The International Criminal Court (ICC) dismissed another case this week, ordering the release of two more defendants accused of serious international crimes. Laurent Gbagbo, the first former head of state to be tried before the court, and his youth leader, Charles Blé Goudé, had been on trial for crimes against humanity in the post-election violence in Cote d’Ivoire (Ivory Coast) in 2010-11.

The way in which their case was terminated – with a brief oral order from a divided bench, before the defense had presented any evidence – was unusual to say the least. While this is not the last word in the case – the court must still issue its written ruling, and the prosecution has the right to appeal – it does raise questions regarding the Court’s interpretation of crimes against humanity and a prosecutorial strategy that focuses almost exclusively on those at the top of the chain of command.

What happened?

Gbagbo, the former president of Cote d’Ivoire, and Blé Goudé, the former youth minister and leader of a pro-Gbagbo militia, had been on trial for committing crimes against humanity (including murder, rape, persecution and other inhumane acts) with or through others, or by ordering, soliciting, inducing or otherwise contributing to their commission.  The alleged crimes took place in the aftermath of Cote d’Ivoire’s November 2010 election, in which Gbagbo lost power to Alassane Ouattara. With the results, Cote d’Ivoire was beset by violence between Gbagbo’s militias and security forces and Ouattara’s supporters, leaving more than 3,000 people dead and between 500,000 and 1 million displaced.

The prosecution presented 82 witnesses and more than 4,500 items of evidence over the course of two years, from January 2016 to January 2018. But in February 2018, the Presiding Judge Cuno Tarfusser ordered the prosecution to file a brief summarizing its case and linking the charges and evidence presented, based on which the defense could make submissions on subsequent proceedings, including “whether or not they wish to make any submission of a no case to answer motion or, in any event, whether they intend to present any evidence.”

Unsurprisingly, given such an invitation, the defense teams in July 2018 submitted motions requesting acquittal and immediate release of both of the accused. These motions resulted in a further two weeks of hearings in November 2018.

A request by the defense to dismiss the charges once the prosecution closes its case (often called a “no case to answer” motion) is not unusual before international criminal tribunals; it also is a familiar feature of domestic criminal procedure in common law systems. But a year-long process with weeks of hearings is rare; as is ordering that a case be terminated based on just a brief oral decision, delivered in a hearing lasting 15 minutes. Indeed, we know less about why Judges Tarfusser and Geoffrey Hendersen dismissed this case than we do why Judge Olga Carbuccia, who issued a 21-page dissenting opinion, disagreed.

But we can deduce that the Trial Chamber’s decision is rather different from the usual “no case to answer.” A case is usually terminated at the end of the prosecution’s evidence only if the judges believe that no reasonable trier of fact (the Trial Chamber in international tribunals; or the jury in many domestic contexts) could find the defendant guilty based on the evidence presented. This is the standard applied repeatedly by the International Criminal Tribunals for the former Yugoslavia and for Rwanda, by the International Criminal Court in the Kenya cases, and in domestic systems.

But Judge Tarfusser refused a prosecution request to articulate what standard of review the Chamber would apply, and denied that the Chamber was (or should be) conducting a similar procedure to the Kenya cases. Judge Tarfusser later implied in the oral decision that he was deciding the case based on a “beyond reasonable doubt standard” (stating that “the Prosecutor has failed to satisfy the burden of proof to the requisite standard as foreseen in Article 66 of the Rome Statute,” which refers to “beyond reasonable doubt”), but added to the confusion the following day when he stated at the hearing on release that suggestions the Chamber applied a “beyond reasonable doubt” standard to acquit were “mistaken”.

So while the majority of the Trial Chamber told us they believe that the prosecutor had failed to prove that these were crimes against humanity, we don’t yet know why – which matters for the substantive law of crimes against humanity. And we also don’t yet know what standard this finding was based on – which also matters for the upcoming appeals (and this decision likely will be appealed by the prosecution).

What Does It All Mean? 

Reactions to this decision have been swift, vigorous, and varied. A few analysts have looked for a silver lining. Some have argued that this demonstrates the independence of the ICC and shows it is not simply a tool for global powers to persecute African leaders. Others have challenged the assumption that every accused person must be guilty and the expectation that every case will result in a conviction, arguing that these are inconsistent with human rights and a healthy judicial system.

