{"id":4165,"date":"2021-05-25T03:16:30","date_gmt":"2021-05-25T01:16:30","guid":{"rendered":"http:\/\/michaelgkarnavas.net\/blog\/?p=4165"},"modified":"2021-05-25T03:19:56","modified_gmt":"2021-05-25T01:19:56","slug":"icc-otp-situation-completion","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2021\/05\/25\/icc-otp-situation-completion\/","title":{"rendered":"The ICC OTP\u2019s Draft Policy on Situation Completion: rounding out the policy trilogy"},"content":{"rendered":"

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The Prosecutor\u2019s 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.). \u00a0(para. 28)<\/p><\/blockquote><\/p>\n

Nearly two decades after the International Criminal Court (ICC) was founded, the Office of the Prosecutor (OTP) circulated its Draft Policy on Situation Completion<\/em><\/a>. It \u201ccompletes a trilogy of policy papers describing the life cycle of the Office\u2019s operations in a situation,\u201d to be read along with the other two policy papers, the Policy Paper on Preliminary Examinations<\/em><\/a> (2013) and the Policy paper on case selection and prioritisation<\/em><\/a> (2016). It runs just over 21 pages. Less is generally more, but in this case, less is because more (as in substance) is wanting.<\/p>\n

Some initial observations.<\/p>\n

First, policy papers can serve a purpose as I noted in my previous post<\/a>. They are meant to guide, to offer a structured process, to explain the what, why, when, <\/em>and how. <\/em>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’\u00eatre<\/em> vigorously asserted and ambitiously marketed, it is good for the OTP to share its policies with the public. Transparency is always to be welcomed.<\/p>\n

\"\"<\/a>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<\/a> 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\u2019s 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<\/em> tribunals, which, an aside worth noting, date back to as early as 2003 (the strategies, not the completions).<\/p>\n

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 \u2013 something that is relatively clear from the founding documents of the ICC \u2013 the OTP would have been poised to draft the policy trilogy before it sought confirmation of its first case.<\/p>\n

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First ICC Prosecutor, Luis Moreno Ocampo, with his successor, Fatou Bensouda.<\/figcaption><\/figure>\n

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<\/a> 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\u2019s deliverables during Mr. Ocampo\u2019s tenure were,\u00a0 generously put, paltry?<\/p>\n

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\u2019s 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<\/em> Foundation Trilogy<\/em><\/a>, one of the all-time great science fiction works, crafted with immense imagination and plot complexities, consisting of 1.5 million words.<\/p>\n

I obviously do not know what is going on inside the OTP \u2013 other than what was revealed in the Expert Report<\/a>. 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<\/a>, 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.<\/p>\n

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 \u2013 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 \u2013 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.<\/p>\n

Now to the draft policy.<\/p>\n

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\u2019s independence, impartiality, and objectivity) we get a sense of the OTP\u2019s strategy on tackling situations \u2013 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 <\/em>milieu) answers on the OTP\u2019s strategic decision-making process.<\/p>\n

Based on the Situation Strategy, exercising her\/his discretion, the Prosecutor defines in the Prosecutorial Programme for a situation<\/em> the \u201ctotal docket of cases which will be brought to confirmation proceedings,\u201d having identified during the investigative phase potential suspects and incidents representative of the gravity of crimes, though not restricted to \u201cbroad\u201d or \u201chigh-level\u201d cases. Some of the factors the OTP considers are:<\/p>\n