The Inevitably Difficult Choices a Prosecutor Faces

Alex Whiting is a Professor of Practice at Harvard Law School focused on international and domestic criminal justice issues. From 2010-2013 he was Investigation Coordinator and then Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court. From 2002-2007 he served as a Trial Attorney and then Senior Trial Attorney at the ICTY.

David Bosco has written a terrific book on the first decade of the ICC, capturing how strategic considerations can help shape the decision-making of the Office of the Prosecutor (OTP) at the International Criminal Court (ICC), as well as the actions of major states that interact with the Court. The book is carefully researched and beautifully written, and it recounts in often fine-grain detail some of the real-world considerations that touch the OTP on an almost daily basis (from my experience working there). It is a must-read for anyone trying to understand how the Court operates.

I offer a cautionary note about the takeaway from the book, a thought about what the book implicitly shows regarding the significance of the Court, and finally a suggestion about future research and thinking about the OTP.

First, in summarizing the book’s thesis it is important not to lose the nuance and complexity contained in the book. It would be a mistake to conclude that the book simply shows that the OTP seeks to avoid conflict with major powers, including the United States, and in this way essentially does the bidding of those powerful states. This reading might be tempting because it aligns with other (pernicious) narratives at play in discussions about the Court, in particular that the Court has “targeted” weak countries in Africa. But the truth is otherwise and more complex. The OTP does not quake at the prospect of incurring the hostility of major powers. The reality is that the Court faces critical reactions and pressures from political actors all the time and is quite used to it. As Bosco describes in the book, the ICC was born into an environment of open hostility by the United States, and in later years the Prosecutor pushed forward with an arrest warrant for Omar Al Bashir in Sudan and warrants for Muammar Gaddafi and two others in Libya while knowing that these steps were not necessarily welcome in Western capitals. The Prosecutor never adopted a strategy of great-power accommodation, and I think that those diplomats from major powers who engaged with the Prosecutor would be more surprised than anyone to hear him described as “accommodating.”

At the same time, there is no question that major powers and not-so-major powers can shape the environment in which the OTP works. And is that really a surprise? After all, it is a deliberate design feature of the Court that it has extremely limited powers, though often it is evaluated and judged as if it had the tools and authority of a domestic criminal justice system. Accordingly, the Court is completely dependent on cooperation from states, NGOs and other organizations to conduct its investigations and prosecutions. As Antonio Cassese wrote, “[i]nternational criminal courts remain entangled in and fettered by the intricacies of sovereignty.” This dependence can create a space for states to affect the work of the Court, and in some cases completely stymie its progress. That is true for big and small states. Bosco suggests that the Court has hesitated to plunge into an investigation in Afghanistan or Georgia because of the presence of the United States and Russia, respectively, but it is also the case that the strong resistance of Kenya and Sudan to ICC investigations there have also undermined the workings of the Court. When the ICC investigates in a country it will generally succeed only if it has cooperation from the country itself or from influential countries that can compel cooperation (as happened with the ICTY).

So when the OTP sets its priorities it must consider how best to use its limited resources in a world where (sadly) there are many places demanding its attention. One factor it will consider among many is the likelihood of success (defined as a thorough and credible investigation). Afghanistan and Georgia involve non-State Parties that are not likely to give their full cooperation to the Court, and certainly could not be expected to arrest suspects and deliver them to The Hague. The situation with Palestine is the same since Israel is not a State Party, and for that reason I have predicted that the Court will not move quickly to open a full investigation. When the Security Council referred Sudan and Libya to the ICC, the expectation was that these referrals would be backed by continued Security Council support as investigations and prosecutions progressed, but that has not turned out to be the case, which may give the Court pause when there are future referrals. At the same time, the prospects for success may affect the priorities of the Court but will not necessarily determine ultimate outcomes. The OTP has not dropped the preliminary examinations in Afghanistan and Georgia and it has opened one in Palestine. Ultimately, even if the prospects for success are low, the OTP may feel compelled to move forward on all of these cases. The OTP may be strategic and realistic, but it is also principled and is both motivated and constrained by the law contained in its Statute. In sum, therefore, major powers (as well as smaller powers) can affect the environment in which the Court operates and, in this way, can affect the work of the Court, but they do not therefore “control” the Court.

Second, I think Bosco’s book shows that despite the ICC’s limited powers and its ability to prosecute only a few cases in each situation, its influence remains significant. It is striking that countries care so much about what the Court does and that major powers, in particular the U.S., have chosen to engage constructively with the institution. Why? Why don’t they just ignore the Court? It is clear that the ICC has significance that far surpasses the few cases it is able to do. Even the possibility of an investigation, let alone an actual investigation, can have important repercussions. The Court’s focus on a particular situation has the power to frame the debate that can in turn shape the larger political and diplomatic discussion. For this reason, the Court matters, and major and less major powers will continue to pay attention to it. It is, and will continue to be, relevant.

Third, the book touches on but does not directly seek to resolve the normative question of whether the OTP should act strategically. I believe, and I am quoted in the book on this point, that it should, but I recognize that this can be controversial and it is certainly complicated. The Prosecutor has the obligation to investigate and prosecute cases over which she has jurisdiction under the Statute, but she is also building an institution with a limited number of tools. Should she consider the political environment in which she operates when applying the law? Should she think about Afghanistan and Georgia differently than other cases? When she starts an investigation and she has the choice of investigating just one side or of being shut out and foreclosed from investigating either side, what should she do? What compromises, if any, should the Prosecutor accept? When is half a loaf better than no loaf? How important is success, even if it is limited and incomplete? These are hard questions for which there are no easy answers. Institutional and legitimacy concerns often fall on both sides of the equation. If the Prosecutor acts too strategically, then she risks appearing unprincipled and undermining the legitimacy of the Court. Yet if she pays no heed to strategic considerations, she risks spending precious resources on efforts that will fail, exposing the fragility and weakness of the institution and also potentially undermining its legitimacy. Thus the Prosecutor is left to balance these two approaches in light of the particular factors in each case. Sometimes she’ll tilt more one way, sometimes the other, and sometimes a zig-zag will be required. There is no one approach that will work in all cases. Instead she is continually required to make difficult (and often legitimately debatable) judgment calls based on incomplete information and unpredictable and evolving circumstances. Is there a way to think about how the Prosecutor should think about these decisions? Could more thinking be done on how the Prosecutor should balance the different imperatives in each case? Bosco’s book opens this debate but does not attempt to resolve it.