The Decentralisation of International Crimes: A shift from the central criminal apparatus at the ICC?

In her statement to the UN Security Council on November 2018, Fatou Bensouda vowed to search ‘outside of Libya’ for accountability of global actors in the migration context. This is one of the many moves by the Office of the Prosecutor (OTP) in their prosecutorial trajectory towards a more holistic approach. Such an approach widens the accountability net to capture crimes and potentially responsible actors, which would otherwise fall outside the geographical scope of the ICC’s “situations”.

In this post, I argue that this new approach, which has largely passed under the radar, is both desirable and justified. In what follows, I make three propositions. First, the ICC has by far adopted, in practice, a localised approach stressing system criminality. Second, in light of the globalisation of international crimes, this orthodox approach may be obsolete by failing to reflect and assert accountability comprehensively. The proliferation of cross-border transactions and the enhanced risk of transnational harms would require no less than modernising current prosecutorial strategies to properly respond to the changing faces of international crimes. The last proposition suggests that this new approach is justified and imminent out of practicality to fulfil the Court’s mandate.

The Orthodox Approach

Since the first case in Lubanga, it has been the customary practice of the ICC to localise liabilities. This means the Court would ordinarily zoom in on a particular (non-)State structural apparatus of power, and build a case theory upon it. The natural task of the Prosecution would be to identify and re-construct in abstracto the hierarchical structure that sustained the commission of crimes, and to translate it into respective responsibilities of criminal participants in concreto. Terms such as ‘organised apparatus’ and ‘hierarchical criminal network’ are common languages replete in the work of the Prosecution and Chambers.

At the ICC, this approach proved to be extremely helpful to proving certain legal requirements. In Katanga, the Trial Chamber found that indirect perpetration must be ‘through another person or an organised hierarchical apparatus of power’. The requirement of ‘an organised and hierarchical apparatus of power’ was repeated by the Pre-Trial Chamber in Ruto and Sang and Kenyatta.

On other occasions, the orthodox approach served to underpin the overall prosecutorial narrative. In Gbagbo, the Pre-Trial Chamber in its authorisation of investigation observed that ‘Mr Gbagbo remained in control of large parts of the State apparatus’. In Ble Goude, it again referred the Ivorian Defense and Security Forces (FDS) as ‘a functioning apparatus of State power, under responsible command, and with considerable capacity’. In the indictment against Omar al-Bashir, the prosecution alleged that al-Bashir committed genocide against the Fur, Masalit and Zaghawa ethnic groups in Darfur ‘by using the state apparatus’. More recently, the OPCV at the Ongwen hearing explained this practice well:

In accordance with the relevant practice, forms of control may include the existence of an organised apparatus of power whose leadership may be assured that its members will commit the material elements of the crimes and that the exertion of control over an apparatus of power allows control over the crimes committed by its members. (emphasis added)

To an extent, this entrenched judicial practice has to do with the philosophical foundation the Court endorsed on responsibility-attribution. One may think of the (premature) import of Claus Roxin’s control theory into modes of liability. The theorisation process started as early as in the Lubanga confirmation of charges decision on ‘control of the crime’ (Tatherrschaftslehre) and later in Katanga Trial Judgment on ‘control over the organisation’ (Organisationsherrschaft). This, together with an over-concentration on the principal modes of perpetration, has left anything outside the power structure, including complicit liability globally, largely untouched.

The Decentralised International Criminality and the ICC

To be sure, the criminality in all the ICC situations thus far can be found not solely in the localised organised structures. Evidence of corporate criminality, for instance, has been abundant. The flow of arms and privately trained foreign mercenaries to the Democratic Republic of the Congo (DRC). One may think of the data mining activities by Cambridge Analytica which allegedly manipulated Kenya’s 2013 presidential election campaign, or the cocoa trade in Côte d’Ivoire alleged to be financing both the government and the rebel group Forces Nouvelles.

Whether these potentially criminal contributions to the crimes were peripheral or substantial is debatable. What is widely recognised, however, is the fact that global and non-conventional actors in the crime scene have increasingly assumed an essential role. With regard to the situation of Libya, Fatou Bensouda seemed to have come to the realisation that the orthodox approach could no longer generate meaningful justice in certain circumstances:

My Office recognises that to effectively respond to these serious crimes, not only must they be addressed in Libya, but the criminal networks that facilitate such activities operating outside of Libya must also face justice. A multi-layered and multi-party strategy is therefore required to tackle the web of crimes that thrive in the context of migration through Libya.

