As I stated many times before, the Court today stands at a cross-roads in several concurrent situations, where the basis to proceed is legally and factually clear, but the operational means to do so are severely lacking. It is a situation that requires not only prioritization by the Office, which is constantly being undertaken, but also open and frank discussions with the Assembly of States Parties, and other stakeholders of the Rome Statute system, on the real resource needs of the Court that will allow it effectively to execute its statutory mandate. There is a serious mismatch between situations where the Rome Statute demands action by the Prosecutor and the resources made available to the Office. As the end of my term approaches, I reiterate my call for a broader strategic and operational reflection on the needs of the institution, and what it is intended to achieve – in short, an honest reflection on our collective responsibility under the Rome Statute to advance the fight against impunity for atrocity crimes. The victims of these egregious crimes deserve nothing less. — Prosecutor Fatou Bensouda, 14 June 2021
Before the virtual ink was dry on the press release, questions were being raised as to whether it was appropriate for ICC Prosecutor Fatou Bensouda to forward a request to investigate the situation in the Philippines pursuant to Article 15 of the Rome Statute just two days before the end of her tenure. The request was actually filed on 24 May 2021, but for some, even that was too close for comfort – believing that such a momentous decision (making a request to investigate a situation) should be left for her successor, Mr. Karim A. Khan, QC. The short answer is yes, Prosecutor Bensouda acted appropriately. Here is why.
Though the preliminary examination had started on 8 February 2018, as I have noted in previous posts (here, here, here, and here), President of the Philippines Rodrigo Duterte has openly and defiantly organized, directed, and publicly promoted extra-judicial killings in his war on drugs. Prosecutor Bensouda, using the ICC bully pulpit, cautioned President Duterte to cease and desist, since with the Philippines being a State Party to the ICC, he and his associates were engaging in crimes falling under the ICC’s jurisdiction and thus could find themselves in the ICC dock. Courting ICC prosecution, President Duterte doubled and tripled down on the extra-judicial killings, publicly reaffirming in both word and deed his intentions, as head of state, to carry on his war on drugs as he saw fit – ICC be damned. Putting a finer point to this, he withdrew the Philippines from the ICC on 17 March 2018.
The alleged (mainly self-confessed when it comes to President Duterte) crimes started on or about 1 July 2016 and continued – as far as the ICC is concerned – until 16 March 2019, during a period when the Philippines had acceded to the ICC’s jurisdiction, subjecting its citizens to prosecution at the ICC for, among other things, the crime against humanity of murder (as in the current situation), save for when the Philippines fulfills its complementarity conditions. With President Duterte’s predisposition to neither end the extra-judicial killings nor allow the domestic judicial system to deal with these unabated acts of impunity, and based on an extensive preliminary examination, Prosecutor Bensouda took the decision to request a formal investigation. Her watch, her assessment, her call.
Frankly, even if she had filed her request at 11.59pm on 15 July 2021 as opposed to 24 May 2021, Prosecutor Bensouda would have been well within her rights to do so. As in football (soccer), you play until the whistle is blown. To have deferred, in my opinion, would have been a dereliction of her oath of office. She had a mandate and she executed it to the fullest to the very end. Hats off to her.
Prosecutor Bensouda is neither saddling nor sandbagging Mr. Khan with the investigation in the situation in the Philippines. But for her decision, it would take months for the newly minted Prosecutor, who comes with no prior institutional memory on the internal workings and affairs of the ICC Office of the Prosecutor (OTP), let alone on this situation in the Philippines. Prosecutor Bensouda made the call on the merits of the preliminary investigation – rightly or wrongly. She used, no doubt, her professional judgment. Should Mr. Khan, in his judgment, think otherwise (reasonable people can reasonably disagree), he can rescind the request with, hopefully, a transparent and well-reasoned explanation as to why the ICC OTP thinks it needs to continue with the preliminary examination or to decline taking any action.
But let’s face reality. Would it not be diligent for an incoming-outsider Prosecutor to review all ongoing preliminary examinations and investigations, all cases whether at the pre-trial, trial, or appeal stages, not to mention pending communications and other inherited activities. Perhaps here is where Prosecutor Bensouda misstepped when she took over from her predecessor. Though she was the consummate insider as the Deputy Prosecutor, she should have (it appears she did not) critically re-assessed critical decisions made by her predecessor that appear half-baked (the buck stops at the top, so her participation is not controlling). This may account, in no small measure, for her less than enviable track record when it comes to successful prosecutions. Take away the Article 70 convictions, and the stats for the OTP’s 18-year history are dreadfully unappealing. So, yes, Mr. Khan should not be deterred from reassessing the request to investigate the situation in the Philippines, just as Prosecutor Bensouda should not have been deterred from requesting that the situation in the Philippines be investigated.
Which brings me to my next point.
In her press release, Prosecutor Bensouda sends out a clarion call to the States Parties. The ICC is at a cross-roads, as many, including myself (here and here) have been saying. And yes, there is a need for a broader strategic and operational reflection on the needs of the institution, and what it is intended to achieve, though as she rightfully informs, there is a mismatch between situations where the Rome Statute demands action by the Prosecutor and the resources made available. In my last post, highlighting the Special Tribunal for Lebanon’s billion-dollar boondoggle (1/20 of the funds could have successfully accomplished its tasks in 1/10 the time), I stressed that international criminal justice is not cheap.
Money, lots of money, is needed for the ICC to live up to its expectations. But donors (the States Parties), understandably, view things transactionally. States Parties want convictions as a measure of their taxpayers’ hard-earned money being put to good use. We can debate the rationality or irrationality of these expectations, but these are the facts. Which is why I purposefully note above that the OTP’s conviction rate is dreadfully unappealing; not to poke the OTP in the eye, but to highlight the obvious disconnect. How can the ICC Prosecutor expect the States Parties to loosen up the purse strings, if to them it appears – based on the ICC’s track record – that good money would be thrown away on poor choices.
Mr. Khan will find that there is no honeymoon, no pause for cookies and milk. He inherits a dysfunctional office – at least as it has been found to be by the Independent Experts (here). He must work with what he has while also trying to clean and remodel his new house, eradicate the long-tolerated culture of sexual harassment, motivate staff who, despite their efforts and accomplishments, see no upward mobility in rank and pay, prioritize what the OTP can and should focus on, and deliver the goods – convictions. Photo-ops, speech-making, globe-trotting, conference-attending, and policy-issuing won’t cut it. Only concrete results. And for that it will take wisdom, creativity, and nothing short of a Herculean effort by Mr. Khan and his team (which for the most part is what it is) to turn things around, to steer this prosecutorial Titanic he now helms away from the iceberg it has been heading for despite being well within the OTP’s (and ICC’s) sight for a very long time. I believe he is up to the task, but there is a lot of institutional inertia working against him. He is smart and an experienced strategician. Time will tell if he can translate those strengths to conquering this strange new world of the ICC OTP. It will not be easy.
I wish Mr. Khan the very best.