ICC: Letter to Prosecutor-Elect Fatou Bensouda

Dear Prosecutor-Elect Bensouda,

We write on behalf of Human Rights Watch to warmly congratulate you on your election and upcoming inauguration as the next prosecutor of the International Criminal Court (ICC). As deputy prosecutor, you have already played a role in the important progress made over the last nine years to launch the court’s work and to put into practice its mandate to bring to account those responsible for the world’s worst crimes. We look forward with anticipation to your leadership of the Office of the Prosecutor as the court moves ahead and into its second decade.

As you take office, the court’s international profile is higher than ever. This has raised expectations for accountability among victim communities around the world. “The Hague” has increasingly come to represent the last chance for justice. Meeting these expectations and the demands of the Office of the Prosecutor’s existing investigations and preliminary examinations will be no easy task. This is especially true as some ICC states parties have insisted on limiting growth in the court’s budget and as the court continues to learn lessons from its first proceedings.

The court’s higher profile has also increasingly attracted attempts within the international community to use the ICC for political ends. This has made the court more vulnerable to misplaced criticism that it is a tool of powerful states against those with less power, rather than an independent arbiter of justice. The ICC is not to blame, but it remains all too often the case that the powerful and those allied with the powerful are able to escape justice. On this difficult landscape every effort will need to be made to signal the court’s judicial mandate and to consolidate its legitimacy and credibility as a court of law above all. This is essential to securing and maintaining the broad cooperation on which the ICC relies.

In navigating these and other challenges facing the court, the Office of the Prosecutor and the court as a whole will benefit from your experience as deputy prosecutor and your deep knowledge of the institution, as well as your considerable skill in building relationships across the court’s many constituencies. These are not challenges that can be addressed overnight, and they will require the concerted and constant efforts of the court’s principals, its member countries, and civil society.

We expect you have already identified a number of priorities for the beginning of your term. In an effort to help inform your thinking, we have set out below a few of the issues that we believe also deserve priority. Many of these will require sustained attention for the duration of your term, but we have tried to identify some specific recommendations and considerations for your first months in office. We also look forward to your development of a prosecutorial strategy to guide the office over the coming period and would welcome opportunities to contribute to this strategy.

Election of the deputy prosecutor and prioritizing investigations within the office

At the November session of the Assembly of States Parties (ASP), ICC member countries will elect the court’s next deputy prosecutor from a short-list of three candidates you will put forward for their consideration. As you of course know from your own experience, a strong deputy prosecutor or prosecutors is essential to support your oversight and effective management of the office and its staff, to assist in decision-making at the highest levels while also permitting the appropriate delegation of responsibility, and to liaise on behalf of the office with other court organs and staff.

We understand that consideration of applications for a deputy prosecutor for prosecutions is already underway, following advertisement of the post earlier this year. We urge you to give consideration in your review of candidates to many of the same qualities that were so important in your own election. As we set out in a March 2011 joint civil society letter to the Bureau of the ASP’s search committee for the next ICC prosecutor, these include:

• Demonstrated experience of professional excellence in complex criminal cases;
• Demonstrated ability to act with independence and impartiality in the exercise of professional duties;
• A proven track-record of professional excellence in institutional management; and
• Demonstrated experience in working with other bodies or agencies to effectively achieve a common goal.

As was also the case during your term as deputy prosecutor, it is likely that a deputy prosecutor will serve as an additional ambassador for the office and the court among its many constituencies, including affected communities, states parties, and the broader international community. It is therefore important that candidates also have demonstrated experience in communicating effectively to a wide variety of constituencies. But given that a deputy prosecutor’s responsibilities will primarily concern the day-to-day running of the office’s work, we recommend that you place more emphasis in your review of applications on the professional excellence of candidates in complex criminal cases and institutional management.  

In our view, the bureau search committee brought an important measure of transparency and accountability to your election. While not without shortcomings, the search committee’s work represented an important effort to break with the past and to ensure that merit governed the election. We urge you and states parties to consider whether aspects of the search committee’s practice—or an enhanced version thereof—could be made applicable to the election of the deputy prosecutor. This could include identifying merit-based criteria, making available information regarding the number and background of applicants, and conducting public interviews with applicants, both before and after a short-list is developed.

Finally, we note the decision to recruit a deputy prosecutor for prosecutions. As you know, the outgoing prosecutor, Mr. Luis Moreno-Ocampo, initially established two deputy prosecutor positions, one for prosecutions and one for investigations. Although the deputy position for investigations has been vacant now for several years, in our view, appointing an experienced deputy prosecutor for investigations might yield a number of important benefits. A deputy prosecutor for investigations could play a central role in conceptualizing and taking responsibility for the implementation of the office’s investigative strategy. It would also help ensure that the views, needs, and assessments of investigators are taken into account at the highest levels within the office. We, therefore, ask you to consider whether election of a deputy prosecutor for investigations with experience devising and managing complicated investigations could help better prioritize and enhance the office’s investigations or whether any other steps could be taken in this regard.

