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Taking the Opportunity: Prosecutorial Opportunism, Case Selection, and the International Criminal Court Mark Kersten1 The decision to prosecute some international criminals but not others has captured the imagination of scholars, observers and communities affected by atrocity since the very onset of the international criminal justice project. Today, it is common to ask: why do prosecutors at the International Criminal Court (ICC) pursue the investigation and the cases that they do? This may seem like an overly-simplistic query but, with “thousands of crimes and perpetrators within its jurisdiction”, this question — and its battery of proffered answers — has caused “much unease”.2 Despite a growing global demand for accountability for international crimes, the ICC has managed to charge just a handful of perpetrators. In some cases, this is due to limitations on the territorial and / or personal jurisdiction of the Court or the resources available to prosecutors.3 But in others, it is not. In situations in which the ICC has intervened and there is evidence of systematic and widespread atrocities, the Court has only charged a tiny fraction of perpetrators and, typically, only one side of a given conflict. So, what, then, makes ICC prosecutors decide to open specific investigations and target certain perpetrators and not others? A rigidly legal hypothesis would suggest that there is an exceedingly straightforward answer to this question: prosecutors open investigations and identify targets when and where they have sufficient evidence. A common refrain of the ICC Prosecutor is that only the law of the Rome Statute guides the Office of the Prosecutor’s (OTP) decision-making. One could qualify this further by suggesting that, over the first decade-and-a-half of the ICC’s existence, what counts as sufficient evidence has changed. Under the tenure of the Court’s first chief Prosecutor Luis Moreno-Ocampo, arrest warrants were requested when there was sufficient evidence to meet the evidentiary thresholds necessary for an arrest warrant to be issued by judges. More recently, under current chief Prosecutor Fatou Bensouda, the OTP has shifted its prosecutorial strategy, seeking to complete investigations into cases and confirm charges when evidence against potential targets is as “trial ready” as possible.4 In either case, a narrowly legal approach would suggest that, whether specific individuals were targeted, or investigations were opened or not, is entirely and solely a question of the evidence available to prosecutors. A more nuanced hypothesis, one which locates ICC decision-making at the confluence of international law and politics, would suggest that ICC selectivity is in fact strategic. The ICC may justify its decisions through legal terminology and jargon, but it ultimately targets (or does not target) specific perpetrators or opens investigations (or not) following the identification of Fellow, Munk School of Global Affairs and Deputy Director, Wayamo Foundation. E-mail: mark.s.kersten@gmail.com 2 Goldston, James A., More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court, Journal of International Criminal Justice, Vol.8, Iss.2, (2010), pp.383–406. 3 In the absence of a United Nations Security Council referral, for example, the ICC cannot investigate alleged atrocities committed in Syria or North Korea. 4 See, e.g., International Criminal Court, Office of the Prosecutor, Strategic plan June 2012-2015, (11 October 2013), p.6 1 Kersten Draft Page 1 of 24 prosecutorial opportunities.5 These are defined by more than simply the accumulation of sufficient evidence for an arrest warrant or successful trial. A description of the ICC as “political” in this context is not a criticism, but rather an assessment of the court as an international organization – and not solely a criminal court – with political interests and agency. In this context, the OTP’s decisions are an expression of a negotiation between the institutional interests of the Court and the political interests of the actors, particularly states, on which the Court depends. The core contention of this paper is that this negotiation of the ICC’s institutional interests produces prosecutorial opportunities whereby situations are identified for investigation and targets are selected for prosecution based on whether their selection will further the Court’s institutional interests. The theory of prosecutorial opportunism outlined here holds true for both ‘good’ cases for the ICC as well as ‘bad’ cases. The chapter demonstrates this through the an assessment of two empirical cases: 1) the unsuccessful cases brought against Kenyan political leaders, particularly Uhuru Kenyatta and William Ruto, for crimes against humanity during Kenya’s 2007-08 postelection violence; and 2) the surrender and prosecution of Ahmad al-Faqi al-Mahdi for the destruction of religious sites in Timbuktu, Mali and the subsequent surrender of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (hereafter “Al Hassan”) to the Court. Through the case of the ICC’s intervention in northern Uganda and the surrender of Dominic Ongwen, the chapter also show how states can manipulate OTP prosecutorial opportunism in order to satisfy their own interests. It therefore argues that the ICC must continuously work to ensure that the expression of its institutional interests is not entirely predictable. First, however, the chapter outlines the ICC’s institutional interests and describes how these determine prosecutorial opportunities within the OTP. See Kersten, Mark, Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace, (Oxford University Press, 2016), pp.162-184; See also Schabas, William A., Unimaginable Atrocities – Justice, Politics, and Rights at the War Crimes Tribunals, (UK: Oxford University Press, 2012), p.89. 5 Kersten Draft Page 2 of 24 I. Towards a Theory of Prosecutorial Opportunism Much attention has been paid to the role of the ICC Prosecutor’s “prosecutorial discretion” in affecting and guiding OTP decision-making — and rightly so.6 Prosecutorial discretion goes to the very heart of the Prosecutor’s ability to act independently of the prerogatives of states and the UN Security Council.7 Broadly, prosecutorial discretion applies both the situations and the specific cases the prosecutor seeks to investigate and prosecute. As the cornerstone of the Prosecutor’s independence, prosecutorial discretion was designed to act as a buffer between the potential political influence of states and the decisions of the Prosecutor, preventing any political influence on the OTP’s selection of situations and cases. While some states and groups praise this prosecutorial independence as ground-breaking and central to the raison d’être of the Court, others, notably the United States, have historically expressed fears that the independence of prosecutorial decision-making would result in a maverick Prosecutor pursuing highly politicized investigations and prosecutions.8 However, as the analysis below makes clear, the ICC Prosecutor can neither act in a fully independent manner of the political actors upon which the institution depends, nor is OTP decision-making a mere reflection of the interests of states. Reality, as it so often does, falls between these extremes. Prosecutorial discretion is practiced through a negotiation of the ICC’s institutional interests and the interests of political actors upon which the Court relies. It should be stressed that the Prosecutor has no obligation to target all actors who may have perpetrated crimes under the ICC’s jurisdiction – even those sufficiently grave to justify ICC scrutiny.9 As the OTP notes, doing so would be “both practically unfeasible and run counter to the notion of complementary action at the international and national level”.10 Despite greater transparency in recent years, as demonstrated through the OTP’s Policy Paper on Case Selection and Prioritisation and its yearly reports on preliminary examinations, the precise contours of prosecutorial discretion and how it is exercised remain somewhat, and perhaps purposefully, vague. The OTP has few obligations to fully explain the terms of the See, e.g., Brubacher, Matthew R., Prosecutorial Discretion within the International Criminal Court, Journal of International Criminal Justice, Vol.2, Iss.1, (2004), pp.71–95; Schabas, William A., Prosecutorial Discretion v. Judicial Activism at the International Criminal Court, Journal of International Criminal Justice, Vol.6, Iss.4, (2008), pp.731–761; Davis, Cale, Political Considerations in Prosecutorial Discretion at the International Criminal Court, International Criminal Law Review, Vol.15, Iss.1, pp.170187 7 See Glasius, Marlies, The International Criminal Court – A Global Civil Society Achievement, (UK: Routledge, 2006). 8 On the US-ICC relationship, see Bosco, David, Rough Justice – The International Criminal Court in a World of Power, (US: Oxford University Press, 2014); see also Schabas, William A., United States Hostility to the International Criminal Court: It's All About the Security Council, European Journal of International Law, (2004), Vol.15, No.4, pp.701-720; Ralph, Jason, Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society, (UK: Oxford University Press, 2007). 