You can almost hear the relief felt by International Criminal Court (ICC) supporters who will be gathering in The Hague for the 17th Assembly of States Parties (ASP) meeting from December 5 to 15: no major scandals breaking; no new threatened exits by member states; no sustained critique, apart from that of non-member United States.
But, in fact, the picture is less rosy than the lack of focused public attention to an institution regularly in the crosshairs might appear.
The first issue is that the ICC is in no danger of overwhelming its court rooms: only two trials are ongoing; another had its pre-trial phase pushed back to May 2019; only one new accused is currently in detention. The second issue is the controversial choices the prosecution is making with its next year of active investigations. And the third issue is likely to be the budget itself. Regularly, key member states have tightened the tap and refused to accept asked-for increases. Will this year be different?
WHAT’S IN THE COURTROOMS
According to information available at the ICC’s ASP page the court has plenty going on. But what’s actually happening in the courtroom is pretty meagre. The trial of Dominic Ongwen, former rebel commander in Uganda, is apparently the most wordy, with “three thousand, seven hundred and ninety-eight pieces of evidence” making it “the greatest volume of evidence admitted in a trial” to date. It’s now at the defence stage – and predicted to need another 160 days in court during 2019.
Ivorian former president Laurent Gbagbo and his supporter Charles Blé Goudé also continue in the dock with an estimated 124 days needed next year, but judges will first be deciding whether the prosecution has done enough to make a case to answer. Al Hassan Ag Abdoul Aziz, the former de facto chief of the Islamic police in Timbuktu, Mali, will have been in detention in The Hague more than a year before his confirmation of charges – about 10 days’ worth of court time – begins in May 2019. For these three trial proceedings, the court says up to 103 witnesses are expected to appear to give testimony.
The court’s documents detail the breadth of its engagements during last year: 21 cases and 10 situations (Central African Republic I and II, Uganda, Democratic Republic of the Congo, Darfur, Kenya, Libya, Côte d’Ivoire, Mali and Georgia). If you count in Pre-Trial Chamber activity and preliminary examinations from last year, there’s even more: Registered Vessels of Comoros, Greece and Cambodia; Gabon; Burundi; Guinea; Iraq/UK; Nigeria; Palestine; Philippines; Venezuela; Ukraine; Colombia; Myanmar/Bangladesh and, lastly (but not least) Afghanistan where prosecutor Fatou Bensouda has been waiting for more than a year to get the judges to authorize an investigation.
So what else will be involving the judges? “Five final appeals will be ongoing throughout 2019, as well as reparations proceedings in three cases.”
But out of all of that, actually only a handful of people are actually in detention.
WHAT’S IN THE INVESTIGATIONS (GOLDEN OLDIES AND NEW HITS)
“As the Court often operates in highly volatile political and security environments, focus and resources are also devoted to active investigations, as a priority, in order to capitalize on opportunities as much as possible,” declares the court. Putting its – potential – money where its mouth is, the Office of the Prosecutor (OTP) has proposed increasing its active investigations from six to eight.
“Good idea” applauds Alex Whiting, professor at Harvard and former coordinator of ICC prosecutions. “I think it's an excellent development” agrees Patryk Labuda, Hauser Global Fellow at New York University, “because this was one of the major criticisms leveled against [former prosecutor] Moreno Ocampo – that he didn't do enough investigations, but instead came out with all sorts of headline grabbing arrest warrants, and not enough actual evidence to back them up.” But Whiting warns that eight may be “difficult”, even if a combination of increased capacity within the OTP and “the balance of different investigations, makes it possible.”
What has drawn a more mixed response are the apparent priorities detailed in the documents: “In line with OTP strategy, priority is always assigned to cases that are being prepared for trial or that are at the trial stage.” Labuda points out that “in terms of open situations you have 11 open situations and four [DRC, Kenya, Mali, Uganda] have been left off this list completely.”
Does it mean that it is more urgent to intervene in Libya than in the Democratic Republic of Congo? I'm sure the victims in Congo would disagree.
The OTP says the selection is “in order to meet the most urgent demands for its intervention” but Patryk Labuda is sceptical. “Urgency lies in the eye of the beholder in a way… does it mean that it is more urgent to intervene in Libya than in the Democratic Republic of Congo? I'm sure the victims in Congo would disagree.”
