There is a great evil that has taken root in my world and has begun spreading its chaos throughout the many verses. I have spent years searching for the one who might be able to match this great evil with an even greater good and bring back balance. All these years of searching have brought me here, to this universe. To you.
You saw her potential, so you pushed her beyond her limit. Though the overloaded mind usually dies, instead her mind was fractured. Now her mind experiences every world, every possibility, at the same exact time, commanding the infinite knowledge and power of the multiverse. Now she’s seen too much, lost any sense of morality, any belief in objective truth.
I’ve seen thousands of Evelyns, but never an Evelyn like you. You have so many goals you never finished, dreams you never followed. You’re living your worst you.
Bold or brash, expansive or unfeasible, imaginative or chimerical.
In his two-page preface to the 39-page Draft Policy on Complementarity and Cooperation, International Criminal Court (ICC) Prosecutor Karim A. A. Khan KC explains his “novel and imaginative ways to partner with national authorities, civil society and all actors to bring new life” in realizing the Rome Statute’s goals. Having made this promise in his swearing in speech in June 2021, Prosecutor Khan sets out to make good on his word. In response to a claimed new reality and changed landscape where domestic authorities are asserting themselves in prosecuting core international crimes in domestic courts, he purports to offer a renewed approach where the:
efflorescence of joint efforts of domestic authorities to exchange information and complement evidence collection activities … can be achieved through a proactive and dynamic approach by all actors involved, with the [Office of the Prosecution (OTP)] focused simultaneously on delivering on its core investigative mandate while significantly increasing its ability to interface with, and support, efforts of other criminal jurisdictions and accountability actors.
Is this a new dawn for the OTP? Has the ICC leviathan awakened, ready to be all it can be? Have the international and domestic landscapes been altered by ongoing events or epiphanic eurekas or moments of clarity?
Forgive my reticence in buying into the notion of a changed landscape of domestic prosecutions militating for a renewed OTP approach. The application of universal jurisdiction has been around for some time. States that exercise it – mainly in Western Europe and generally ICC States Parties – do so quite successfully and quite respectfully of the fair trial rights of the accused. That is not where the problem lies – though more uniformity in the application of universal jurisdiction would garner greater confidence in accepting the process and results.
As for domestic prosecutions of core international crimes committed on the territories of or by nationals of ICC States Parties, do they not already have an obligation under primacy to investigate and prosecute those crimes? Under complementarity, does not the ICC, entrusted with subsidiarity, have an obligation to ensure that such crimes are prosecuted domestically – and properly, including affording accused their full enjoyment of fair trial rights? And would not the ICC only step in if there is an unwillingness or inability to genuinely investigate or prosecute? Does not the notion and practical aspects of complementarity envisage cooperation between the OTP and States Parties in ensuring that domestic trials of core international crimes are conducted in a fair and expeditious manner? Would this cooperation not entail a host of things between the ICC and domestic authorities of States Parties?
Maybe the level of cooperation envisaged in the Draft Policy has been lacking or not sufficiently available or welcomed. If so, wishing greater cooperation by claiming a changed landscape without noting, explicitly, the reasons for any failures or misgivings or inabilities for the lack of cooperation and coordination between the OTP and States Parties where core international crimes were committed and where domestic investigations and prosecutions should have occurred does not change anything.
Laudably, Prosecutor Khan circulates his “novel and imaginative ways” for comment. Expect civil society – which played an imposing role in the selection process for the position of ICC Prosecutor, a role it continues to play in influencing the work of the OTP – to weigh in. States Parties are also likely to chime in. They should. It is not just about feasibility. Costs and direction will also raise concerns.
Even were funds and secondments and sharing and cooperation to generously flow into the OTP to meet Prosecutor Khan’s conceptualization of the ICC, and in particular the OTP’s mandate under the Rome Statute, the Draft Policy is heavily resource dependent. States Parties will have to loosen their purse strings – appreciably. It is also cooperation dependent, something that has been lacking at times. And it is perception/realization dependent – what exactly is the ICC? Is it a court of last resort? Is it a judicial institution? Is it a humanitarian organization or a human rights body? Is it a hybrid international/non-governmental organization? Is it in the business of trying cases under its jurisdiction, or is it also a post-conflict, institutional-development, state-building contrivance? Is it a little of everything? And if so, what is its primary function, if any?
Maybe I am too provincial and see the ICC first and foremost as a criminal court. Maybe I am too conservative or unimaginative in my thinking. With the OTP punching far below its weight since the ICC came into existence, is it too limiting or ordinary or uninspiring to ask whether the OTP should refrain from raising extravagant expectations? Should it not focus its energies and resources on the mundane – preliminary examinations, investigations, and prosecutions? I think so.