9 Akande, Dapo, Is There Still a Need for Guidelines for the Exercise of ICC Prosecutorial Discretion?, EJIL: Talk!, (28 October 2009), at http://www.ejiltalk.org/is-there-still-a-need-for-guidelines-for-theexercise-of-icc-prosecutorial-discretion/ 10 International Criminal Court, Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, (15 September 2016), p.4 6 Kersten Draft Page 3 of 24 prosecutorial discretion it practices. This is, of course, especially true for situations and individuals not selected for investigation or prosecution.11 While the OTP must explain a decision to close a preliminary examination, as it has done in the case of Iraq and Honduras, it generally does not explain its decision not to pursue particular situations or cases for investigation that are otherwise under its jurisdiction.12 Indeed, it has only tended to do so in highly charged situations where public interest is high. Reacting to widespread allegations that the Court showed bias in only targeted members of the Lord’s Resistance Army and not Ugandan government officials or members of the Ugandan People’s Defence Forces in northern Uganda, former ICC Prosecutor Luis Moreno-Ocampo argued that the latter’s crimes were not of sufficient gravity and that many of the UPDF’s alleged crimes were committed outside of the Court’s temporal jurisdiction, i.e. prior to 1 July 2002.13 More recently, Bensouda took the unprecedented step of explaining that, while the ICC has personal jurisdiction over some foreign combatants that have fought for the Islamic State, those individuals did not warrant ICC investigation because they were not “those most responsible for mass crimes.”14 While it is only one criteria that must be satisfied in order to open an investigation, the OTP relies heavily on the “gravity” of alleged crimes to justify its decision-making with regards to case selection. As the OTP’s Policy Paper on Case Selection and Prioritisation states, the gravity of the alleged crimes is “the predominant case selection criteria adopted by the Office”.15 As Margaret deGuzman observes, “the Prosecutor’s discretionary use of relative gravity strongly affects perceptions of the Court’s legitimacy”.16 However, some believe that there has been little legal consistency and coherency in the reasoning behind discretionary actions in the OTP. William Schabas, for example, writes that [t]he gravity language strikes the observer as little more than obfuscation, a laboured attempt to make the determinations look more judicial than they really are…They have undoubtedly convinced themselves that they have found a legalistic formula enabling Schabas writes that “But although it is not too difficult to explain with objective criteria the justification with respect to situations where the prosecutor chooses to act, the same cannot be said for the situations that are not selected.” Schabas, William, Selecting Situations and Cases, in Carsten Stahn (ed.), The Law and Practice of the International Criminal Court, (UK: Oxford University Press, 2015), p.373 12 It is also noteworthy that a number of situations, such as Colombia and Afghanistan, have resided in the preliminary examination stage for over a decade, suggesting that the OTP is hesitant to close preliminary examinations. For a comprehensive assessment of preliminary examinations, see Bergsmo, Morten, and Carsten Stahn (eds.), Quality Control in Preliminary Examination, Volumes 1 and 2, (Belgium: Torkel Opsahl Academic EPublisher Brussels) 13 See International Criminal Court, Statement by the Chief Prosecutor on the Uganda Arrest Warrants, (14 October 2005), available at https://www.icc-cpi.int/nr/rdonlyres/3255817D-fd00-4072-9F58fdb869F9B7cf/143834/lmo_20051014_English1.pdf 14 International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the alleged crimes committed by ISIS, (8 April 2015), at https://www.icccpi.int/Pages/item.aspx?name=otp-stat-08-04-2015-1 15 International Criminal Court (2016), p.4. 16 deGuzman, Margaret M., Gravity and the Legitimacy of the International Criminal Court, Fordham International Law Journal, Vol. 32, Iss.5, (2008), p.1404 11 Kersten Draft Page 4 of 24 themselves to do the impossible, namely, to take a political decision while making it look judicial.17 Taking discretionary measures influenced by both political and legal factors, however, need not be seen as doing “the impossible”. On the contrary, it seems implausible and unrealistic to expect the Court not to take into consideration political factors in exercising prosecutorial discretion. As an international organization, the Court must function in a manner that will ensure that it is — and is seen to be — an effective and relevant institution. It must also act in a manner that preserves itself. Before elaborating the institutional interests informing OTP decision-making, it is important to recall the limitations of the Court, as these themselves shape the decisions that prosecutors can make and thus to prosecutorial opportunities they identify. Most notably, the ICC does not have a ‘police force’ to enforce its warrants. It thus relies entirely on the political will of states to ensure that suspects charged by prosecutors are surrendered to the ICC. The Court’s political dependency on states goes farther. As Alex Whiting writes: “international criminal prosecutors lack both investigate tools and a reliable political constituency supporting them. They are entirely dependent on state cooperation to conduct investigations, build case[s], and effectuate arrests.”18 Whiting adds that such cooperation is “eratic” and therefore that “while the OTP depends countries will generally provide genuine cooperation only when they determine that it is in their interest to do so, either because it advances national goals or because influential outside countries make cooperation a priority.”19 This negotiation between politics and law colours the decisions that ICC investigators prosecutors can and, arguably, should make. When the political interests of states — and statebased actors like the United Nations Security Council — overlap with the institutional interests of the Court, a prosecutorial opportunity arises. I.i. Between a Court and an International Organization — The ICC and Institutional Interests There has been a growing acknowledgement that the ICC expresses institutional agency.20 Like other international organizations, the Court is more law-based than a vector for state interests, as realist scholars of international relations might suppose, and yet also more political than a criminal court, as legalists would assert. Its actions must align not only with the legal mandate it receives from the Rome Statute; it must also make decisions that further, or at the very least protect, its own institutional interests. As such, it is no different from its institutional cousins like the United Nations, which makes decisions based on not only on its lofty goals and Schabas (2012), p.89; Schabas also asserts: “Gravity provides the prosecutor with a seemingly objective but ultimately an extraordinarily subjective standard.” See Schabas (2015), p.380 18 Whiting, Alex, Investigations and Institutional Imperatives at the International Criminal Court, in Minow, Martha, C. Cora True-Frost, and Alex Whiting (eds.), The First Global Prosecutor – Promise and Constraints, (University of Michigan Press, 2015) pp.129. 19 Ibid., 132 20 See Bosco (2014); Kersten (2016) 17 Kersten Draft Page 5 of 24 humanitarian mandate but to avoid ‘losses’ and chalk up ‘wins’ that advance its standing and credibility.21 The ICC has three broad and interrelated institutional interests that it must consider.22 These interests pertain to and inform the global public of the ICC’s effectiveness, legitimacy, and relevance. The first institutional interest of the Court pertains to the attainment of sufficient cooperation from relevant actors in order to build cases that can lead to the issuance of arrest warrants, summonses and, ultimately, convictions. These actors include states, other international organizations such as the UN Security Council, and civil society organizations. As the OTP itself notes, it will prioritize cases based on levels of “international cooperation and judicial assistance to support the Office’s activities”.23 This includes: being granted access to the locus of atrocity in order to collect evidence; receiving necessary security in order to operate on the ground in situations under investigation; being able to access other locations where potential victims and witnesses reside; receiving cooperation in protecting witnesses from harassment, intimidation, or violence; and conducting outreach activities.24 The second institutional interest relates to the OTP’s ability to guarantee sufficient cooperation in order to ensure that arrest warrants issued by the Court are enforced. According to the OTP, “the Office focuses on cases in which it appears that it can conduct an effective and successful investigation leading to a prosecution with a reasonable prospect of conviction.”25 Here, it is notable that the early years of the ICC’s existence were characterized by insecurity as to whether perpetrators would be surrendered to The Hague. Former ICC Judge and President Sang-Hyun Song has stated that “even the judges first appointed in 2003 were unsure that the Court could survive the skepticism and hostilities. Privately some judges suggested that it could collapse within a couple of years.”26 There is nothing more that would threaten the standing of the Court than a regularly empty docket. While the first and second institutional interests of the Court both pertain to cooperation, it is important not to conflate them. Cooperation that can lead to the enforcement of arrest warrants requires different and generally more coercive forms of influence and power than cooperation required to open investigations and have arrest warrants issued. The Court’s record to date and its outstanding arrest warrants suggest that states are often willing to support the ICC in building cases that lead to the issuance of arrest warrants but are less interested in ensuring that they are subsequently enforced. Indeed, a key feature of the ICC’s current struggles, as well as the See Barnett, Michael, Eyewtiness to a Genocide – The United Nations and Rwanda, (USA: Cornell University Press, 2003), pp.47-48. 22 Goldston proposes other factors that determine “whether, where, whom, what and when to charge”: prospects of arrest; state cooperation; peace; perception of the Court legitimacy and relevance; perception of the Court - impartiality; and highlighting particular crimes. See Goldstone (2010). 