So, what has made the prosecutor’s cut? There are some golden oldies, along with some new hits.
In the first category come two Central African Republic investigations – known as CAR II, to separate them from the first wave of investigation in CAR. These are focused on the “renewed violence in the country from 2012 onwards by government entities and various groups, including elements known as, or grouped under the names Séléka and anti-Balaka.” The recent delivery of former militia leader anti-Balaka Alfred Yekatom to The Hague covered at least one of these groups.
Then there’s Ivory Coast, where, after the focus on pro-Gbagbo forces, now come the pro-Ouattara forces (CIV II). Here the court says there’s been “good progress” but, since Ouattara and supporters are in power, Whiting agrees this is “extremely challenging”. He believes “the OTP deserves a lot of credit for continuing to press this” and suggests this investigation shows how committed the OTP is to “balance” and not remaining trapped into one-sided investigations. “One can only hope that the Ouattara government understands that the credibility of investigations on the other side, the credibility of its own government, the credibility of its efforts to have accountability, will depend on how much it cooperates,” says Whiting. “But not every government sees that... So, those will be difficult investigations.”
In Darfur, Sudan, there’s a somewhat vague commitment “to investigate leads” relating to earlier investigations. Since the prosecutor has regularly expressed her frustration back to the Security Council – which gave her predecessor the mandate to investigate some thirteen years ago – at the continued non-arrest of president Omar al-Bashir, this is really an investigation that’s marking time. “It’s being done to make sure that information remains current in the event that there’s ever a surrender,” says Whiting.
The impression of the civil society, as well as of the general public, is that the ICC, and most importantly Prosecutor Bensouda, has forgotten that she has opened investigation into Georgia’s situation.
The Georgia three year-long investigation, which neither Tbilisi nor Moscow wanted, where the OTP is looking into the short war and displacement of people in 2008, is apparently stuck. While there have been declarations of support from Georgian authorities, prospects of concrete results in this case look bleak. Those monitoring the situation are distinctly unimpressed: “Overall, the impression of the civil society, as well as of the general public, is that the ICC, and most importantly Prosecutor Bensouda, has forgotten that she has opened investigation into Georgia’s situation,” says Nika Jeiranashvili, the executive director of Justice International, an NGO. “In the current, tense political environment, there is a risk that the ICC becomes a tool for destabilization,” he says, and that although the court says it is “aware”, “they do not do anything about it, which makes one wonder whether they care about the process at all and the impact it has on the country.”
And finally, there’s Libya. There were several cases out of the UNSC referral that all focused on the revolution and the Gaddafi era. No suspect came to the court. But now Bensouda is getting her teeth into “more recent events”. The two active lines of investigation (Libya III and IV) are into military commander Mahmoud al-Werfalli for war crimes based on social media video evidence and another “relating to alleged crimes against humanity, within the Court’s jurisdiction, against migrants.” The very different “focus, nature and method” of these two investigations, means that “two distinct teams are required”. But to keep costs down and to exploit “synergies” neither has a full team.
Whiting believes “the combination of social media evidence leaving the country or individuals leaving, even potential insiders” make these “very real” investigations.
And the real baby – the newest investigation of a new country – is Burundi. The court says this investigation was “jump-started” this year by moving existing staff and resources onto this situation. But it will need more resources to keep going at this level.
Whiting describes it as the “startup phase”. But, he warns, “you face the same challenge as with Sudan. You can’t operate in the country.” He expects the team to be drawing on evidence that’s already been collected, checking who and what’s available via social media from outside and seeing if they can find ways of penetrating the inside.
The Congolese government has made it pretty clear that they will withdraw from the Rome Statute if the ICC does something that they don't appreciate.
And so, DRC is no longer a priority for 2019. Dr Denis Mukwege, who will receive on Monday the Nobel Peace Prize for his fight against mass rape in Eastern Congo may appreciate that. Labuda shares the disappointment. “The violence has increased dramatically in the last three years. The prosecutor has repeatedly issued press releases specifically warning the government that if this continues the ICC will intervene. So, we're now talking about two years of warnings and no follow up”. He acknowledges that as there have been ongoing cases from the DRC, including the trial of former militia leader Bosco Ntaganda, and “you need the government to facilitate” getting witnesses to The Hague. And he points out the political reality: “The Congolese government has made it pretty clear that they will withdraw from the Rome Statute if the ICC does something that they don't appreciate.” He sees the dilemmas the prosecutor faces. But, he says, “for the third year in a row there's a disconnect between her rhetoric and what's happening on the ground. This kind of epitomizes her reluctance to confront states in some places. Some people will applaud her pragmatism. Others will criticize.”
