Will launching investigations into non-African situations stem the exodus of African states from the ICC?

There is no truth. There is only perception.


― Gustave Flaubert

perception1The truth is normally what one perceives it to be.  At least, that is what I have found in trying cases before juries.  In fact, a trial before a jury is nothing short of a perception game; with each side marshalling the facts, crafting the narrative, and arranging the composition of events from jury selection to closing arguments, with the sole purpose of persuading the audience of this human drama as to what it should perceive the truth to be.  Prosecutors may argue that they are after the truth, but I have yet to meet a prosecutor who, after getting his derrière publicly spanked and being abjectly rejected with a not guilty verdict, will congratulate the jury for finding the truth and thus reaching a just verdict.  The point I am driving at is that perception is often viewed as the truth, never mind whether the objective facts may show otherwise to a dispassionate observer.

If the truth is lost in the scrum of the perception game, should the International Criminal Court (ICC) care about its image?  Yes, it should.

After some 14 years, what does the ICC have to show? In tangibles, if completed cases are the sum of its accomplishments, very little.  If it were an IT startup, investors would have given up years ago.  No bang for the buck with this enterprise.  Time to move on to other innovative ideas.  Does this sound familiar?  Alternative (complementary, to put it charitably) courts to the ICC are afoot.1 According to the Mechanism for International Criminal Tribunals (MICT) President Theodor Meron, the MICT stands as a new model – small, temporary, and more cost-effective. MICT press release, President Meron discusses MICT as a new model of international justice, 20 September 2016.  Professor Carsten Stahn in his article in EJIL: Talk!, Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity, 23 September 2016, seems to welcome such an approach in describing what he calls “International justice 4D” – “domestic, international, hybrid and regional” levels to investigate and try international crimes. See also my earlier post, The MICT model: panacea or chimera?, discussing the new MICT model and the inequity of its legal aid policy.

Tangible results should not be confused with what the ICC has been doing, even if all it has done is less than laudable.  The Office of the Prosecutor (OTP) has been conducting preliminary examinations and investigations.  Intangible as these activities may be unless or until they result in charges, these activities are in no small measure significant deliverables deserving recognition.

But if recent events are indicative of what is to come, there is reason to believe that the ICC is at the cusp of becoming a grand idea gone awry.  Why?

Aside from the ICC’s august new premises and all the hype and pretentions of what it stands for and all it will do in combating impunity, the ICC has squandered time, resources, and good will, while the OTP was racking up an impressive record of losses and dismissals.  And if that were not enough, the ICC is perceived by many, if not all, African states (silence should not be mistaken for approbation) as a neo-colonialist, white man’s court (dubbed by Gambian Information Minister Sheriff Bojang as “the International Caucasian Court”), selectively targeting Africans: basely going after African heads of state and threatening the modus vivendi of some who cling to or pine for the bygone era when the continent was governed by impervious strongmen.  True or not, these perceptions are real and toxic.

Perceptions aside, there is no evidence that the ICC has set out to target Africans or to go after African leaders. The reality, however, is that for the past 14 years all the OTP has done is prosecute African cases.

The OTP has been selective in its prosecutions.  It certainly could have spread its wings beyond Africa; surely there were cases to prosecute elsewhere.  The first prosecutor, Luis Moreno-Ocampo, has much to account for in damaging the image of the ICC and fostering the perception that it was selectively targeting Africans.  As reported in the New York Times Magazine by James Verini in his exposé on Moreno-Ocampo, one ICC investigator revealed that Moreno-Ocampo “seemed to see the I.C.C. not as a forensic body so much as a ‘naming and shaming’ organization,” while a former ICC lawyer told him that Moreno-Ocampo “would see the leader of a state and say: ‘There must be evidence out there. Go get it for me.’”2 See James Verini, The Prosecutor and the President, The New York Times Magazine, 22 June 2016, p. 11.  It seems that Moreno-Ocampo never met an African leader he did not want to investigate.  And then when you factor in his notion of the ICC’s raison d’être – “[t]he message a case sends, the shadow of the court – that was the goal,”3 Id., p. 20. – the perception of the ICC shared by some African heads of state is arguably tenable.  

Let’s face facts; the OTP has been assiduously conducting preliminary examinations and investigating situations. 

Many of the requests for preliminary examinations and investigations are politically driven.

