Guest Post: The ICC’s End Days? Not So Fast

By Alex Whiting, Professor of Practice at Harvard Law School and formerly Investigation Coordinator and then Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court 

Dov Jacobs has written an interesting, thorough, and provocative analysis of the recent Germain Katanga judgment at the International Criminal Court (see here, here and here). I appreciate his insights and contributions to the ongoing debate about the case and its legacy. However, in this post, I want to push back on just a few of the points he makes.

Dov returns several times to the Regulation 55(2) issue, which was the focus of controversy in the case during the last year. As Dov explains, the majority of the Trial Chamber found that although the facts established at trial did not support a conviction for the crimes under the charged mode of liability, they did for an alternative mode, so the Defense was given notice that the Trial Chamber would consider the alternative mode as well as an opportunity to be heard. Ultimately, after considering all of the evidence and arguments, the Trial Chamber entered a conviction under the alternative mode.

The Defense was aware from the beginning that the Trial Chamber was free to take this step, and therefore it is a little difficult to claim surprise or unfair prejudice when the Trial Chamber in fact made the move. But my goal here is not to rehash the legal debate, as the points on both sides have already been well rehearsed many times and, as Dov himself acknowledges, the issue has largely been settled by the Appeals Chamber (in favor of the use of Regulation 55(2)).

But, as Dov’s post itself illustrates, the subject continues to be a lightning rod for criticism from the defense side. The solution going forward seems obvious, at least to me. The Prosecution should be permitted from the beginning to charge alternative modes of liability. The advantage would be that everyone would know from the start what the possible outcomes were, and therefore there could be no claim that the case somehow changed part way through trial. In the event alternative charging would require a change to Regulation 52(c), which requires the document containing the charges to include the “precise form of participation under articles 25 and 28,” then the change should be made.

Are there any downsides? As Dov notes, one of the purposes of Regulation 55(2) was to focus trials on more clearly delineated charges. But allowing alternative charging from the beginning would not greatly undermine this focus. The charges would stem from essentially the same set of facts, which would continue to be the focus of the trial. There might be some additional evidence required if there are alternative modes of liability charged, but in general the evidence supporting the different modes will be significantly overlapping.

Will the defense be unfairly prejudiced if alternative charging is allowed? I don’t see how. The question at trial will simply be: did the Accused contribute in one of several specified ways to the commission of the designated crime? This should pose no difficulty for the parties or the judges. The Accused at the ICC are represented by sophisticated and talented defense counsel who are perfectly capable of contending with alternative charges.

Some might say that the prosecution should be forced to choose one theory of liability and that it is somehow “unfair” to require the defense to defend against alternative charges. But it’s not clear where the unfairness lies. The difficulty in fixating on just one mode of liability is that the differences in modes of liability will often turn on just slight variations in the facts. The prosecution’s evidence might develop slightly differently at trial than during the investigation, the defense itself might present evidence that could change the picture, or the judges might see the case differently from either party. These variations could support different forms of responsibility on the part of the Accused and there is no reason that the different possible options should not be in play during the entire trial. The only thing the defense loses if alternative charging is permitted is the option of defending the case by claiming it committed the crime in an alternative, uncharged manner. It hardly seems unfair to exclude such an option. In any event, there is no doubt that allowing alternative charging from the beginning is preferable to the current Regulation 55(2) regime.

In addition, I think that Dov in his post is a bit too hard on the Office of the Prosecutor (OTP) at the ICC, and unfairly so. Like Kevin Heller, he describes the Katanga case as “another failure” for the OTP (Kevin described it as a “terrible day”). Really? The prosecution alleged that Germain Katanga was criminally responsible for crimes committed during the attack on Bogoro in the DRC on 24 February 2003. The result? The Chamber found him criminally responsible for some but not all of the alleged crimes. A failure? Hardly. It is true that the Trial Chamber convicted Katanga under a different mode of liability than the one advanced by the prosecution, but it is not an infrequent result of international criminal trials, or domestic criminal trials for that matter, that an Accused is convicted of some but not all charges, or is convicted of committing the offense in one manner but not the other. That is part of the purpose of a trial. And none of the “controversy” surrounding the Trial Chamber’s adoption of an alternative mode of liability would have arisen if the prosecution had been allowed to charge in the alternative from the beginning.

Dov’s critique does not stop there. He is pretty damning about the OTP’s entire record to date – describing it as “bleak” – and the course that the OTP is now on under the new Prosecutor, Fatou Bensouda. Of course, we all view the ICC from our own perspectives and with our own biases. I come to the subject as a former prosecutor with the ICC and the ICTY, but I have repeatedly said that the OTP needs to do better and learn from its mistakes. Still, I don’t think the record is quite as “bleak” as Dov makes it out to be. He cites the cases of four suspects that were not confirmed by the Pre-Trial Chamber, but does not mention that ten suspects had their cases confirmed (an additional two cases are pending confirmation decisions). One Accused was acquitted (Ngudjolo), but two have been convicted (Lubanga and Katanga). Perfect? Certainly not. Bleak? No. At all of the modern international criminal tribunals there have been cases that have not succeeded.

More specifically, Dov piles on with the now familiar criticisms of the OTP’s investigations. Again, I’ve repeatedly acknowledged that the OTP has made some mistakes along the way and that it continues to learn from those mistakes and is adjusting its practices. But here again I think Dov overdoes it a bit in his attacks on the OTP.