23 International Criminal Court (2016), p.17 24 Some of these are outlined in the Strategy: “the Office’s capacity to effectively conduct the necessary investigations within a reasonable period of time, including the security situation in the area where the Office is planning to operate or where persons cooperating with the Office reside, and the Court’s ability to protect persons from risks that might arise from their interaction with the Office”. Ibid. 25 Ibid., p.9 26 See Kersten (2016), p.6 21 Kersten Draft Page 6 of 24 criticism levied against the Court, can be said to be the disjuncture between the provision of these two forms of cooperation. The third institutional interest of the ICC pertains to its reputation as a relevant institution in global politics. The Court has an interest in presenting itself as a relevant actor in addressing those crimes that fall under its jurisdiction and which galvanize widespread international interest and condemnation. The Office will thus not only focus only on grave crimes but, in a sense, popularly grave crimes. Moreover, according to the OTP, it pays “particular attention to crimes that have been traditionally under-prosecuted, such as crimes against or affecting children as well as rape and other sexual and gender-based crimes. It will also pay particular attention to attacks against cultural, religious, historical and other protected objects as well as against humanitarian and peacekeeping personnel.”27 Prosecutorial opportunism requires that the OTP calculate the relative benefits that certain decisions will accrue in satisfying these three institutional interests. Prosecutorial opportunities will arise when the Office discerns that pursuing a particular investigation or case will result in its institutional interests being served. This does not mean that the OTP elevates its institutional interests above the aim of meting justice. The best-case scenario for the OTP is to target a notorious perpetrator who has committed a globally condemned atrocity, have that individual surrendered as a result of efficient and effective cooperation, successfully prosecuting them, and capturing the global public’s imagination in the process. This is easier said than done, of course. The Court’s institutional interests can’t be siloed and the Office’s ability to satisfy them may change as the prerogatives of political actors change. What may initially appear to be a ‘winning’ prosecutorial opportunity may, for reasons out of the OTP’s control, later lead to a ‘loss’, as will be explored in the Kenya cases. Moreover, the satisfaction of one institutional interest may be much stronger than another. For example, the reputational benefits of intervening in a particular conflict may be low as global knowledge of the crimes and perpetrators is poor, but the chance of having perpetrators surrendered and convicted is high, thus bolstering the reputation of the Court. The ICC’s interventions in the Côte d’Ivoire is a good example of this. Compared to the likes of Sudan’s Omar al-Bashir, Libya’s Muammar Gaddafi, or Joseph Kony of the Lord’s Resistance Army, it is uncontroversial to suggest that the global public’s knowledge of the post-election violence in Côte d’Ivoire was relatively low when Laurent Gbagbo was surrendered to the ICC. But the ICC can now say that the former President of the Côte d’Ivoire is on trial at the ICC, the highest ranking figure to be prosecuted at the Court. Weighing the relative benefits of satisfying the Court’s institutional interests is no easy task. Decisions must be made at cross-sections of time. However, the institutional interests of the Court will also inform not only whether the OTP seeks to open an official investigation or issue an arrest warrant, but also how it does so. One particularly clear example of this was the decision by Moreno-Ocampo to publicly announce that he was seeking a warrant to be issued for al-Bashir for atrocities committed in Darfur, rather than have it issued under seal. There was some debate within the OTP as to whether a sealed warrant would be more likely to result in alBashir’s arrest and, thus, surrender to the ICC. Those who argued for a sealed warrant prioritized what they saw as the greater likelihood of cooperation arising from the warrant being issued in secret. As Rebecca Hamilton writes, “[a] warrant issued secretly would have meant 27 International Criminal Court (2016), p.17 Kersten Draft Page 7 of 24 that al-Bashir would have continued to travel unaware to states more likely to execute the warrant than Sudan. Instead, with the prosecutor’s intentions publicly known, al-Bashir could avoid traveling to states that might actually arrest him.”28 Ultimately, the Prosecutor opted for a public warrant to be issued won. Issuing an arrest warrant secretly would risk potentially destabilize Sudan, with its President running the country one day, and in The Hague the next. It would also risk giving the Court the appearance of secretly conspiring to achieve regime change. The ICC’s relationship between cosmopolitan law and the sensitivities of state sovereignty is constantly in negotiation within practices of the ICC, which has to find a delicate balancing act between achieving justice for those “most responsible” for mass atrocities and not playing roughshod with the sovereignty of states, especially those it relies on. The Bashir warrant decision is illustrative of a Prosecutor struggling to satisfy the institutional interests of achieving the potential enforcement of an arrest warrant and the global reputation of the Court. Of course, irrespective of the OTP’s decision-making at the time, no one allegedly responsible for atrocities in Darfur has been convicted at the ICC, nor have the Court’s investigators ever stepped foot on the Sudanese territory more than 10 years since the Darfur investigation was opened. I.ii. The Selective Outcomes of Negotiated Interests An evident, and for many troubling, outcome of the negotiation of the ICC’s institutional interests with the interests of those state actors upon which the Court depends has been the OTP’s highly asymmetrical attribution of criminal responsibility in the situations in which it has intervened.29 In cases of self-referrals, the OTP has exclusively focused on non-state actors and the self-referring-government’s political adversaries. Following referrals from the UN Security Council, the Office has primarily targeted government officials.30 In light of the ICC’s institutional interests, however, the reason for this asymmetry is relatively straightforward — if not unproblematic. The OTP relies on the referring government to satisfy its cooperation interests. In the case of self-referring governments, the Court targeting state actors would result in the evaporation of any form of cooperation and thus diminish any chance of seeing any actors in the dock to face prosecution. In the case of Security Council referrals, the OTP relies on the Council’s members and allies for cooperation to build cases and see suspects surrendered to the Court. That too would evaporate if the Court targeted those the Council acted in support of. The Office’s apparent position on the matter is to prosecute one side and then, maybe, the other. It seeks to avoid making perfect justice the enemy of any justice.31 Hamilton, Rebecca, Fighting for Darfur: Public Action and the Struggle to Stop Genocide, (US: Palgrave Macmillan, 2011), p.160 29 See Tiemessen, Alana, The International Criminal Court and the Politics of Prosecutions, The International Journal of Human Rights, (2014), Vol.18, Nos. 4-5, pp.444-461; Kersten (2016)s, pp.163172 30 Ibid.; Rodman, Kenneth A., Justice as a Dialogue Between Law and Politics Embedding the International Criminal Court within Conflict Management and Peacebuilding, Journal of International Criminal Justice, (2014), pp.1-33 31 This has also been referred to as prosecutorial “pragmatism”. See Clark, Phil, Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda, in Waddell, Nicholas and Phil Clark (eds.), Courting Conflict? Justice, Peace and the ICC in Africa, (UK: Royal African Society, March 2008), pp.37-45. 28 Kersten Draft Page 8 of 24 Managing the ICC’s institutional interests is no easy task. There are times when a prosecutorial opportunity presents itself and leads to the successful surrender and prosecution of a perpetrator in such a way that the interests of the Court are generally satisfied. In other cases, changing political situations lead the OTP to mis-fire and mis-judge the existence of a prosecutorial opportunity. At the same time, states can take advantage of the Court’s institutional interests to satisfy their own. The following three sections delve into each of these possibilities. Kersten Draft Page 9 of 24 II. Miscalculated Prosecutorial Opportunism: The ICC Intervention in Kenya In 2010, ICC investigators began their probe into alleged crimes against humanity perpetrated following the 2007 general elections in Kenya, marking the first time that the OTP had initiated an investigation via the Prosecutor’s proprio motu powers. At the time, the OTP believed that domestic and international cooperation would be high, permitting the Court to pursue both sides responsible for the alleged crimes against humanity perpetrated following the 2007 Presidential elections. However, by 2016, every one of the cases brought forward by the OTP had been dismissed or had collapsed. An intervention that was thus unprecedented in both how it was initiated and for the fact that it led to the prosecution of both sides, eventually emerged as unprecedented for that fact that every case brought forward by the OTP had failed. How did the Office miscalculate this once seemingly golden prosecutorial opportunity? II.i Intervention in Kenya — An Unprecedented Opportunity to Change the Narrative Initially, the