ICC Prosecutor Symposium: The Next ICC Prosecutor

[Stephen A. Lamony is an International Law specialist, ex-Head of Advocacy and Policy at CICC, and ex-Senior Foreign Policy Advisor at Amnesty International. Be sure to also check out the latest contribution at Justice in Conflict from Christian De Vos and Mariana Pena: Electing the Next ICC Prosecutor: A Generational Opportunity.]

Prosecutors in international criminal tribunals investigate, charge and prosecute individuals who are alleged to have committed crimes within the jurisdictions of their courts.  They can request alleged perpetrators, victims and witnesses to come into courts and cross examine them. They collect information, evidence and decide whether or not to charge individuals with offense(s). They can terminate the proceedings if there is insufficient evidence and it serves the interests of justice to do so. Prosecutors can negotiate a plea with a suspect. For example, in the Prosecutor v. Ahmad Al Faq Al Mahdhi case before the International criminal court, Al Mahdi pleaded guilty for the war crime of destroying protected objects in Timbuktu and judges sentenced him to nine years in prison. In their roles, as the person(s) controlling the initiation of cases before international tribunals, prosecutors play an important role in building public confidence in tribunals’ ability to provide justice to victims. As such, prosecutors should ensure that they are impartial in the cases they bring before the court(s) and that any case within their jurisdiction is investigated. They should ensure that cases they bring forward for investigation or prosecution meet the elements of crimes in the tribunals founding documents. They should also ensure that their office(s) has sufficient evidence to argue that all the elements of a crime within the tribunals’ jurisdiction is met so that the case with stands trial. Prosecutors represent courts and engage in diplomatic activities which promote international cooperation, such as the United Nations Security Council or African Union, the League of Arab States, ASEAN, and the European Union. Prosecutors have used the UN Platform to ask for assistance of states parties and non-states parties at bilateral and multilateral negotiations on a wide range of issues that impact the court. Last, but not least, prosecutors lead and manage the office of the prosecutor.

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has held several regional cooperation or technical cooperation seminars with the African Union Commission (AUC) and Non- Governmental organizations (NGOs). Examples of these seminars include the 2019 joint ICC and Institute for Security Studies (ISS) seminar on witness management in Africa. The OTP should continue organizing high level seminars on fostering cooperation with the ICC, joint African Union (AU)/ICC seminars, and retreats as a way of promoting dialogue and cooperation with the ICC and understanding the ICC’s Jurisdiction. The OTP will need to organize similar seminars and retreats in other geographic regions of the world as the ICC initiates beyond Africa. Additionally, staff from the OTP can promote and strengthen cooperation with states through training local staff on how to prosecute sexual and gender-based crimes. The third prosecutor, of the ICC should learn from the mistakes of the first two prosecutors. There is a bit of information in the public domain, on the mistakes made by the founding prosecutor. He was accused of being a publicity seeker, as he would make pronouncements about indictments of African leaders right before the AU summits and as many cases brought by the prosecutor resulted in acquittals, which many (including past presidents of the Assembly of States Parties (ASP) of the ICC in their letter entitled “The International Criminal Court needs fixing”) perceive as a failure to properly investigate and build evidence for cases. Those public pronouncements upset African Heads of State, made them lose confidence in the court and undercut the work of the OTP in promoting international cooperation between states and the court.

A prosecutor should never bow down to threats from major powers even when a major power denies a prosecutor a visa and threatens to pursue staff who helped investigate allegations of against individuals from the powerful state(s). Neither should a prosecutor succumb to public criticism or pressure. A prosecutor should pursue cases against middle level perpetrators, which will all the prosecutor to pursue cases against top officials who sanctioned crimes. The prosecutor should identify states( including elected and non- elected members of the United Nations Security Council (UNSC) that are allies of the major powers ( Permanent five (P.5)) and work with them to build support  for the court within the P.5 nations, so that those nations do not abuse their powers to threaten staff of  international tribunals or use  the power of the veto to overrule a decision that comes to the Council. A prosecutor should support national prosecutions when a state is able and willing to do so. However, the prosecutor shouldn’t support never ending investigations or instances where military justice systems and other courts with jurisdictions over atrocities crimes are unable to pursue cases.

