ICC-OTP sets out its vision: a look at the horizon

 

On 15 September 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published its Policy Paper on Case Selection and Prioritisation (Policy Paper). Long overdue.

Policy papers can be instructive but do not always dictate the course of action that is ultimately taken.  Much has to do with the vision, drive, and inclination of the Prosecutor.   This was rather apparent with the first ICC Prosecutor, Luis Moreno-Ocampo, who was of the opinion that the goal of the court is to send a message to prevent future crimes, the so called “shadow of the court” goal.1 In prosecuting the Kenyan cases, and in particular Uhuru Kenyatta, Moreno-Ocampo’s mission, according to an interview with James Verini of The New York Times Magazine, was to send a message to prevent future political violence in Kenya. Verini stated that, according to Moreno-Ocampo, “[t]he message a case sends, the shadow of the court – that was the goal.” In Moreno-Ocampo’s own words, the problem with international courts is that they  “believe the trials are the most important thing. No. The most important thing is to prevent crime.” This was echoed by one of the prosecuting attorneys on the Kenyatta case, Benjamin Gumpert, who was quoted as saying: “There’s perhaps a risk when you are concentrating first and foremost on the message a case is going to send, that more technical considerations, like are we actually going to convict this person, may feel more subsidiary.” Paul Seils, who assisted Moreno-Ocampo, was more circumspect: “I’m not at all sure that the international courts really are set up to understand the realities of the conditions they’re investigating.” But if that is indeed the case, one would think that the focus of the prosecution should be on establishing individual guilt through credible evidence to the requisite standard of proof, as opposed to pursuing a “shadow of court” agenda. See James Verini, The Prosecutor and the President, The New York Times Magazine, 22 June 2016.

ICC Chief Prosecutor Fatou Bensouda

The current Prosecutor, Fatou Bensouda, seems measured and less adventurous.

The current Prosecutor, Fatou Bensouda, seems measured and less adventurous. And considering how deftly she has been handling the mess Ocampo left behind, it is reasonable to assume that she is intent on abiding by the Policy Paper her office has issued for selecting and prioritizing cases for investigation and prosecution.

The Policy Paper is set out in broad strokes, maximizing the OTP’s interpretation of its discretionary authority.  Lacking in concreteness, the OTP outlines a thematic and equivocal policy – as if to avoid being pinned down to investigating and prosecuting a particular case.  Sixteen pages long, it is packed with considerable guidance on how the OTP intends to proceed.  After a string of fiascos, missteps, and meanderings,2  In Prosecutor v. Ruto & Sang, the prosecution vacated the charges against the accused. In Kenyatta, the charges against the two accused were withdrawn due to insufficient evidence. Considering that in the past 13 years, with 22 cases across nine situations, the ICC has been able to complete only two trials (Prosecutor v. Lubanga Dyilo, Prosecutor v. Katanga; see also my multi-part blog post “Just How Relevant is the ICC: A Viable Court of Last Resort or a Politicized Court of Low Expectations?” drawn from my lecture at the Brown University International Organization) despite the hundreds of millions dollars spent, there are legitimate reasons to believe that the ICC is, for the time being, ineffectual. See Prosecutor v. Ruto & Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, 5 April 2016; Prosecutor v. Kenyatta, ICC-01/09-02/11, Decision on the Withdrawal of Charges against Mr Kenyatta, 13 March 2015; Prosecutor v. Muthaura & Kenyatta, ICC-01/09-02/11-696, Decision on the Withdrawal of Charges against Mr Muthaura, 18 March 2013. A list of the ICC cases where charges were withdrawn or not confirmed is available at https://www.icc-cpi.int/pages/closed.aspx. the OTP seems to have charted its course guided by a functioning compass.

The only policy paper from the OTP that comes close to the Policy Paper is the 2003 Paper on some policy issues before the Office of the Prosecutor. Eight pages of bland, generic reiteration of what is obvious from a reading of the Rome Statute.  Hardly the illuminating or instructive paper one would expect considering that the ICC was to be the new dawn for international criminal justice.