International Criminal Court’s intervention in Kenya presented itself as a unique opportunity. It was unlike any of the other situations in which it had intervened. Kenya was a largely stable, democratic polity.32 It was a regional economic powerhouse with a lively civil society and media. However, the country had a long history of political violence marring the wake of general elections.33 After the violence erupted after the 2007 polls, there was a sense that dramatic action was required to break the continuous levels of impunity and generally ethnic violence committed in the wake of polls. At the time, the ICC’s reputation was hampered by allegations that it pursued victors’ justice. Prior to its intervention in Kenya, the ICC had never before targeted multiple sides of a conflict.34 All previous ICC investigations followed requests from member-states or the UN Security Council. This led to a cooperation conundrum for the ICC. To investigate state actors in any of self-referred situations would risk thwarting any cooperation from the self-referring state. To investigate non-state actors allied with Security Council powers would undermine cooperation from Council members. In this context, Kenya appeared to offer an opportunity to change the narrative of one-sided ICC accountability. It is important to reiterate that the situation in Kenya presented an opportunity for the OTP to apply, for the first time, to open an investigation proprio motu — ‘upon the volition of the Prosecutor’. The ability to open investigations without the express request of the state in question or the Security Council epitomizes the Prosecutor’s independence. Such investigations do not produce the cooperation dependency characteristic of referrals from states or the Security Council. While the OTP had previously been hesitant to open investigations proprio motu, this was due to fear that doing so would make states, particularly the United States, Northern Uganda, the Democratic Republic of Congo, the Central African Republic, and Darfur, could all be described as areas of significant, ongoing violence and conflict at the time the Court intervened in each. 33 See Mwongera, Lawrence Gitonga, Making Sense of Political-Related Violence in Kenya, Open Security (14 September 2012), at https://www.opendemocracy.net/opensecurity/lawrence-gitongamwongera/making-sense-of-political-related-violence-in-kenya 34 In the Darfur situation, two rebels, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, were, however, targeted for an attack on African Union peacekeepers. 32 Kersten Draft Page 10 of 24 nervous about the Court’s potential impact on state sovereignty.35 In some sense, then, the ICC’s intervention in Kenya marked a certain ‘coming of age’ for the Court — a confidence that it could exercise its proprio motu powers and target all sides of a conflict. In addition to the sense that Kenya was an opportunity to see even-handed justice done and therefor to boost the credibility of the ICC, were two factors: (1) the direct involvement of former UN Secretary General Kofi Annan in pushing for accountability for post-election violence crimes, and (2) the widespread domestic political and civil society support for an ICC investigation. Indeed, the very same political figures who would subsequently be summoned to face charges at the ICC exclaimed that the country needed the Court. “Don’t be vague. Let’s go to The Hague,” was the famous slogan spread by, among others, William Ruto.36 The OTP thus enjoyed support from significant sections of the Kenyan political class with Kenyan civil society also in favour of an ICC intervention.37 In Kofi Annan, the primary international mediator following the post-election violence in Kenya, the OTP also had a widely-respected member of the international community on board. As David Bosco writes, the Prosecutor pursued an official investigation in Kenya as part of a carefully negotiated process and with strong backing from the international community’s lead mediator and the major powers most concerned about the situation in Kenya. Internationally, the Kenya inquiry was as uncontroversial a use of the controversial proprio motu power as could be designed.38 Under such conditions, the OTP could hardly be blamed if it believed that its institutional interests of cooperation and reputation would be satisfied with its Kenya investigation. It is easy to see why ICC prosecutors would have believed that cooperation from Kenyan authorities and key political actors would be forthcoming. Their apparent conviction that Kenya would cooperate rather than seek to undermine the Court is further evidenced by the fact that prosecutors decided not to issue arrest warrants for the Kenyan suspects, instead issuing summonses for them to appear, voluntarily, before the Court.39 II.ii. Miscalculating Cooperation In opening its investigation in Kenya, the OTP was both patient and sensitive to the political context on the ground in Kenya. Post-election tensions in Kenya had been quelled by the Bosco 2014; See also Schiff, Benjamin, Building the International Criminal Court, (UK: Cambridge University Press, 2008), pp.225 36 See Human Rights Watch, Kenya: Q&A on The ICC Trial of Kenya’s Deputy President, (1 September 2013), at https://www.hrw.org/news/2013/09/01/kenya-qa-icc-trial-kenyas-deputy-president 37 See Human Rights Watch, Kenya: Civil Society Organizations Call for Support for the International Criminal Court, (25 January 2011), at https://www.hrw.org/news/2011/01/25/kenya-civil-societyorganizations-call-support-international-criminal-court 38 Bosco (2014), p.160 39 This approach has been criticized by some, including Richard Goldstone who believes that arrest warrants should have been issued for the Kenyan suspects from the outset to avoid their return to Kenya to “roam around free”. See comments at Wayamo Foundation, African Justice Mechanisms and their interplay with the International Criminal Court, (2016), available at https://www.scribd.com/document/318390511/SYMPOSIUM-REPORT-African-Justice-Mechanisms-andtheir-interplay-with-the-International-Criminal-Court 35 Kersten Draft Page 11 of 24 National Accord.40 Amongst its provisions was the creation of the Commission of Inquiry on Post Election Violence, better known as the Waki Commission. Its final report, issued in October 2008, recommended that a Special Tribunal be established in Kenya to investigate and prosecute post-election violence crimes. If the government failed to do so within three months, then Annan would be given the green light to hand over a list of suspects, as well as evidence incriminating them, to the OTP. According to Brown and Raddatz, the coalition government in Kenya accepted the Waki Commission’s recommendations whilst “[d]onors strongly supported the idea of the Special Tribunal, believing that accountability was vital to prevent future violence, and that ICC involvement was either not justified because the crimes were not of sufficient gravity or because the process would be too slow and expensive.”41 Within months, however, that enthusiasm waned. Both donor and civil society support turned in favour of the ICC, creating a window of opportunity for the OTP to act with popular support.42 In December 2010, chief Prosecutor Moreno-Ocampo named six suspects that the OTP believed were responsible for crimes against humanity committed during the post-election violence: Mohammed Hussein Ali, Uhuru Muigai Kenyatta, Henry Kosgey, Francis Kirimi Muthaura, William Samoei Ruto, and Joshua Asap Sang. The suspects, colloquially referred to as the “Ocampo 6”, came from politically opposing factions. Notably, Moreno-Ocampo did not target either of the senior-most political figures involved in the 2007 elections: the presidential candidates Mwai Kibaki and Raila Odinga. Doing so, however, would likely have immediately scuttled any chances of cooperation from the highest political authorities in the country. In direct response to the ICC, and in what has been described as an “opportunistic alliance of convenience” and “an affair of determined convenience”, Kenyatta and Ruto decided to join forces as part of the “Jubilee Alliance” and run for election on the same ticket — as President and Deputy President of Kenya respectively.43 Their campaign hired a British Public relationship firm to damage the credibility of the Court and paint Kenyatta and Ruto as its victims, which it viewed as necessary in order for two unlikely pair to win the elections.44 In March 2013, they were duly elected. What followed was a well-organized strategy of political and legal efforts to undermine the Court’s cases against them and their co-accused. An in-depth exploration of the battle between the newly elected government and the ICC is beyond the scope of this chapter, but the broad-strokes have been captured by Suzanne Mueller: Winning the election was part of a key defense strategy to undercut the ICC by seizing political power, flexing it to deflect the ICC, and opening up the possibility of not showing up for trial if all else failed. The strategy entailed using a series of delaying tactics to ensure that the ICC trials would not start until after the defendants had won the election See Brown, Stephen, and Rosalind Raddatz, Dire Consequences or Empty Threats? Western Pressure for Peace, Justice and Democracy in Kenya, Journal of Eastern African Studies, Vol. 8, Iss.1, (2014) 41 Ibid. p.48 42 Ibid. p.49 43 Mueller, Suzanne, Kenya and the International Criminal Court (ICC): Politics, the Election and the Law, Journal of Eastern African Studies, Vol.8, No.1 (2014), p.25. See also Brown and Raddatz (2014), p.51 44 BTP Advisers explains that its work hinged upon undermining the ICC’s case against Kenyatta: “By exposing the weak and flawed nature of the ICC case against him, we made the election a choice about whether Kenyans would decide their own future or have it dictated to them by others.” See