Money matters, and is the heart of the matter at the Assembly of State Parties (ASP). For 2022, the International Criminal Court (ICC)’s Office of the Prosecutor (OTP) has asked for an 8.5% increase in budget from states. Karim Khan, the new prosecutor elected in June, is making sweeping changes to his domain, including two, rather than one Deputy Prosecutor, to be elected at the meeting of states this week in The Hague.
His new plans, outlined in the budget proposal, include ‘prosecution pillars’, led by senior coordinators who report to the deputy prosecutors from the ‘unified teams’ of lawyers, investigators, and analysts. Preliminary examinations – the stage before an investigation - will be part of those pillars. The advisory and leadership body known as ‘ExCom’, made up of the heads of the OTP’s divisions, on which the previous prosecutor relied for implementing strategy, has been scrapped. And the immediate office around the prosecutor will be strengthened with staff covering external affairs and communications.
The changes are going ahead full steam, with new job advertisements emerging from the court. But they are subject to the budget discussions at the ASP. And are being complemented by the full review Khan has been undertaking since taking office in June, of all the preliminary examinations and investigations he inherited from his predecessor Fatou Bensouda, who has left in June after nine years of office.
The proposals also come against the backdrop of a wider process instigated by states, known as the Independent Expert Review (IER), which proposed a year ago more than 300 recommendations to change all areas of the ICC’s work. That has now morphed into a mechanism led by diplomats with an action plan for consulting, systematising and prioritising all the recommendations, within which there are still some contentious areas that would impact some of Khan’s proposals.
Limits on the prosecutor’s independence?
As implementing the recommendations is going on behind the scenes - an “extremely cumbersome” process, acknowledges Gabriele Chlevickaite, assistant professor at Free University of Amsterdam (VU), who worked as an assistant to the IER last year - there’s concern emerging that states may be tempted to set limits on the prosecutor’s independence. “It would be naive to pretend that the ICC does not operate in a highly political environment,” says Raquel Vazquez Llorente of the International Federation for Human Rights (FIDH), “but it would be fatal for the Court if the OTP is politicised”. It’s “particularly important” the IER recommendations on complementarity and positive complementarity and the gravity threshold “are conducted with a view toward respecting prosecutorial independence” says the NGO Human Rights Watch in its recommendations to this ASP. They comment that making the review process so state-led “opens the door for potential interference with the independence of the court”.
Imaginative ways to collaborate with states
Khan’s first decisions are already huge in scope: to refocus the Afghanistan investigation away from alleged crimes committed by US forces and their Afghan government allies; to stop the long-running Colombia preliminary examination; to pause the Philippines investigation; and to open an investigation into alleged crimes in Venezuela alongside signing a memorandum with the authorities. He also spoke to the United Nations Security Council in his six-monthly report on Libya and suggested they fund his work, having referred the situation to the court’s first prosecutor. Adding that he is exploring “imaginative ways” to collaborate with states and that success should not defined by “numbers of trials or the number of proceedings in The Hague” but rather by more accountability and justice overall.
The Prosecutor now has 16 situations on his plate under investigation. To deliver effective results says HRW, “considerable work [has] to be done to bring additional cases in them and lay the groundwork necessary for the court to maximize its impact and legacy for affected communities before it can conclude its work.” In seven of the situations the court is now investigating, “there have yet to be any public charges laid,” they note.
During a memorable trip to Latin America in November, Khan closed the 17-year long preliminary examination into Colombia for crimes during the rebel insurgency. Some criticised him for failing to keep the pressure on Bogota. In Venezuela, he held a press conference with the authorities. His moves are “in line with the emphasis that the prosecutor has placed so far on positive complementarity at the ICC”, says Triestino Marinello of Liverpool John Moores University, while he is dismissive of a memorandum of understanding the prosecutor signed with Caracas.
The most criticised decision the prosecutor has made so far has been to refocus the investigation into Afghanistan. “It was, in my view, not the best way to do it” says Chantal Meloni professor at the University of Milan, “because the words he used, the way he justified it, was not based on legal criteria. It was based on a sort of realpolitik”. That pragmatic approach also earned Khan a rebuke from judges who cautioned that he had to both show that he was approaching an investigation impartially as well as actually be impartial. These decisions seem to represent “a paradigm shift” says Marinello, from Bensouda’s tenure; Khan is “standing close by states, he concludes, “this will be his mandate over these nine years.”
Inertia of the institution
The sweeping changes in the OTP structure are illustrated by organigrams of titles and lines of power in the new budget. Prosecutor Khan “explicitly uses the IER report to justify some of the changes” notes Chlevickaite. Doing away with “the infamous ExCom” she says, having previously worked in the OTP, may indeed increase efficiency. But she points out that while the IER had also “recommended quite a few changes in relation to ExCom” they were “not as far reaching as the prosecutor has decided”. Khan though has “just removed it”.
Chlevickaite cautions that changing the structure or changing policy will not by itself necessarily have the desired results: “Only individuals who can objectively report of whether this has affected the workflows” will be able to judge efficiency. She hopes for more consultation with staff and with civil society on “whether the changes are having the intended effect or just changes for the sake of changes”. “People might just continue working the way they did before”, she points out, “there's the inertia of a big institution”.
“It’s too early to assess whether the changes being carried out by prosecutor Khan will translate into success in the courtroom,” agrees Vazquez Llorente. But she asks, the ultimate question is “what do these changes mean in terms of justice for survivors and affected communities?” There’s work to be done, she says, “in how Prosecutor Khan engages with both local and international NGOs, beyond round-tables and other semi-public meetings. There is a trust building process between both actors that is still work in progress, and could certainly be improved by being more transparent about the changes that are taking place at the OTP, without breaking confidentiality or jeopardising investigations”.
By choosing Khan, states made clear that they wanted a prosecutor who would be realistic about what the court can achieve in a world where states have primacy. His predecessor conducted enquiries into situations that directly concerned three of the Security Council’s permanent members. Khan has already shown that he has no qualms in setting a new direction for his office. If he manages to deliver against the huge expectations of all stakeholders, states may stop grumbling about the court’s costs and loosen the funding tap.