A situational approach to prosecutorial strategy at the International Criminal Court.

Author:Foster, Jacob N.
Position:P. 439-473
  1. 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 1. limited Investigative Power 2. Dependence on State Cooperation 3. Witness Protection 4. 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 1. The Territorial State Supports A Division Of Labor With International Prosecution Of The ICC Accused 2. 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 1. The Territorial State Is Willing And Able To Assist The Prosecution Of Rebels Or Members Of A Former Regime 2. The Territorial State Is Unable To Cooperate Due To Armed Conflict 3. The Territorial State Opposes An ICC Investigation C. The International Community Opposes An ICC Investigation 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 1. The Territorial State Is Willing And Able To Assist The Prosecution Of Rebels Or Members Of A Former Regime 2. The Territorial State Is Unable To Cooperate Due To Armed Conflict 3. 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 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 2002. 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. (4)

    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. (4) 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 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 2016-2018 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. (9)

    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 plusjapan, 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 arising from an attack by Gaddafi government forces on pro-democracy...

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