http://www.btpadvisers.com/work/kenya-elections-2013 40 Kersten Draft Page 12 of 24 and gained power at the highest level. The tactics ranged from mobilizing international organizations against the ICC, making numerous, legal challenges designed to delay the court, and the intimidation of potential witnesses, allegedly by defense sympathizers and go betweens, to keep them from assisting the ICC. The tactics were part of a larger design to undercut the ICC. Demonizing opponents, politicizing ethnicity, and attacking the ICC as a tool of the West both before and during the presidential campaign served this end and victory in the election. Once they won the 2013 election, Kenyatta and Ruto came up with another tactic: asking for concessions based on their political power, including pleas to drop their cases or not be physically present at their trials.45 In the end, their strategy succeeded in a spectacular fashion; all of the ICC’s cases in Kenya failed. Not one trial was successfully concluded. III.iii. A Costly Miscalculation What once seemed like a promising investigation and set of cases devolved into what may be the most controversial and perhaps most costly ICC intervention to date. But the cost of the Kenya cases to the ICC did not end in the courtroom. Kenya has been among the most vocal states against the ICC, regularly using inflammatory anti-ICC rhetoric. The government not only defeated the ICC cases against its leaders but also led the charge against the Court as “biased” against Africa and a primary proponent of an Africa-wide “mass withdrawal” from the ICC. As one observer writes, a key part of the government’s strategy has been to use “the ICC’s accusations as part of their political campaign to portray themselves as victims of a colonial, anti-African tool of the West.”46 Kenyatta has stated that “[t]he ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers.”47 Kenya’s parliament has voted twice in favour of withdrawing from the ICC, although the country has yet to do so. In the wake of the terrorist assault on the Westgate Mall in Nairobi, Deputy President Ruto, who at the time was appearing before ICC Judges in The Hague, even suggested that the Court was to blame for Kenya’s inability to protect itself from such attacks.48 The fact that such attacks have generally subsided and that any movement towards withdrawal from the ICC has stalled since the Kenya cases ended is indicative of how Kenya’s criticism of the Court was simply part of a larger strategy do undermine the institution and its cases. III.iv. Kenya Cases in the Rear-View Mirror Should the OTP have been able to see what was coming in terms of changes to Kenya’s political landscape that would undermine its investigations and prosecutions? Here, it is important to highlight that many, including former OTP investigators, have reiterated that the Mueller (2014), p.26 Vilmer, Jean-Baptiste Jeangène, The African Union and the International Criminal Court: Counteracting the Crisis, International Affairs, Vol.92, No.6 (2016), p.1322 47 See BBC, Could Westgate deal a fatal blow to the ICC?, (17 October 2013), at http://www.bbc.com/news/world-africa-24562337 48 See Kenya Today, Shock: Ruto Claims West Gate Mall Attack was Arranged to Fix him and President Kenyatta, (23 September 2013), at http://www.kenya-today.com/news/shock-ruto-claims-west-gate-mallattack-pre-planned-occur-country 45 46 Kersten Draft Page 13 of 24 cases against those targeted in Kenya failed because they were weak and susceptible to collapse.49 While it is difficult to say whether they would have succeeded under other circumstances, the Kenya cases were not sufficiently strong, nor designed, to withstand the various well-funded and elaborate efforts of Kenya to undercut them. Still, what subsequently transpired in Kenya's political landscape, particularly with the jointelection of Kenyatta and Ruto as President and Deputy President, would have been difficult to fathom in 2010 when the ICC intervened. Paul Seils, the former Head of Situational Analysis in the Office of the Prosecutor, observed in response to the Kenya cases: “I’m not at all sure that international courts really are set up to understand the realities of the conditions they’re investigating.”50 The Kenya cases continue to cast a shadow in The Hague, as the ICC continues to seek the means to save face. This is currently being played out through the narratives around the additional warrants issued for Kenyan citizens who allegedly interfered with ICC witnesses, which the OTP insists was led to the collapse of its cases. The OTP cannot admit that it misjudged its prosecutorial opportunity in Kenya or that its cases may have been poorly constructed. Kenya cannot admit that it had refused to cooperate with the ICC or that witnesses had been intimidated. Regardless, for the OTP, what began as an intervention that seemingly offered an opportunity to change the narrative around the ICC’s independence and ability to successfully prosecute all sides of a conflict, ultimately led to a failure that undermined the ICC’s institutional interests.. Confidential interview with former ICC staff member. See comments in Verini, James, The Prosecutor and the President, New York Times, (22 June 2016), at http://www.nytimes.com/2016/06/26/magazine/international-criminal-court-moreno-ocampo-theprosecutor-and-the-president.html 49 50 Kersten Draft Page 14 of 24 III. The ICC in Mali: A Small Fish for a Big Win In July 2012, the government in Bamako requested an investigation into the situation in Mali by the ICC. Consequently, in January 2013, the Office of the Prosecutor opened an official investigation into alleged war crimes committed during the Malian civil war, a conflict that pitted government forces against primarily radical Islamic armed groups in the North of the country. From the outset of its intervention in Mali, there were concerns that only rebel forces would be targeted by the Court.51 However, for over two-and-a-half years, the investigation proceeded without any arrest warrants issued at all and, it is fair to say, the Court’s investigation in Mali received relatively little scrutiny. That changed when, in dramatic fashion in the early hours of 26 September 2015, the ICC Prosecutor issued a statement declaring that Ahmad Al Faqi Al Mahdi, a “zealous member” of Ansar Dine, had been surrendered to the Court.52 Al Mahdi’s surrender came as a surprise. His name had not appeared in the (admittedly limited) coverage of the ICC’s investigation in Mali. It quickly became apparent, however, that the targeting of al Mahdi for prosecution epitomized the practice of prosecutorial opportunism insofar as it held out the potential to satisfy the institutional interests of the ICC: relevant states cooperating with the ICC to ensure his surrender to The Hague; al Mahdi cooperating with prosecutors and investigators and, by pleading guilty, leading to an expeditious conviction and saving the OTP precious resources; and positioning the Court as a relevant actor in the fight against the destruction of cultural artefacts and sites. III.i. A Window of Cooperation The arrest warrant issued for al Mahdi was timed to take advantage of a window of cooperation from relevant authorities in Mali and Niger. The warrant itself was issued under seal on 18 September 2015 and only became public on 28 September 2015, two days after al Mahdi’s surrender to the Court. Prior to his transfer to The Hague, al Mahdi had been imprisoned – first under the custody of French armed forces, and subsequently by Niger – since September 2014. OTP staff, however, had been concerned that al Mahdi might be released from jail in Niger. They thus moved expeditiously — indeed, with unprecedented speed — to attain the approval of relevant judicial and political figures in Mali and Niger for al Mahdi’s surrender to the ICC. Al Mahdi arrived in the very early morning of 26 September, making him the first Islamic extremist to face war crimes charges and the first individual to face the ICC for destroying cultural heritage. That the ICC received the direct cooperation of two African states — Niger and Mali — was also notable, albeit not highly advertised by the OTP. Such cooperation was particularly For commentary, see Jacobs, Dov, Random Comments on the Mali Self-Referral to the ICC, Spreading the Jam, (20 July 2012), at https://dovjacobs.com/2012/07/20/random-comments-on-the-mali-self-referralto-the-icc/; Heller, Kevin Jon, Will Mali Be the First Bensouda-Era Investigation?, Opinio Juris, (18 July 2012), at http://opiniojuris.org/2012/07/18/will-mali-be-the-first-bensouda-erainvestigation/?utm_source=rss&utm_medium=rss&utm_campaign=will-mali-be-the-first-bensouda-erainvestigation; Schabas, William, Mali Referral Poses Challenge for International Criminal Court, PhD Studies in Human Rights, (19 July 2012), at http://humanrightsdoctorate.blogspot.ca/2012/07/malireferral-poses-challenge-for.html 52 International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following the transfer of the first suspect in the Mali investigation: “Intentional attacks against historic monuments and buildings dedicated to religion are grave crimes”, (26 September 2015), at https://www.icc-cpi.int/pages/item.aspx?name=otp-stat-26-09-2015 51 Kersten Draft Page 15 of 24 relevant for the Court given ongoing perceptions and criticisms that the institution has focused too myopically on African situations. III.ii. The Fruits of Cooperation and a Guilty Plea Despite some hearings in which his defence counsel put forward non-legal arguments relating to the destruction of the shrines as a “political project that is not a crime”53, it is now evident that al Mahdi cooperated with the OTP from the outset of his surrender. In its Judgement and Sentence of al Mahdi, the Trial Chamber declared that al Mahdi’s cooperation with the OTP was a factor in mitigating the sentence handed down against him. [Al Mahdi’s] cooperation