More practical than theoretical, more to the point than waxing poetic, more concrete than nebulous, I find the Draft Policy to be an eloquent efflorescence of supposed meaningful achievements (outside the court room where there have been precious few) and visionary imaginable aspirations that thus far some have proved unrealizable. Grandiloquent as it may be, rich with throat-clearing phrases and impressively sounding aims (donor-soliciting speak), I also found it an exceptionally tiring read. It reminded me of the weekly reports I would come across when working at international organizations and NGOs, where much ink was spent exaggerating and embellishing achievements and achievements-in-the-making, of little or no consequence, repackaged in impressively sounding language. I am not accusing Prosecutor Khan of embellishment, but like the famous Wendy’s hamburger ad with the slogan “Where’s the Beef” the Draft Policy recounts much and promises even more. All bun, miniscule meat.
Smothered in project-talk – the use of words and phrases common when soliciting funds for capacity-building projects – the Draft Policy boils down to four pillars (which can be expressed in about 65 words in active voice):
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- Creating a community of practice: i.e., platforms/modalities for exchanging ideas with national counterparts.
- Bringing justice closer to communities: enhancing the OTP’s field presence in situation countries and deepening engagement with national stakeholders.
- Technology as an accelerant: overhauling the OTP’s tech infrastructure to better categorize and analyze large volumes of information.
- Harnessing cooperation and mechanisms: opening new avenues for cooperation and sharing information.
I am unconvinced that the Draft Policy offers anything novel or visionary. Much of what it claims it will deliver are practical, common-sense modalities and approaches, which, but for the lack international and domestic political will exhibited over the past couple of decades, could/would have been in place.
Not wanting the OTP “to simply being an effective investigative and prosecutorial body,” Prosecutor Khan offers a more robust OTP. One that “through the mutually reinforcing principles of cooperation and complementarity,” a range of integrated measures and policies can collectively “effectuate a paradigm shift in the relationship between [the OTP], national authorities and other accountability mechanisms.” He proposes OTP to embed itself as a hub and partner itself with national authorities, “providing prompt and impactful assistance in addressing serious crimes falling within the scope of the Rome Statute cooperation regime.”
As if the benefits of holding trial in situ is revelatory – which, incidentally, is one of the primary reasons for complementarity – the Draft Policy notes:
The principle of complementarity is also based on considerations of efficiency and effectiveness. Whenever the domestic environment is conducive, there are numerous advantages to proceedings being conducted at the national level: indeed, this rationale underpins the complementarity nature of the Court. Local trials serve to reinforce the preexisting responsibility of States under international and national law to investigate and prosecute such crimes. They may thus have greater prospect of reinforcing accountability norms for serious crimes and consolidating the domestic rule of law. Such proceedings may also strengthen capacity and help developing domestic investigative, prosecutorial and judicial expertise in handling such trials. Investigations that are proximate to the events may have better access to evidence and witnesses. Trials held domestically may be more accessible to victims and enjoy a greater ownership and acceptance by the affected communities and the population as a whole. This may in turn contribute more effectively to broader societal objectives such as truth-seeking, reconciliation, lustration, institutional reform, and prevention. Localised proceedings may also enjoy significant cost efficiencies compared to proceedings before an international mechanism. At the same time, the Court can learn from innovative and evolving approaches adopted by domestic authorities. (para. 63)
This is hardly news. Nor is it a paradigm shift (dare we have a policy paper without this impressively sounding yet trite claim without fear of sounding simple). Nothing has prevented the OTP during the past two decades from forging close relations with domestic/national partners, coordinating efforts, exchanging knowledge on best practices, sharing information, and so on. Maybe the OTP was focused on other things or was less interested in ensuring that national courts were actually able or, as with referrals, actually unable to investigate and prosecute. Or maybe, states were reluctant or unwilling to have the ICC meddling, as they saw it, in their domestic affairs (Kenya is a prime example).
There is nothing rash in reading the Rome Statute expansively, creatively, even audaciously. However, unbound imagination bolstered by (over)confidence fosters unrealistic promises and undeliverable expectations. Many synergetic, paradigm-shifting promises are dependent on national cooperation. And many of those who appear most in need of the sort of assistance promoted in the Draft Policy have not been receptive to the sort of OTP overtures Prosecutor Khan claims he can effectuate. There is a great deal of mistrust by the OTP of domestic authorities and vice versa. This is most pronounced when it comes to investigations where government or local authorities are perceived to be in cahoots with high-level officials or military echelon under investigation by the OTP. Witness protection is another area.
Cooperation is essential, hardly a novel and imaginative concept. But as Patryk I. Labuda notes from his empirical studies in International Criminal Tribunals and Domestic Accountability – In the Court’s Shadow:
And yet, twenty years after it launched operations, the OTP has still failed to devise a strategy that balances its duty to challenge states over sham trials with the operational necessity to maintain cooperation. These dilemmas were exposed most conspicuously on Libya, where the shortcomings of a case law that legitimized flawed proceedings against Gaddafi and Al-Senussi flowed from a differential and sovereignty-friendly reading of complementarity that glosses over terms like ‘genuine’ and ‘unwilling.’” (p. 250)
Is the Draft Policy the strategic plan that Labuda speaks of? Perhaps. The Draft Policy envisages the OTP deepening its cooperation with other accountability mechanisms such as the Special Criminal Court of the Central African Republic and the Independent Investigative Mechanism for Myanmar by:
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- Proactively engaging with specialized courts, hybrid mechanisms and international investigative mechanisms in order to identify opportunities for collaboration and cooperation.