Since its Paper on some policy issues, the OTP has issued a host of other policy papers and strategic plans in which it tries to articulate and shape the internal thinking and working of the OTP.  The papers and plans most notable and most relevant to the Policy Paper are the 2007 Policy Paper on the Interests of Justice, the 2013 Policy Paper on Preliminary Examinations, and the 2015 OTP Strategic Plan, 2016-2018.  These papers are linked to and thus essential for a full appreciation of the Policy Paper.

Most essential, or shall I say intriguing, is the Interests of Justice policy paper.  It explains the OTP’s understanding of its independent discretionary authority to investigate and prosecute situations and cases, and the extent to which the OTP will not pursue investigations or prosecutions when they are not in the interests of justice.  The Policy Paper recalibrates and purportedly elucidates how the OTP views its mandate and to what extent it will exercise its mandate when selecting and prioritizing cases for investigation and prosecution within the Interest of Justice policy. 3 Researcher Barrie Sander makes insightful observations on the “interests of justice” criterion in the Policy Paper in his post titled “Is the ICC Reconsidering its Policy on the ‘Interests of Justice’?” in Justice in Conflict, 29 September 2016, comparing the draft and the final versions of the Policy Paper.

But what if anything can be forecast from the Policy Paper?  What sort of cases should we expect to see investigated?  Who might end up in the dock?  The OTP receives plenty of requests but, as it rightly notes, it needs to be selective and prioritize among the situations and cases to be investigated and prosecuted.  As non-committal as the Policy Paper is, there are some tea leaves worth reading:

40. The manner of commission of the crimes may be assessed in light of, inter alia, the means employed to execute the crime, the extent to which the crimes were systematic or resulted from a plan or organised policy or otherwise resulted from the abuse of power or official capacity, the existence of elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination held by the direct perpetrators of the crimes, the use of rape and other sexual or gender-based violence or crimes committed by means of, or resulting in, the destruction of the environment or of protected objects.4 ICC-OTP, Policy Paper on Case Selection and Prioritisation, 16 September 2016, (Policy Paper), para. 40, citing Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute.

41. The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land. 5 Id., para. 41.

It seems reasonably foreseeable that the OTP will be more creative in its selection of cases to investigate and prosecute – a smorgasbord or à la carte approach to addressing international crimes.  

It seems reasonably foreseeable that the OTP will be more creative in its selection of cases to investigate and prosecute – a smorgasbord or à la carte approach to addressing international crimes.

Currently there is at least one request pending to launch an investigation for alleged crimes against humanity through a widespread and systematic land grabbing attacking the civilian population, including through murder, forcible transfer of populations, illegal imprisonment, persecution, and other inhumane acts.6 See the communication submitted by international lawyer Richard J. Rogers of Global Diligence LLP on behalf of individual Cambodian victims, and backed by the International Federation for Human Rights (FIDH): Richard Rogers of Global Diligence LLP Files An Article 15 Communication At The International Criminal Court, Global Diligence, Joint Press Release, 7 October 2014.  This request relates to Cambodia.  And just a few days ago, it was reported that the World Bank Group was using intermediaries to help finance the Lower Sesan II hydropower dam and other projects in Cambodia, which evict or threaten to evict hundreds of families.7 Zsombor Peter, World Bank Helped Fund Controversial Dam: Report, Cambodia Daily, 10 October 2016.   Gravity remains the “predominant case selection criteria”8 Policy Paper, para. 6., though the OTP has put down its marker that it “will pay particular attention to crimes that have been traditionally under-prosecuted.”9 Id., para. 46. Thus far, there have yet to be any prosecutions for illegal dispossession of land or environmental exploitation of natural resources.  Based on the Policy Paper, it now appears that it is only a matter of time.

The same could be said for extrajudicial killings based on a widespread or systematic policy such as what seems to be happening in the Philippines. It is reported that over 3,600 people have been killed since 30 June, with 1,377 shot by police in operations. At this rate, the death toll will reach around 15,000 in a year.10 Pia Lee-Brago, Philippines tells world: Don’t interfere in drug war, The Philippine Star, 26 September 2016; Philippines: Independent Investigation of Duterte Needed: Allegations of Direct Involvement in Death Squads Call for UN Role, Human Rights Watch, 16 September 2016. Hard for the ICC Prosecutor to ignore such conduct, especially with a sitting ICC judge from the Philippines.

Interesting times ahead for the ICC.


Follow me on Twitter at @mgkarnavas

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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