The Prosecutor’s decision whether to prosecute a case, or otherwise how to manage it, will be informed by a rigorous process of internal peer review of the evidence, including the participation of senior members of the Office assigned to other situations as well as relevant subject-matter specialists (law, analysis, sexual and gender-based crimes, children, etc.). (para. 28)
Nearly two decades after the International Criminal Court (ICC) was founded, the Office of the Prosecutor (OTP) circulated its Draft Policy on Situation Completion. It “completes a trilogy of policy papers describing the life cycle of the Office’s operations in a situation,” to be read along with the other two policy papers, the Policy Paper on Preliminary Examinations (2013) and the Policy paper on case selection and prioritisation (2016). It runs just over 21 pages. Less is generally more, but in this case, less is because more (as in substance) is wanting.
Some initial observations.
First, policy papers can serve a purpose as I noted in my previous post. They are meant to guide, to offer a structured process, to explain the what, why, when, and how. Much like protocols, it is a good thing to have policies in place. Also, considering the work of the ICC and its avowed raison d’être vigorously asserted and ambitiously marketed, it is good for the OTP to share its policies with the public. Transparency is always to be welcomed.
Second, following up on my first point, how is it that it took nearly 20 years for the OTP to come up with this policy? Going back to my analogy from my previous post where I allude to policies being like a compass or a GPS navigation system, if you do not know your destination prior to setting out on a voyage, how can you expect to get there? Of course, the OTP would have known from the outset that cases, as situations (which may have one or more cases), eventually come to an end. You would think the contours of when a situation has run its course, as far as the OTP’s remit is concerned, would have been worked out when the OTP was first established. It is not as if the ICC had no preexisting model from which to learn a few best practices and lessons. Indeed, the draft policy informs that it took inspiration from the completion strategies of the ad hoc tribunals, which, an aside worth noting, date back to as early as 2003 (the strategies, not the completions).
Third, following up on my second point, why is it that the OTP did not draft the trilogy of policy papers in concert? In other words, would it not have been prudent to draft the three policies when the OTP was founded? The three policies are interconnected in that the first one drafted in 2013 informs on preliminary examinations, the second one drafted in 2016 informs on the prioritization of cases, and now, in 2021, the third one informs on the completion of situations. Knowing its destination with a situation, i.e., when its remit is completed – something that is relatively clear from the founding documents of the ICC – the OTP would have been poised to draft the policy trilogy before it sought confirmation of its first case.
Fourth, rounding out the above three points, looking at this trilogy, it appears that it was not until Fatou Bensouda took over from the high-flying and headline-grabbing Luis Moreno Ocampo as Prosecutor that the OTP felt the need to draft these policies that in some measure would focus the work of the OTP, while also providing a modicum of transparency. Could this be one of the reasons why the OTP’s deliverables during Mr. Ocampo’s tenure were, generously put, paltry?
Perhaps Mr. Ocampo had policies in place but they were simply not publicly shared. Perhaps, but doubtful that they were developed to any degree. If policies reflecting the trilogy of policy papers were in place during the first nine years of the OTP’s founding in 2002, then why do we see the first policy in 2013? And why did it take until 2021 to complete this trilogy? Isaac Asimov took less time to write The Foundation Trilogy, one of the all-time great science fiction works, crafted with immense imagination and plot complexities, consisting of 1.5 million words.
I obviously do not know what is going on inside the OTP – other than what was revealed in the Expert Report. I also make no pretenses to having any answers on how the OTP can or should be organized, how it should operate, what cases or situations it should focus on, etc. Having noted that the most difficult and challenging job at the ICC is that of the Prosecutor, I am mindful of the complexities of running the OTP. But seriously, it is not rocket science figuring out that policies, such as the one on completing situations, should have been considered and drafted early on, followed by periodic fine-tuning based on experience gained.