Many of the requests for preliminary examinations and investigations are politically driven.4 A good example is the 2014 Reprieve (a UK-based NGO) request for investigation accusing NATO member States of war crimes for their participation in the US’s covert drone program in Pakistan. Setting aside a discussion on the utility of using drones on the so called war on terror, considering that targeted killings are lawful when the target is a combatant or fighter or, a civilian when directly participating in hostilities (provided the killings comply with the requirements of international humanitarian law), the Reprieve request begs a question whether this is more of an attention-getting strategy for advancing non-ICC related agenda.  Reprieve, Communication to the Office of the Prosecutor, the Situation in Afghanistan: The use of Drone Strikes in Pakistan (19 February 2014) available here. Another example of what may appear as a politically motivated request is a recent referral by Gabon, initiated by a leading opposition figure Jean Ping, who having lost the presidential elections to his political rival calls for the ICC investigation of the “electoral coup.”  Some are so sensitive or complex that embarking on a formal investigation, let alone charging and beyond, is like stirring up a hornet’s nest while covered in honey.  That said, so what? Politically-driven or sensitive situations are no reason for the OTP to shy away from cases.

So it should come as no surprise – if it is accurately reported – that the OTP is about to formally launch an investigation into the situation in Afghanistan.  But just how judicious is it for the OTP to be launching this investigation considering that the ICC is currently hemorrhaging on all fronts?  State parties are divesting from the ICC.  Its reputation is suffering from a string of mishaps and embarrassing retreats (dare I mention Sudan, and let’s not even think of Kenya).  And against this backdrop, we now see the rise of the Mechanism for International Criminal Tribunals (MICT), ad hoc tribunals, and regional courts, all poised to do basically that which the ICC was founded to do.

rock-and-hard-placeThe ICC finds itself between a rock and a hard place.  If it does not take on the challenging situations, it will be perceived as a toothless tiger; all roar, no bite.  If it forges ahead in situations which are likely to consume inordinate amounts of time and precious resources with marginal prospects of yielding profit (i.e., charges being confirmed resulting in appeal-proof convictions), it risks squandering the much needed good will and optimism it can ill afford to lose.  The Assembly of States Parties is interested in results.  Gone are the days when the ICC was flush with cash, spending it like a drunken sailor on leave in New Orleans during Mardi Gras.

So how much sense does it make for the OTP to open a formal investigation into the situation in Afghanistan, when, assuredly, the most prized target is the alleged torture by the United States (US) of detainees between 2003 and 2005?  Not that these alleged crimes do not merit investigation and prosecution, if warranted, but realistically, what is the likely outcome and at what expense?

The known known5Former Secretary of Defense Donald Rumsfeld famously (or infamously, considering the circumstances of his remarks concerning the Iraq war) noted: “Reports that say that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.” Defense.gov News Transcript: DoD News Briefing – Secretary Rumsfeld and Gen. Myers, United States Department of Defense (defense.gov). is that the US has investigated these crimes, albeit with disappointing and unsatisfying conclusions.6 See The United States Department of Justice Press Release, Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees, 30 August 2012. See also the Human Rights Watch (HRW) report and the Senate Select Committee on Intelligence report, detailing the use of torture during Central Intelligence Agency (CIA) detentions and interrogations and calling for the prosecution of the responsible officials. President Barack Obama is no George W. Bush. While exceedingly pragmatic, his convictions on the importance of and adherence to the rule of law are unyielding.

Human Rights Watch (HRW) may believe that these alleged crimes have calculatingly gone unpunished; the likes of former President George W. Bush, Vice President Dick Cheney, their subordinates, and the alleged physical perpetrators7 HRW notes that the following US officials who “played a role in the process of creating, authorizing, and implementing the CIA program should be among those investigated for conspiracy to torture as well as other crimes. They include: Acting CIA General Counsel John Rizzo, Assistant Attorney General for Office of Legal Counsel (OLC) Jay Bybee, OLC Deputy Assistant Attorney General John Yoo, an individual identified as ‘CTC Legal’ in the Senate Summary, CIA Director George Tenet, National Security Legal Advisor John Bellinger, Attorney General John Ashcroft, White House Counsel Legal Advisor Alberto Gonzales, Counsel to the Vice President David Addington, Deputy White House Counsel Timothy Flanigan, National Security Advisor Condoleezza Rice, Defense Department General Counsel William Haynes II, Vice President Dick Cheney, and President George W. Bush. In addition, James Mitchell and Bruce Jessen, CIA psychologist contractors who devised the program, proposed it to the CIA, and helped carry it out, should also be investigated for their role in the initial conspiracy.”  Human Rights Watch, No More Excuses. A Roadmap to Justice for CIA Torture, November 2015, p. 2. should have been called before a court to answer for their role in advising, designing, ordering, and executing (directly or indirectly) forms of torture they euphemistically referred to as enhanced interrogation techniques.  Assistant United States Attorney (AUSA) John Durham – no shrinking violet, with a proven track record as a competent and resourceful career federal prosecutor – conducted a thorough and independent investigation with a highly experienced team of agents (investigators) and prosecutors.  The US Department of Justice declined to initiate criminal charges because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”  As unsatisfying as this may be, it is the right call; prosecutors should not prosecute for the sake of prosecuting when the evidence is not there, or in the hope that somehow the evidence will surface, or, worse yet, in the hope that a conviction may result notwithstanding the lack of evidence.  Embarking on prosecutions that are unlikely to yield convictions due to a lack of admissible and substantial evidence – as concluded by the US Justice Department after a thorough and independent investigation – is an abuse of prosecutorial discretion.