- Providing more expeditious and responses to incoming requests for information and assistance in accordance with statutory requirements, while drawing on the enhanced capabilities outlined above.
- Identifying opportunities for burden-sharing with different criminal jurisdictions with the imperative of bringing the justice process closer to survivors and witnesses.
- Developing synergies leading to operational and investigative activities where possible, and promoting coherence of action across entities and in the completion of the investigative phase of the Office’s activities in each situation.
- Contributing towards building an international community of legal entities ensuring the implementation of international criminal law at international, regional and national level, by mutually supportive efforts to share practices and increase awareness of each other’s work and challenges faced.
- Strengthening its legal framework for engagement with such entities through an enhanced network of MoUs / Cooperation Agreements.
It envisages the ICC holding in situ proceedings (assuming the Court and Registrar agree) so that justice can be seen being done as close as possible to the affected communities, joint investigations, and the OTP embedding itself “within the full range of transitional justice processes and mechanisms.” It also promises more direct, tangible support through closer engagement with national authorities and the use of new technological tools, including guidance and assistance in technical fields such as forensic examination, operational security and witness protection, best practices regarding missions to high risk environments, legislative/regulatory support to align domestic legislation with the Rome Statute, supplementary agreements to further cooperation and assistance, and other assistance the OTP maybe in a position to provide to national authorities. (paras. 73-74)
Presumably, Prosecutor Khan envisages the Draft Policy to be implemented through or monitored by the Office for the Complementarity and Cooperation Forum, which he claims will be operational in early 2024. Composed of national practitioners and specialized experts nominated by States Parties and non-States Parties, the Forum will “serve as a platform for the two-way sharing of information between the [OTP] and national authorities with the objective of identifying areas in which the [OTP] and States may be able to provide each other support and assistance on cases under investigation or prosecution.” It will also be a place where legal practitioners, investigators, analysists, forensic specialists, financial investigators, country specialists, linguists, and other experts can “jointly discuss and develop common standards for the investigation and prosecution of core international crimes.” The proof of the pudding is in the eating. Let’s hope the Forum delivers tangible results.
Prosecutor Khan’s interpretation of the possibilities under the Rome Statue (here I am referring to turning the OTP into a sustainable development, capacity building enterprise) are not without merit. His exuberance in transforming the OTP into the leading anti-impunity vanguard is laudatory. That is not where the rub is as far as I am concerned (others may justifiably think otherwise). The real issue is whether the Draft Policy, or better yet the OTP, can deliver the goals it promises. On the cooperation side, some States Parties, international organizations, civil society actors and others will continue to offer assistance to the ICC – with or without the Draft Policy. But can the OTP deliver more than cooperation agreements and promising press releases and inspiring photo ops? Will it have the budget and human resources to do all what it claims it will do? More importantly, should not the OTP focus more of its energy and resources on recalibrating its priorities to reconcile obvious past failures or inattentiveness to matters within its remit? Here, again, it behooves quoting Labuda:
While doctrinally sound, the article 17 case law’s stark dichotomy between action and inaction and a human rights-averse reading of genuineness, creates a series of pathologies. Notably, the case law allows states to outsource prosecutions to The Hague (legitimating state inaction), prioritizes outcomes (number of convictions) rather than process (how trials materialize, who and why is selected for prosecution, and according to what standards are they tried?), and forecloses richer debates about the relative benefits of domestic and international trials (under what conditions is it justified to take cases away from states?; what benefits do international trials have that domestic trials do not, and vice versa?). Equally important, complementarity, as established by the OTP and judges, provides little guidance on how to establish states’ good faith in domesticating and appropriating international criminal law (what is the absence of political will?; under what conditions is non-retributive justice acceptable within a criminal law paradigm?). (p. 256)
Prosecutor Khan is ambitious. As he should be. He is at the helm of the OTP at a most interesting and troubling time. Not since WWII have two states been at war in Europe. Even with a guarded view of what is being displayed through open source material, crimes are being committed at a massive scale, with no foreseeable end in sight. Then you have the events in Israeli and Palestine (the Gaza strip), with a potential of escalation in neighboring areas. With non-state actors on their own or as proxies for third party states having no regard for the laws of war, they are keen not just to commit atrocities, but also to push state actors into situations where adherence to the laws of war becomes problematic at best and presumptively impractical at worst. And there are other hotspots or situations around the globe also deserving the OTP’s attention and action. Just the other day in Cairo, Prosecutor Khan reiterated his “pleading for additional resources” to increase resources and personnel dedicated to the OTP’s Palestine investigation – another example of what is already on the OTP’s plate as part of its primary function of “simply being an effective investigative and prosecutorial body.” Prioritization of tasks and rationalization of resources will determine to what extent the OTP will succeed in fulfilling its most immediate obligations mandated by the Rome Statute.
Is the Draft Policy promising to bite more than the OTP can chew? Is Prosecutor Khan aspiring the OTP to be everything everywhere all at once?
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