Preliminary examinations

As you know, the Office of the Prosecutor is currently examining several situations in order to determine whether or not to open formal investigations. These include Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria, and South Korea (for acts allegedly committed by North Korea on its territory).

Under the outgoing prosecutor, the office’s approach to these preliminary examinations has gradually evolved. While the office initially provided only limited information about its situations under analysis and kept some situations confidential, the office has since decided to make public information about situations under analysis, including relevant activities of the office such as meetings with national authorities and some indication of the status and findings of its analyses, and, on occasion, has issued public statements warning that crimes which may fall within the ICC’s jurisdiction are being committed in a given situation. The higher profile given to these situations reflects the office’s policy of using the period of preliminary examination to influence national authorities to pursue their own rigorous investigations—thus avoiding ICC investigations by putting the Rome Statute’s complementarity principle into practice—and to deter would-be rights violators by signaling that the international community is watching.

Human Rights Watch has supported the office’s ambitious commitment to using the period of preliminary examination in this manner, particularly when it comes to catalyzing national proceedings. Consciously seeking to use the office's interactions with national authorities, civil society, and other relevant actors as it collects and assesses information necessary to its analysis to enhance prospects for deterrence or national prosecution can strengthen the ICC’s contributions to human rights protection and the fight against impunity. The fact of ICC jurisdiction—promoted through statements of the office—can also serve to introduce the importance of accountability early on into international responses to crisis situations.

At the same time, however, a careful balancing act is required. While the fact that a situation may come before the ICC initially provides an incentive for authorities to stop crimes or to start their own investigations, that leverage is likely to wane with the passage of time and the absence of any prospect of an actual ICC investigation. In addition, among affected communities, repeated statements that the ICC might act inevitably raise expectations that it will. Over time, where the office does not act—either because it has yet to reach the end of its analysis or because it concludes that no investigation is warranted—the credibility of the ICC may be undermined and the legitimate expectations of affected communities for justice, disappointed. Ultimately, the office must ensure that the analysis accomplishes its primary purposes—assessing whether or not to proceed with an investigation—and is not derailed by efforts aimed more exclusively at complementarity or deterrence.

As we have set out more extensively elsewhere, in our view, the office has not had a sufficiently rigorous and consistent approach to its situations under analysis. As a result, the office has not yet fully captured the benefits of its policy and has instead, at times, exacerbated some of the risks of diminished leverage and disappointed expectations, outlined above.

We have recommended a number of measures the office could take. These include using interim reports to increase the rigor, transparency, and accountability of the office’s analyses, and to provide civil society and national authorities with information that may be of use to monitoring and moving forward domestic proceedings; ensuring public statements about situations under analysis protect due process and provide sufficient context—about the situation and about the status of the office’s analysis—in order to manage expectations about prospective ICC action; and developing an approximate timetable for situations under analysis, again to guide expectations.

Over the past year the office has made some progress along these lines. Public information on situations under analysis or potential situations under analysis has improved. The office has increasingly referred to situations under analysis by the “phase” of analysis, that is, whether the office is checking whether alleged crimes falling within the ICC’s jurisdiction have been committed or whether it has moved on to assess elements of admissibility, including the gravity of potential cases and the status of national proceedings, if any. This helps to make the office’s activities more concrete and to manage expectations about imminent ICC action. The office also issued what was—in effect—an “interim report” in December 2011 spanning all of the then-situations under analysis. As to each, the office reported its conclusions regarding crimes committed, the status of national investigations, and the office’s activities and engagement with national authorities. We look forward to more comprehensive interim reporting as to each individual situation.

As you take office, we urge you to renew commitment to the policy of seeking to use the preliminary examination period to maximize the ICC’s contributions to national proceedings and deterrence, but ask that you look closely at the office’s approach to situations under analysis and, on the basis of lessons learned to date, seek to bring greater coherence and rigor to the office’s policy and practice in this area. We also recommend that you ensure sufficient resources within the office to carry out consistent and sustained approaches in preliminary examinations.

Case selection and communicating resource needs

Even setting aside increased attention to preliminary examinations, the workload of the office in its ongoing investigations and pending cases in seven situations is already sizeable. In our view, the work of the court is far from done in each of these seven situations.

As we have set out elsewhere, Human Rights Watch believes that an important criterion governing the office’s selection of cases once a situation is opened should include a concern to do credible and meaningful justice for affected communities. By credible we mean impartial—the investigation of all relevant allegations regardless of the affiliation of alleged perpetrators—and independent—free from external influence. And by meaningful, we mean cases against those most responsible for the most serious crimes on charges representative of the underlying patterns of ICC crimes and which aim to maximize the court’s impact among affected communities.

