A SITUATIONAL APPROACH TO PROSECUTORIAL STRATEGY AT THE INTERNATIONAL CRIMINAL COURT

Transcription

1 A SITUATIONAL APPROACH TO PROSECUTORIAL STRATEGY AT THE INTERNATIONAL CRIMINAL COURT JACOB N. FOSTER* ABSTRACT The International Criminal Court (ICC) was established to help end impunity for war crimes, crimes against humanity, and genocide. However, the collapse of the ICC s prosecution of President Uhuru Kenyatta of Kenya its highest profile case to date amplified concerns that the Office of the Prosecutor (OTP) has been seriously hamstrung because of limited resources, political constraints, and inadequate investigative tools. The emerging consensus of scholars and practitioners is that the ICC must change its prosecutorial strategies by encouraging states to undertake domestic prosecutions of atrocity crimes and, where states fail to act, using comprehensive investigations and a broader approach to prosecutions. This Article challenges the emerging conventional wisdom and offers a counterintuitive solution. It suggests ways to square the ICC s global mandate with an understanding of its limited capacity by rejecting any single approach and adopting a more situational framework. This situational strategy includes simultaneously encouraging domestic prosecutions in one country while bringing cases directly to the ICC in another; conducting focused or comprehensive investigations depending on the situation; and prosecuting only senior leaders in some cases and lower-level criminals in others. This Article considers the structural constraints on the ICC, examines the historical experience of prior international criminal tribunals, offers a multipronged theoretical taxonomy to guide the practical implementation of situational prosecutorial strategies, and recommends situations in which each strategy could be invoked. Overall, this Article argues that there is no overarching one-size-fits-all approach to prosecutorial strategy that is likely to advance the court s values and goals. Instead, the OTP will need to broaden as well as narrow its mandate in order to live up to its promise. * Associate of Kasowitz, Benson, Torres & Friedman LLP; UCLA School of Law, J.D The author wishes to thank Luis Moreno-Ocampo and those in the Immediate Office of the Prosecutor of the International Criminal Court. Thanks also are due to those who read earlier drafts of this work, including Justice Richard Goldstone, Eric Stover, Cynthia Tai, Noah Weisbord, Tendayi Achiume, Sandile Hlatshwayo, Tyler Nims, and Douglas Foster. The author served on secondment in the Immediate Office of the Prosecutor of the International Criminal Court, but the ideas expressed in this article are attributable exclusively to him. 2016, Jacob N. Foster. 439

2 GEORGETOWN JOURNAL OF INTERNATIONAL LAW I. INTRODUCTION II. A BROAD MANDATE,CHALLENGING INVESTIGATIONS,LIMITED TOOLS, AND DEPENDENCE ON STATE COOPERATION A. The Expansive Mandate Of The ICC B. The Difficulties Inherent To Atrocity Crimes Prosecutions C. The Structural Weakness Of The ICC Limited Investigative Power Dependence on State Cooperation Witness Protection Insufficient Budget D. The Dynamic Nature Of Investigative Practice At The ICC III. THE LOGIC OF A SITUATIONAL STRATEGY IV. A SITUATIONAL APPROACH TO POSITIVE COMPLEMENTARITY A. The Territorial State Is Willing To Carry Out Domestic Proceedings And Receives The Support Of The International Community B. The Territorial State Supports International Proceedings Instead Of Domestic Trials The Territorial State Supports A Division Of Labor With International Prosecution Of The ICC Accused The Territorial State Supports International Prosecution Because It Is Unable To Conduct National Proceedings C. The Territorial State Is Unwilling To Provide Accountability D. Developing A Situational Approach to Positive Complementarity V. A SITUATIONAL APPROACH TO FOCUSED PROSECUTIONS A. The International Community Supports The OTP B. The OTP Acts In The Absence Of Support By The International Community The Territorial State Is Willing And Able To Assist The Prosecution Of Rebels Or Members Of A Former Regime The Territorial State Is Unable To Cooperate Due To Armed Conflict The Territorial State Opposes An ICC Investigation C. The International Community Opposes An ICC Investigation [Vol. 47

3 PROSECUTORIAL STRATEGY AT THE ICC D. Developing A Situational Approach To Focused Prosecutions VI. A SITUATIONAL APPROACH TO FOCUSED INVESTIGATIONS A. The International Community Supports The OTP B. The OTP Acts In The Absence Of Support By The International Community The Territorial State Is Willing And Able To Assist The Prosecution Of Rebels Or Members Of A Former Regime The Territorial State Is Unable To Cooperate Due To Armed Conflict The Territorial State Opposes An ICC Investigation C. The International Community Opposes An ICC Investigation D. Developing A Situational Approach To Focused Investigations VII. PROSECUTORIAL STRATEGY AS A SITUATIONAL STRATEGY VIII. CONCLUSION I. INTRODUCTION The collapse of the International Criminal Court s (ICC) prosecution of President Uhuru Kenyatta of Kenya amplified concerns that the institution is failing to effectively address impunity for war crimes, crimes against humanity, and genocide. 1 In addition to the failed Kenyatta prosecution, the Office of the Prosecutor (OTP) has drawn 1. Mark MacKinnon, ICC s Chief Prosecutor Fights to Prove the Institution s Worth, GLOBE & MAIL (Feb. 6, 2015), Michela Wrong, Has Kenya Destroyed the ICC?, FOREIGN POL Y (July 15, 2014), Katrina Manson, ICC Trial of Kenya s President Being Undermined Say Lawyers, FIN. TIMES (Jan. 13, 2014), axzz3rnyo94dh (stating that the collapse of the ICC s most high profile case to date have threatened to undermine its efforts to deliver international justice amid criticism that the court is biased and relies on shaky evidence. ); Thomas Escritt, ICC Prosecutor Seeks Postponement of Kenyan President s Trial, REUTERS, (Dec. 19, 2013), Blake Evans-Pritchard & Simon Jennings, ICC to Unveil New Investigation Strategy, INST. FOR WAR AND PEACE REPORTING (Oct. 21, 2013), net/global-voices/icc-unveil-new-investigation-strategy ( The succession of setbacks has prompted widespread concern over how the OTP conducts its investigations and why it has found it so hard to gather enough evidence to secure convictions. ). 2016] 441