While these points have merit, and the ICC is bigger than just the Office of the Prosecutor, it is hard to see how the Court can succeed if the Office of the Prosecutor is failing to present convincing cases. And a number of commentators have taken this decision as a further opportunity to criticize the competence of the office in investigating, selecting, and presenting cases.

These critiques link this decision to the acquittal of former DRC Vice President Jean-Pierre Bemba by the ICC Appeals Chamber in June 2018, and the termination of the prosecutions of Uhuru Kenyatta, William Ruto, and their allies in cases arising out of the 2007-08 post-election violence in Kenya. Critics previously had claimed that the failure of the Kenya cases, and the lack of progress in cases against Sudanese President Omar al-Bashir and other government officials over the atrocities in Darfur, showed that the ICC was not capable of prosecuting crimes committed by government forces or their allies while their regimes were still in power. The termination of the Gbagbo case following the acquittal of Bemba prompted some to broaden this critique, and wonder whether the ICC could effectively prosecute even former government officials.

While some reflection on the strategy and performance of the Office of the Prosecutor is warranted, these critiques go too far. Many also conflate different reasons why a case may fail, each of which suggests different policy responses. Was the case ill-conceived or ill-prepared at the outset? Were witnesses or evidence undermined by the defense or by a state, whether legitimately or not? Or did the judges interpret the law in an unexpected way?

Implications for Future Cases of Crimes Against Humanity

While we won’t know the full details of why the Trial Chamber dismissed this case until the written decision is issued, some of the comments from Judge Tarfusser suggest that one issue was a disagreement over which atrocities constitute crimes against humanity. This question has real implications for the future of crimes against humanity and its relevance to communal violence.

One of the key concerns raised by Judge Tarfusser in the oral decision is that:

“the Prosecutor: … Has failed to demonstrate the existence of the alleged policy to attack the civilian population on the basis of the alleged pattern of violence and other circumstantial evidence [and] Has failed to demonstrate that the crimes as alleged in the charges were committed pursuant to or in furtherance of a State or organizational policy to attack the civilian population.”

Article 7(2)(a) of the ICC Statute does require that crimes against humanity be part of an attack against a civilian population “pursuant to or in furtherance of a State or organizational policy to commit such attack.”  And this requirement has caused concerns in the context of prosecuting communal violence as crimes against humanity in the past – it was on a similar basis that Judge Kaul dissented from early decisions in the Kenya situation, considering that there was no “organizational policy” to commit the massive post-election violence that wracked Kenya in 2007-08 (primarily because none of the groups involved qualified as an “organization”).

It would be a real concern if this requirement is applied in such a way that it effectively excludes from the ambit of crimes against humanity large-scale violence between communities (be they tribal, ethnic, religious, or based on any other characteristic) simply because there is no formal organization or policy guiding it. The requirement for an organizational policy (or plan) never meant that, where violence takes place in a coordinated manner or on a massive scale (i.e. is widespread or systematic), it will only be a crime against humanity if there is a committee somewhere that kept minutes and issued a manifesto.

The purpose of requiring a state or organizational policy was to exclude attacks committed by an individual, in isolation, and on their own initiative (even if they are widespread and systematic). The International Criminal Tribunals for the former Yugoslavia and for Rwanda had included a similar requirement in some early decisions, but subsequently clarified that there is no legal requirement for a plan or policy under customary international law.  Even those decisions that did include this element emphasized that it need not be a formal policy, and that it could arise and be implied from the nature of the crimes.  Indeed, some judges considered that this element may well be redundant, given that “if the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts.”

Unfortunately, the potential concerns raised by this decision are not limited to the ICC. The International Law Commission (ILC) is considering draft articles on crimes against humanity, which effectively adopt and entrench the ICC Statute’s definition of crimes against humanity, including the requirement for “a State or organizational policy to commit such attack.”  While the ILC commentary to the draft articles agrees that neither the organization nor the policy need be formal, the inclusion of this requirement raised concerns for the International Bar Association (IBA) as an example of requirements that diverge from the customary international law definition and “may serve to limit the application of the crime”. On balance, the IBA favored consistency with the ICC definition. However, the ILC and IBA may wish to review how the organizational policy requirement is being applied by the ICC in cases of communal violence, and to either clarify its meaning in the context of the draft articles on crimes against humanity, or amend or remove it.

