ICC Prosecutor Symposium: The Challenges for the Next ICC Prosecutor

[Luis Moreno Ocampo is the Founding Chief Prosecutor of the ICC (2003-2012)].

In late 2020, the third International Criminal Court (ICC) Prosecutor will be appointed. One thing is certain: she/he will face new challenges. Should the new Prosecutor open an investigation in Venezuela? Or against British personnel in Iraq? Burundi, Philippines or Georgia? What should be the focus of the Afghanistan and Palestine investigations?

At the beginning of the Office of the Prosecutor (OTP)’s operations the context was completely different: there were doubts about the viability of the entire Rome Statute. The George W. Bush Administration was campaigning against the ICC and even those working at the Court had doubts about its feasibility. David Bosco reminds us (at 81) that one of the first judges and his colleagues “were not at all sure about whether this new baby would be able to survive all the hostility shown by the big powers.”

The third ICC Prosecutor will work in a completely different environment. After more than 17 years, the Rome Statute is part of the international landscape, the Court’s existence is no longer at risk. What remains up for debate, however, is its relevance, and more broadly, the relevance of international law to manage violence and protect individuals in the 21^st century.

The OTP has enormous responsibilities. It identifies the situations and the suspects involved in Court proceedings and obtains the evidence to put them to trial, but we must not forget that the relevance of the Rome Statute is largely defined by decisions taken outside the court room by political leaders, state representatives, regional organizations and the UN Security Council.

In the last few years, the Secretary General of the Organization of American States has been demanding the ICC’s intervention in Venezuela. Chile, Argentina, Paraguay, Canada and Peru referred the Venezuela situation to the Court, and recently, Nicolas Maduro also referred the situation to the ICC requesting the investigation of the impact of the US sanctions in Venezuela. Palestine and Ukraine are requesting investigations that could involve citizens from Israel and Russia, and both countries are refusing to recognize the legitimacy of the Court’s intervention. The CIA’s personnel could be investigated in the Afghanistan situation and the current U.S. government is threatening the Prosecutor and Judges. Furthermore, a negotiation to end the conflict was just signed between US and the Taliban and the investigation could affect its implementation. A case against UK personnel involved in war crimes in Iraq and Afghanistan could also trigger more political conflicts. There are debates in Sudan on surrendering the former President Al Bashir to the ICC. Philippines and Burundi withdrew from the Rome Statute, but the Prosecutor is analyzing or investigating the alleged crimes committed before the withdrawal. The interaction with those former state parties will, without a doubt, be complex. On the other hand, Kiribati, a small country from the Pacific Ocean, became the 123^rd state party in February 2020.

The next Prosecutor

In this context, what will be the role of the new ICC’s Prosecutor? She/he will inherit an Office with more than 350 dedicated staff managing ongoing investigations and trials in accordance with Regulations, policy papers and a detailed Operational Manual based on almost two decades of practice. The Prosecutor’s role is similar to that of an orchestra director. She/he will have to harmonize the work of those 350 players coming from more than 90 different countries, who have different traditions, and expertise, including international law, investigations, security and international criminal law. The new Prosecutor could direct the OTP “orchestra” by reviewing the Office’s Regulations and the Operational manual. Or she/he could modify the organization of the work, appoint new players, and move the current players to different positions. She/he should also integrate the OTP’s ensemble with a variety of other players directed by the Registrar, like the victim unit and the witness protection unit, or states parties representatives which are following their own partiture, to obtain cooperation and arrest individuals sought by the Court. During the litigation phase, the OTP’s “orchestra” will interact with the suspects, and victims’ lawyers, who are presenting simultaneous and different arguments, like in a polyphonic music, with two or more independent but related melodies. In any case, the judges of the different Chambers, who are still consolidating the ICC’s jurisprudence, are the directors of the litigation process and will make the final decisions on the individual responsibility of the accused.

The ICC Prosecutor’s role

To clarify the Prosecutor’s specific challenges, it is important to respect the legal architecture adopted by the Rome Statute, to distinguish the roles it provides to the different players and the three substantial activities that should be exclusively performed by the OTP. Firstly, like no other previous prosecutor in the world, neither national, nor international, the ICC Prosecutor has the independent and exclusive authority to propose where and when the Court should intervene; the OTP is ‘the gatekeeper’of the entire Rome Statute connecting the national system with the Chambers of the Court. Secondly, as in some national jurisdictions and in the ad hoc international tribunals for the former Yugoslavia and Rwanda, the ICC Prosecutor must conduct the investigations. Thirdly, like any national prosecutor, the OTP has to litigate before the Chambers of the Court. The Prosecutor’s autonomy to direct the OTP’s “orchestra” is almost absolute regarding the decisions to conduct preliminary examinations and to trigger or not the Court jurisdiction. It is still broad during the investigation phase where the Office will identify the suspects. But it is very limited during the court proceedings, and the Judges have the exclusive authority to decide on the issuance of arrest warrants and the individual responsibility of the defendants.