4 GEORGETOWN JOURNAL OF INTERNATIONAL LAW criticism for the dismissal of four cases at a preliminary stage and a verdict of acquittal in one of only three concluded trials. These setbacks undermine the high expectations that accompanied the establishment of the ICC in At the time, scholars believed that the OTP had adopted three prosecutorial strategies that bridged the gap between its limited investigative powers and global mandate. First, scholars agreed that the OTP should conserve its limited resources by using a positive complementarity strategy that encourages prosecution in domestic courts instead of at the ICC. 2 Second, there was wide acceptance that the OTP should target the leaders of states or organizations, rather than rank-and-file offenders. 3 Third, focused investigations aimed at using a small number of witnesses to hold offenders responsible for a few criminal incidents were designed to conserve international support by minimizing the number, cost, and length of cases See generally Elena Baylis, Empower National and Regional Courts, N.Y. TIMES (Dec. 11, 2014), William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice,49HARV. INT L L.J., 53 (2008); NIDAL NABIL JURDI, THE INTERNATIONAL CRIMINAL COURT AND NATIONAL COURTS: ACONTENTIOUS RELATIONSHIP (2011); Silvia A. Fernandez de Gurmendi, Foreward to1the INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY, at xviii, xix (Carsten Stahn & Mohamed M. El Zeidy eds., 2011) (arguing that the OTP should promote national investigations and prosecutions in order to share the burden ). The OTP s strategic plan affirms that positive complementarity is one of the most cost-effective ways for the Office to intervene. OFFICE OF THE PROSECUTOR, INT L CRIMINAL COURT, STRATEGIC PLAN JUNE (2013) [hereinafter STRATEGIC PLAN JUNE ], the%20court/office%20of%20the%20prosecutor/policies%20and%20strategies/documents/ OTP-Strategic-Plan pdf. 3. OFFICE OF THE PROSECUTOR, PAPER ON SOME POLICY ISSUES BEFORE THE OFFICE OF THE PROSECUTOR 7 (2003) [hereinafter PAPER ON SOME POLICY ISSUES] (recommending that, as a general rule, the OTP should focus... onthose who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes. ); Mirjan R. Damaska, The International Criminal Court Between Aspiration and Achievement, 14 UCLA J. INT L L. & FOREIGN AFF. 19, 32 (2009); Patricia M. Wald, Foreword: War Tales and War Trials, 106 MICH.L.REV. 901, 915 (2008); Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97AM. J. INT L. L. 510, 543 (2003) ( That the international justice forum should be reserved for high-level perpetrators has gained wide acceptance. ); M. Cherif Bassiouni, Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights, in POST-CONFLICT JUSTICE 3, 27 (2002). 4. PAPER ON SOME POLICY ISSUES, supra note 3; Marieke Wierda & Anthony Triolo, Resources, in INTERNATIONAL PROSECUTORS 113, (Luc Reydams, et al. eds., 2012) ( Part of the rationale [for the focused investigations policy] was cost-effectiveness. ). 442 [Vol. 47

5 PROSECUTORIAL STRATEGY AT THE ICC The OTP s mixed record prompted a serious reappraisal of these strategies. Scholars now argue that the OTP should place greater emphasis on the positive complementarity strategy, but abandon the focused investigations and prosecutions strategies because they depend on unrealistic levels of state cooperation and fail to garner sufficient evidence to tie senior leaders to crimes committed on the ground. 5 These scholars urge the OTP to take the opposite approach of the one that it employed in its initial years by using comprehensive investigations that target a broader array of less-senior suspects. 6 This Article contends that neither the original strategic approach nor the new proposed strategies are sufficient to provide accountability. The conventional wisdom favoring positive complementarity ignores that it is difficult to institute speedy, effective, and robust national proceedings where weak governance, turbulent politics, and widespread violence coincide. The OTP s focused strategies failed to garner sufficient evidence in some situations, but calls for replacing them clash with the reality of the OTP s limited budget and the potential adverse consequences of a more comprehensive approach. The common flaw running through both the original strategic approach and new proposed strategies is that they mandate a uniform approach in all of the OTP s investigations. Prosecutors at prior international criminal tribunals were able to develop fundamental principles of prosecutorial strategy because their mandate was limited to prosecuting crimes committed in a single conflict and geographic 5. MacKinnon, supra note 1 ( The spectacular failure of those prosecutions... exposed the court s limitations in its ability to pursue sitting head of states. ); Geoff Dancy et al., The ICC s Deterrent Impact What the Evidence Shows, OPEN DEMOCRACY (Feb. 3, 2015), opendemocracy.net/openglobalrights/geoff-dancy-bridget-marchesi-florencia-montal-kathrynsikkink/icc%e2%80%99s-deterrent-impac; David Davenport, Happy Birthday International Criminal Court, FORBES (July 1, 2012), ( The new prosecutor should spend less time on highly visible and politicized cases and bring some cases of war crimes and crimes against humanity she can actually try and win. ); David Kaye, Who s Afraid Of the International Court? Finding the Prosecutor Who Can Set It Straight, 90.3 FOREIGN AFF., May/June 2011, at 118, 126 (2011) ( [H]aving chosen to pursue the big fish and failed to catch many, now [the Prosecutor] does not have much to show for his efforts. ). 6. Burke-White, supra note 2, at 56 ( The Court s failure to use consciously its power to catalyze national prosecutions is a potentially dangerous mistake. ); WAR CRIMES RESEARCH OFFICE, INVESTIGATIVE MANAGEMENT,STRATEGIES, AND TECHNIQUES OF THE INTERNATIONAL CRIMINAL COURT S OFFICE OF THE PROSECUTOR 4-5, 13 (2012), reports.cfm ( the Office needs to devote greater time and resources to its investigations from the outset ); Caroline Buisman, Delegating Investigations: Lessons to be Learned from the Lubanga Judgment, 11 NW. J. INT L HUM. RTS. 30, 79 (2013). 2016] 443

