ICC Prosecutor Signals Important Strategy Shift in New Policy Document

The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has released for comment a draft of her Strategic Plan for the final years of her mandate, 2019-2021. Overall, the plan shows that the Office of the Prosecutor (OTP) is frankly seeking to confront and meet the many challenges that the Court has encountered over the last few years. The most significant change in policy is with respect to the types of cases the OTP will consider bringing.

Without abandoning the goal of charging the highest-level perpetrators in a situation, the new draft policy fully embraces an approach of bringing cases that are more modest – either narrower in scope or against lower-level accused, namely mid-level commanders or notorious perpetrators – when it can. While this change may be controversial, it is the best path forward to strengthening the work of the Court.

From the first pages, the draft Strategic Plan recognizes that the ICC has had its share of successes and failures, and that there exist both internal and external causes for recent setbacks, including within the OTP:

The Strategic Plan 2019-2021 also coincides with a period of mixed results in court as well as unprecedented external challenges. Despite a number of successes in court during 2016- 2018 (e.g., Al-Mahdi case, Bemba et al. case), and the best efforts of dedicated and able staff of the Office, there have also been significant setbacks (Ruto & Sang case, Bemba main case, Gbagbo & Blé Goudé case). Different factors have caused these unsatisfactory outcomes, including the residual effects of the Office’s previous strategy prior to 2012; the need to further strengthen the present strategy; cooperation and security challenges, and the lack of judicial clarity and certainty. While some of the factors affecting performance are outside its control, the Office remains fully committed to learning from all its experiences, both in terms of successes and failures, and to taking all available measures within its control to improve its final outcomes in court during the 2019-2021 period. This Strategic Plan 2019-2021 is intended to mark the path towards that goal. (page 4)

The tone here is forthright and direct. The OTP recognizes its share of the responsibility for the court’s results, while also pointing out the external factors that have affected outcomes. With respect to its own work, the OTP makes a strong commitment to improvement. The first two strategic goals are “achieve a high rate of success in court” and “increase the speed, efficiency and effectiveness of preliminary examinations, investigations and prosecutions.”

Specifically, the plan commits to focusing on developing a stronger evidence base for its cases; diversifying types of evidence; reviewing, strengthening, and maintaining standards and best practices; enhancing quality control; encouraging critical thinking within the office; strengthening investigative methods and staff; and developing methods to streamline work and decision-making. The Office also commits to advocating for judicial decisions and practices that enhance efficiency. There is much to discuss and debate on how to implement these various objectives, but the plan is comprehensive in identifying the areas where work could be done.

Further, the plan emphasizes the need of the OTP to focus its work generally, and, in particular, to concentrate on those cases that are most likely to succeed. Recognizing the accumulation of ongoing investigations, the plan commits the Office to developing a process for closing investigations, which, to date, it has never done. That process will be challenging: How will the ICC assess whether it has completed its work in any given situation? Further, the strategic plan reiterates the Office’s policy of considering operational and practical realities, and the prospects for arrest and successful trials, when selecting cases, as set out in the Office’s 2016 Case Selection and Prioritization Policy.

The most significant policy shift in the document regards the kinds of cases the Office will consider, and here it is worth quoting the discussion in full:

[B]uilding on [previous policy documents], the Office will give increased consideration to the possibility of bringing cases that are narrower in scope, insofar as they focus on key aspects of victimisation, particular incidents, areas, or time periods, or a single accused. In particular, when appropriate, the Office will consider bringing cases against notorious or mid-level perpetrators who are directly involved in the commission of crimes, to provide deeper and broader accountability and also to ultimately have a better prospect of conviction in potential subsequent cases against higher-level accused. The Office will also emphasise evidential strength in its selection of suspects and charges, opting where appropriate for narrower but stronger cases over broader cases with higher risks of evidentiary weaknesses. While the scope of any particular case must always respond primarily to the available evidence, the Office will aim whenever possible to pursue sequenced cases that build toward a body of cases that fully represent victimisation and hold the most responsible perpetrators accountable.

The Office anticipates that this pursuit of narrower cases will have numerous benefits, including the charging and presentation of cases with the best chance of success at trial, deeper and broader accountability within situations with possibly more visible accountability also in the affected communities, faster and more comprehensive development of procedural and substantive jurisprudence, and the creation of incentives to increase the overall efficiency of the Office and other Organs of the Court through an increase in the number of trials and other proceedings. At the same time, while the planned approach should reduce the time and other resources necessary for each case, its overall effect on resource requirements cannot be accurately predicted. The Office also recognises that this approach may place increased demands on other Organs of the Court, including for courtroom space. It also risks creating a temporary misperception that the Office is targeting only low-level perpetrators, even though the goal of the Office remains to prosecute the most responsible either directly or through a building upwards strategy. However, on balance the Office considers such concerns to be outweighed by the potential benefits.

This shift represents an important development. The aim of every international criminal tribunal that preceded the ICC, and the ICC in the first years of its existence, was to focus on the most responsible perpetrators, those at the top of the chain of command. However, with the failure of several cases against high-level accused at the ICC, and constraints on the Court’s ability to collect evidence and obtain the surrender of accused persons, the OTP has slowly expanded its target focus, both in policy and in practice. Already in its 2012-2015 and 2016-2018 Strategic Plans, the OTP suggested that in some cases it would target lower-level perpetrators in order to build cases against more senior actors. And in fact, the OTP brought some successful cases against some lower-level accused, such as the Al-Mahdi case in Mali, which presented themselves as cases of opportunity to the Office.

But in this new plan, the Office goes much further and embraces cases against mid-level accused, or cases that focus narrowly on specific incidents, as important in their own right, while never giving up on bringing cases against the most senior perpetrators, when possible. Often the smaller or more narrow cases will offer a greater prospect of success, providing at least some measure of accountability.

The more modest cases can also make visible certain forms of criminality (as the Al Mahdi case did for cultural property crimes), and can bring to justice serious perpetrators, even if not always the most responsible. Moreover, it will be easier to bring more cases of this type which will strengthen the functioning of the Court by developing its jurisprudence and forcing it to adopt more efficient practices in the face of more cases. This strategy recognizes that given the challenges facing the court, sometimes less is more and the court cannot succeed without fulfilling its core mission of successfully prosecuting perpetrators of Rome Statute crimes. Moreover, the strategy recognizes that the ICC is a nascent tribunal and needs to build its legitimacy and competence over time by proving it can bring successful cases. Strong cases against mid-level accused will also increase the pressure on the court, and on states, to bring the more senior perpetrators to justice as well.

The new strategy has risks, as the plan recognizes. Inevitably, the OTP will be criticized when it brings smaller cases, and if it brings many of them, as it should, there will be resource pressures. It will feel unfair, and it will be unfair, if mid-level perpetrators are prosecuted but more senior ones remain free. But the current realities facing the court, which include diminished political support from states for its work, and the long-term need to build the legitimacy of the court through successful cases, both counsel in favor of this strategy. At the end of the day, modest successes are preferable to spectacular failures.

Image: International Criminal Court chief prosecutor Fatou Bensouda and deputy prosecutor James Stewart at the ICC in The Hague on January 25, 2019. Photo: KOEN VAN WEEL/AFP/Getty Images)

 

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. Member of the editorial board of Just Security. Follow him on Twitter (@alexgwhiting).