The OTP has been and is still a subject of criticism and public distrust. Some of the criticism is on the high costs of prosecution, while others complain about the low number of convictions or prosecutions and an increasing number of acquittals. In the past, others have criticized the OTP for not protecting intermediaries and have urged the OTP to act on its own and protect intermediaries. The prosecutor should take the lead in reforming the OTP by improving the safety and wellbeing of victims, ensuring witnesses are better protected and ensuring better preservation of evidence so that, the evidence isn’t destroyed, as was the case in the situations in Kenya. 

Without a doubt, some wounds will not heal unless they are treated. There are many crimes that warrant the attention of the ICC outside the African continent. The next situations at the ICC should be outside Africa, not just because of the perception of a focus on the African continent. Pursuing these cases will help address the perceptions some African presidents, such as Paul Kagame of Rwanda who believes The ICC “has been put in place only for African countries, only for poor countries.” (Rwandan President Says ICC targeting African Countries, Sudan Tribune August 1, 2008). It will also address the perceptions of former Ethiopian Premier Haile Mariam Desalegn who believes the ICC is “hunting African” (African Union accuses ICC of hunting Africans, BBC 27 May 2013)  and perceptions of African citizens who have lost confidence in the court due to many cases from situations in African states as well as acquittals of some African defendants perceived to have been let off the hook.

Success of a prosecutor varies from person to person. Some people will measure success based on deterrence of crimes, high conviction rates and low acquittals, the los costs of trails, or prosecutions leading to development in international criminal justice jurisprudence. For example, the prosecution and conviction of Thomas Lubanga for enlisting children into his rebel outfit the UPC or prosecution of sexual and gender-based crimes. The primary thing is that lessons are learned. During the ICC-NGO roundtable meetings, Luis Moreno Ocampo informed NGOs of what the OTP is doing. He was criticized by some of his staff who argued that Ocampo felt all he needed was all the evidence for pre-trial chamber judges so that they can authorize his office to open investigations.  He didn’t have enough evidence to go forward to trial, leading to multiple acquittals. The current prosecutor has issues multiples policies related to ensuring cases are fully investigated, such as a case completion strategy. Future prosecutors must do the same in examining the office’s past performance, evaluating, and instituting where they are needed. The ASP and OTP must cooperate strategically to promote complementarity. Court officials perceive the ASP as interfering with their work and not an ally. Prosecutors need to bridge this gap.

Luis Moreno Ocampo achieved several milestones including, shaping the justice system at the ICC by indicting the first sitting head of State, Omar Al Bashir, a former head of State Muammar Gaddafi, presidential and deputy presidential candidates, Uhuru Kenyatta and William Ruto, former premier Jean Pierre Bemba, successfully prosecuting Thomas Lubanga for the first indictment for the enlistment and recruitment of children. He also made many mistakes. The infamous sexual misconduct allegations against him raised questions about his moral character. Even though he denied the allegations and was cleared by judges of the charges. Ocampo shamelessly retaliated and axed the whistleblower, and his actions cost the ICC €248,000, money which should have been used by the OTP to do its work. In a 2019 report, a group of 3 experts concluded that Ocampo’s “leadership style discouraged candid, contrary assessments and viewpoints to the detriment of cases and some lower lever leaders perpetuated this attitude.” The report noted further,

“Decision-making was concentrated in the first prosecutor and his Executive Committee (“Ex-Com”) primarily with the Prosecutor 1), even for day- to-day decisions relating to the conduct of investigations and prosecutions. Such micro management, in the expert’s view, worked to the detriment of the Kenya cases.”  “Decision making was too complex leading to delays or failure to reach decisions at all.” Additionally, “too many staff positions were filled by individuals who didn’t have the requisite experience and skills sets to deal with complex investigations and prosecutions against high level suspects.”

It can’t be any worse after the founding prosecutor, any individual who comes after the founding prosecutor has a lot of review work and lessons to be learned. The second prosecutor has weaknesses too. However, unlike her predecessor, these weaknesses haven’t been documented and we will learn about them when the review due in September is done and when she is out of office in 2021.

The next prosecutor can’t be able to prosecute all the allegations of SGBV. For those cases that the OTP can’t pursue, the OTP should train domestic prosecutors on how to prosecute those crimes domestically under the principle of complementarity.

The next prosecutor should be an individual with an in-depth knowledge of International Law (International Criminal Law and International Humanitarian Law) and individual who is a career prosecutor and has worked at a high level in international tribunals, has accumulated a wealth or experience, has a lot of credibility and can follow  and implement the recommendations of the independent experts who are reviewing the performance of the ICC. It is expected that the experts will have recommendations on investigations policies and prioritization of cases. The report is due in September 2020.