6 GEORGETOWN JOURNAL OF INTERNATIONAL LAW area. But a one-size-fits-all approach is ineffective at the ICC because the OTP possesses global jurisdiction and confronts different kinds of atrocity crimes, varied political contexts, and a range of strategic considerations. The OTP s powers are not fixed; they fluctuate depending upon the amount of cooperation that it receives from the international community and territorial state where the crimes occurred. The OTP depends on states to obtain evidence, protect witnesses, arrest suspects, and adequately fund its operations. 7 An institution that confronts a global mandate and varying levels of state cooperation must institute a diverse array of strategic approaches. What are the implications of this view for the OTP s prosecutorial strategy? In this Article, I propose that the OTP should reject uniform principles of strategy and instead adopt a flexible and situational approach. Under such a policy, the OTP would continue to employ positive complementarity, focused prosecutions, and focused investigations in situations where it is likely to obtain cooperation from the international community or affected state. But it would abandon positive complementarity, employ comprehensive investigations, and prosecute less-senior figures in other situations where states are unable or unwilling to cooperate. Formal adoption of this situational strategy policy framework would help the OTP maximize its impact while conserving its limited resources. The situational strategies proposed in this Article are counter to the OTP s prior practices, which viewed positive complementarity, focused prosecutions, and focused investigations as fundamental principles. They also are inconsistent with aspects of the OTP s initial strategic plan under its second Chief Prosecutor, Fatou Bensouda, which prioritized the quality of work by focusing resources on fewer cases. But the OTP seems poised to consider a situational approach after the recent adoption of a strategic plan for that suggests greater flexibility. 8 The plan acknowledges that in-depth investigations have succeeded in strengthening existing cases, but expended significant time and resources at the cost of the OTP s ability to conduct other necessary investigations and respond quickly to ongoing crimes Damaska, supra note 3, at 21; Burke-White, supra note 2, at STRATEGIC PLAN JUNE , supra note 2, 4(a) & 22. OFFICE OF THE PROSECUTOR, INT L CRIMINAL COURT, STRATEGIC PLAN (2015) [hereinafter STRATEGIC PLAN ], 9. STRATEGIC PLAN , supra note 8, [Vol. 47

7 PROSECUTORIAL STRATEGY AT THE ICC To date, however, the OTP has not expressly addressed how best to calibrate its strategy in order to balance the costs of a comprehensive approach with the inadequate results from the prior focused approach. Nor has it discussed how its strategy should vary depending on the situational context in which it is employed. 10 The strategic plan also does not identify or discuss the various tactics developed in this Article, such as plea-bargaining, that would further a situational strategy by reducing the costs of a comprehensive approach. The failure to explicitly develop a situational strategy undermines the OTP s ability to set priorities and identify the most effective uses of its limited resources. How should the OTP determine which strategy to employ in a given situation? This Article provides a multipronged theoretical taxonomy and examines the historical experience of international criminal tribunals and the ICC s own cases in order to assess the costs and benefits of each strategy based on the differential circumstances in which it is invoked. First, the OTP acts with the broadest authority where its investigation receives the support of the international community (particularly, the influential states that comprise that community, such as the permanent members of the U.N. Security Council plus Japan, Germany, Brazil, and India). Focused investigations and prosecutions are more likely to succeed with the support of influential states because (a) in situations where the territorial state also cooperates, the OTP s powers are at a maximum as it can rely on its own investigative tools and the investigative tools available to both influential states and the territorial state; (b) in situations where the territorial state is initially unwilling to cooperate, influential states can independently gather evidence and use diplomatic and economic pressure to compel cooperation; and (c) in situations where the territorial state is unable to cooperate because of ongoing conflict, influential states can help collect evidence, facilitate witness interviews, and obtain the arrest of suspects. The U.N. Security Council s referral of the situation in Libya provides an apt example of the type of situation where the OTP successfully was able to depart from a comprehensive approach and move quickly while the crimes are ongoing. The Security Council referred the investigation to the OTP in the midst of an international crisis 10. See STRATEGIC PLAN JUNE , supra note 2. The OTP s budget, in contrast, continues to rely on positive complementarity and focused prosecutions to maintain a costeffective approach. Int l Criminal Court [ICC], Proposed Programme Budget for 2014 of the International Criminal Court, Assembly of States Parties, Twelfth Session, ICC-ASP/12/10, 10-E (July 29, 2013) [hereinafter Proposed Programme Budget for 2014]. 2016] 445

