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

Author:Foster, Jacob N.
Position:P. 473-505
  1. Developing A Situational Approach to Positive Complementarity

    A situational approach to positive complementarity promotes national proceedings while conserving the OTP's resources and avoids interfering with its ability to gather evidence. It would not require abandonment of the underlying principle, even in situations where there is a low likelihood of generating national proceedings that involve ICC accused. Positive complementarity may result in beneficial legal reforms, stimulate civil society, and raise awareness regarding the need for accountability. It also may help build international diplomatic support for the OTP's own investigation by demonstrating that the OTP made every reasonable attempt to avoid prosecution at the international level.

    Influential states and non-governmental organizations should undoubtably press for domestic accountability, but the OTP's resource limitations restrict the breadth of its positive complementarity strategy in situations where domestic proceedings are unlikely to reduce its own caseload. The overall objective--to prosecute the maximum number of high-level perpetrators of atrocity crimes--should shape future strategy. Activities such as public statements in favor of national accountability involve low cost to the OTP. However, the OTP should avoid resource-intensive activities and excessive delays in situations that are unlikely to result in national proceedings that substitute for international ones. This is particularly true because it may take years or decades for post-conflict states to be willing and able to provide domestic accountability, and the OTP cannot delay its own activities while waiting for these developments to unfold. The OTP should devote significant resources to positive complementarity only where there is domestic political support for national proceedings, rather than in situations where domestic proceedings are foreclosed by the context in which the atrocity crimes have occurred.

    Are there any alternatives in situations where the international community fails to provide sufficient support or the territorial state is unable or unwilling to carry out domestic proceedings? One promising situational approach involves OTP encouragement of domestic prosecutions in non-territorial third party states instead of in the state where the atrocities occurred. Third party states possess the option to initiate their own proceedings (for example, under universal jurisdiction principles) if an ICC suspect is within their borders. In these cases, suspects may enter the jurisdiction of a third party state in the aftermath of civil war and regime change, such as occurred in Cote d'Ivoire and Libya, or the collapse of state institutions, as in the Congo and Central African Republic. (139) In situations where third party states cooperate and support accountability, positive complementarity is more likely to succeed because third party states possess greater institutional capacity and are not themselves challenged by atrocity crimes.

    The OTP's 2012-2015 strategic plan stated that the OTP was seeking to develop a common understanding of the circumstances in which prosecution by third states is appropriate, although its most recent 2016-2018 strategic plan does not mention this strategy. (140) The record to date demonstrates a potential missed opportunity. The OTP elected to prosecute Callixte Mbarushimana even though he was residing in France and was a suspect in connection with a German prosecution of two other Democratic Forces for the Liberation of Rwanda (FDLR) leaders who resided in Germany. (141) The OTP's prosecution of Mbarushimana was subsequently dismissed for lack of evidence. (142) In retrospect, the OTP should not have used limited resources to prosecute Mbarushimana and should have instead encouraged a prosecution by Germany or France.

    The OTP's memorandum of understanding with the Government of Libya repeated this apparent error by assigning the OTP sole responsibility for prosecuting suspects located in states other than Libya. (143) The prospects for positive complementarity increase where the OTP supports third state prosecutions instead of competing with them as it did in the Mbarushimana case. This third party approach could lessen the OTP's caseload while simultaneously ensuring a robust increase in the numbers of prosecutions of high-level perpetrators.


    A situational approach to focused prosecutions recognizes that the OTP is unlikely to successfully prosecute only senior leadership figures, except where it receives the support of the international community or territorial state. The OTP needs the cooperation of either the international community or territorial state in order to gather evidence, protect witnesses, and arrest the persons most responsible for the crimes.

    There are three primary advantages to a situational approach to focused prosecutions. First, a situational approach to focused prosecutions allows the OTP to target the most powerful leaders in situations where it receives the support of the international community or territorial state. Focused prosecutions are preferable for the same reasons positive complementarity seems attractive--limits on prosecutorial capacity. (144) It makes sense to prioritize the prosecution of high-level leadership figures if limited resources circumscribe the possibility of prosecution for all perpetrators. (145)

    Second, a situational approach to focused prosecutions prevents the OTP from exclusively focusing on the prosecution of leadership figures where that strategy cripples the OTP's ability to gather sufficient evidence. In national prosecution of complex criminal cases, such as organized crime or corruption, prosecutors build cases from the bottom up. As a matter of strategy, they do not initially target the persons bearing the greatest degree of responsibility. For national prosecutors around the world, "[t]he standard approach is to start near the bottom of the organization and work up the chain of command ... lower level participants are 'flipped' or 'rolled' to provide evidence against higher level participants in the scheme." (146)

    Accomplice testimony is often necessary because a nearly universal characteristic of complex criminal cases is that the most culpable individuals work through intermediaries, limiting their direct personal involvement in crimes. (147) The best way to secure accomplice testimony, in most cases, is to investigate accomplices. Few participants in a criminal organization are willing to cooperate with law enforcement unless such cooperation is necessary to avoid prosecution. (148) International prosecutions differ from national prosecutions in many ways, but linkage evidence from insiders is essential to convict high-level accused in both domains. In situations where the territorial state is unwilling or unable to provide accountability, the focused prosecution and positive complementarity strategies result in an impunity gap that removes the fear of prosecution that might otherwise lead lower-level suspects to implicate superiors.

    Third, a situational approach to focused prosecutions avoids the unnecessary expenditure of resources that would result from always using a comprehensive approach, and enables the development of strategic tools, such as plea-bargaining, to avoid overwhelming the capacity of the OTP. Prosecutors at the ICTY targeted lower-level suspects in order to develop stronger cases against senior leaders, but "the early prosecution strategy of starting with the prosecution of numerous low-level defendants flooded the Tribunal with minor cases and created a backlog of (relatively) petty defendants awaiting trial." (149) The OTP possesses less flexibility to apply the bottom-up approach than prosecutors at the ICTY because the ICTY dealt with just one situation and the OTP must simultaneously investigate numerous situations around the globe. As a result, it's advisable that the OTP use this bottom-up approach only in situations where there is no other way to prosecute top-level perpetrators, and develop plea bargain and joint hearing procedures to efficiently process cases against multiple accused.

    There is a legal mandate for a situational approach to focused prosecutions because the strategy is discretionary. The Appeals Chamber has held that the Rome Statute does not require the OTP to prosecute only the persons most responsible and that it possesses discretion to prosecute "individuals who are not at the very top of an organization." (150) The OTP nonetheless continued to refer to focused prosecutions as a "fundamental principle" of its strategy even though the Rome Statute, as interpreted by the Appeals Chamber, does not require it. (151)

    The OTP's new strategy^recognizes that the difficulty of proving "the criminal responsibility of those bearing the greatest responsibility might result in the OTP changing its approach" to "[a] strategy of gradually building upwards." (152) In spite of this recent consideration of a new approach, the OTP had not, as of 2015, prosecuted lower or mid-level perpetrators. The OTP has not specified the circumstances under which it will depart from the strategy of focused prosecutions or developed the strategic tools for implementing a different strategy.

    The lack of detail provided by the OTP on when and where it will employ a broader approach to prosecution is unfortunate because the risk of such an approach is the depletion of the OTP's limited resources. The sections that follow examine the advantages and costs of focused prosecutions in situations where the international community supports the OTP (Section A); the OTP acts in the absence of support by the international community (Section B) and the territorial state is willing and able to support the OTP (Section Bl), the territorial state is unable to cooperate due to armed conflict (Section B2), or...

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