It’s Complicated: The ICC Prosecutor’s Office and the Need for Reform

In December 2019, the Assembly of States Parties to the International Criminal Court (ICC) established a comprehensive ICC review process and invited various stakeholders to make submissions on issues under the mandate of the review. This blog is part of a series highlighting recommendations the Open Society Justice Initiative is making to the Group of Independent Experts, Assembly of States Parties, and ICC as the review process continues throughout 2020 and beyond.

The Open Society Justice Initiative is concerned about the limited impact of International Criminal Court (ICC) investigations and prosecutions. Judges frequently criticize the quality of investigations. The court has faced limited cooperation and, more recently, political attacks from major powers. Civil society groups and affected communities have expressed disappointment in the court’s work and frustration at their lack of genuine involvement in ICC processes. As part of its efforts to help strengthen the ICC and encourage the review process, the Justice Initiative held a number of convenings and provided input to the Group of Independent Experts. To support the review of preliminary examinations, investigations and prosecutions, we organized a two-day expert workshop in March 2020, “Improving the Operations of the ICC Office of the Prosecutor: Reappraisal of Norms, Structures, and Practices,” together with the Amsterdam Center for International Law at the University of Amsterdam. The full workshop report with recommendations is available here.

We designed the workshop to bring in new and creative thinking from 39 international practitioners and experts with experience in investigating and prosecuting international crimes and/or monitoring such proceedings. Members of the Office of the Prosecutor (OTP) also joined and explained their current practices, engaging constructively in the discussion on future directions for the OTP.

While the Justice Initiative believes in the institution and lauds the many accomplishments of the OTP, the conversation during the workshop was deliberately critical and reflective, grounded in the concrete, observable effects of investigation and trial practice. The workshop tackled entrenched problems that have occurred repeatedly over the course of the 18 years of the court’s operation. We recognize that the OTP has progressed in some areas critiqued by the report. However, given the limited number of new cases in recent years, experts cannot yet assess whether new policies will result in stronger investigations, trials, outreach, or overall performance. The workshop was intentionally focused on taking a fresh look at the demonstrated impacts of the OTP’s approach to date, with the aim of generating innovative thinking and helpful recommendations.

Investigating and prosecuting mass atrocities is a complicated endeavor. In addition to significant resources, cooperation, and political support, it requires an Office of the Prosecutor with strong leadership, a healthy work environment, and technical proficiency. Based on our pre-workshop consultations and discussions during the workshop, we strongly recommend attention to 10 areas of pressing concern:

