In this final reflection I would like to offer some concluding remarks based on my previous two posts. Those posts do not break any new ground for those who follow the International Criminal Court closely. However, they represent my attempt to step back and examine some of the Court’s troubles more holistically. Indeed, they barely scratch the surface of various matters one could explore in such a series.
The basic fact remains that in 20 years and almost two complete prosecutorial terms, the Court that ostensibly exists to fight impunity and prosecute those most responsible for the crimes of greatest concern to the international community has managed only three convictions for core international crimes. Of these one was a guilty plea (Al Mahdi), one controversially involved the Court’s judges saving a collapsing case by recharacterizing the mode of liability after the presentation of argument and evidence had concluded and without hearing further argument on point (Katanga), and one took six years to result in a single conviction for the recruitment of child soldiers (Lubanga).
This is not a record of success. The argument I have put forward is first that there are real questions as to whether the Court’s job is possible to do on the present conditions. In my first post I argued that many of the defences made of the Court are simply articulations of the structural requirements for success which are not present. In my second post, I argued that even given those structural limitations it is not obvious that the Court as presently constituted is up to the task. The OTP appears unable to consistently mount successful and convincing cases. While the first Prosecutor must certainly take much of the blame, the second does not appear to have had much success righting the ship. Just as worrying, however, appears to be the breakdown in trust between the OTP and Chambers. Beyond the examples given in my second post, the Pre-Trial Chamber has attempted to circumscribe prosecutorial discretion or direct the course of investigations both in relation to the Cormoros and Bangladesh situations. Further, there are very worrying signs of a breakdown in collegiality among the ICC judges which is damaging both the formal coherence of court decisions and its wider legitimacy. This is before we even touch on the Court’s unsightly history of internal employment litigation and pay disputes, and now reports that the ICC mismanaged property in the Bemba case frozen to provide for any reparation orders. The allegation is that over 10 years Mr Bemba’s property was “left to devalue, dissipate or simply rot.” From the outside, the picture is one of dysfunction.
What is to be done? As foreshadowed, I think the answer has to be found in a guiding ethic of modesty and collegiality. I will address this in terms of institutional design, investigations and evidence, and judicial culture. The temptation will be to double down and push harder in the present direction of travel. This would be a mistake. The Court is facing a legitimacy crisis. To survive as an institution, the court is going to need to start making some compromises with reality.
In retrospect, elements of the Court’s design were from the outset overambitious or over-complicated.
A more modest Court could likely dispense with Pre-Trial Chambers, would involve streamlined victims’ participation, and possibly a separate mechanism (or an adapted Trust Fund for Victims) focussed on ‘positive complementarity’ as a form of acknowledgment that the Office of the Prosecutor cannot and will never investigate every situation falling within the Court’s purview.
Many of the Pre-Trial Chamber functions could as easily be conducted by a Trial Chamber, and the confirmation of charges process substantially streamlined. At the ICTY and ICTR, for example, the indictment confirmation procedure involved a single judge reviewing the Prosecutor’s indictment in an ex parte application. The court is scarcely over-run with active cases, and the Pre-Trial Division, as discussed in Part II, has come to seem a cumbersome and ineffective mechanism which is largely a source of delay.
Similarly, to put an unpopular view, allowing victim participation at each phase of proceedings as a represented party was likely a mistake. There is no reason that victims should not contribute directly to proceedings in some fashion, as in the manner of victim impact statements in some common law jurisdictions. The involvement of victims – or rather, of their representatives – at every step has scarcely expedited proceedings and has also led to substantial complexities as to who secures victim status for the purposes of such participation. Again, in retrospect, establishing the Trust Fund for Victims (TFV) as a mechanism completely de-coupled from criminal proceedings and focussed solely on its ‘second mandate’ would have been wise.
As regards the overburdened and geographically thinly-spread Office of the Prosecutor, a parallel mechanism focusing on positive complementarity might have been a useful addition to the architecture of the Court. That is, a separate organ (or a more autonomous version of the TFV with a wider mandate) could perhaps have been tasked with in-country measures to support victims and assist in establishing mechanisms for national and regional prosecutions. Situations where Prosecutorial intervention was impractical could then have been passed to this organ for other transitional justice measures.
Of course, substantial reform to international organizations once established is difficult, if not impossible. But thinking about such things can sharpen our perceptions of current failings and make what reforms may be possible seem less daunting. And it is not as if changes to the Court’s Statute and structure have not already been made. The Assembly of State Parties has successfully amended substantive provisions of the Statute (to add the crime of aggression and certain prohibited weapons offences). The ASP has also experimented with institutional design, creating the ICC Independent Oversight Mechanism (a watchdog body) and the Advisory Committee on Nominations (to interview nominees for judicial vacancies and advise on their qualification for the role).
Investigations and evidence
What would a more modest prosecutorial strategy look like? The only real victory so far for the OTP, in terms of a contested case running relatively smoothly from start to finish, has been Lubanga. Al Mahdi was a guilty plea. The problems with Katanga have been noted above. The lesson of Lubanga is stark and potentially unpalatable: a narrow case, run against a rebel leader on a single charge can succeed. This lesson chimes with the suggestion that it may be best for the Prosecutor to first target mid-level suspects in a situation before attempting to work up cases at a leadership level. This would obviously take resources, and mean focussing on a narrower range of situations. Inevitably, this would require in turn quietly mothballing a number of presently ‘active’ situations and avoiding the temptation to act as a global human rights policeman and investigating cases at the margins of the Court’s jurisdiction. As I have argued elsewhere, while legally defensible, ICC involvement in crimes committed in the course of Rohingya expulsions from Myanmar into Bangladesh was neither a result compelled by the Statute nor wise. The situation has none of the preconditions for successful international criminal tribunal interventions (see Part I) and risks becoming another judicial quagmire of the Court’s own making.