has been spontaneous and started as early as the first day of his interviews. Mr Al Mahdi responded in an honest manner and his cooperation enabled the Prosecution to corroborate, clarify and specify information it already had in its possession. During his interviews with the Prosecution, Mr Al Mahdi did not show any reluctance in touching upon his own acts. The Chamber is also mindful of the fact that Mr Al Mahdi has cooperated despite being fully aware that his cooperation with the Prosecution increased the security profile of his family. Accordingly, the Chamber considers that Mr Al Mahdi’s substantial cooperation with the Prosecution is an important factor going to the mitigation of the sentence to be imposed.54 Adding to the fact that targeting al Mahdi represented a clear prosecutorial opportunity for the OTP, some have noted that al Mahdi “began cooperating and confessed before he was even charged, and he signed a plea agreement last February, before there was even a confirmation hearing in his case.”55 For a Court that has been regularly criticized for the inefficiency and duration of its proceedings, al Mahdi’s cooperation and the fact that he was sentenced and convicted less than year after his surrender to The Hague has also been useful for the institution. As Marieke de Hoon observed with apparent reference to the failed Kenya cases: “After all the ICC’s recent problems with lack of evidence, witness intimidations, and protracted procedures, this short and in all likelihood successful… can easily be called a resounding win.”56 It is not difficult to see why al Mahdi would cooperate with ICC prosecutors. He had been videotaped proudly destroying shrines in Timbuktu. Any direct defence of his offences was unlikely to succeed. Al Mahdi’s surrender also raised the prospects of him cooperating with investigators and prosecutors to build additional cases against more senior-level perpetrators of war crimes in Mali. Indeed, al Mahdi’s lack of seniority raised some flags among observers. Fatouma Harber, See comments by Jean-Louis Gilissen in International Justice Monitor, Al Faqi Declines to Make Submissions in Northern Mali Case, (1 March 2016), at https://www.ijmonitor.org/2016/03/al-faqi-declinesto-make-submissions-in-northern-mali-case/ 54 International Criminal Court, Trial Chamber VIII, Summary of the Judgment and Sentence in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, (27 September 2016), para 60-61 55 Whiting, Alex, The Significance of the ICC’s First Guilty Plea, Just Security, (23 August 2016) at https://www.justsecurity.org/32516/significance-iccs-guilty-plea/ 56 de Hoon, Marieke, The ICC’s Al Mahdi Case is (also) a Political Trial, and that’s Fine!, EJIL:Talk! (31 August 2016), at http://www.ejiltalk.org/the-iccs-al-mahdi-case-is-also-a-political-prial-and-thats-fine/ 53 Kersten Draft Page 16 of 24 al Mahdi’s former teacher, wrote that her pupil was “the wrong man on trial”. He added that “there are many more deserving of justice… Al Faqi is just a little fish. But in Mali it is the little fish who are caught.”57 Eva Vogelvang and Sylvain Clerc also questioned the selection of al Mahdi arguing that the decision to view him as the “most responsible” for his crimes was “questionable”.58 The ICC has been criticized for both focusing too much and too little on ‘big fish’.59 One the one hand, the targeting of al Mahdi seems to contradict with the OTP’s interest in focusing on “the most responsible” perpetrators of mass crimes. It also appears to be inconsistent with the Prosecutor's public pronouncement that she would not investigate perpetrators in Syria or Iraq who are citizens of ICC-member states because they are not those “most responsible” for atrocities.60 On the other hand, the charges against al Mahdi were consistent with the OTP’s 2012-2015 Strategic Plan as well as its Policy Paper on Sexual and Gender Based Crimes, both of which state that the Office may focus on mid-level and lower-level perpetrators if doing so can help build additional cases against more senior-level perpetrators.61 Specifically, the OTP argues that: The required evidentiary standards to prove the criminal responsibility of the most responsible might force the OTP sometimes to change its approach due to limitations on investigative possibilities and/or a lack of cooperation. A strategy of gradually building upwards might then be needed in which the Office first investigates and prosecutes a limited number of mid – and high – level perpetrators in order to ultimately have a reasonable prospect of conviction for the most responsible. The Office will also consider prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety.62 While novel for the ICC, this strategic imperative relates directly to the OTP’s identification of prosecutorial opportunities: the OTP will pursue individuals where doing so creates an opportunity to successfully prosecute those perpetrators as well as build additional cases — irrespective of their seniority. Beyond al Mahdi, it is evident that the OTP simply had no other prospects for prosecution in Mali and that continuing an official investigation ad nauseam without any arrest warrants was untenable. Whiting’s observations in this regard are worth highlighting: See Harber, Fatouma, Why the ICC has the Wrong Man on Trial over Invasion of Timbuktu, The Guardian, (30 September 2015), at https://www.theguardian.com/world/2015/sep/30/icc-mali-timbuktuinvasion-trial 58 Vogelvang, Eva, and Sylvain Clerc, The Al Mahdi Case: Stretching the Principles of the ICC to a Breaking Point?, Justice Hub, (29 August 2016), at https://justicehub.org/node/9526 59 See Robinson, Darryl, Inescapable Dyads: Why the International Criminal Court Cannot Win, Leiden Journal of International Law, Vol.28, Iss.2, (2015), p.20 60 See International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the alleged crimes committed by ISIS, (2015). 61 International Criminal Court, Strategic Plan (2013), p.6; International Criminal Court, Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes, (June 2014), p.25 62 International Criminal Court, Strategic Plan (2013), p.6 57 Kersten Draft Page 17 of 24 [C]ase selection is part strategy and part opportunity. Although the suspect in this case does not appear to be at the highest echelons of Ansar Dine — he is identified as a brigade commander and is charged not with ordering or directing the destruction of the mausoleums and mosque but with committing the attacks with others, or facilitating or contributing to them — it may be that after three years of investigation, it was the strongest case that presented itself. In addition, the suspect’s presence in Niger may have presented an opportunity for arrest that the Prosecutor did not want to lose. Sometimes it is better to pursue a suspect you can get rather than one who will likely become just another fugitive.63 In addition to a debate over whether al Mahdi was sufficiently senior to justify ICC prosecution, some human rights groups, particularly FIDH, protested the OTP’s decision not to pursue additional charges of sexual violence crimes against al Mahdi. While they welcomed the prosecution of al Mahdi for cultural crimes, they accused the OTP of ignoring these additional crimes.64 Following his guilty plea, one FIDH official declared that Since its first proceedings, the ICC has chosen to prosecute cases based on charges it can defend and prove… This is unfortunate since a FIDH investigation indicates that these sexual crimes have probably been the most massive crimes committed in Timbuktu.65 It is important to clarify two issues here. First, at no point has it been asserted that al Mahdi himself was personally and directly responsible for sexual violence crimes in Mali. FIDH has, instead, said that he was the head of a police force whose members allegedly perpetrated sexual violence crimes in Timbuktu.66 Second, FIDH has never released the evidence upon which it has levied these claims against al Mahdi. The veracity of the allegations and the credibility of the evidence thus remain unclear. It would be unwise for the Court to pursue cases on weak evidence. Nevertheless, FIDH’s criticism was particularly stinging because it implied that the OTP was actively ignoring evidence of crimes that it said it would, in fact, prioritize in its investigations.67 For the purpose of the analysis offered in this paper, the question that thus arises is why the OTP would ignore such crimes when it had repeatedly and publicly pronounced that sexual and gender-based violence would be a specific focus of Prosecutor Bensouda’s tenure? For skeptics, the only reasonable conclusion for the OTP’s decision-making was that it represents Whiting, Alex, The First Case for the ICC Prosecutor: Attacks on Cultural Heritage, Just Security, (29 September 2015), at https://www.justsecurity.org/26453/mali-icc-attacks-cultural-heritage/ 64 See FIDH, Mali: The hearing of Al Mahdi before the ICC is a Victory, but CHharges must be Expanded, (30 September 2015), at https://www.fidh.org/en/issues/international-justice/international-criminal-courticc/mali-the-hearing-of-abou-tourab-before-the-icc-is-a-victory-but 65 See comments by Florent Geel in Forestier, Marie, ICC to War Criminals: Destroying Shrines Is Worse Than Rape, Foreign Policy, (22 August 2016), at https://foreignpolicy.com/2016/08/22/icc-to-warcriminals-destroying-shrines-is-worse-than-rape-timbuktu-mali-al-mahdi/ 66 Ibid. 67 International Criminal Court (2016), p.17 63 Kersten Draft Page 18 of 24 “an attempt to expand the jurisdiction of the ICC and an attempt to secure a fast conviction.”68 However, beyond the apparent weakness of the evidence against al Mahdi for sexual violence crimes69, it may be that al Mahdi would not have plead guilty had additional charges relating to sexual violence been levied against him. The test of the wisdom of the OTP’s strategy was whether al Mahdi’s guilty plea and