8 GEORGETOWN JOURNAL OF INTERNATIONAL LAW arising from an attack by Gaddafi government forces on pro-democracy demonstrators. The OTP s focused three-month investigation occurred while the conflict was still ongoing and without the support of the territorial state, but the assistance of the international community helped the OTP gather sufficient evidence to obtain arrest warrants for Muammar Gaddafi and other senior leadership figures. The quick investigation fulfilled the OTP s deterrent role and capitalized on international support, which disappeared after the conflict was over. Even with the support of influential states, however, it is difficult for the OTP to encourage genuine national proceedings. In situations where the suspects retain political power, they will be resistant to international pressure to, in effect, allow themselves to be prosecuted at the national level; and in situations where the victims take power, there is often the danger of victor s justice. But irrespective of whether national proceedings succeed in reducing the OTP s caseload in limited circumstances, the OTP will continue to have many more cases than it is able to prosecute; the OTP s 2012 budget disclosed that it possessed evidence implicating over 100 suspects who have not yet faced prosecution. 11 Second, where the OTP acts in the absence of support by the international community, the OTP s powers depend on whether the territorial state is willing and able to support the OTP s investigation. Focused investigations and prosecutions are more likely to succeed in situations where the territorial state retains a monopoly on the use of force and assists the OTP s investigation. For example, the OTP encouraged Uganda to refer the situation involving the Lord s Resistance Army (LRA) because it viewed a referral as a signal that Uganda possessed the political will to support the OTP s investigation. Uganda s assistance allowed the OTP to conduct a focused investigation in nine-months and obtain arrest warrants for the LRA s leadership. 12 Focused investigations and prosecutions are less likely to succeed where the territorial state opposes an ICC investigation or the territorial state is unable to assist the OTP because of conflict. Focused investigations frequently fail to garner sufficient evidence because the OTP lacks the investigative powers that are necessary to obtain evi- 11. Int l Criminal Court [ICC], Proposed Programme Budget for 2012 of the International Criminal Court, Assembly of States Parties, Tenth Session, ICC-ASP/10/10, 10-E (July 21, 2011) [hereinafter Proposed Programme Budget for 2012]. 12. Luis Moreno-Ocampo, Prosecutor, Int l Criminal Court, Statement at the Fourth Session of the Assembly of States Parties (Nov. 28, 2005). 446 [Vol. 47

9 PROSECUTORIAL STRATEGY AT THE ICC dence, investigate inside the country, or protect witnesses from intimidation. Focused prosecutions fail in such situations because they turn standard investigative protocols on their head. The standard approach in national jurisdictions is to obtain evidence against leadership figures by initially targeting lower levels of a criminal organization and working up the chain of command. 13 This standard approach would allow the OTP to compensate for its limited investigative tools by initially prosecuting more manageable cases against mid-level suspects. But while the OTP s new strategic plan states that it will consider prosecuting lowerlevel perpetrators where deemed appropriate, it has not conducted any such prosecutions. 14 Third, where the international community opposes an ICC investigation, the OTP s powers are at their lowest. The OTP has not yet opened an investigation that directly challenged the interests of influential states. In such situations, the OTP could rely only on its own limited investigative tools and would need to overcome efforts by influential states to impede its investigation and threaten its funding. As Richard Goldstone has commented, [y]ou can t divorce politics from international justice. Without politics you don t get justice, and without politics [the ICC] cannot succeed. 15 Simply put, the OTP s resource constraints and global mandate make a uniform approach unwise. This Article argues that a situational approach is necessary for the OTP to satisfy its mandate in light of the structural limitations of the ICC, which are discussed in Part I. Part II discusses the logic of a situational strategy in light of the OTP s approach to date. Parts III, IV, and V develop the framework for a situational approach to positive complementarity, focused prosecutions, and focused investigations, respectively. Part VI discusses the ramifications of this situational perspective for prosecutorial strategy. II. A BROAD MANDATE,CHALLENGING INVESTIGATIONS,LIMITED TOOLS, AND DEPENDENCE ON STATE COOPERATION If implemented, the proposed situational strategy would take into account the fundamental mismatch between the OTP s expansive mandate and limited ability to prosecute atrocity crimes. As discussed 13. See infra notes STRATEGIC PLAN , supra note 8, Danial Kaysi, Political Will and Multilateral Cooperation in International Justice: An Interview with Richard Goldstone, 7 YALE J. INT L AFF. 90, 91 (2012). 2016] 447