In our view, although the office’s policies have largely reflected a similar approach, in practice we see gaps in the implementation of these policies and the selection of cases when it comes to doing credible and meaningful justice.^[1] There is a need for additional investigations or clearer communication about prospects for additional cases to fill these gaps. We have set out specific recommendations for Central African Republic; Darfur, Sudan; Democratic Republic of Congo; Kenya; and northern Uganda. In the court’s newer situations—Côte d’Ivoire and Libya—we see many of the same needs emerging with respect to ensuring the office’s investigations are seen to be impartial and independent and address underlying patterns of serious crimes.

Accordingly, one key, immediate challenge we see will be your office’s prioritization within these situations of additional investigations or other steps to further its work. The ability to carry out additional investigations will turn, in part, on the resources available to your office. Limitations in the court’s budget imposed by its states parties are already affecting its work across the board. In our view, states parties have yet to fully understand the magnitude of the work the court faces and the need for investigative and prosecutorial strategies that seek to deliver a meaningful measure of justice.

We recommend that you set out clearly the resources that will be necessary to support your investigative and prosecutorial strategies. In the past, the office has indicated that its limited number of cases is a measure of the office’s commitment to efficiency and signaled that an expansive prosecution policy would exponentially increase the court’s budget. While the number of cases before the ICC will always be limited as compared to the accountability needs in most situations—and hence the need for serious attention to complementarity—a too limited caseload risks undermining the delivery of credible and meaningful justice. We believe that setting out clearly the rationale for a more expansive prosecution policy and indicating as appropriate your office’s plans for each of the situations in the next years could help to shift states parties away from insistence on capping the court’s budget at its existing level.

Finally, while specific decisions about future investigations may need to be kept confidential, to the extent possible, we urge you to communicate with affected communities regarding the office’s plans in each situation.

Reinforcing the “One Court” principle

Following early concerns expressed by the assembly’s Committee on Budget and Finance and observers about division and a lack of coordination, the court’s organs committed themselves in 2004 to a “One Court” principle, giving priority to coordination between them while respecting the independence of each. While indeed the independence of the prosecutor and chambers must be respected, internal coordination is key to meeting the court’s responsibilities. This is so particularly where these responsibilities overlap or are interdependent, as in witness protection, outreach and communications, and field operations.

We urge you to signal from the outset your commitment and reinvestment in the “One Court” principle. Unfortunately, over the last nine years tensions and duplications rather than effective coordination have too often marked inter-organ relationships. In the context of increased scrutiny by states parties of the court’s budget and efficiency, an internal disorder—real or perceived—may detract from good progress in many areas. For the court to meet its mandate and the many challenges ahead, its organs should pull in the same direction to the extent this is consistent with the independence of each. The Office of the Prosecutor is not exclusively to blame, but we look to your leadership in this regard.

We recommend reviewing in particular coordination regarding the court’s impact in affected communities. This encompasses a range of activities and court presence in situation countries. Outreach and public information activities are particularly essential in this context for a variety of reasons, including to inform affected communities of court proceedings and the rights of individual victims and defendants, to provide a conduit for the views of affected communities to inform decision-making in The Hague, and to manage expectations regarding court activities, including in situations under analysis. But outreach and public information activities are also a key part of creating conditions conducive to the office’s activities, as well as those of defense and victims’ counsel, for example by distinguishing clearly between victim participants and witnesses and by addressing misperceptions that may undermine support for the court.

Under the outgoing prosecutor, the office has at times expressed an ambivalent or even antagonistic view about the outreach activities conducted by the registry, and coordination between the office and the registry on public information more broadly has been insufficient. As you may know, budgetary pressures are fraying a fragile understanding among states parties—hammered out as the court first became operational—about the importance of outreach and the court’s own public information activities, and this ambivalence or even antagonism has been cited by some states parties to justify limiting funding to these activities. We believe a strong signal about the importance and relevance your office attaches to outreach and public information would help to counteract efforts to reduce support to these core activities.  

Securing support and cooperation of the international community

It is axiomatic that the court relies on the cooperation of states parties and the broader international community in order to carry out its mandate. This cooperation includes technical assistance in investigations, prosecutions, and arrests, but it also extends to political backing for the court’s mandate, particularly in the face of competing political priorities. In its short life, the court has faced a number of challenges to securing this necessary support, including United States opposition in its earliest years and the ongoing backlash of some within the African Union following the court’s issuance of arrest warrants for President Omar al-Bashir of Sudan. Over the last year we have seen the court enter a particularly fragile period as its higher profile has attracted increased efforts to use the court for political ends—including in the Libya situation—rather than to support its work as an independent institution. This runs the real risk of inconstant cooperation if states decide an investigation or prosecution no longer suits their political interests.