It is tempting to suggest that AUSA Durham and his team engaged in a result-determinative sham investigation or were subjected to undue influence from above to game the investigative process.8 Id., stating that “[th]e apparent failure of the investigation to question current or former detainees undercuts any claims that it was thorough or credible.” Intriguing, but conspiratorially fanciful.  This does not mean that crimes may not have been committed, that torture did not occur, or that responsible individuals should not be brought to book.  It simply means that as far as the US is concerned – save for new credible and substantial evidence that is likely to tip the balance of probabilities that convictions can be obtained and sustained – the matter is closed.

Another known known is that the US is distrustful of the ICC.

Another known known is that the US is distrustful of the ICC.  Hard to fathom that it would accept the investigative findings of and acquiesce to the prosecutorial authority of the OTP.  There is a reason why the US has been, for all intents and purposes, undermining the viability of the ICC – at least in relation to any actions against US military personnel or civilians.  Having walked away from signing the Rome Statute, the US has doggedly pushed states that have signed on to the Rome Statute into entering bilateral non-surrender agreements, or so-called “Article 98” agreements, shielding US citizens from the jurisdiction of the ICC.9 Article 98 of the Rome Statute provides, inter alia, that “[t]he Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.” See The Coalition for the International Criminal Court’s List of the US Bilateral Immunity Agreements, listing 100 agreements as of December 2006. The US also enters into multilateral or bilateral agreements known as Status of Forces Agreement (SOFA) on “the rights and privileges of U.S. personnel present in a country in support of the larger security arrangement,” i.e., “how domestic laws of the foreign jurisdiction apply toward U.S. military personnel in that county.” See R. Chuck Mason, Status of forces Agreement (SOFA): What Is It, and How Has It Been Utilized? U.S. Congressional Research Service (15 March 2012).  For example, in 2014, when the Republic of Mali (a signatory to the Rome Statute) sought the ICC’s assistance in relation to the United Nations Multidimensional Integrated Stabilization Mission, President Obama issued a memorandum asserting that members of the US armed forces were not at “risk of criminal prosecution or other assertion of jurisdiction by the ICC because the Republic of Mali ha[d] entered into an agreement … [under] Article 98 of the Rome Statute preventing the ICC from proceeding against members of the Armed Forces of the United States” in Mali.10 U.S. Office of the Press Secretary, Presidential memorandum—Certification Concerning U.S. Participation in the United Nations Multidimensional (31 January 2014). Mark Kersten points out that the legal basis for the Obama’s memorandum was a 1997 SOFA agreement between the US and Mali. Mark Kersten, No Bush-Style BIA- A Clarification on Mali and the US, 5 February 2014. For more on the US-ICC relationship, see my earlier post “Just How Relevant is the ICC? – Part III.”

Against this backdrop, how feasible is it that the US will subordinate its sovereign authority (to prosecute and punish its citizens in US courts) to the OTP?  Not at all feasible. Considering the time and resources needed to investigate these matters, along with the broader scope of alleged torture in Afghanistan during the designated temporal period by all concerned (for example, the Taliban, Afghan government forces, coalition members, etc.), this is a Herculean (or Quixotic) endeavor that is likely to last years.

For optical and public relations reasons, it seems timely and appropriate to formally investigate crimes alleged to have been committed by US forces, CIA agents, and civilian contractors engaged in detentions and interrogations in Afghanistan.  But this will hardly allay the discontent of the African states that see the ICC as a white man’s burden court.

The timing to the OTP’s investigation may purely be serendipitous, unrelated to current events such as the exodus of some African states who, as a pretext to disengaging from the ICC, complain that crimes falling under the ICC jurisdiction which are taking place outside the African continent are purposely ignored.