Reconsidering the Top-Down (or Top-Only) Prosecutorial Strategy 

While some critiques of the prosecution’s selection and presentation of cases may go too far, even organizations traditionally supportive of the Court have stated that the Gbagbo decision shows that the Court needs reform and that the next Prosecutor must be someone with expertise in investigations. But instead of broad critiques of capacity or competence, it might be more productive to reconsider the strategy of bringing the first case in any situation against the most senior leader, where challenges of linking them to crimes can be most acute.

The ICC typically deals with situations of mass violence, involving thousands of perpetrators and victims. As an international jurisdiction, complementary to national courts or other forums, it cannot possibly prosecute each and every person who might bear criminal responsibility. Instead, since its earliest days, it has focused on “those most responsible.” However, it is possible that the Office of the Prosecutor, and the Court as a whole, has taken this too far.

In each of the high-profile cases that have been dismissed, including the prosecution of Gbagbo and Blé Goudé, the prosecution had started at the top – beginning (and effectively ending) with a case that targeted the highest political or military leader, sometimes with one or two close associates. Such cases are challenging, both in terms of the “linkage” to establish the individual criminal responsibility of senior leaders for specific crimes, and the political opposition that the cases generate. Focusing all of the investigative and prosecutorial resources on a single high-profile case is a high-risk strategy, as the fallout from the recent cases illustrates. Trying to distill the complexity of mass atrocity situations into a single case can also give the impression, likely unwarranted, of a superficial investigation or understanding.

The alternative would be to pursue an investigative and prosecutorial strategy familiar to domestic prosecutors targeting complex criminality, and which was adopted in the Tribunals for Yugoslavia and Rwanda: begin by building a couple of cases against mid-level perpetrators, and work your way up to the senior officials. Such early cases can be easier to win, because the links between the accused and the crimes “on the ground” are often closer; each case carries less risk; and they can generate prosecutorial and judicial economies of scale by providing useful building blocks for future cases against more senior leaders, both in terms of evidence and by providing a deeper understanding of the situation and its challenges. Prosecuting these cases also is justified on a normative basis. The responsibility of mid-level offenders should not be trivialized, as these are often the individuals who enable atrocities to be committed at a large scale, who turn an ideology or order from leaders into action by masses – in a sense, they are the middle managers of genocide.

Nothing in the Court’s documents prevents the Prosecutor from targeting mid-level offenders if they are responsible for crimes within the Court’s jurisdiction. To the contrary, when one Pre-Trial Chamber in the earliest days of the Court’s operation attempted to limit the Prosecutor to the “most senior leaders,” the Prosecutor rightly challenged this limitation. The Appeals Chamber agreed, noting that “individuals who are not at the very top of an organization may still carry considerable influence and commit, or generate widespread commission of, very serious crimes.”

Indeed, ICC Prosecutor Fatou Bensouda’s initial 2012-15 Strategic Plan considered a “strategy of gradually building upwards”, and the office’s current Case Selection Policy Paper contemplates “the investigation and prosecution of a limited number of mid- and high-level perpetrators in order to ultimately build the evidentiary foundations for case(s) against those most responsible”. The Office of the Prosecutor had tried this approach once in the past, in the Darfur situation, where the first indictments were issued against Ahmad Harun (Sudan’s Interior Minister) and Ali Kushayb (a Janjaweed militia leader). And the sequencing of cases in the Situation in Mali may mean that the consideration of this approach is not purely theoretical.

Implementing this change across the all situations, however, would not be easy. It would require the Prosecutor and States Parties to rethink the implicit assumption that international criminal jurisdictions should be limited to three or four cases, at most, in any given situation. Such a limit was not the product of a considered policy discussion, but has become an informal default since the operation of the Special Court for Sierra Leone. That court was seen as a success and a corrective to the expansive operations of the Yugoslav and Rwandan tribunals. But the success of this approach is not inevitable, and bears a range of costs that recent events at the ICC illustrate.

Unfortunately, the recent setbacks faced by the ICC Office of the Prosecutor may lead to a vicious cycle:  States Parties may become more reluctant to provide the additional resources required to conduct the more extensive investigations and sequenced prosecutions that, in turn, may be required to address the underlying problems.

IMAGE: A man holding a portrait of ousted Ivorian President Laurent Gbagbo, flashes the Victory sign on April 30, 2015 in Mama, the former president’s birth place, after Gbagbo, who was held at the time by the International Criminal Court in the Hague (Netherlands), was “named” on April 30, 2015, as “President” of his divided party by members who were militants.  A January 2019 ICC decision ordered him released. (Photo by SIA KAMBOU/AFP/Getty Images)