Criticism aside, Ms. Bensouda deserves credit for recognizing the need to get the OTP house in order and to pass on to her successor a set of policies that will make his job a bit easier. Unlike Ms. Bensouda, the incoming Prosecutor, Karim Khan, QC, has not worked for the ICC OTP and thus will start with zero institutional knowledge – other than what he may have gained as defence counsel in representing clients before the ICC. No doubt he will want to shake things up and remold the OTP and its operational approaches as he sees fit – and to the extent possible (here he may run into institutional entrenchment and administrative obstacles in ridding the OTP of dead wood). In any event, the policy trilogy should serve him well as a point of departure.
Now to the draft policy.
As policy goes it is straightforward, if not bland. It describes how the OTP, in general, will complete situations. In the short space of 17 pages (of which two pages are devoted to reminding us of the Prosecutor’s independence, impartiality, and objectivity) we get a sense of the OTP’s strategy on tackling situations – from the investigation phase to the prosecution phase to the conclusion of its activities. It informs on the process while offering vague (of the it all depends milieu) answers on the OTP’s strategic decision-making process.
Based on the Situation Strategy, exercising her/his discretion, the Prosecutor defines in the Prosecutorial Programme for a situation the “total docket of cases which will be brought to confirmation proceedings,” having identified during the investigative phase potential suspects and incidents representative of the gravity of crimes, though not restricted to “broad” or “high-level” cases. Some of the factors the OTP considers are:
- The degree the case represents the gravity of the criminality in the situation;
- The interests of the victims;
- The types of evidence available;
- The prospects and requirements for cooperation from the States Parties, other relevant States, and others;
- The prospect for relevant proceedings in other jurisdictions;
- The operational conditions and the OTP’s ability to successfully conduct investigations; and
- The resources required to investigate and prosecute.
Decisions on whether to prosecute a case are to be made on “a dynamic, rolling basis.” Also, although the OTP need only overcome a low standard of proof hurdle under Article 58 of the Rome Statute (reasonable grounds to believe), the Prosecutor claims to have adopted an unrequired internal policy that “ensures that a criminal trial takes place only when justified” – by requiring that there be both a “sufficient basis to proceed” with prosecution under Article 53 and “a reasonable prospect of prosecution” before applying to the Pre-Trial Chamber for an arrest warrant. But is this a sufficient measuring-stick in deciding whether to put an individual through the judicial meatgrinder?
Considering its track record – despite the OTP’s claim that cases undergo a “rigorous process of internal peer review of the evidence” – one would hope that the OTP would adopt a policy that focuses more on proof than justification. Simply, it should not seek confirmation of a case unless, at a minimum, it is confident that the evidence (inclusive of which is what it is reasonably expected to be adduced by the defence) will meet the No Case to Answer standard of proof, if not the proof beyond a reasonable doubt standard. Differently put (irrespective of my defence orientation), while a case may justify prosecution, if the available evidence meets the low threshold of a sufficient basis to proceed, yet it is so flimsy, so inadequate, and so unreliable that it will be wholly insufficient to survive a No Case to Answer challenge – let alone meet the proof beyond a reasonable doubt standard – then the OTP should decline to prosecute. Were such a policy adopted, the OTP would likely achieve better results while also better rationalizing its precious resources.
Since the OTP’s work is in a constant state of flux, with priorities shifting depending on the ongoing events or budgetary constraints, we are cautioned, appropriately, not to expect concrete specifics in a policy of this sort. Nonetheless, the draft policy does offer common sense approaches, demystifying how the OTP goes about in making certain decisions, which, in no small measure, will be appreciated by some, such as victims. Albeit elementary, it is informative and helpful.
I’ll stop here. Anyone interested can easily ingest it during a coffee break — just an expresso, not a Café au laic accompanied by a croissant. Overall, it is informative and worth a read, even if the lack of specifics may frustrate. But then, other than providing a general roadmap on how a case or situation goes from preliminary examination to the OTP’s final involvement, what more can the OTP offer policy-wise? I guess not much more.
Now that the policy trilogy is completed, to repeat from my last post, the proof of the pudding is in the eating. Herein may lie the rub. Drafting policies is easy, delivering is hard.