Responsibility for increasing political and diplomatic support to the court should rest primarily with its states parties. At the same time, however, we believe that you and other court officials have a critical ongoing role as representatives of the court and that you can take some important steps in the early days of your term.

First, consistent with the “One Court” principle, we recommend that you seek to improve communication and coordination between chambers, the registry, and your office to secure cooperation, for example, to assist chambers with the implementation of their decisions including the execution of arrest warrants.

Second, we recommend that you ask the Assembly of States Parties in advance of the upcoming session in November 2012 to upgrade their attention to issues of cooperation. Although the assembly has made some progress in this regard—through Bureau reports and consultations within The Hague Working Group, as well as the recent establishment of procedures to address non-cooperation—cooperation has not yet been the subject of formal plenary debate within the assembly’s agenda. And rarely have cooperation discussions dealt with political backing in addition to technical assistance, even though many issues—including arrests—require both types of support. Neither has the Assembly acted on long-standing recommendations to establish a specific working group on cooperation, which would increase states parties’ capacity to tackle key cooperation challenges through exchange of best practices and formulating specific strategies. We believe that support from your office and a clear articulation of the cooperation challenges you see as you take up your position could encourage moves towards better equipping the assembly and states parties to address cooperation responsibilities.

Third, although considerable good work has been done over the last nine years to improve public information about the ICC, there are still significant gaps in understanding about the court including within the diplomatic community. This is particularly so as the court’s higher profile has brought it into contact with new constituencies, including in the Middle East and North Africa region. We see a continued and important need for your office, as part of court-wide efforts, to communicate effectively with the public and with the diplomatic community, including within influential regional organizations like the African Union. We have been encouraged by the efforts the court has made to carry out a number of regional seminars on the ICC in partnership with the Organisation internationale de la Francophonie, the Commonwealth, and the Arab League and would urge you to maintain your office’s support for such activities and to support requests for resources needed to facilitate court official participation.

Finally, the court should have many faces—its judges, its registrar, its field office staff, and its counsel representing defendants and victim participants, alongside its prosecutor. But it is often through the work of the Office of the Prosecutor that the public will first come into contact with the ICC. We urge you to take every opportunity—as you have so capably done in your position as deputy prosecutor—to convey the office’s judicial mandate and the importance you attach to the independent and impartial implementation of that mandate. We have found that the court’s unprincipled critics have often undermined the court’s work by trading in misinformation about this mandate and perceptions of political bias in the court’s work. Clearly signaling the court’s independence will provide the strongest platform from which to secure the broad and consistent support it needs. In this regard, we recommend that you consider whether appointing a spokesperson for the Office of the Prosecutor could assist you in conveying appropriate messages and timely information on behalf of the office.

Maintaining dialogue with civil society and maximizing impact in affected communities

An important legacy of the first elected principals of the court has been an open dialogue between the court, including the Office of the Prosecutor, and nongovernmental organizations. The semiannual roundtables held with nongovernmental organizations and court officials are emblematic of the unique channels of communication developed between the court and civil society, as have been the many consultations held by the office in the development of the policy documents and prosecutorial strategies that guide its work. In our view, an open dialogue with court officials has been essential to advancing a number of important, shared goals.

We hope that you will continue this dialogue with civil society. This dialogue should respect the independence of your office and its decision-making, and should also be frank where there are areas of genuine disagreement. For example, our mandate to support the ICC’s mission goes hand-in-hand with constructive criticism of court policies and practices. We make every effort to be fair in our evaluation of the court’s activities, and we hope you will understand that our observations and recommendations are aimed at bringing about change we believe is necessary to realize the court’s mission.

We would also urge you to consider how to expand the office’s dialogue with civil society and affected communities. As you develop a prosecutorial strategy for the coming period, for example, you could consider ensuring that there are opportunities to hear directly from affected communities in the court’s situations under investigation and analysis. We believe that maximizing the impact of your office’s investigations and prosecutions in affected communities is a goal shared between court officials and civil society. Victims and affected communities are first among the court’s many constituencies, and we urge you to take steps to give priority to their interests and concerns in the work of the office. As outlined above, this includes a focus in the selection of cases on charges representing underlying patterns of crimes, but it also extends to dialogue with affected communities. Including civil society from affected communities in your preparation of the next prosecutorial strategy would send an important signal from the outset of the priority you will place on maximizing the ICC’s impact in these communities.

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On behalf of Human Rights Watch, we once again extend our warmest congratulations on your election as ICC prosecutor. The ICC’s mandate to deliver justice for the world’s worst crimes is needed now more than ever, and your leadership will be essential to the court’s success in meeting this goal and the very high expectations the court now faces. We wish you every success in your new role and look forward to further discussion as to how we can best support the work of your office and the court.

Sincerely,

Richard Dicker

Director, International Justice Program

Elizabeth Evenson

Senior Counsel, International Justice Program