Office of the Prosecutor, International Criminal Court “[Draft] Strategic Plan for 2023-2025”

Human Rights Watch welcomes the opportunity to provide the following comments on the “(Draft) Strategic Plan for 2023-2025” (hereafter “draft Strategic Plan”) of the Office of the Prosecutor of the International Criminal Court (ICC).

The Office of the Prosecutor (OTP or Office), the Registry, the Trust Fund for Victims, and the court as a whole are aiming at four aligned strategic plans covering the period 2023-2025. These plans will be adopted at a critical juncture for the ICC and the Rome Statute system. The expansion of the armed conflict in Ukraine in 2022, and the opening of an ICC investigation there, highlights the central role of the court in the ecosystem of interconnected mechanisms working to provide justice for serious international crimes. At the same, the renewed attention to the ICC has also revealed the longstanding tension between the expectations of victims, affected communities, and other relevant stakeholders, and the resources available to the court to address those expectations. The Office of the Prosecutor has faced this dilemma for several years.[1] 

Given the importance of addressing this tension to ensure greater success in the court’s effective, independent, impartial, and meaningful delivery of justice, the comments below primarily focus on elements of the OTP’s draft Strategic Plan most closely aligned with this goal. In particular, they respectfully offer some observations on cross-cutting issues related to strategic goals 1, 2, and 3, based on our ongoing monitoring of the court’s functioning.

In addition, we welcome the emphasis the Office puts in the draft Strategic Plan on delivering results in the courtroom (strategic goal 1); strengthening investigations and prosecutions should be key objectives to ensure the court fully delivers on its mandate.

Finally, the draft Strategic Plan notes that the Office has requested an upcoming evaluation by the court’s Independent Oversight Mechanism of the Office’s previous strategic plan (2019-2021). The draft Strategic Plan further notes that the Office plans to produce yearly reports on its performance.[2] These assessments should provide a basis for the OTP to continually adapt its activities during the time period covered by the draft Strategic Plan and beyond.

Strategic goals 1, 2, and 3: Deliver results in the courtroom; Enhance efforts by national authorities to fight impunity; Justice is brought as close as possible to affected communities

1. Prioritization, strategic planning, and completions

The draft Strategic Plan states that “[t]he first condition for the Office to succeed is to define a realistic scope of operations and bring manageable cases.” Based on that, it outlines the Office’s intention to “prioritise situations and cases systematically and objectively, with the aim to reduce the existing scope, and to focus on the gravest crimes and the most realistic prospects of success while looking for every opportunity to enhance cooperation and complementarity with States and other stakeholders.”[3] The prosecutor has separately indicated an intention to "go deeper within a narrower range of situations.”[4]

A certain degree of prioritization will always be necessary. It also reflects a certain realism about the mismatch between the court’s workload and the resources available to it. Unfortunately, despite the increase approved by the Assembly of States Parties at its last session, the court’s budget is still far below what is necessary.

The Office (and the court as a whole) should continue to make the case to states parties for the resources necessary in the court’s annual program budget to support the effective delivery on its mandate. At the same time, the Office should take steps to avoid an over selective approach to completion of investigations, as well as the selection of lines of inquiry and cases within a situation.  

This is a challenging balance. The aim to “go deeper” aligns in certain respects with Human Rights Watch’s previous recommendation that bringing too few or too limited cases in each situation, without a clear vision of the change the court seeks to achieve by the time it completes its mandate, could frustrate its effective delivery of justice.[5] And yet, the prosecutor’s decision in the Afghanistan situation to de-prioritize the investigation of crimes allegedly committed by US and former Afghan government forces exemplifies the pitfalls of selectivity; we have seen in other ICC situations the devastating consequences when one-sided investigations are pursued, giving rise to perceptions of double-standards and a lack of independence that erodes the very notion of the rule of law.[6]

To address the tension between expectations, workload, and resources, and in light of the recent announcements by the Office of the completion of the investigative phase in the situations in the Central African Republic (CAR) and Georgia, the design and implementation of robust situation-specific completion strategies is crucial.[7] In this respect, we welcome the Office’s commitment to “manage every situation and case through careful and constant planning, reviews, and implementation of high standards,” including through situational, investigative, cooperation, and outreach plans.[8] This is in line with the findings and recommendations of the Independent Expert Review to improve the Office’s strategic decision-making, as previously endorsed by the court.[9] In relation to “Situation Plans,” the draft Strategic Plan clarifies that these are “overall plan[s] for each situation, including an outline of potential cases, timeline, required resources and anticipated completion targets and strategies” (emphasis added).[10]

Moving forward, completion strategies in particular should be developed on a court-wide basis and defined with respect to whether the court has achieved its mandate and under what conditions the court will be able to say it has done so. This primarily relates to whether the court has itself delivered impartial, independent, and meaningful justice. But it should also include a consideration of whether domestic authorities are ready to take over the court’s ongoing responsibilities of investigating and prosecuting Rome Statute crimes.[11] Our preliminary observations of the prosecutor’s recent announcements that investigative activities are now complete in the Georgia and Central African Republic situations, as well as the closure of the two preliminary examinations in Colombia and Guinea,[12] highlight the following important elements that should be included in the development of situation-specific completion strategies and their implementation.

