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What are your thoughts on the ICC Office of Prosecutor's Policy on Case Selection and Prioritisation?

Finding Strength within Constraints

by Professor Alex G. Whiting

In the introduction to The First Global Prosecutor: Promises and Constraints, a volume of essays that I co-edited with Martha Minow and Cora True-Frost, we focus on how the Prosecutor of the International Criminal Court must confront the many constraints on his or her powers, and even find ways to turn them into strengths:

This book asks whether the limitations of the prosecutor’s powers also suggest strengths – as the limitations necessarily require cooperation with a wide array of other actors and institutions, affording surprising opportunities for building coalitions and advancing international criminal law norms.

The current Prosecutor’s just issued “Policy Paper on Case Selection and Prioritisation” exemplifies this precise challenge. The Policy is transparent in its explanation of how the ICC’s limited powers can shape the work of the Court, but it also offers two ways that the Prosecutor will seek to expand the impact of the Court in light of these constraints.

First: transparency. Commentators and observers sometimes make the mistake of thinking that because the ICC has many of the attributes of a well-functioning domestic criminal court, it also has similar authority, tools, resources, and power. But nothing could be further from the truth. In fact the Court is, by design, an institution with extremely limited independent powers. In conducting its investigations, it is reliant on the cooperation of states, often the very ones implicated in the alleged criminality. Like the ad-hoc international criminal tribunals that preceded it, the ICC has succeeded only when its work has been supported either by the state where the crimes occurred or states with enough influence over that state to compel cooperation.

If instead the ICC was independently powerful, then the Office of the Prosecutor could simply select the most grave cases that meet the legal criteria set forth in the Statute. But the reality of the Court’s circumstances often requires that attention also be paid to pragmatic considerations: the Court may want to bring a particular case, but can it?

When describing the Court’s work, it is always tempting to leave such pragmatic considerations to the side, out of fear that acknowledging the limitations of the Court will somehow diminish its impact. But the myth of a strong Court is more damaging than the reality of a limited one. If outside parties have unrealistic expectations of the Court, they will blame the institution when these expectations are unfulfilled, rather than the states that chose to grant the Court such limited tools and resources or that failed to play their part in enabling the work of the Court. Moreover, if the Court cannot be transparent about the pragmatic considerations that constrain its work, those concerns will instead likely get channeled into what purport to be strictly legal criteria, resulting in distorted analyses of the law.

Therefore, it is commendable that the Prosecutor’s Policy Paper forthrightly acknowledges that the reality of its limited powers will sometimes shape the work of the Court. The last section of the Policy Paper, entitled “Case Prioritisation Criteria,” includes ways to assess the gravity, impact, and effectiveness of cases, but in addition sets forth a number of considerations regarding the prosecution’s ability to succeed. The document says that the Prosecutor will consider “the ability of the Office to pursue cases involving opposing parties to a conflict in parallel or on a sequential basis,” the availability of evidence and the degree of cooperation, the resources of the office, security challenges faced by investigators and witnesses, and the likelihood of getting an accused to The Hague. While these factors are included within the case prioritization section, it seems likely that the line between prioritization and case selection might blur over time: cases that are de-prioritized because they are not feasible may never get prosecuted, meaning that they will in effect have been de-selected. To the extent there is criticism of the OTP’s failure to pursue these cases, at least there will be clarity regarding the reasons.

The Policy Paper does not stop at simply acknowledging the constraints on its powers; in two respects, it also tries to maximize its impact in light of them. First, it endorses a broadened conception of cooperation with national prosecutors. The Court’s jurisdiction is complementary to states, meaning that it cannot prosecute cases that are being pursued by national officials (unless they are acting in bad faith). The first ICC Prosecutor, Luis Moreno Ocampo, devised the notion of positive complementarity, meaning that the ICC would actively look for ways to encourage state prosecutions. In this new Policy Paper, Fatou Bensouda takes the idea one step further; she commits the Office to cooperating with state authorities even when they are pursuing non-atrocity crimes:

The Office will also seek to cooperate and provide assistance to States, upon request, with respect to conduct which constitutes a serious crime under national law, such as the illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or the destruction of the environment.