10 GEORGETOWN JOURNAL OF INTERNATIONAL LAW in the following sections, a situational strategy would help the OTP openly confront (a) the expansive mandate of the ICC; (b) the difficulties inherent in atrocity crime prosecution; (c) the structural weakness of the ICC, including its (1) limited investigative power, (2) dependence on state cooperation, (3) limited ability to protect witnesses protection, and (4) circumscribed budget; and (d) the dynamic nature of international criminal investigations. A. The Expansive Mandate Of The ICC The OTP s mandate is broad because it is a permanent international institution designed to address the most serious crimes of concern to the international community as a whole. 16 This global mandate distinguishes it from past international criminal tribunals, which had jurisdiction that were limited to single conflicts. The International Criminal Tribunal for Rwanda (ICTR) focused for twenty years on atrocity crimes committed by Hutu perpetrators of the Rwandan genocide in There was no need for the ICTR Prosecutor to adopt situational strategy because jurisdiction was limited to crimes committed by Hutu groups in one country. The ICC, in contrast, has jurisdiction over atrocity crimes committed on the territory or by a national of any among 123 state parties. The ICC may also exercise jurisdiction if the U.N. Security Council refers a situation to the OTP, as occurred in Sudan and Libya. The OTP s broad jurisdiction means that it will always have an active docket. Unfortunately, atrocity crimes remain ubiquitous. In 2014, the OTP conducted investigations in eight different countries. 17 In each of the eight countries, the OTP is conducting multiple investigations into crimes committed by numerous perpetrators that range from heads of state to militia leaders. 18 The OTP s docket is likely to increase in the future, for a number of reasons. First, recurrence of violence in countries already under investigation will pose renewed challenges. The Central African Republic provides a recent example. 19 Jean-Pierre Bemba is currently on trial for war crimes related to the conflict in The OTP recently opened a 16. Rome Statute of the International Criminal Court art. 5, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter Rome Statute]. 17. Proposed Programme Budget for 2014, supra note 10, Proposed Programme Budget for 2012, supra note 11, Matt Solomon, In Recent CAR Coup, Echoes of Past Violence, INT L JUSTICE MONITOR (Aug. 6, 2013), [Vol. 47

11 PROSECUTORIAL STRATEGY AT THE ICC second investigation into new acts of violence committed by different perpetrators during 2013 and Second, the OTP s docket is likely to increase because of new crimes committed in countries not currently under investigation. The OTP is currently engaged in preliminary examinations in nine countries in order to determine whether the crimes in those countries warrant a formal investigation. 21 Third, the OTP s docket is likely to increase because of referrals from the U.N. Security Council and the acceptance of jurisdiction by new states. The referral by the U.N. Security Council of the situation in Libya in 2011 provides an example of an unexpected increase in the ICC s caseload. A similar unexpected increase arose from Palestine s accession to the Rome Statute in Fourth, the OTP s docket is likely to increase as a result of article 70 offenses involving witness interference, bribery, intimidation, and physical threats to witnesses in existing cases. For example, the OTP brought an additional case against Bemba and his lawyers for allegedly bribing witnesses to testify in Bemba s favor during his war crimes trial. 22 The OTP also charged three additional defendants in the Kenya situation, alleging that they engaged in witness interference and bribery to induce prosecution witnesses to withdraw their testimony implicating the Kenyan accused. 23 The OTP itself describes these cases as a serious resource drain. 24 Since there is likely to be a full docket at the ICC for the foreseeable future, the OTP must maximize its limited resources with narrowly tailored strategies. 20. Press Release, Int l Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening a new Preliminary Examination in Central African Republic (Feb. 7, 2014). 21. Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Palestine, Nigeria, and Ukraine. The Rome Statute requires the OTP to undertake preliminary examinations of potential atrocity crimes, review communications from individuals or organizations, and respond to referrals from a state party or a declaration of jurisdiction by a non-party state in any of the 123 member states. OFFICE OF THE PROSECUTOR, INT L CRIMINAL COURT, POLICY PAPER ON PRELIMINARY EXAMINATIONS 1-5 (2013). 22. DR Congo s Bemba Denies Bribery Charge at ICC, BBC NEWS (Sept. 29, 2015), com/news/world-africa Beth Nyaga, ICC Issues Arrest Warrant Against Two Kenyans, KENYA BROAD. CORP. (Sept. 10, 2015), STRATEGIC PLAN , supra note 8, 18, 28, ] 449

12 GEORGETOWN JOURNAL OF INTERNATIONAL LAW B. The Difficulties Inherent To Atrocity Crimes Prosecutions Fulfilling the OTP s expansive mandate requires a situational approach because the nature of atrocity crimes differs so widely. Investigations are more difficult where crimes are committed by a regime that remains in power. In any investigation, there are three key elements: the crimes, the suspects, and linkages between the two. It is difficult to secure evidence implicating the persons most responsible for the crimes because they rarely are directly involved in the commission of the crimes. 25 In cases involving personal culpability, of course, survivors can identify the perpetrator. 26 Investigations also are difficult because the document-rich troves of Nuremberg have not been replicated in modern-day trials; no current State leader is now likely to sign orders to execute POWs, tyrannize civilians, subject prisoners to inhumane conditions, or ethnically cleanse territories. 27 Focused investigations also may fail to gather adequate evidence where the OTP is prosecuting leaders of non-state organizations. Non-state groups lack clearly defined lines of authority and leaders of such organizations can plausibly deny responsibility for crimes committed on the ground. As a result, the OTP must carefully assess the difficulties presented by a prospective investigation in light of the nature of the crimes and political context in which they arise. C. The Structural Weakness Of The ICC The OTP s structural weaknesses and dependence on state cooperation stand in contrast to its expansive mandate. The Rome Statute reflects a compromise among states concerned about ceding sovereign authority to an international institution. As a result of these concerns, 25. Katy Glassborow, ICC Investigative Strategy Under Fire, INST. FOR WAR AND PEACE REPORTING (Oct. 27, 2008), See generally Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgment (Int l Crim. Trib. for the Former Yugoslavia June 25, 1999) (charged with direct mistreatment of prisoners); Prosecutor v. Vasiljevic, Case No. IT T, Judgment (Int l Crim. Trib. for the Former Yugoslavia Nov. 29, 2002) (direct participation in two incidents). 27. Wald, supra note 3, at 917; CARLA DEL PONTE & CHUCK SUDETIC, MADAME PROSECUTOR: CONFRONTATIONS WITH HUMANITY S WORST CRIMINALS AND THE CULTURE OF IMPUNITY 7 (2009); Theodor Meron, Reflections on the Prosecution of War Crimes by International Tribunals, 100 AM. J. INT L L. 551, (2006). 450 [Vol. 47