Preliminary examinations

The new ICC Prosecutor will find that the Office has dedicated enormous efforts to developing a specific technical area to identify situations under the jurisdiction of the court, clear standards and a transparent process. The evaluation is conducted by the Situation Analysis Section. A policy paper on preliminary examinations defines in detail the procedure to apply in following the Rome Statute. Since 2011, the Office has been publishing a public report every year summarizing its findings on the different situations under analysis.

David Scheffer, who led the US delegation at the Rome Conference, recognized that:

…the screen called for by the U.S. delegation to distinguish ‘between crimes which do rise to the level of concern to the international community and those which do not’ was created and applied rigorously by the prosecutor in the performance of his proprio motu responsibilities. The process, guided by the prosecutor, has become a very workable and rational methodology, contrary to U.S. concerns expressed in June 1998.”

Scheffer also added that: “These protocols proved to be far more sophisticated than the totally unregulated political decisions by either a state party or the Security Council.”All the decisions on jurisdiction adopted by the OTP that reached the courtroom were confirmed by the Chambers, dissipating the fears of a frivolous Prosecutor. The only situation that was opened following an expansive criterion has been, to date, the Rohingya displacement into Bangladesh, and it was adopted after consultation with the Chambers.

The current Prosecutor, Fatou Bensouda, has already decided to open the investigations in Afghanistan and Palestine, but the new Prosecutor could decide to open an investigation in any of the other seven situations already under preliminary examination. Venezuela, where allegations of ongoing crimes against humanity were referred by the territorial state and six other state parties, seems to be the first obvious choice. As mentioned above, authorities of the territorial state and six other states parties referred the whole situation of Venezuela to the ICC. Since the Uganda referral in 2003, the ICC has consistently considered that the referrals could not identify the suspects to be investigated. In the coming months, the preliminary examination could progress from phase 2, thereby allowing the current or the new Prosecutor to open an investigation with full political support of all the parties involved.

The preliminary examination carried out in Colombia since 2004 has been evaluating thousands of national judicial proceedings. It has also reviewed the framework used to conduct peace negotiations with the paramilitaries and the FARC, agreements that demobilized thousands of members of those groups while respecting the Statute. The OTP has performed its monitoring role for more than 15 years and has to continue to do this as soon as crimes under the Court’s jurisdiction are committed to check if national authorities conduct genuine investigations. There are no time limits for the preliminary examination process, and new factors such as allegations that the Colombian armed forces bombed civilians should be included. Suggestions that the Colombia preliminary analysis should be concluded because it was launched many years ago ignore the legal framework adopted by the Rome Statute.

As a gatekeeper, the OTP has two different and parallel duties: to fully respect the principle of complementarity and refrain from opening investigations when national authorities have conducted genuine proceedings, but also to ensure the “end of impunity” and trigger the jurisdiction of the Court when they fail to do so. As I argued upon taking up office in June 2003:

States not only have the right but also the primary responsibility to prevent, control and prosecute atrocities. Complementarity protects national sovereignty and at the same time promotes state action. The efficiency of the International Criminal Court should not be measured by the number of cases that reach the court or by the content of its decisions.

The Rome Statute is rooted in the previous international ad hoc tribunals at Nuremberg, the former Yugoslavia, and Rwanda, but its aim is not just to punish individuals through fair trials at the Hague. The Court is just one piece of a comprehensive legal system with a broad normative impact whose jurisdiction reaches more than a hundred states from all over the world.

Lastly, the OTP considered that there is reasonable basis to believe that UK servicemen committed war crimes in Iraq between March 2003 and July 2009 including willful killings, tortures and rapes. The situation is under phase 3 of analysis and the OTP is currently evaluating reports by the Sunday Times and the BBC exposing efforts to shield the conduct of British troops in Iraq and Afghanistan from criminal accountability. Because of the important role of the UK in Assembly of States Parties and in the Prosecutor’s appointments, the Prosecutor’s candidates should be asked about this situation.