cooperation with investigators results in subsequent arrest warrants for sexual violence crimes committed in Mali. The OTP’s strategy came to fruition when Al-Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud was surrendered to the ICC on 31 March 2018, just four days after the Court issued a warrant for his arrest. Among the crimes he is charged with, Al Hassan faces prosecution for rape and sexual slavery as crimes against humanity and war crimes. His arrest, it has been suggested, was the direct result of the cooperation of al Mahdi.70 In the case of al Mahdi, the combination of Niger and Mali’s cooperation, al Mahdi’s willingness to cooperate with investigators, his guilty plea, and his role in building the case against Al Hassan, produced a prosecutorial opportunity that the OTP could not pass up. He was the suspect that the ICC could get and did get – and the strategy appears to be paying off. To date, this is a case of prosecutorial opportunism ‘gone right’. But beyond the Court too, targeting al Mahdi for the war crime of destroying heritage sites and antiquities presented a unique chance to capture global attention. III.iii. The Narrative Fit In addition to receiving cooperation from relevant actors, the ICC has an institutional interest in fostering a reputation as a relevant and impactful international organization. In the al Mahdi case, the opportunity arose to present the Court as a leader in the fight against cultural crimes, a subject which has garnered significant coverage and attention following the destruction of antiquities by the Islamic State in Syria and Iraq.71 While it could not investigate the destruction of antiquities in places like Palmyra, through the al Mahdi case the OTP could present itself as a relevant actor in bringing perpetrators of cultural crimes to justice. From the moment of al Mahdi’s surrender, Bensouda sought to dispel any notion that the bloodless violence by al Vogelvang, Eva, and Sylvain Clerc, The Al Mahdi case: Stretching the principles of the ICC to a breaking point?, Justice Hub, (29 August 2016), https://justicehub.org/article/al-mahdi-case-stretchingprinciples-icc-breaking-point 69 Whiting (2016). 70 Alex Whiting observed that “it appears this was a case of opportunity. The OTP filed its urgent arrest warrant request on March 20, arrest warrant issued March 27, arrest on March 31. So OTP knew it could get the accused before it sought an arrest warrant… [T]here was some criticism of the first Mali case against Al Mahdi that it was for destruction of cultural monuments and was not a case for sexual and gender based violence which has been prevalent in the conflict. This new arrest charges those crimes, and persecution… [I]t is likely that this new arrest of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud was based in part at least on information provided by Al Mahdi, who pled guilty and cooperated with the court. If so, vindicates approach taken with Al Mahdi to get his cooperation.” Tweets by Whiting (31 March 2018), available here: https://twitter.com/alexgwhiting/status/980268747683348480 71 See, e.g., Isakhan, Benjamin and Jose Antonio Gonzalez Zarandona, Erasing History: Why Islamic State is Blowing up Ancient Artefacts, The Conversation, (4 June 2017), at http://theconversation.com/erasing-history-why-islamic-state-is-blowing-up-ancient-artefacts-78667 68 Kersten Draft Page 19 of 24 Mahdi did not warrant prosecution at the ICC. She was unequivocal about the seriousness of such crimes: Let there be no mistake: the charges we have brought against Ahmad Al Faqi Al Mahdi involve most serious crimes; they are about the destruction of irreplaceable historic monuments, and they are about a callous assault on the dignity and identity of entire populations, and their religious and historical roots.72 In targeting al Mahdi, Bensouda also allied the OTP with UNESCO as the front line of efforts to combat cultural destruction. Two months before al Mahdi was surrendered to the Court, UNESCO General Director Irina Bokova declared that “UNESCO has involved the International Criminal Court with the destruction of the mausoleums… Two months ago I met the prosecutor and I believe they are progressing rapidly.”73 She subsequently wrote that the ICC “is becoming an indispensable actor in the preservation of cultural property in armed conflicts.”74 Prosecuting al Mahdi thus provided the OTP with the opportunity to present itself as a leading actor in addressing an issue that had captured the global public’s attention: the destruction of cultural heritage sites. Doing so would act to bolster the Court’s reputation as a relevant institution combating impunity for historically under-prosecuted crimes. Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following the transfer of the first suspect in the Mali investigation: “Intentional attacks against historic monuments and buildings dedicated to religion are grave crimes”, (2015). 73 Deutsche Welle, UNESCO refers insurgent destruction of Mali mausoleums to ICC, (19 July 2015), at http://www.dw.com/en/unesco-refers-insurgent-destruction-of-mali-mausoleums-to-icc/a-18593958 74 Bokova, Irina, Ending Impunity for War Crimes on Cultural Heritage: The Mali Case, International Criminal Justice Today, (22 June 2016), at https://www.international-criminal-justicetoday.org/arguendo/ending-impunity-for-war-crimes-on-cultural-heritage-the-mali-case/ 72 Kersten Draft Page 20 of 24 IV. Negotiating Prosecutorial Opportunism and State Manipulation Prosecutorial opportunism, as well as the prosecutorial strategies pursued within the Office of the Prosecutor more generally, does not and cannot exist within a political vacuum. On the contrary, it should be expected that states assess and indeed shape their own behaviour towards the ICC in line with their expectations of how the OTP will act and how it will exercise its discretion to target certain types of actors and investigate certain situations. In certain cases, states may use the expression of prosecutorial opportunism in order to satisfy their own state interests. This section demonstrates this through the example of northern Uganda and the surrender and trial of Dominic Ongwen. IV.i. Using ICC Prosecutorial Opportunism Against the ICC In the early 2000s, the humanitarian situation and war in northern Uganda finally began receiving global coverage as a humanitarian crisis. The nightly migration of children from villages in Acholiland to the relative security of the town of Gulu was documented by NGOs and documentarians and broadcast around the world. In 2003, Jan Egeland, then-UN Undersecretary for Humanitarian Affairs and Emergency Relief famously exclaimed that “[t]he conflict in northern Uganda is the biggest forgotten, neglected humanitarian emergency in the world today.”75 At least in part as a means to rescue its reputation and be seen to be doing ‘something’ to address atrocities and suffering in northern Uganda, the Government of Uganda was convinced to refer the situation to the ICC. The interests of the Government overlapped with those of the Court.76 The OTP saw an investigation of the Lord’s Resistance Army as a distinct opportunity. The ICC needed a first investigation in order to ‘cut its teeth’. The rebel group and its leader, Joseph Kony, was vilified and universally condemned.77 While deciding between intervening in the Democratic Republic of Congo or northern Uganda, Prosecutor Moreno-Ocampo settled on the latter. According to one senior staff member: “The Court needed a first successful case on a notorious situation, sooner rather than later, and northern Uganda appeared to be the better candidate for that purpose.”78 The United States, which was pursuing a series of policies to undermine the ICC at the time of the Court’s intervention, had the LRA on its list of terrorist organizations, and thus would not be threatened by the Office’s decision. Under pressure to address the suffering in the north, the Government of Yoweri Museveni negotiated directly with the OTP over an ICC investigation of the LRA and, in 2003, became the first country to issue a self-referral to the ICC. See Al Jazeera, Uganda War 'Worst Forgotten Crisis', (11 November 2003), at https://www.aljazeera.com/archive/2003/11/2008410151518420888.html 76 Nouwen, Sarah M. H., and Wouter G. Werner, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan, European Journal of International Law, (2010), Vol.21, Iss.4, pp.953-954 77 For analyses, see Branch, Adam, Uganda’s Civil War and the Politics of ICC Intervention, Ethics & International Affairs, (2007a), Vol.21, No.2, pp.179–198; Finnström, Sverker, Living With Bad Surroundings – War, History, and Everyday Moments in Northern Uganda, (USA: Duke University Press, 2008); Dolan, Chris, Social Torture – The Case of Northern Uganda 1986-2006, (US: Berghahn Books, 2009). 