13 PROSECUTORIAL STRATEGY AT THE ICC the OTP depends on states to assist investigations, protect witnesses, and fund the OTP s budget. 1. Limited Investigative Power The OTP possesses narrow investigative powers because the Rome Statute does not provide it with an independent means of carrying out investigations. The ICC lacks a police force to enforce its orders. There is no compulsory process in the Statute to gather evidence. The OTP lacks crucial investigative tools used by national prosecutors, including search warrants, subpoenas, and wiretaps. 28 Although the OTP has its own investigators, they require the permission of states to carry out investigations Dependence on State Cooperation The OTP depends on state cooperation to carry out its investigations, but cooperation depends upon each respective state s assessment of their national interest in a specific situation. As a result, the OTP must take advantage of investigative opportunities in situations where cooperation occurs, and adopt strategies that compensate for a lack of cooperation where it is absent. The uneven nature of the cooperation provided by great powers is due, in part, to the very nature of the ICC s structure. Past international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and ICTR, were U.N. organizations that were established and backed by the Security Council. 30 Of course, the ICTY and ICTR also struggled to obtain sufficient cooperation. Particularly in their initial years, international support was patchy or even absent. But the ICTY was ultimately successful in large part because NATO made it a priority to apprehend suspects and Western powers conditioned economic aid and EU membership on cooperation. 31 Former ICTY Prosecutor Carla Del Ponte explained that her mandate would be an 28. Damaska, supra note 3, at (discussing the institutional weaknesses of the ICC). 29. Rome Statute, supra note 16, arts. 54, 87(1), Damaska, supra note 3 at 20 & n.1; Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. CHI. L. REV. 89, 90 (2003). 31. WESLEY CLARK, WAGING MODERN WAR: BOSNIA, KOSOVO, AND THE FUTURE OF COMBAT 73, 92 (2001); Carla Del Ponte, Address at the Policy Briefing, European Policy Centre (July 3, 2007), Kaye, supra note 5, at ] 451

14 GEORGETOWN JOURNAL OF INTERNATIONAL LAW impossible mission without the assistance of powerful states. 32 The OTP has not received comparable support. The world s most powerful countries the United States and China are not members, nor is Russia. The United States will cooperate with the ICC in situations that further its own national interests, while China and Russia possess ideological concerns regarding the OTP s intrusion on state sovereignty. The support that the OTP receives is also uneven because of the structure of the Rome Statute. 33 Past international criminal tribunals were established only after the international community reached a consensus that the crimes in a particular country should be prosecuted at the international level. OTP investigations that arise from state referrals or the Prosecutor s motu proprio exercise of jurisdiction offer influential states the ex-post choice of whether to offer support. At the ICTY and ICTR, in contrast, the members of the Security Council committed themselves ex-ante to support the tribunals. The only circumstance where the OTP receives ex-ante support is if the Security Council refers a country that is not a member of the ICC to the OTP for investigation. 34 In such situations, as in Libya and Sudan, the OTP s investigation is supported by the same Chapter VII powers that underpinned the ad hoc tribunals. Unlike non-state parties, state parties to the Rome Statute are obligated to cooperate with the OTP. Even so, the OTP possesses little enforcement authority. Article 86 requires that state parties cooperate fully with the Court in its investigation and prosecution of crimes and Article 93 specifies mandatory acts of cooperation, including taking evidence, providing documents, and executing searches and seizures. 35 But if states do not cooperate, the only recourse for the OTP is to request that the Chamber make a finding of noncooperation and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council. 36 This cumbersome process has not provided the OTP with 32. Carla Del Ponte, Prosecutor, Int l Criminal Tribunal for the Former Yugoslavia, Briefing at the General Affairs and External Relations Council of the European Union (Oct. 15, 2007), Kaye, supra note 5, at Rome Statute, supra note 16, art. 13(b). 35. Id. at arts. 86, Id. at art. 87(7). 452 [Vol. 47