Dov relies almost entirely on judicial criticisms of the OTP, apparently assuming that the judges are always right (at least on this subject). Of course, since the judges are the ultimate authority, the OTP will have to adjust to what the judges expect, unless it can persuade the judges to modify their views. But we should not assume that the judges are always right in their assessments of the work of the OTP. For example, in the Pre-Trial Chamber’s decision on confirmation in the Mbarushimana, the Chamber criticized the OTP for asking so-called “leading questions” of insider witnesses. The Chamber failed to recognize, however, that the interviews generally started with open-ended questions and that the investigators only pressed the witnesses later in the interviews when it appeared that the witnesses were not focusing or were not forthcoming. In addition, the judges do not seem to have appreciated that in many instances insider witnesses, who are usually loyal to potential suspects, will be reluctant to provide information, and that therefore it will often be necessary to press them and confront them in order to get them to answer questions truthfully. This is a complicated business with plenty of risks, to be sure, but it is a bit simplistic to say that investigators can only ask open-ended questions.

In the Laurent Gbagbo case, the majority of the Pre-Trial Chamber criticized the quality of the evidence presented by the prosecution for confirmation. But it also revealed that it expected the prosecution to be essentially finished with its investigation by the time of the confirmation hearing and to present its best evidence at that stage. This perspective on the confirmation stage is highly contentious and largely collapses the difference between the confirmation and trial phases. For these reasons and others, Judge Fernandez dissented from the PTC’s decision. The “criticisms” of the two majority judges were therefore informed and colored by the (in my view unreasonable) expectations that these judges had for what should occur at the confirmation hearing.

This brings me to another small point about Dov’s analysis. At moments he is a bit selective about which judicial decisions he cites. It would be one thing if he relied always on the decisions of the majority, but he cites again and again the dissent of Judge van der Wyngaert in the Katanaga case. But he never mentions the dissent of Judge Fernandez in the Gbagbo case, which contained a devastating critique of the majority’s approach, or the dissent of Judge Monageng in the Mbarushimana case, in which she concluded that in fact the prosecution had submitted sufficient evidence to warrant confirmation of the charges. I assume that Dov cites those judicial opinions, whether they be in the majority or in dissent, that he agrees with, but it is worth acknowledging that even the judges are not uniform in their views of the prosecution.

Looking to the present and the future, Dov is unfair to the current Prosecutor. He is completely dismissive of Bensouda’s new announced approach to investigations and claims that “nothing has changed at the OTP.” But institutions like the OTP take time to change. It is rather more like turning a super tanker in the ocean than a little speedboat. So it is much, much too early to judge. It is worth noting that not a single case initiated by Bensouda has yet made its way through the process, so on what basis is Dov concluding that nothing has changed? As for the ongoing cases, to the extent adjustments are possible, it will take time for new approaches to manifest themselves in results.

And it is a mistake to focus solely on the OTP, because the OTP is dependent on the work of the other organs and States to succeed. Have those other actors done all that they could to allow the OTP to succeed? Several of the OTP’s cases have been undermined by failures in witness care and protection. What more can the Registry do in this area? A consensus has also developed that the Assembly of States Parties (ASP) has not provided sufficient resources to the OTP to allow it to investigate effectively all of its cases at the same time. Last year, the ASP increased the OTP’s budget. But it will take some time before the OTP can hire and integrate new investigators. Thus it does a disservice to the institution and to the international criminal justice project to announce already at this stage that the new Prosecutor and her team have done nothing to improve the work of the OTP. Give them a chance.

Finally, Dov concludes with a broad indictment of not just the ICC but of the entire international criminal law project, asserting that it is “geared towards conviction, both in the way the law is applied and interpreted (or created) by the judges as well as in the rules of procedure and evidence.” He asserts that only a few, himself included, are interested in the “fairness of international criminal trials,” and that the “denial of fair trial rights … is a common feature of international criminal trials generally.”

Before pushing back, let me say that there is an aspect of Dov’s critique that I very much appreciate and I believe is critical to the discussion. He is correct when he says that there is always a risk that the “mission” of the international criminal tribunals to “fight impunity” will swamp the rights of the defense. It is essential that everything be done to guard against this tendency. And I have no doubt that at the margins there have been instances where the judges have been overly indulgent towards the prosecution, particularly in the early years of the ad hoc tribunals.

But once again Dov’s broad critique simply goes too far. First off, it is somewhat in tension with his earlier points about the failures of several cases at the ICC. Isn’t the fact that the judges at the ICC have refused confirmation in four cases and acquitted one Accused some evidence at least of a seriousness about process and the rights of the defense? Likewise, at all of the ad hoc tribunals, there were complete and partial acquittals.

Further, in my experience, there exists a deep and genuine concern for the fairness of trials that is widely shared among judges, prosecutors and defense counsel. There may be disagreements on what fairness requires, but no failure to understand the importance of fairness for the Accused and the institution. Finally, stepping back for a moment and looking at all of the modern tribunals, can we really say that their work lacks legitimacy? It is not enough to say that the Accused at these institutions should be convicted because they are “obviously guilty,” but when assessing the work of the courts does it really seem like innocent actors were convicted? Is there that kind of injustice in the results? And what about the process that has been afforded the accused? At all of the tribunals they have been represented (often by outstanding counsel), they have been given time and resources to investigate, they have been permitted to test and challenge the evidence, and they have been able to mount their own defenses. The proceedings have been long and very heavy on process. Again, this is not to say that that there haven’t been, and continue to be, issues on the margins. But at the end of the day, to quote an oft-quoted formulation from my country, the defendant is entitled to a fair trial, not necessarily a perfect one. Have the trials at the modern tribunals really been “unfair”? Have they been just sham trials designed to convict, as Dov suggests? I think this is a difficult contention to sustain.

At the end of the day, Dov’s post demonstrates the need for even more discussion among those with differing perspectives, especially those coming from the prosecution side and those from the defense side. I suspect that there is more common ground between these perspectives than might first appear. Identifying that ground would be good for the debate as well as the international criminal justice project. At times, however, the gulf between the differing points of view seems very wide indeed.