Is it all about impact? The reality of the ICC’s strategy

Like Moreno Ocampo and his successor, Fatou Bensouda
Wednesday, October 14, 2015 - 14:35
By Janet Anderson
Another flurry of events over the last ten days has focused attention on what has been happening at the International Criminal Court in The Hague. Specifically, the prosecutor has asked for permission to launch an investigation into Georgia. And she’s brought a Malian Islamist – the first of either type – to the Court. What do these events tell us about the prosecution strategy?
They are both solid indications of exactly how the Office of the Prosecutor (OTP) is already putting its new draft strategic plan into effect. The last plan covered 2012-15. This one is for the period 2016-18. And what’s most striking about it is the level of detailed planning.
Excerpt from the 2016-8 ICC draft strategic plan
For example, there’s a list on page 7 that lays out exactly how many preliminary examinations, investigations and trials are being planned. And with six active investigations planned, maybe Georgia is one of those? Of the five cases at the pre-trial phase, Mali is surely?

Unforeseeable events

Of course, there are always “unforeseeable events”, says the plan. Like the numbers of cases the prosecutor’s bringing under Article 70 of the Rome Statute of people accused of bribing witnesses. And you get can get the unexpected surrender of a Bosco Ntaganda.
“This has been at the expense of other urgently needed activities, such as making the hibernated cases “trial-ready”, starting investigations into crimes allegedly committed by the other side of the conflict in Côte d’Ivoire, pursuing new crimes being committed in Libya and Darfur, and conducting further investigations required in Mali and the DRC”, says the strategy.

Ahmad Al Faqi Al Mahdi

The hibernated cases – nine predicted – but twelve currently listed, include Mali 1. That has now become unhibernated with the arrival of Ahmad Al Faqi Al Mahdi in Scheveningen. 
Some commentators have suggested that getting Niger to hand over Ahmad Al Faqi Al Mahdi and charging him with cultural crimes was merely opportunity. Even Alex Whiting, formerly of the OTP, says “case selection is part strategy and part opportunity”.
But even though “the suspect in this case does not appear to be at the highest echelons”, Whiting praises the OTP for having seized the right moment because “attacks against cultural heritage have received prominent attention due to ISIS’s relentless campaign to destroy Christian and Muslim shrines, ancient sites and artefacts”. 
Others have argued that he’s just a small fish and may therefore symbolise another part of the strategy – to move up the levels of authority, rather than going for the top person first, building up evidence, potentially by offering deals lower down.
But you can certainly argue that this Mali case is just what the OTP was planning.  And, if the draft strategic plan is accepted, it won’t be the only one – another Mali investigation will take place at the beginning of 2016, preparing another Mali case

Moreno Ocampo vs. Bensouda

A senior OTP person recently told me that the greatest strategic contrast between the former prosecutor, Luis Moreno Ocampo (LMO), and Bensouda is that the former strove during the Court's first decade to make sure that ‘impact’ was the defining factor to help with strategic choices. LMO was determined to put the ICC on the world map, to make sure that it would be part of the most important discussions on peace, justice, conflict and security. Did LMO have impact? Many would say yes – putting Sudanese president Omar al-Bashir on notice for a charge of genocide was full of impact. But many would argue that that impact came at the expense of careful, well-prepared prosecutions. The Lubanga case – the first ever at the ICC – was not textbook in its process. But for impact’s sake, the prosecutor did choose to focus on the recruitment of child soldiers, exclusively.
So, what’s the defining lens now? Impact or something else? The strategy suggests that value for money is a core value: the right charges and a lot of them, which are then accepted by the judges. And everything has a gender lens. So certainly SGBC. Which is why – for me – even though the one Mali case looks very focused now, I guess either the charges will expand or the next case will clearly focus on SGBC. 


And the other news, that Bensouda wants finally to tackle Georgia. No country has referred the situation. So any moves that she makes are completely in her own hands – propio motu in the jargon of the court.

And indeed there is room for an investigation already linked to a pre-trial process to start in 2016, and another completely new investigation to start in 2017. But no precise definition of when a trial could start.
It’s too much to suggest that the OTP is only following a precise schema, based on a draft strategy. The world is too messy for that to be the only basis on which they work. But there is a willingness to define exactly the standards to which prosecutors should be held too. And precisely how much is will cost. The elements of the strategy, plus the latest developments at the Court, show that many of those who work there may have finally understood that the Court really does belong to its members. The Court has to be more open about how it makes its choices. Without the political support of the member states, the ICC will struggle to have any impact at all.
Janet Anderson is a commentator on international justice. 
Emanuele del Rosso is a cartoonist who works for Justice Hub. 

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