15 PROSECUTORIAL STRATEGY AT THE ICC sufficient leverage to dissuade noncooperation. 37 Investigations are complicated in situations where the OTP lacks access to crime scenes and in-country witnesses. National prosecutors typically operate in an environment where they are supported by state institutions that possess a monopoly on the use of force. The OTP, in contrast, must investigate in situations where state actors use a monopoly of force to commit violence or where the state has lost its monopoly on the use of force and there is uncontrolled violence. In these situations, the police and military of the affected state are not available to assist the OTP in gathering evidence, protecting witnesses, and arresting suspects. 38 In some situations, such as in Sudan, the host government prohibits in-country investigation because its political leaders fear prosecution. 39 In other situations, such as Libya during the revolution, the OTP does not investigate inside the country because contact with investigators might place witnesses at risk during an ongoing conflict. 40 The OTP s dependence on the cooperation of the state where the crimes occurred leaves it vulnerable if that state does not cooperate. For example, in the Kenya cases, the OTP did not receive investigative assistance from the Kenyan government and was unable to investigate effectively inside the country. Although the OTP attempted to blame 37. The Chamber denied the OTP s application for a finding of noncooperation in the Kenya cases, despite its finding that [t]he Kenyan government s non-compliance has not only compromised the Prosecution s ability to thoroughly investigate the charges, but has ultimately impinged upon the Chamber s ability to fulfil its mandate. Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11-982, Decision on Prosecution s application for a finding of non-compliance under Article 87(7) of the Statute, 79 (Dec. 3, 2014). 38. PAPER ON SOME POLICY ISSUES, supra note 3, at Elizabeth Rubin, If Not Peace, Then Justice, N.Y. TIMES (Apr. 2, 2006), at ( His investigators must work against the will of the Sudanese government. They cannot gather any forensic evidence from schools where collective rapes occurred. They cannot gather samples from wells that were poisoned. They cannot even gather shrapnel from bombs dropped on civilians by the government. ); Q & A: ICC Prosecutor Identifies Suspects in First Darfur Case, HUMAN RIGHTS WATCH (Feb. 25, 2007), ( The Darfur investigations were further complicated by the prosecutor s assessment that direct investigations in Darfur were impossible because of the difficulty in protecting witnesses and the limited cooperation the prosecutor received from the Sudanese government. ). 40. OFFICE OF THE PROSECUTOR, INT L CRIMINAL COURT, FIRST REPORT OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT TO THE UN SECURITY COUNCIL PURSUANT TO UNSCR (2011) [hereinafter FIRST REPORT OF THE PROSECUTOR ] ( In the Libya situation the Office has not taken any testimony from persons that could be put at risk in Libya and referred no individuals to the Victims and Witnesses Unit of the International Criminal Court. ). 2016] 453

16 GEORGETOWN JOURNAL OF INTERNATIONAL LAW the Kenyan government for undermining its investigations, it lacked any enforcement authority to punish or otherwise compel the Kenyan government to assist the investigation Witness Protection The OTP depends on witnesses to connect high-ranking suspects to crimes committed on the ground, but lacks the ability to adequately protect these witnesses. 42 Such witnesses require protection and frequently relocation in order to secure their testimony. The extent of witness protection concerns depends on two relevant aspects of the context in which the case arises. First, there may be situations where witness protection concerns are not as salient because of the existence of non-witness evidence, such as documents, s, video, or forensic evidence. Second, the risks to witnesses are reduced where either the state favors prosecution (of former regime members or rebel leaders) or the international community favors prosecution and assists with witness protection and relocation. In contrast, the risks to witnesses are magnified where the territorial state opposes prosecution or is unable to assist the OTP due to conflict. The OTP s ability to protect witnesses is limited because it relies on state cooperation and framework agreements with states to facilitate witness protection. Only twelve states have signed such agreements. The ICC describes the lack of agreements as an alarming shortfall in its ability to protect victims and witnesses potentially under threat. 43 This shortfall is magnified by the limitations in the framework agreements, which don t create an obligation to actually receive witnesses. Some among the twelve states that have signed relocation agreements have never relocated a single witness Prosecutor v. Ruto, Case No. ICC-01/09-01/ Red, Prosecution response to the Government of Kenya s Submissions on the Status of Cooperation with the International Criminal Court, or, in the alternative, Application for Leave to file Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence, 1-5 (May 13, 2013) [hereinafter Prosecution response]. 42. Thomas Escritt, War Crimes Court Frustrated by Reliance on Witnesses, REUTERS (Sept. 20, 2013), #DvWByjD7RASjsEP Int l Criminal Court [ICC], Report of the Bureau on Cooperation, Assembly of States Parties, Eleventh Session, ICC-ASP/11/28, 28-E (Oct. 23, 2012). 44. INT L BAR ASS N,WITNESS BEFORE THE INTERNATIONAL CRIMINAL COURT (2013). 454 [Vol. 47