78 Confidential interview, cited in Kersten (2016), p.174 75 Kersten Draft Page 21 of 24 Infamously, although not by accident, the initial referral related to an investigation of the LRA, and not the situation in northern Uganda more generally.79 This was subsequently amended but the concerns of those who believed that the Court would show bias towards the Government were justified. The ICC issued five arrest warrant. All were for members of the LRA: leader Joseph Kony, second-in-command Vincent Otti, and commanders Okot Odhiambo, Dominic Ongwen and Raska Lukwiya. As noted above, Moreno-Ocampo argued that the Government and UPDF’s crimes weren’t of a similar gravity and many had been perpetrated prior to the ICC coming into existence and were thus outside of the jurisdiction of the Court. It is easy to ascertain why the ICC has never targeted the members of the Ugandan government or military. Had it done so, any cooperation from the state would have evaporated and the OTP would have sacrificed its ability to conduct any investigations in northern Uganda and have any of its targets surrendered. Still, despite only targeting the Government’s adversaries, the relationship between the Court and the state deteriorated as the Government’s interests and prerogatives changed.80 Seeking to express solidarity with regional partners, including the Kenyan government, President Yoweri Museveni has emerged as perhaps the most vociferous critic of the ICC’s role in Africa, exclaiming that the institution “blackmails”81 African states and, more recently, describing the Court as “a bunch of useless people”.82 Under such conditions, it might be assumed that Museveni would refuse to cooperate with a blackmailing Court comprised of useless staff. However, precisely the opposite has transpired. In January 2015, it was reported that Dominic Ongwen had surrendered to US forces operating in the Central African Republic. Ongwen, who along with Kony is one of the two LRA commanders indicted by the ICC who remains alive, subsequently came into the custody of Ugandan forces. With Ongwen in its custody, it might have been expected that Uganda would issue an admissibility challenge and argue that Ongwen could be prosecuted in Uganda, within the Ugandan judiciary. Uganda has a specific unit, the International Crimes Division, set up to hear cases relating to the crimes levied against perpetrators of international crimes such as Ongwen. Instead, the diminutive LRA commander was surrendered to the Court, via the Central African Republic. This was a significant ‘win’ for the OTP. Nearly ten years after it opened an investigation into northern Uganda, a member of the LRA would finally face trial in The Hague; the Court’s first intervention would not leave it empty handed. Given Museveni’s animosity towards the ICC, why hand the Court such a victory? An understanding of how states can manipulate the prosecutorial opportunism and ICC institutional interests would suggest that the Government calculated that it could continue take advantage of International Criminal Court, ICC - President of Uganda refers situation concerning the Lord's Resistance Army (LRA) to the ICC, (29 January 2004), available at https://www.icccpi.int/Pages/item.aspx?name=president+of+uganda+refers+situation+concerning+the+lord_s+resistance +army+_lra_+to+the+icc 80 Nouwen and Werner (2010), pp.953-954 81 See AFP, Uganda's Museveni praises Kenya for rejecting ICC 'blackmail', (9 April 2013) at http://www.nation.co.ke/news/politics/Ugandas-Museveni-praises-Kenya-for-rejecting-ICCblackmail/1064-1743650-15lxuf7/index.html 82 See New Vision, ICC a bunch of useless people – Museveni, (12 May 2016), at http://www.newvision.co.ug/new_vision/news/1424384/icc-bunch-useless-people-museveni 79 Kersten Draft Page 22 of 24 the political interests that initially informed the OTP’s decision to intervene in northern Uganda and target the LRA. Surrendering Ongwen to the ICC allows the Government of Uganda to avoid political responsibility for a case that has proved controversial with the citizens of northern Uganda. Ongwen has the distinction as being the first formerly abducted child soldier to be prosecuted for the crime of abducting and conscripting children into a rebel group. Ever since the ICC intervened in northern Uganda, the views of northern Ugandan communities have been sharply divided on the appropriateness of prosecuting child soldiers who have been captured or surrendered.83 This continues to colour perceptions of Ongwen’s trial at the ICC. By outsourcing Ongwen’s trial to the ICC, the Government of Uganda ensured that the Court — rather than the state — would receive any subsequent criticism for the prosecution of former child soldiers. Having Ongwen surrendered to The Hague also helps the Government and UPDF to avoid unwanted scrutiny by the ICC. It is worth re-iterating: when the ICC opens an investigation following a self-referral, it enters into a dependent relationship with the self-referring government — for access to crime scenes, for evidence collection, to gather witness testimony, and to be able to conduct outreach activities. So long as that dependency persists, the Court will not risk targeting government officials. Again, the record of the ICC in only targeting the enemies of selfreferring governments lends credence to this claim. So too do the statements of senior ICC officials.84 It should thus be expected that governments, especially those like the Government of Uganda which have allegedly committed crimes under the ICC’s jurisdiction, will seek to keep the OTP in that state of dependency. Permitting Ongwen’s trial to be outsourced to the ICC has had precisely that effect. With Ongwen’s trial ongoing, the OTP continues to require the cooperation of the Government, its security apparatuses, and its institutions in order to gather additional evidence and witness testimony as well as conduct outreach programmes in communities affected by Ongwen’s crimes. And Museveni is free to partake in anti-ICC rhetoric. It may be argued that impunity for the Government of Uganda is the cost of achieving some justice for LRA crimes through the trial of Ongwen. The question of whether this is a price worth paying and the wider issue of the relative costs and benefits of the prosecutorial decisions made by the OTP in northern Uganda is beyond the scope of this chapter. But it is evident that prosecutorial opportunism is a double-edged sword. As the OTP’s practices develop, are applied to an increasing number of situations, and are elaborated by the Office itself, states learn — and learn how to exploit them. Prosecutorial opportunities can be manipulated by states in order to ensure that their interests — including the perpetuation of state-level impunity — are served. See Refugee Law Project, Peace First, Justice Later: Traditional Justice in Northern Uganda, Refugee Law Project Working Paper No.17, (July 2005); Allen, Tim, Trial Justice: The International Criminal Court and the Lord's Resistance Army, (UK: Zed Books, 2006) 84 In response to questions regarding ICC selectivity, Deputy Prosecutor James Stewart has stated: “The Prosecutor, for example in the case of Cote D’Ivoire, has always made it clear that she intends to look at all sides of the conflict. Sometimes you just can’t do everything at once. You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized. But in the end, I suppose history will tell us whether or not the OTP has acted appropriately.” See Kersten, Mark, In the ICC’s Interest: Between ‘Pragmatism’ and ‘Idealism’?, Justice in Conflict, (16 July 2013), at https://justiceinconflict.org/2013/07/16/in-the-iccsinterest-between-pragmatism-and-idealism/ 83 Kersten Draft Page 23 of 24 Concluding Reflections The International Criminal Court is not solely a legal institution. Nor is its work merely the expression of the political interests of states. The ICC is in constant negotiation between its identity as an international court and an international organization. A nuanced appreciation of decision-making within the OTP illustrates that the Office selects cases that will not only have a chance to result in justice for international crimes, but which will also bolster the institutional interests of the Court. The OTP therefore seeks to identify situations where these interests align, or what this chapter has called prosecutorial opportunities. The chapter has sought to illustrate how the ICC negotiates its institutional interests as well as identifies prosecutorial opportunities. Sometimes moving on such opportunities works, as has been seen in the Court’s investigation in Mali and the cases of al Mahdi and al Hassan. At other times, as with the ICC’s intervention in Kenya, it doesn’t work, and the Court miscalculates an opportunity and / or circumstances out of the institution’s control change. And sometimes, as with its relationship with the government of Uganda, states will use the ICC’s institutional interests in order to keep the OTP on a ‘drip feed’ of cooperation whilst satisfying their own political prerogatives. While the broad-strokes of the Court’s institution interests are not likely to change, perhaps the case of Dominic Ongwen should inspire thinking on how to ensure that the expression of the ICC’s interests are not overly predictable. It is worth stressing that, while the Court often expresses a certain phobia of being seen as political, appreciating the ICC as a body with institutional interests and which seeks to take advantage of prosecutorial opportunities is not a criticism of the Court. As an international organization interested in projecting credibility and ensuring self-preservation, it should be selfevident that the Court will seek to satisfy its institutional interests. This chapter is therefore not an attempt to judge the appropriateness of ICC decision-making but to offer an explanation for it, through a theory of prosecutorial opportunism. Ultimately, as Darryl Robinson has cogently argued, there is no ‘goldilocks’ zone for the Court: there is no ‘just right’ when it comes to the selection of situations and cases.85 For some, it will be too much; for others not enough. The choice facing the OTP is thus not to identify and pursue perfect prosecutorial opportunities that will satisfy all, but to negotiate between imperfect interventions: [T]here is simply no such thing as ‘just right’, ie. there is no position that cannot plausibly be criticized as either ‘too hot’ or ‘too cold’. Indeed, many positions can be credibly criticized as both ‘too hot’ and ‘too cold’… The interesting conversation is not just to show that some particular choice is flawed, because they all are; it is to discuss how to choose among the flawed options.86 It is hoped that the conceptualization of prosecutorial opportunism offered in this chapter can help in furthering that conversation. Robinson, Darryl, Inescapable Dyads: Why the ICC Cannot Win, Queen’s University, Facult of Law Research Papers, (March 2015). 86 Ibid., pp.5, 41. 85 Kersten Draft Page 24 of 24