• Robust investment in positive complementarity, including through effective cooperation with domestic authorities: The prosecutor’s vision of the Office as a hub for justice, rooted in dynamic complementarity and cooperation, is a clear priority, laid out in both the draft Strategic Plan as well as the Office’s annual report.[13]We have previously argued that in line with a conception of completion that is alive to consolidating the court’s legacy, “positive complementarity“ should be a key element of completion strategies.[14] However, based on our monitoring to date of the court’s engagement with domestic authorities, there are ongoing concerns that the Office’s implementation of  positive complementarity—rooted in a commitment to this principle dating back to the earliest years of the Office—still has quite a bit of room for progress in both CAR and Colombia.
  • Recent reporting has revealed that cooperation requests that were filed by the Special Criminal Court (SCC) with the OTP in 2021 were left effectively unanswered for over a year.[15] In one of these news reports, an SCC investigative magistrate said that there is “enormous potential for collaboration with the ICC, but almost nothing in practice.”[16] On the other hand, the SCC president was recently quoted as indicating a positive evolution, including that a group of SCC judges received information from the Office during a trip to The Hague during the annual Assembly of States Parties session in December.[17]
  • In the Colombia situation, in interviews with Human Rights Watch, several civil society group members lamented the lack of information on the implementation of the cooperation agreement between the Office of the Prosecutor and the Colombian government.[18] One contact referred to the agreement as lacking teeth and undermining the leverage the Office previously had.[19]

While these are only preliminary indications based on our monitoring to date, and the Office continues to engage in both country situations, it suggests the need to have clearer strategies in place prior to announcing the completion of key phases of the Office’s work. The Key Performance Indicators (KPI) in the draft Strategic Plan specifically geared toward improving the Office’s cooperation with domestic authorities could provide useful benchmarks to strengthen this important aspect of the Office’s work.[20]

• Genuine engagement with victims and affected communities: Strategic goal 3 includes the Office’s commitment to enhance outreach with affected communities.[21] This is key to ensure that those most affected by the Office’s decisions, including those related to the completion of its investigative or preliminary examination activities, better understand them and have the opportunity to share their views before decisions are made. Situation-specific completion strategies should be the product of broad consultations with stakeholders in the situation country, particularly civil society groups and victims.[22] To the best of our knowledge, the Office did not consult specifically on the completion of investigative activities with victims and affected communities in CAR and Georgia.[23] Unfortunately, this has left a vacuum of information and unanswered questions.
  • In Georgia, our monitoring of Georgian media revealed that some government officials and opposition figures interpreted the fact that the Office decided to close the investigation phase in the situation without arrest warrants against Georgian soldiers or commanders as a sign that Georgian forces did not commit any crimes during the 2008 Georgia-Russia conflict.[24]
  • In CAR, Human Rights Watch interviews with a justice official indicated a lack of understanding even among professionals involved in the work of the ICC of what the decision means in practice.[25]
  • Similarly, representatives of civil society organizations interviewed by Human Rights Watch in Colombia have pointed to a lack of information from the Office in the lead up and after the closing of the preliminary examination.[26] One representative said that during the last visit from the Office in October 2022, civil society groups were told about “effective complementarity” but it was not clear what it was and how it applied to the Colombian context. They were also told that the Office would continue to document some cases, without further information as to how and for what purpose.[27]

• Consultation with the other organs of the court: Consultation and coordination with different organs of the court in the development of situation-specific completion strategies is crucial, particularly in view of the role these strategies can play in informing a court-wide approach to completion.[28] While the Office may complete the investigation phase in a situation, the court’s work is far from over and it will be key for the Office to work closely with the Registry in particular to manage expectations of affected communities and explain the impact of completion through effective outreach. Strategic goal 10 of the court-wide draft Strategic Plan aims at “[b]uilding upon a strategy for the completion of situations under investigation.” Unfortunately, the language used to describe the goal is vague and coupled with Key Performance Indicators that only relate to the Office of the Prosecutor, does not clarify the Court’s plan to “finalise and roll-out the Completion Strategy.”[29] It would be helpful to know to what extent the Office engaged with the other organs of the court in the decision to conclude investigative activities in CAR and Georgia.

2. Reliance on secondment of personnel and voluntary contributions as a funding model

The draft Strategic Plan refers to the secondment of personnel to the Office of the Prosecutor as offering “an additional important opportunity to exchange knowledge and assist in refining operating practices. Conversely, the secondment will contribute to the transfer of knowledge and experience, and to develop relationships that continue to strengthen the Rome System after the secondment has come to an end.”[30] It further explains how the development of a system of rotation of seconded forensic experts, as tested in the situation in Ukraine, can benefit the Office as well as the assisted and contributing countries.[31]

This exchange of expertise can be beneficial to the different parties involved. Human Rights Watch remains concerned, however, that the Office risks becoming too reliant on seconded personnel. Voluntary contributions are not a sustainable funding model as they depend on states’ fluctuating political will. At the same time, they may raise concerns in terms of perceptions of independence, particularly when the public messaging around them by seconding governments links the contributions to specific situations, as has been the case for Ukraine. [32]