, rather than the Strategic Plan blaming it on changing circumstances, the judges or lack of money.

On this last point, I continue to believe that, while it might indeed be necessary to increase the budget of the ICC, we need more control and accountability on how it is spent, more particularly by the OTP.

In conclusion, while I agree with Alex Whiting that good ideas are “as common as raindrops in the Hague,” I am not as enthusiastic as he in crediting the OTP Strategic Plan with such good ideas. At worst it will be (bad) business as usual, due to little acknowledgment of the mistakes of the past. At best it is just the OTP promising to do its job correctly. If that is something that the OTP should be congratulated for, it shows how low our expectations have sunk in the past 10 years. 

About the Author(s)

Dov Jacobs

Assistant Professor in International Law at the Grotius Centre for International Legal Studies at Leiden University Follow him on Twitter (@dovjacobs).