Investigation

An important rule defines the outcome of the investigative efforts: Regulation 34(1) of the OTP Regulations establishes the policy to charge those persons who appear to be the most responsible for the identified crimes. During her tenure, Prosecutor Bensouda added an important caveat considering the need to investigate and prosecute a limited number of mid- and high-level perpetrators in order to ultimately build the evidentiary foundations for case(s) against those most responsible. Moreover, the Office may also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious. If the new Prosecutor wants to reduce the frictions with states, she/he would have the authority to focus the investigation on lower level perpetrators.

The new Prosecutor will have to delegate to the investigators operating on the ground the adoption of the tactical decisions in the specific cases and will have to respect the strategic decisions of the investigation leaders and the senior trial attorneys on the ongoing investigations. The new Prosecutor has to take into consideration that the full respect for the law during the investigations is a basic duty, but it is not sufficient. Investigative activities must be efficient. Investigating massive atrocities is a complex task that requires a variety of skills, including establishing a link between the crimes and those who ordered or financed them. In addition, it requires the ability to conduct a sound security analysis and to implement the necessary measures because most ICC investigations have to be conducted during ongoing conflicts. Complying with the Statute is not remotely enough; it is necessary to obtain cooperation from many different states, international organizations, NGOs and different areas of the ICC Registry (including the witnesses protection office). The OTP has to deal with their different agendas and legal decisions to implement its own mandate.

Two of the most challenging investigations going forward are likely to be Afghanistan and, potentially, Palestine. In Afghanistan, the allegations to be investigated include those of crimes committed by the Taliban,  by the Afghan National Security Forces and by members of the United States armed forces on the territory of Afghanistan, and by members of the CIA in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period between 2003 and 2004. The current Prosecutor considered that these alleged CIA crimes were not committed by a few isolated individuals; rather it was an official policy. As a consequence, those leaders that provided the authorization could eventually be considered suspects as well, which has exacerbated U.S. concerns. In the Afghanistan situation, the new Prosecutor could establish the priorities and decide to conduct three parallel investigations or to sequence them, in this case she/he could decide the order of the cases and review the level of those individuals identified as suspects. The new Prosecutor will have the exclusive legal authority to choose between those options.

In Palestine, if the Pre-Trial Chamber considers that the West Bank, including East Jerusalem, and Gaza are part of Palestine territory, over which the Court may exercise its jurisdiction, the ICC’s investigation will intervene in a crucial aspect of one of the most intractable conflicts in the world. There are many legal and political problems surrounding this investigation, but the settlements in the West Bank are arguably the most challenging. The Statute established as a war crime “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies…” (Art 8 b 2 viii). Palestine is invoking UN Security Council Resolutions and the International Court of Justice’s advisory decision “Recalling that the Security Council described Israel’s policy of establishing settlements in that territory as a “flagrant violation” of the Fourth Geneva Convention, the Court finds that those settlements have been established in breach of international law.” Because Israel considers the decisions on “settlement” legal, it cannot plausibly use the complementarity system for this specific allegation to stop the ICC’s investigations. As I have argued before, the litigation before the Pre-Trial Chamber on the territory could provide a last chance to find a creative solution to the problem.

Litigation

The new ICC Prosecutor could define new legal criteria, but the senior trial lawyers and the Prosecutor Coordinator are preparing the Office’s legal arguments. The urgency should be to consolidate the entire Court’s jurisprudence and it requires time and the judges’ leadership.

Using momentum to rebuild international support

The enforcement of the Court’s decisions is probably the biggest challenge of the ICC and it depends on political decisions. As in any judicial system, the enforcement of the Court’s decisions is not in the hands of the judges. Alexander Hamilton, one of the Founding Fathers of the US Constitution, explained: the Judiciary “has no influence over either the sword or the purse” and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”.

The peculiarity of an ICC operating without an international government is that the enforcement is the responsibility of sovereign states, and therefore there is a different legal commitment between states parties and non-parties of the Statute. As a consequence, most of the arrest warrants or summons to appear issued in states parties situations were implemented and most of the persons indicted in Darfur or Libya, situations referred by the UN Security Council, are still at large. The UN Security Council did not establish an obligation to non-state parties of the Rome Statute to enforce the arrest warrants, with the exception of Sudan and Libya.

Let me conclude with a suggestion to the new Prosecutor: to call for a big conference to discuss the OTP policies and the Court challenges, inviting state representatives, Ambassadors and legal advisors, scholars, NGOs activists and the most prominent experts in the field. All of them should be invited to present their views and comments on the priorities and policies of the Office of the Prosecutor during the first months of the new Prosecutor’s tenure. In doing so, the new Prosecutor could contribute to strengthen the community created by the Rome Statute, and, in difficult times, to increase the support for international justice.