  1. Take advantage of timing and opportunity. Now is the time for fundamental changes within the ICC, and more specifically, the OTP. More “tinkering” within existing structures and approaches will not produce the major changes necessary to affirm and strengthen the ICC’s legitimacy and ability to fulfill its mandate.
  2. Address gaps in leadership, managerial, and technical skills. The OTP is staffed with a significant number of experienced and competent people. At the same time, there is insufficient accountability for under-performance. Low staff turnover (in part due to generous tax-free pay and benefits, which tend to keep staff from voluntarily leaving their jobs) combined with few opportunities for promotion lead to a stagnant staff. In some cases, staff do not appear to have the necessary skills or experience for the positions they fill. Suggested steps for making the necessary changes include:
    • Assess requisite skills for each position and whether those align with the skills and experience of existing staff, especially at the highest levels.
    • Based on the above and meaningful performance reviews, consider dismissing or negotiating staff departures.
    • Subject professional staff to term limits. Increased turnover would reinvigorate management and improve general mobility and opportunities for promotion across the office.
    • Foster the development of leadership skills at all levels of the OTP.
  3. Build or augment staff capacity. Fill gaps in staff skills or needs for particular cases through temporary secondments or short-term hires from a roster of experts. The OTP should consider using fewer long-term contracts and instead hire staff for specific cases or investigations. This would allow the OTP to bring in personnel with particular sets of skills, such as linguistic or regional knowledge, for the limited duration of a specific case. In addition, regular, mandatory, in-person capacity building should be implemented for personnel at all levels of the OTP on diversity and gender sensitivity, sexual and gender-based crimes (SGBC), management and leadership skills, and investigation skills, among other topics.
  4. Foster a more supportive, diverse, and ethical workplace. The pervasive toxic office culture within the OTP must change. Although there have been improvements, reported instances of harassment and bullying are still concerning, and detract from the OTP’s ability to fulfill its mandate. Morale is low, and staff face extremely difficult workloads and stress in the face of budget restrictions and increased caseloads. The OTP must take concrete steps to provide a safe, open atmosphere where staff can speak up with honesty and without fear of repercussions. Barriers to reporting harassment and bullying, including for widespread microaggressions, inappropriate comments, and other unacceptable behaviors, must be removed.
  5. Transform the OTP’s approach to outreach, communications, and engagement. These issues are intersectional and critical to the success of investigations and trials, legitimacy, complementarity, and legacy. Specifically, the OTP should:
    • Reconceptualize communications and outreach as essential tools for fulfilling its mandate, rather than a public relations exercise. This includes integrating community engagement as a fundamental cornerstone of the investigation strategy.
    • Prioritize field-based investigations and, security conditions permitting, maintain a consistent presence in situations with ongoing investigations. In doing so, the OTP must give investigators and field-staff more autonomy and end the monopolization of decision-making and policy orientation in The Hague.
    • Engage with local communities and stakeholders from its initial involvement in a situation in a transparent way that meaningfully involves non-experts. This requires discontinuing patronizing and top-down outreach and communications practices.
  6. Conduct a separate review of the Investigation Division (ID). The OTP should take additional measures to ensure that it recruits and hires experienced criminal investigators. The Prosecutor should assess whether ID senior management possess the requisite skills for their roles, and if not, should be authorized to replace staff, including the Head of the Division and Heads of Sections. The Head of the Investigations Division should have operational experience in matters such as arrests, search and seizure operations, and other investigative techniques. Existing staff should be subject to mandatory in-person training and capacity-building courses in investigation techniques.
  7. Strengthen the practices and protocols in investigating Sexual and Gender-Based Crimes. While the OTP has made some improvements in investigating and charging SGBC, much still needs to be done. Individual staff members have too much authority and influence in deciding whether to investigate or charge SGBC. Teams do not sufficiently draw on the readily available in-house expertise in the Gender and Children Unit. The staff’s SGBC capacity must be strengthened, especially regarding the nature of SGBC and the gendered nature of other crimes. In addition, more must be done to expand investigation and trial practices to include SGBC against men and boys.
  8. Improve the transparency and efficiency of Preliminary Examinations (PEs). Excessively long, lethargic PEs are a significant problem. As the OTP considers how to address PE duration and related resource challenges, it must adopt a flexible approach that considers the relevant context and changing dynamics on the ground. It must also exploit opportunities to help advance domestic proceedings whenever possible.
  9. Evaluate “completion” strategies with complementarity as a guiding principle. With investigations open in 12 countries and at least eight ongoing preliminary examinations, the OTP is under pressure to wrap up work in various situations. In deciding on its completion approach, the OTP must conduct broad consultations with affected communities and design context-specific strategies. Any completion strategy must also support and foster complementarity and be flexible enough to avoid political manipulation.
  10. Bolster the Prosecutor’s political savvy and seek political support. The OTP should urge the ASP, individual States Parties, and other bodies such as the EU to robustly oppose political pressure and accelerate their support of the ICC at crucial moments. The Prosecutor should be more publicly open about political pressure and directly seek support from the ASP. The Prosecutor must be able to execute a well-informed political strategy while scrupulously maintaining independence.

The OTP has responded to these and other recommendations in the workshop report.

The ICC review and upcoming election of a new ICC Prosecutor provide a key opportunity to strengthen investigations and prosecutions and reinforce the court’s impact. As a critical part of the global ecosystem to challenging impunity, the ICC must seize this moment; the impact of its failure to do so will be felt across the world.

Jennifer Easterday is an independent consultant for the Open Society Justice Initiative. She has extensive experience working on issues of international justice, peace-building, and technology and human rights. Follow her on Twitter: @jeasterday.