The Hole in the Doughnut – The OTP Strategic Plans and Self-Regulatory Actions in International Criminal Law

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The past months have been turbulent at the ICC. The shower of critiques seems to have obscured that, although it is already April 2019, the OTP has not yet published its 2019-2021 Strategic Plan. The Strategic Plan is the main document through which the OTP publicizes its strategy and policies (see Regulation 14 of the Regulations of the Office of the Prosecutor). The goal of the Strategic Plan is to provide ‘transparency and clarity’ on the OTP work, making its actions predictable and allowing others to ‘plan their actions taking into consideration the Office’s work’ (para. 11, 2009-2012 Strategic Plan).

The first Strategic Plan was published in 2006 and, since then, three more came out (2009-2012, 2012-2015, and 2016-2018). In October 2018, the ASP Committee on Budget and Finance reported that it had been informed by the OTP that ‘the Strategic Plan for 2019-2021 is about to be finalized, after the completion of an internal consultation process within the OTP’ (para. 58) and that a draft would be circulated in November 2018 among relevant stakeholders. In December of the same year, the ASP stressed that it is expecting the Strategic Plan for 2019-2021 to be published at the end of the first quarter of 2019. Five months later and at the end of the first quarter, here we are, with no public Strategic Plan in sight. The Court may be facing another turbulence soon.

The Prosecutor has broad discretionary powers to select situations and cases, and enjoys great administrative independence. With the exception of budget approval and management oversight by the ASP (art. 112(b) and (d) of the Statute), other ICC organs cannot limit nor direct the actions of the OTP, and the Prosecutor has full authority over the administration of the OTP and of its resources. However, as per arts. 4 and 34 of the Statute, the Prosecutor is still a public official, and the OTP is still an organ of an international organization. Their freedom to administrate their resources and actions is therefore limited to their institutional functions and roles. 

Dworkin described discretion as a doughnut hole: it does not exist except as an open surrounded by a restrictive belt (Taking Rights Seriously, 1978, at 32). Although the Prosecutor enjoys wide prosecutorial discretion, that discretion exists only within the restrictive belt of its statutory limitations. Statutory limitations can be external or internal. External limitations are those that, although unrelated to the Rome Statute, bind the Court and its organs (e.g., jus cogens). Internal rules come from within the Rome Statute framework and can also be created by the OTP itself. They are self-regulatory acts where the OTP establishes the standard to exercise its discretion. This includes, for example, Regulations of the Office of the Prosecutor and policy papers on some selected themes.

Having a public Strategic Plan is particularly important considering the current crisis that the ICC is going through. The OTP Strategic Plans, while complementary to the Court’s broad strategy, clarify important issues involving the OTP, including, e.g., the prosecutorial policy regarding evidence and case selection, and resource management. They also identify operational challenges such as cooperation with state parties and organizations to close the impunity gap (paras. 1-12 of the 2016-2018 Strategic Plan). The lack of a Strategic Plan covering the last period of this Prosecutor’s term is thus remarkable because it leaves the public without relevant information on the OTP performance. 

Although some scholars argue that Policy Papers and Strategic Plans are only transparency tools that cannot bind the OTP actions, we respectfully disagree. The Prosecutor’s power to issue self-regulatory acts is exercised under the principle of legality. Self-regulation does not contradict the OTP powers in art. 53 of the Statute. In fact, they are complementary. By issuing these self-regulatory acts, the OTP ensures that it is exercising its powers in a transparent and coherent way and allows the general public to have reasonable expectations regarding its performance. These acts should bind future OTP actions because they forward the OTP interpretation of its legal framework. The Strategic Plans provide not only guidelines to the Court and the OTP themselves, but also provide standards and blueprints to hold the OTP (politically) accountable.