The Prosecution’s 2016 Policy on Case Selection and Prioritisation similarly suggested the demand for a globalised vision by re-diverting attention to “the destruction of the environment” and “the illegal exploitation of natural resources”. Furthermore, in South Sudan, evidence has pointed to the State-owned oil company Nile Petroleum Corporation, an essential global oil supplier who played an important role in the Sudanese conflict. More recently, the UN-commissioned Report on Myanmar suggested the potential responsibility of Facebook for providing a platform for generating and circulating hate speech against the Rohingya.

Already in his 2003 solemn undertaking, Luis Moreno-Ocampo indicated his attention to the roles of ‘multinational companies’ and ‘media owners’ in international crimes. As noted, however, the centralistic approach focused on traditional warring parties had not withered away under his authority. Moreno-Ocampo later revealed that it was due to insufficient evidence.

All this tells us that the era of globalisation has created and availed means for human interactions on an unprecedented scale. It has allowed corporations and powerful States to assert control in a multi-layered and transnational manner, by establishing a dominant extraterritorial presence or controlling the flow of materials and information. As a consequence, we see a diversification of criminal act/actors and of forms/means of criminal perpetration and assistance – financial, technological and communicative. Writing in 1999, Cherif Bassiouni envisioned this trajectory:

The globalization of crime will require nothing less than the globalization of responses to it. Paradoxically, it may well be that this globalization of response to transnational criminality will drive the development of international criminal law in the years to come.

The Object of the International Criminal Justice Project

What makes international criminal justice ‘international’? To date, such internationality is most manifest in the universal corpus of law (i.e. the international criminal law and procedure) and the territorial reach of the long arm of justice (i.e. from The Hague to a ‘situation’). The over-commitment to localise liabilities in practice fails to capture the entire legal terrain from a helicopter view, which would implicate a broader scope of liabilities. This, I argue, is a result of the comfortable mismatch of international accountability between the predominant role for system criminality and the ultimate criminal-responsibility-bearers.

A question that arises from this holistic approach is whether the ICC has the jurisdictional basis over persons outside the central criminal apparatus. A reading of the Rome Statute may suggest that such worry is unwarranted. The Preamble refers to the Court’s mandate on “the most serious crimes of concern to the international community as a whole” and “to put an end to impunity for the perpetrators of these crimes”. The Statute thus confines the jurisdiction ratione materiae to “the most serious crimes”, without prejudice to the unqualified jurisdiction ratione personae (“perpetrators”). It may be said that the negotiating States intended for such broad construction as similar language runs through other provisions (e.g. Article 1: “jurisdiction over persons for the most serious crimes” and Article 5: jurisdiction “limited to the most serious crimes”). Furthermore, this drafting intent stands contrasted from the explicit wording in the law of ad hoc tribunals, including the SCSL (SCSL Statute, Article 1(1): “persons who bear the greatest responsibility”) and the ECCC (ECCC Law, Article 1: “those who were most responsible”).

Beyond the Rome Statute, the Prosecution has consistently adopted the “most responsible” standard in practice. One reason given is that the ICC is a court of last resort. The principle of complementarity dictates that lower-rank suspects would be investigated and prosecuted in domestic courts. Accordingly, the OTP has matured its focus on “those who bear the greatest responsibility” (e.g. Strategy Plan in 2006 and 2009) to implementing a “building-upwards strategy” (2016). There again, the Prosecution searches for lower-to-higher criminal responsibility through a narrow prism of a localised structure.

I wish to register two concluding remarks. First, there can hardly be a one-size-fits-all prosecutorial strategy. Any developed model must contain a high degree of legal resilience and flexibility in reflecting and responding modern criminality. Increasingly, we see that the OTP is compelled to go beyond the central criminal apparatus. This profound struggle requires nothing more than reshaping our point of reference and identifying prosecutorial blindspots according to emerging international social facts. It is proper to recall the wisdom of the former ICC President Silvia Fernández de Gurmendi:

International criminal justice must adapt to contemporary forms of criminality. It is important to realise that the ICTY and the ICC come from a paradigm where we are thinking of perpetrators as dictators and political leaders. … It is important for the future of international criminal justice to address new phenomena and have a holistic approach to justice.

Second, while it is rightfully so that the “most responsible” standard has a functional significance, responsibility of global actors are not automatically excluded. A pragmatic interpretation of the standard will ultimately hinge on the relative perception of the role and contributions of these actors as essential or simply peripheral. In certain cases involving global supply chains and the commercial activities of corporations abroad, who is the “most responsible” is no longer immediately clear. It is therefore no surprise that the legal doctrinal discourse is gradually moving from the vertical diffusion towards a horizontal spread of responsibility.