This approach, which was already announced as strategic goal 9 of the OTP’s 2016-2018 Strategic Plan, could have a far-reaching impact and rests on the insight that there is often significant overlap between the Rome Statute crimes – genocide, crimes against humanity, and war crimes – and other forms of criminality. Bensouda’s strategy for working with her national counterparts is reminiscent of the Al Capone approach: looks for ways to target atrocity-crime actors by focusing on the other kinds of criminality they engage in that may be easier to prove, either legally or factually. In addition, in some cases states will have a greater commitment to prosecuting these non-atrocity crimes (for political reasons) and more expertise in pursuing them (because they are more common). Under this new Policy Paper, the OTP can now encourage states to target atrocity crimes either directly or indirectly through the prosecution of other crimes, therefore broadening the range of tools it can deploy to fulfill its mandate.  Presumably, if a prosecution is successfully proceeding domestically on these charges, the OTP can turn its attention elsewhere.

Some have questioned whether the ICC should assist national prosecutors in their pursuit of non-Rome Statute crimes. But this strategy fits squarely within the ICC’s mandate, which is “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” Prosecuting atrocity perpetrators for related crimes has the potential to disrupt criminality and prevent future crimes. In addition, Article 93(10)(a) of the Rome Statute expressly permits the Court to cooperate with national prosecutors investigating non-atrocity crimes: “The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.” Of course the ICC does not have the authority to investigate non-Rome Statute crimes itself, but it may share the results of its investigations with national authorities to support their work on any serious crimes.

The second way in which the new Policy Paper seeks to increase the Court’s impact—and the most-discussed aspect of the document—is by expanding the gravity criteria that the Prosecutor will consider when selecting cases. The Prosecutor will of course assess the number and types of victims, and the manner of the commission of the crimes, paying particular attention to certain types of crimes, such as sexual and gender based violence. But in addition, the Policy says that the OTP “will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.” This provision does not create new crimes or announce a change in the types of crimes that the Office will prosecute. Rather, it expands the types of cases that the ICC will choose to prosecute within a given situation. For example, this new language suggests that the Office might elect to prosecute the crime against humanity of forcible transfer achieved through de-forestation, land grabbing, or the illegal exploitation of natural resources. The Policy also suggests that the OTP will seek to hold accountable corporate officials who participate in atrocity crimes.

This move to expand the scope of cases that the Office will select to prosecute is very much in keeping with the Office’s emerging practice. Very early on, the first Prosecutor of the ICC adopted a policy of pursuing those most responsible for atrocities. While this remains the principal aspiration of the OTP, it is not always attainable, and in fact the cases targeting senior leaders have faced significant difficulties (see, for example, Sudan and Kenya). Because of its limitations, the ICC also has to be a Court of opportunity, and therefore its early successes have included the prosecutions of Thomas Lubanga for enlisting and conscripting child soldiers and Ahmad Al-Mahdi for destruction of religious and cultural monuments. These prosecutions addressed relatively narrow types of criminality, but in both the ICC had access to the evidence as well as the accused, and therefore proceeding was attractive. Moreover, both cases were important because they called attention to an under-appreciated type of criminality that often figures into larger atrocities. A typical component of a genocide, for example, is an attack on culture, and the use of child soldiers remains a feature of many civil conflicts. The ICC, therefore, has successfully exploited moments of opportunity to advance its mission. The new Policy Paper furthers this process by identifying additional places where the Office might take a stand if the opportunity presents itself.

In sum, the strength of the Policy Paper is that it confronts the limited powers of the ICC, is transparent about them, and seeks to expand the impact of the Court in light of them. It represents an important step for the ICC.

Professor Alex G. Whiting

Alex Whiting is a Professor of Practice at Harvard Law School where he teaches, writes and consults on domestic and international criminal prosecution issues. From 2010 until 2013, he was in the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague where he served first as the Investigations Coordinator, overseeing all of the investigations in the office, and then as Prosecutions Coordinator, overseeing all of the office’s ongoing prosecutions. Before going to the ICC, Whiting taught for more than three years as an Assistant Clinical Professor of Law at Harvard Law School, again with a focus on prosecution subjects. From 2002-2007, he was a Trial Attorney and then a Senior Trial Attorney with the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. He was lead prosecution counsel in Prosecutor v. Fatmir Limaj, Isak Musliu, and Haradin Bala; Prosecutor v. Milan Martić; and Prosecutor v. Dragomir Milošević.

Before going to the ICTY, he was a U.S. federal prosecutor for ten years, first with the Criminal Section of the Civil Rights Division in Washington, D.C., and then with the U.S. Attorney’s Office in Boston where he focused on organized crime and corruption cases. Whiting attended Yale College and Yale Law School, and clerked for Judge Eugene H. Nickerson of the Eastern District of New York. His publications include International Criminal Law: Cases and Commentary (2011), co-authored with Antonio Cassese and two other authors, and “In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered,” 50 Harv. Int’l L. J. 323 (2009). He is also an editor and blogger at Just Security.