A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court (Part III)

In earlier posts in this series (here and here) I have examined the ICC Office of the Prosecutor’s (OTP) great successes and failures of July 2019. A successful conviction in Ntaganda and a dismissal of its case in Gbagbo and Blé Goudé. I’ve noted a number of important differences between the two cases and in this post I’d like to reflect on the way forward. First, I will ask what lessons appear to have been taken to heart in the OTP’s new strategic plan. Second, I’ll offer a few brief concluding thoughts to this series of posts.

What has the OTP learned? The Strategic Plan 2019-2021

There are a number of encouraging signs in the new OTP Strategic Plan. Broadly, it acknowledges that preparing high-quality cases with the best chances of success in Court will require pursuing fewer cases, those cases may need to be narrower, and there will need to be a process for situations under preliminary investigation to be closed. Concretely the Plan acknowledges:

• There has been “a period of mixed performance in court [for the OTP] as well as unprecedented external challenges for the Court’s operations”.
• That “International investigations and prosecutions take time – to understand the full scale of criminality and its actors, to connect with the country, to prepare operations in terms of languages, staffing, logistics, security, etc., to obtain cooperation, to adequately process information and evidence, and to build a viable case where warranted.”
• That “[a]bsent a significant increase in resources, the Office will need to exercise its prosecutorial discretion even more stringently to prioritise amongst the different cases identified within all the situations under investigation …”
• “The quality of the work is an essential element to effectively meet the Office’s mandate and for the long-term legitimacy and credibility of the Office. If the Office needs to make a trade-off between the speed, the number of parallel investigations and the quality of the investigations, then it will prioritise the quality of its work. With the limited number of cases, it is essential to achieve a high rate of success in court if the Office is to succeed in fulfilling its mandate”.
• that the OTP “will give increased consideration to the possibility of bringing cases to justice that are narrower in scope, insofar as they focus on key aspects of victimisation, particular incidents, areas, time periods, or a single accused. In particular, when appropriate, the Office will consider bringing cases against notorious or mid-level perpetrators who are directly involved in the commission of crimes, to provide deeper and broader accountability and … [to lay foundations for] subsequent cases against higher-level accused”.
• “the Office will prioritise the development of a policy on the completion of situations under investigation, which will be applied to both new and existing situations”.

There is a big gap between any strategy document and its successful implementation. And, realistically, these lessons most need to be taken up less by Prosecutor Bensouda than by her successor. The third Prosecutor will, in my view, need to accept the political reality that the Court’s mandate will have to be discharged within existing resources or only modestly increased resources. (The only path to increasing front-line resources would be something radical: such as appointing no new judges in the 2021 elections. The Court is not over-run with cases and judicial salaries are expensive.)

Given that reality, the OTP will need to stringently prioritise which situations to pursue (and will have to close others), and will also have to commit to deeper engagement in fewer situations to build a proper understanding of events and their context before constructing cases. Within these fewer situations, fewer and narrower prosecutions will need to be pursued – initially against front-line notorious criminals and mid-level leaders. In particular, the Prosecutor will need to avoid the temptation to leap at high-profile, high-level targets like Mr Gbagbo simply because they are already in custody and available for trial.

However, this will require a modesty of ambition and a willingness to engage in difficult stakeholder discussions. One wonders how many people would strive to become Prosecutor of the International Criminal Court in order to do less, but better, and still likely be criticised for it.

Final thoughts

Overall, recent developments largely serve to confirm the unpalatable lessons I drew earlier from Lubanga: a narrow case, run against a rebel leader on relatively few (or at least closely related) charges can succeed. This was the model of success in Ntaganda, and most elements of it were missing in Gbagbo. Further, Gbagbo painfully illustrates that the success or failure of a criminal case is built upon the quality of investigations. As Phil Clark has noted for the ICC to deliver something other than “distant justice” it will need more in-country expertise; as well as longer and more detailed investigations. Ntaganda was, as the latest of the Ituri cases, a success 14 years in the making. The OTP has chosen to spread itself wide and thin. To do better, it may need to go narrow and deep.