Thinking beyond the Office of the Prosecutor

From the 2nd of August 2019, the conversation among people with interest in International Criminal Justice is the ongoing search for a new Chief Prosecutor of the International Criminal Court (hereafter the Court or ICC). The mandate of Ms Fatou Bensouda, a Gambian lawyer, whose international criminal law career started at the International Criminal Tribunal for Rwanda  comes to an end on 15 June 2021. Ms Bensouda will have completed her nine-year non-renewable term at the helm of the first permanent court responsible for prosecuting the most serious crimes around the world. The common agreement among observers is that the Office of the Prosecutor (OTP), which is responsible for conducting investigations, has been disappointing. In a period of about 20 years, spending an annual budget of around €100m has seen most of its suspects either acquitted, not reached trial or cases dismissed because of insufficient evidence. The majority of observers also agree that the OTP had started off badly, its first ‘flamboyant’ chief prosecutor, Mr Luis Moreno Ocampo, had caused much damage that Ms Bensouda could not have rectified all wrongs, coupled with the fact that she was also part of her predecessor’s team. Even if she failed to move the Court to other parts of the world beyond Africa, she is credited for establishing a clear prosecutorial process through adopting new policies which have increased transparency. Therefore, she is coming to an end of her tenure with a lot of unfinished expectations and it is in agreement that whoever is to become the new prosecutor is eagerly awaited to steer the Court to the right direction (or off track).

Whereas I agree that the role of the chief prosecutor is critical to the success of the Court, it is important to stress that most of the current challenges facing the ICC are far beyond what any one chief prosecutor can resolve. Twenty years is long enough for the Assembly of State Parties (ASP), an oversight body, to know this truth. It should start examining the overall performance of the Court, as an institution. There is a need to go back to Rome and start asking some tough questions, questions relating to the reasons as to why the Court was created in the first place. There is a need to know whether the Court has been realizing the dreams of those who created it; is the ideal ICC of 1998 on paper the same as the real ICC of 2020? Probably, the obvious answer is a “NO” because it can be argued that the current ICC is working in a fast-changing world where global powers and interests keep shifting, and that creators of the Court in 1998 were not expecting it to remain the same, twenty years later. But this reality should not distract us from the overall mission of the Court, the spirit of fighting against the impunity of international crimes. Therefore, if we ignore the fact that it has created jobs which has some economic benefits, and the pride it gives to members of the civil society and the legal specialists in international law wagging fingers against those they consider to be “dictators” around the world, that one day, that just maybe one day, those dictators will find themselves before the Court in The Hague, and pause for a moment to investigate whether the Court has achieved its primary intended mission.

I submit that the outcome of such an honest reflective interrogation would provide some useful broader strategic solutions the Court needs more than the statutory changing of the Prosecutor. The Assembly of State Parties would be helped to know whether the existence of the Court has made it possible for people to say that no person suspected of heinous crimes is above the law. It would be interesting to examine the initial belief that cases referred to the Court by the United Nations Security Council (UNSC) are more likely to be supported and enforced. It would be helpful to understand the challenges undermining the ASP’s role in dealing with matters of state cooperation. The ASP should be interested in knowing whether the Court is contributing to the existing international legal inequality where it is allegedly favoring those in the Global North against states and individuals from the Global South, and if so, whether that is the trend that needs global support. Probably, it would also lead to the understanding that there are so many other ways of fighting impunity and promoting accountability beyond (international) criminal prosecutions, and  to that effect, the ASP can start thinking of reforming the Court in a manner that would strengthen the use of complementarity principle – supporting national processes contributing to the reduction of the impunity gap.

The use of inkikogacaca in Rwanda can be an inspiration of how unexpected mechanisms can provide better answers when people (concerned nationals) are given space to search for home-grown solutions to their own problems,  rather than clinging on the idea that every situation or case can better be resolved in The Hague, knowing for sure that the Court will never effectively deal with all the cases under its jurisdiction.

Dr Alphonse Muleefu is a Senior Lecturer at the School of Law – University of Rwanda. He is the author of The Independence of the International Criminal Court: Between a Rock and a Hard Place (Intersentia, 2019).

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