Further, successful case preparation in any situation will obviously require some greater degree of consensus about how evidence is to be evaluated than it would seem presently exists within the Court. (See Part II on McDermott’s ‘atomists’ and ‘holists’.) The risk of the ‘holistic approach’ is that it may encourage a Prosecutor to submit everything, no matter how limited its probative value, in the hope that an overall picture may emerge and that the record will speak for itself. In part, this appears to be what happened in Gbagbo and Blé Goudé. The ICC has made welcome moves in its practice towards requiring that detailed ‘Pre-Trial Briefs’ be filed by the prosecution to indicate more precisely what evidence will be lead and how it relates to the charges. Nonetheless, as in Gbagbo and Blé Goudé, the initial Document Containing the Charges is sometimes drawn in very wide terms. Absent a doctrine like joint criminal enterprise, allowing a connection to be drawn between formation of a common criminal plan and the commission elsewhere and by other parties of crimes corresponding to the plan, a precise chain of causation needs to be articulated as early as possible both for fairness to the defence and to maximise the chances of a properly prepared prosecution case.
Such an approach is best supported by the ‘atomistic’ approach to evidence, where the evidence supporting each individual step in the chain of causation needs to be isolated and weighed separately. Such a structure, where a detailed skeleton is provided by the Document Containing the Charges and the flesh of evidence is then attached to individual bones, needs to be reflected in Trial Chamber decisions as well. A devastating weakness in Bemba was the Trial Chamber’s lack of transparency about the basis of its fact finding, with Judge Van den Wyngaert and Judge Morrison in the Appeals Chamber scathingly noting how they were sent on a hunt through cross-references to find supporting evidence for propositions only to find that on some questions a single, very large footnote was left to carry that burden (paras 6-10). One should certainly heed the note of caution struck in Hayes and Powderly’s excellent close analysis of what went wrong in Bemba, and their wariness of taking too absolutist and exhaustive an approach to the requirements of the Document Containing the Charges. Nonetheless, present practice does not appear to require a sufficiently precise narrative of the alleged facts and events underlying the case theory until much too late in the process.
Enough has been said, perhaps, in these posts about the seeming lack of collegiality between the ICC judiciary and OTP, and within Chambers themselves. Nonetheless, it bears reinforcing that Chambers are under a legal duty to give a reasoned decision of the Chamber in each case (Article 74(5)). This means that all essential legal and factual decisions must be agreed either by consensus or majority and articulated clearly (Article 74(3)). Failure to do so damages both the Court’s jurisprudence and legitimacy.
Beyond collegiality, a greater degree of legal modesty on the part of the judges would be desirable. Early Pre-Trial Chambers took it upon themselves to railroad elements of the prosecution case only to have these decisions overturned at trial. One needs only to think of the re-characterisation of the nature of the underlying armed conflict in Lubanga or the erection of an unwieldy theory of indirect co-perpetration through control of an organisation in Katanga and Ngudjolo. (Which again, did not assist the Prosecution when the case collapsed against the alleged co-perpetrator Ngudjolo.) Such over-reach has been replicated by Pre-Trial Chamber I in particular in its attempt to narrow prosecutorial discretion not to investigate a situation almost to a vanishing point in Cormoros and its micro-managing of the Prosecutor’s duties to collect evidence and open a case in Bangladesh (paras 80-88).
In the present climate, there is the substantial risk of another significant own goal in the Al Bashir immunity proceedings. There are good reasons the Appeals Chamber decision could go either way as a matter of legal logic. As a matter of prudence, this is not the historical moment for the Court to decide it can disregard the principle of head of state inviolability in arrest and surrender proceedings, especially as regards the head of state of a non-party to the Statute. (The reasons to doubt a relevant exception to the rule already exists are best articulated by O’Keefe.) The court has already spent a great deal of its normative and political capital, much of it passing through the hands of the first Prosecutor. It does not have enough left in the bank to effect such a change to the international political system without substantial support from State actors, which support does not at present appear to be forthcoming. The Court may attempt to thread the needle by hinging its decision on the Security Council referral of the situation in Sudan, and the basis on which it could do so has been ably articulated by Akande. I still consider this conclusion open to debate (see Gaeta) and, in practice, far from wise.
Unfortunately, I think it is time for the community of international criminal justice scholars to move beyond certain forms of apologism. One is defending the Court on the basis that its run of acquittals and case collapses demonstrates that judges are upholding a fair system (‘It’s not the Court as a whole, it’s the Prosector’). Another is defending the Office of the Prosecutor on the basis that judges keep moving the goalposts (‘It’s not the Prosecutor, it’s the judges’). Another is defending either or both on the basis that more resources are needed (‘It’s not the Court, it’s States’) or that all ‘new’ institutions have growing pains (‘Give it time’). All are becoming equally untenable.
I am in no sense a gleeful ICC sceptic. Like many I speak to in the field of international criminal law and justice studies, events have overtaken my ability, in Nouwen’s phrase, to simply ‘believe harder’. The Court is in need of substantial reform, much of which cannot happen overnight or indeed may never happen. Nonetheless, its various organs could make an immediate start by attempting to be more collegiate in their workings and more modest in their goals. As commentators, scholars or advocates we may also need to bring a degree of modesty to our expectations. We may need to accept that, at least for a time, the ICC will only be a court for rebels and only able to successfully prosecute very narrow cases. This may be unpalatable, but it may also not be a bad thing if it gives the Court time to get its own house in order. As discussed in Part I, the risk of further over-reach or under-performance by the Court triggering a ‘preference cascade’ and turn towards other mechanisms is real – but it is also avoidable.