17 PROSECUTORIAL STRATEGY AT THE ICC 4. Insufficient Budget A situational strategy also is necessitated by the OTP s limited budget. There are not sufficient resources to conduct comprehensive investigations in every situation. Expending additional resources beyond what is necessary to obtain a conviction constrains the OTP s ability to bring other cases and respond to new situations around the globe. The ICC receives less funding than the ICTY and ICTR. 45 The ICC has an expansive global mandate, while the ICTY and ICTR each focused on conflict in one region. And unlike those tribunals, which were funded by the U.N. budget, the ICC is a treaty-based organization funded by the contributions of its member states. 46 The ICC has faced considerable pressure from states to limit its budget to the bare minimum. 47 The OTP s limited resources are reflected in its prior reliance on a core team for each case of only eleven investigators, which it has recently increased to twenty investigators. 48 In contrast, many national jurisdictions use over thirty-five investigators in a single criminal case. 49 Chief Prosecutor Bensouda requested and obtained additional funding in recent years based on her assessment that the OTP is overstretched. 50 But even with the budget increase, the lack of resources has damaged the Office s ability to respond to evolving situations (e.g. Libya, Darfur, Mali), and impacted it negatively in terms of perception (e.g. delay in investigating both sides in Côte d Ivoire) The 2012 budget was 111 million. Int l Criminal Court [ICC], Report of the Committee on Budget and Finance on the Work of its Nineteenth Session, Assembly of States Parties, Eleventh Session, ICC-ASP/11/15, 15-E (Oct. 29, 2012). This is significantly less than the funds provided to the ICTY in ($250 million) and the ICTR ($245 million) in The Cost of Justice,INT L CRIM. TRIB. FOR YUGOSLAVIA (last visited Dec. 3, 2015), About ICTR: General Information, INT L CRIM. TRIB. FOR RWANDA (last visited Dec. 3, 2015), AboutICTR/GeneralInformation/tabid/101/Default.aspx. 46. Wierda & Triolo, supra note 4, at Id. at Id.; Int l Criminal Court [ICC], Proposed Programme Budget for 2016 of the International Criminal Court, Assembly of States Parties, Fourteenth Session, ICC-ASP/14/10, 10-E (Sept. 2, 2015). 49. Proposed Programme Budget for 2014, supra note 10, at 39 n Id STRATEGIC PLAN , supra note 8, 44; STRATEGIC PLAN JUNE , supra note 2, 24; MacKinnon, supra note 1 ( [F]unding shortfalls have forced [the OTP] to hibernate some of the open prosecutions such as the one against Mr. al-bashir while restricting the scope of others. ). 2016] 455

18 GEORGETOWN JOURNAL OF INTERNATIONAL LAW The world s biggest economic powers, such as the United States, provided significant financial support to the ICTY and ICTR, but contribute nothing to the ICC because they are not members. 52 The Security Council has referred two cases to the ICC, but not provided any funding to carry out those investigations. Big powers that purport to support the ICC s goals undercut it by not becoming members, a glaring political and moral problem with serious financial and strategic implications for the effort to constrain the commission of atrocity crimes. D. The Dynamic Nature Of Investigative Practice At The ICC A situational strategy also allows the OTP to adapt its strategy in response to shifting priorities and investigative opportunities. Alex Whiting, the OTP s former Investigation Coordinator and Prosecution Coordinator, has written that OTP investigations are inherently dynamic because the positions of the international community, territorial state, suspects, and potential witnesses all change over time. 53 Some situations will be more pressing than others because the crimes are ongoing. For example, the U.N. Security Council referred the situation in Libya to the ICC in the midst of violent attacks on civilian protestors by the Gaddafi regime. The OTP could not afford to prioritize comprehensive investigations in other situations during the moment that the international community supported the Libya investigation, and there were investigative opportunities as a result of witnesses fleeing the violence. The position of the international community or territorial state also may change over time. The U.N. Security Council referred the situation in Darfur to the ICC and the OTP was able to obtain arrest warrants for President al-bashir and other Sudanese leaders. But the interest of the international community became less pressing over time, leaving the OTP without adequate backing to arrest the accused. Since the OTP could not afford to continue to spend investigative resources on cases where there was no realistic prospect of arrest, it elected to suspend its investigations. 54 It also was more efficient as a practical matter to delay further investigations since an arrest was most 52. See Wierda & Triolo, supra note 4, at See generally Alex Whiting, Dynamic Investigative Practice at the International Criminal Court, 76 DUKE J.L. & CONTEMP. PROBS 163 (2013). 54. Fatou Bensouda, Prosecutor, Int l Criminal Court, Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005) (Dec. 12, 2014). 456 [Vol. 47

19 PROSECUTORIAL STRATEGY AT THE ICC likely to occur in the context of al-bashir s removal from power, and his removal from power itself would likely create new investigative opportunities and a new government that was more willing to cooperate with the OTP. On the other hand, some situations may give rise to unexpected cooperation opportunities. In Côte d Ivoire, Laurent Gbagbo fell from power in April 2011 and his opponent, Alassane Ouattara, took control of the government and requested an OTP investigation. 55 A situation where arrest appears unlikely also may rapidly change, as when Dominic Ongwen, a fugitive from the ICC for over nine years in Uganda, was arrested and transferred to the ICC, or when Bosco Ntaganda, a fugitive from the ICC for over seven years in Congo, unexpectedly surrendered to the U.S. embassy in Kigali and was transferred to the ICC. 56 The dynamic nature of investigations means that the OTP must react to changes in state cooperation with appropriately tailored strategies that account for investigative opportunities that are available at a particular moment in time. III. THE LOGIC OF A SITUATIONAL STRATEGY A situational approach avoids the use of strategies that unrealistically presuppose state cooperation, while also jettisoning strategies that waste time and resources because they incorrectly anticipate a lack of international support. First, a situational strategy allows the OTP to shift the burden to national courts and limit the breadth of its cases where the international community or territorial state supports accountability. Second, a situational strategy allows the OTP to gather necessary evidence by employing comprehensive investigations and prosecutions where states do not cooperate. Third, a situational strategy provides the OTP with flexibility to respond appropriately to unpredictable changes in state cooperation. Fourth, the taxonomy of situational strategy provides a methodology for the OTP to set its investigative priorities and allocate its limited resources appropriately. By previously focusing on the first goal the efficient use of resources through positive complementarity and focused strategies the OTP failed to gather sufficient evidence in situations where states do not cooperate and the international community does not provide strong support. In strategy papers published in 2002, 2006, and 2009, the OTP described positive complementarity, focused investigations, 55. Whiting, supra note 53, at STRATEGIC PLAN , supra note 8, ] 457