What can ICC Prosecutor Bensouda learn from Special Counsel Mueller: Just because you can doesn’t mean you should

“[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

“[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

From US Special Counsel Robert Mueller’s Report, as quoted by US Attorney General William Barr in a letter to the US Congress, 24 March 2019

After two years of hearing on the news and social media about the Russia probe, election interference, counterintelligence investigations, hacking of emails, WikiLeaks, potential obstruction of justice and so much more, the investigation led by US Special Counsel Robert Mueller came to an end. Some were elated, some were disappointed, and some were left wanting — not knowing what to make of the four page summary provided by US Attorney General William Barr, who in less than two days read, digested, and summarized Mueller’s nearly 400-page report (while also having time to look at the alleged million plus pages of evidence). Frankly, until the report is released — if and to the extent it is released — it is pure speculation to draw any reasonable and rational conclusions other than from the quoted text which, undeniably, establishes that President Donald Trump, the prime target of the investigation, will not be charged with any crimes. Nor will his son, son-in-law, and other associates — at least not by Mueller. Whether a sitting president can be charged is, in my mind, not even a close call: there is nothing unconstitutional about charging and prosecuting a sitting president — even if there is a Justice Department policy paper that says that it would not be cool to do so.

But all of this is beside the point. Just as it is beside the point that there may be other investigations that could yield indictments against President Trump, his family, and his coterie of friends and associates. What lies ahead is anyone’s guess. Best not to get all worked up with anticipatory anxiety. Best above all, however, is to not be disappointed with Mueller’s findings and conclusions — especially when we have yet to see the report itself. Even without having access to the primary sources of material that led Mueller to his conclusions, a fair assessment can be made on the scope, depth, and quality of the investigation and whether his findings were reasonably reached — even if another reasonable special counsel would have made different findings and would have reached different conclusions.

So, what does all of this have to do with International Criminal Court (ICC) Prosecutor Fatou Bensouda learning from Mueller? Plenty; or at least, I think so.

In my previous post I noted that the ICC is becoming its own worst enemy; its dysfunctionality is readily apparent. Setting aside systemic problems, which, in my opinion can only be resolved by the Member States first realizing that changes are needed — something that will first require self-appraisal, self-criticism, and self-motivation (see UK Legal Director Andrew Murdoch’s reality check during the 17th International Criminal Court Assembly of States Parties, warning “[t]he time has come for States to take a fundamental look at how the Court is operating. We need to work together to address the challenges,…”) — some practical adjustments can be made to at least ensure that the Office of the Prosecutor (OTP) suffers fewer embarrassing acquittals and dismissals of charges (see here). And here is where Mueller’s approach may offer some guidance.

Despite President Trump’s claims that he was totally exonerated — “no collusion, no obstruction, complete and total exoneration…” — the quotes from the Mueller Report tell us something different. Read carefully, it is reasonable to conclude that Trump and others, while not indicted, are not innocent; certainly not the victims of a witch-hunt or a vast left-wing conspiracy to delegitimize the election results and take down Trump. From what Barr has revealed, it seems that Mueller did not draw an ultimate conclusion on whether Trump committed crimes to which consideration should be given by the US Justice Department on whether to charge him, leaving it up to Barr to make the call. And perhaps for good reason.

Mueller seems to be telling us – without reading too much into the tea leaves from Barr’s pithy remarks – that he did not have sufficient evidence (maybe in part because Trump refused to give a face-to-face interview) to achieve a conviction were he to charge Trump and others, and were the cases proceed to trial. In other words, it was not matter of whether Mueller had sufficient reliable and relevant evidence to charge Trump and others for crimes presumably having been committed, but, that he did not have the quantity and quality of evidence, which, to his highly experienced mind (and those of his top-gun prosecutors and investigators) would guarantee guilty verdicts.

Other prosecutors may have charged Trump and others. Being comfortable with the evidence gathered, others might be satisfied with a high probability or maybe even a virtual certainty standard that charging would invariably lead to convictions — though there is nothing invariable once a case goes to trial. Perhaps. And perhaps, say if we were dealing with a street crime, a different call would have been made: better safe than sorry — prosecute if you have enough to charge and hope for the best that this criminal is taken off the streets. While there is nothing unethical with this approach (a gambit better suited for jury trials, where inflaming passion, prejudices, and fears are likely to have greater traction), I find this approach repugnant, occasionally resulting in innocent and not guilty persons unwarrantedly being put through the judicial meat-grinder. At the international(ized) criminal tribunals and courts, this approach (going forward with less than beyond a reasonable doubt evidence) could mean depriving someone of many years of liberty, not to mention the physical, psychological, social, and financial costs that are inescapably associated with several-year pre-trial, trial, and post-trial ordeals.

What’s my point? Well, the ICC’s legacy has thus far been marred by the stream of charges being dropped, number of judgments of acquittal, acquittals, and reversals on appeal. From a statistical perspective, the ICC, but especially the OTP, put mildly, are underperforming. Why?

Perhaps the OTP is spread too thin, lacks sufficient resources, or its talent pool of experienced investigators and trial prosecutors is too shallow, or perhaps there is a culture of hubris that like fungus has spread and is so pervasive that it is clouding rational thinking and judgment — since theirs is a righteous cause, the standards must on occasion be diluted to compensate for weakness of their cases and their inability to come up with reliable and relevant evidence to meet the beyond a reasonable doubt standard. Not that they call for thumbs on the scale, but it seems that this is almost a given for them — depending on the case, persons charges, crimes alleged, notoriety of the events, number of victims, and civil society hue and cry, surely the judges will come to the rescue, making the evidence work and turning the principle of in dubio pro reo on its head.

What I am driving at is that the OTP needs to adopt a more rigid approach to charging, one that meets a higher standard than the one it seemingly is applying (and here I am speculating, but the raw data informs). In other words, before charging someone — however high-profile — might it not suit the OTP to adopt Mueller’s approach, which, by the way, is neither unorthodox nor innovative? It is just a good, common sense, decent, and fair prosecutorial approach: setting aside emotions, passions, prejudice, predilections, pressures, aspirations, and whatever else may cloud rationality, and to simply, dispassionately, coldly analyze and assess the facts, and, as objectively as possible determine not whether the evidence is there to charge, but whether the evidence is sufficiently reliable and relevant to prove guilt beyond a reasonable doubt on all alleged charges and modes of liability. No a magic bullet for more successful prosecutions, but a start for a more effective, efficient, and equitable OTP. And the right thing to do.

In my next post I will offer some practical tips on modalities that the OTP might adopt to assist in making the determination that I am suggesting as the gold standard for charging individuals.

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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.

One thought on “What can ICC Prosecutor Bensouda learn from Special Counsel Mueller: Just because you can doesn’t mean you should”

  1. Mueller is an actual prosecutor. Bensouda and her crowd are more like civil law bureaucrats. Any real prosecutor would not hesitate to go after international war criminals like ISIS, Al Qaeda, Al Shabaab, and Boko Haram in order to make a name for themselves. All the ICC does is make excuses and botch the few cases it handles. If the donor contries wanted a real prosecutor, they would have appointe done. There are no lack of war crimes to prosecute.

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