Mali is also no longer an active investigation. “We are pleased the number of active investigations is increasing, but we’re not really clear on how they [the OTP] are making these decisions. We don’t get very clear responses to our questions…in Mali they are doing these two cases, and that’s it?” asks Amal Nassar, the International Federation of Human rights (FIDH) permanent representative to the ICC.
Judges went out of their way to tell the prosecutor: you should already move to the investigation phase. So why isn’t she moving faster?
And the other big one notable for its absence on the 2019 list is that of Rohingya Muslims deported from Myanmar to Bangladesh where judges recently approved the prosecutor’s request to open a preliminary examination. Judges went out of their way, says Whiting, to tell the prosecutor: you should already move to the investigation phase. So “why isn’t she moving faster?” he asks. “To me that’s unfortunate,” he says. “I think that she should seize that opportunity. I understand there are so many other cases, and she doesn’t want to let this one jump the queue. But I think there are times when you have to seize the momentum and I think this is one of those moments.”
WILL STATES PAY FOR WHAT HAS BEEN ORDERED?
Will states look kindly on a requested increase of 2.6%, to a total of nearly 148 million EUR, mainly to support the increased investigations of the prosecutor and the increased workload of the Trust Fund for Victims (TFV), or will they again try to restrict the court from perceived overambition? The ‘zero nominal growth’ approach of some states in recent years is under debate, diplomatic sources say. But the states’ own Committee on Budget and Financing has recommended a measly 0.6% increase on last year, to only 145 million EUR.
The court does have costly ongoing obligations: “More than 90 witnesses will remain under protection in 2019” and such protection includes their families too, making a total of 450 persons under protective measures. And it has ongoing necessities: 10 languages will need to be supported in courtroom proceedings; 10 defence teams working across trials; appeals and reparations proceeding need support; along with “at least five teams of legal representatives of victims”. The court also plans to have a presence in “seven field locations in 2019”: one each in CAR, Côte d’Ivoire, Georgia, Mali and Uganda, and two in DRC (Kinshasa and Bunia). And NGOs will be pointing out during the ASP that in this era of #fakenews, the court has to do more to counter misinformation about its mandate and objectives.
The lion’s share of the budget is always for the OTP. They want 48 million EUR – an increase of 4.6% on last year.
But the lion’s share of the budget is always for the OTP. They want 48 million EUR – an increase of 4.6% on last year. Overall, the court says, “there is little to no further flexibility in terms of staff reallocation” remaining, and with “two new active investigations” in comparison with what was budgeted for in 2018, this new money is needed.
The independent Trust Fund for Victims, which is both funded out of the ICC budget and of voluntary contributions, is increasing its assistance work, and finally gearing up this coming year to implement reparations following the completion of a few ICC trials. They are asking for a whopping 58.3% increase – “predominantly staff costs” – to do their job.
Assistance project work is not directly related to a guilty verdict – for example, the TFV will work in CAR despite the Bemba acquittal. Nassar says this mandate is “super handy in keeping the court present” in situation countries, especially as the trials can be long and there’s the chance of acquittal. “It’s essential in relieving the waiting that victims have to go through before they first have justice delivered and second have reparations delivered.”
Three cases – Lubanga and Katanga in DRC and Al Mahdi in Mali – are “expected to be at the implementation stage of reparations in 2019”. New staff are needed to identify “eligibile [sic] victims” in the Lubanga and Al Mahdi cases and implement the reparations which include “individual, service-based collective and symbolic awards.”
Victims can really go through the proceedings and formally submit their needs and views on what they want, and what their reparations should look like. So, it should be more meaningful, because they will feel they have had a say.
Nassar says this process “will be more individualized. Victims can really go through the proceedings and formally submit their needs and views on what they want, and what their reparations should look like. So, it should be more meaningful, because they will feel they have had a say.”
But even if the budget is approved, cases continue smoothly, investigations are turbocharged, and the reparations are finally paid out – drawing a line under the court’s first cases – the ICC is unlikely to emerge from 2019 satisfying its many stakeholders.