The OTP must show that it adopted clear policies and strategies and acted consistently with them throughout the exercise of its functions. Prosecutor’s decisions must be coherently connected and engaged within a broader substantial legal context that frames her functions. Moreover, her actions must have the goal of fulfilling the Strategic Plans. In every Strategic Plan, except the first one, the OTP provided remarks about the implementation of previous strategic plans and identified challenges for the upcoming years. By connecting and justifying Strategic Plans, the OTP recognized and volunteered itself to be held accountable before the society in general, and has assumed the commitment to engage in coherent and comprehensive actions.

We are now at the end of the first quarter of 2019 without any public information regarding the Strategic Plan 2019-2021. The delay violates the OTP’s own Regulations and the principle of legality since it allows the OTP to function without proper regulation over its discretionary powers. At this point, we should start questioning whether the OTP will release the plan at all and what would be the consequences of not having such a plan.

There are two ways we can deal with the absence of a 2019-2021 Strategic Plan. One is to acknowledge and accept that there is a lacuna on the belt that restricts the OTP’s power. Since there is no institutional mechanism for reviewing OTP self-regulatory omissions, we would, therefore, have to find ways of pushing the OTP to release a new Strategic Plan – e.g., having the international community politically pressuring the OTP to do so. Another scenario would be to keep the 2016-2018 Strategic Plan in force until a new one is released. In this case, the 2016-2018 Strategic Plan would still provide political and legal basis for holding the Prosecutor and the OTP accountable. Although far from ideal, this scenario would preserve the normative belt that secures the OTP’s powers and the Prosecutor’s discretion. If we opt to acknowledge that a part of that belt is simply missing, we would have to accept that the legal framework surrounding the OTP powers and actions is crumbling. If it continues crumbling, eventually we might be left with no doughnut at all.

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Andreas Chorakis says

April 10, 2019

The post is very interesting. Nevertheless, we should have in mind that the States participating to the Rome Conference opt in for an independent Prosecutor with a wide discretional powers. They ballanced the independence of Prosecutor with the authorization of Pre-trial Chamber. It is true and commonly accepted that the Strategic Plans of OTP clarifies a lot on the work of office and the Court in general. Nevertheless, they remain a policy document that OTP has discretion to present or illustrates more the willing of OTP to frame a specific context of work. It is not by any meas a binding instrument that could attribute responsibility to the OTP. Such approach is against the consent of parties in the Rome Statute.

Patryk I. Labuda says

April 10, 2019

One minor quibble. It should be noted that the 2009-2012 Strategic Plan was published on 1 February 2010. The 2012-2015 Strategic Plan was published on 11 October 2013. There was of course no public document for 2003-2006. Thus, I am not persuaded there is anything "remarkable" about the situation we find ourselves in today.

Richard Clements says

April 14, 2019

I commend the authors for broaching the artificial boundary of law/policy by thinking through the implications of policy or managerial work on the court. I attempt to do the same in my own work, albeit from a very different perspective, with a different set of critical and sociological tools. Instead of attempting to make a full-fledged response here - perhaps that can come later - I would be interested in your views on the following question and comment.

First, although it has become de rigeur to frame any discussion about the ICC in terms of 'crisis', I wonder where (or indeed whether) the apparent delay to the publication of a Strategic Plan ranks in comparison to the Bemba acquittal, or the PTC's Afghanistan decision. Is this simply a matter of no SP = less transparency and therefore dwindling legitimacy just like a bad judicial decision? Or is there something about this particular delay which you think is distinct or distinctly problematic when compared with everyday legal failings?

Second, it is interesting that despite moving into the realm of policy/managerial practices, you approach those practices through a legal lens. The reaction to the delay in publication of the OTP's Strategic Plan is that there needs to be some kind of regulatory/enforcement mechanism. Of course, we are all lawyers at the end of the day. But this argument, to me, misses the many more interesting critiques that we might offer of such practices. If we look at the vast array of managerial practices deployed across the court over the last twenty years - strategic planning, audit, indicators, performance appraisal, and restructuring exercises - we might start our enquiry a few steps back. Where do these come from? What purposes do they serve? And why are they now seen as necessary fixtures of the ICC infrastructure? These are more reflections than questions demanding answers.

Many thanks for opening up this discussion and I look forward to your response.