Most likely, the OTP’s decision to formally investigate the situation in Afghanistan was in the pipeline, predating these African states’ decisions to leave the ICC.  This may be even more reason for the OTP to continue its investigation so that it demonstrates that the ICC is not Africa-focused. But when circumstances change (such the announcement of South Africa, Burundi, and Gambia to leave the ICC) and when considering the OTP’s string of embarrassing setbacks, its need to improve its image with quantifiable deliverables, expected rationalization of costs (budgetary constraints are only a matter of time), and so on, should not the OTP’s views and agenda change too?  The OTP may be biting off more than it can chew, let alone swallow and digest.

In her recent Policy Paper, ICC Prosecutor Fatou Bensouda intimates that the OTP is ready to pivot, to focus its attention to crimes that are less traditional than what the ad hoc and international(ized) tribunals have been prosecuting, giving “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 disposition of land.”  Tackling these sorts of crimes may appear less cumbersome and presumably easier to prosecute.  Presumably.

When considering where these crimes generally occur and who is at the top of the food chain in committing or sanctioning the commission of these crimes, the conundrum remains.  The ICC would still be targeting heads of state and government officials of under-developed or developing countries who directly or indirectly are involved in these crimes.  Solace may be given to the African heads of state and government officials that in prosecuting these crimes, the OTP will look beyond Africa for cases. But is this enough?  This reinforces the perception that the heads of state and government officials of the lily-white West (though virtually all states in the West are multi-cultural and multi-racial) would effectively remain immune from prosecution.

In her Opinio Juris post, The Re-branding of the International Criminal Court (and Why African States Are Not Falling For It), Christine Schwobel-Patel interestingly observes:

Although the changing of priorities appears to be diversifying the prosecution of grave crimes, the African states withdrawing from the Court are most likely under no illusion of the neo-colonial flavor of the ICC dissipating. In fact, it looks as though the re-brand of the ICC is likely to be a move which further stigmatizes the global South while protecting the interests of the military and economic powers of the global North.

Schwobel-Patel further surmises that this re-branding “could be an indication of a further bloating of the ICC’s staff, greater narcissism, and continued sycophantism to Western and military power.”  Schwobel-Patel has grasped the nettles.  Her perspective merits serious reflection.

The South-North divide is and will remain a burning issue for those from the global South with the ICC’s selectivity in prosecuting cases.  But what choice does the ICC have?  Is it realistic to think that George W. Bush or Tony Blair or Vladimir Putin will be in the ICC dock?

It is time for a reality check.  The ICC cannot be all it was meant to be.  Exalted rhetoric and extravagant promises are pleasing to the ear and achievable in the abstract.  Reality, however, is sobering, sometime cruel, and more than often unfair.  Not all crimes subject to the Rome Statute are committed in the global South.  But as day follows night, crimes (even if grave) committed in or by the global North by the permanent members of the United Nations Security Council are unlikely to be tried in The Hague.  In part this may be due to complementarity. In part, not; a simple matter of double standards.  Nonetheless, even where it appears that a thorough and objective vetting of the evidence of alleged crimes has occurred, as was the case with the US investigation into alleged torture in Afghanistan, in which US investigative and prosecutorial authorities declined to bring charges, the reflexive response tends to be that the fix is in.

So, is there an answer?

The OTP has recently demonstrated its capacity for nimbleness by rapidly achieving a guilty verdict (thanks to plea bargaining) in the Ahmed Al-Faqi Al Mahdi case for the destruction of cultural, religious, and historical monuments in Timbuktu, Mali, and a relatively quick guilty verdict in the Bemba et al. Article 70 (interference with the administration of justice) case – which, if the findings of fact accurately reflect the evidence, display respectable investigative capabilities by the OTP.  Achieving these sorts of quick successes should be the OTP’s priority.  Such a change of direction may not stem the exodus of the African states that are experiencing buyer’s remorse because their heads of state have come to realize that their heads (pun intended) could land on the ICC chopping block should they engage in conduct falling under the ICC jurisdiction for prosecution.  However, a change in the OTP’s prosecutorial priorities would do wonders for the ICC’s image.

Since perception matters, the OTP should channel its energy and resources in plucking low hanging fruit, as opposed to chasing after windmills. To paraphrase the British rock and roll legend, Mick Jagger, the OTP may not always get what it wants, but if it tries sometimes, it might find it gets what it needs. And what the OTP needs now is a perception makeover.

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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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