From ... in Social issues — Jan 31, 2023

Office of the Prosecutor, International Criminal Court “[Draft] Strategic Plan for 2023-2025”

Human Rights Watch welcomes the opportunity to provide the following comments on the “(Draft) Strategic Plan for 2023-2025” (hereafter “draft Strategic Plan”) of the Office of the Prosecutor of the International Criminal Court (ICC).

The Office of the Prosecutor (OTP or Office), the Registry, the Trust Fund for Victims, and the court as a whole are aiming at four aligned strategic plans covering the period 2023-2025.

These plans will be adopted at a critical juncture for the ICC and the Rome Statute system.

The expansion of the armed conflict in Ukraine in 2022, and the opening of an ICC investigation there, highlights the central role of the court in the ecosystem of interconnected mechanisms working to provide justice for serious international crimes. At the same, the renewed attention to the ICC has also revealed the longstanding tension between the expectations of victims, affected communities, and other relevant stakeholders, and the resources available to the court to address those expectations.

The Office of the Prosecutor has faced this dilemma for several years.[1] Given the importance of addressing this tension to ensure greater success in the court’s effective, independent, impartial, and meaningful delivery of justice, the comments below primarily focus on elements of the OTP’s draft Strategic Plan most closely aligned with this goal. In particular, they respectfully offer some observations on cross-cutting issues related to strategic goals 1, 2, and 3, based on our ongoing monitoring of the court’s functioning. In addition, we welcome the emphasis the Office puts in the draft Strategic Plan on delivering results in the courtroom (strategic goal 1); strengthening investigations and prosecutions should be key objectives to ensure the court fully delivers on its mandate. Finally, the draft Strategic Plan notes that the Office has requested an upcoming evaluation by the court’s Independent Oversight Mechanism of the Office’s previous strategic plan (2019-2021).

The draft Strategic Plan further notes that the Office plans to produce yearly reports on its performance.[2] These assessments should provide a basis for the OTP to continually adapt its activities during the time period covered by the draft Strategic Plan and beyond. Strategic goals 1, 2, and 3: Deliver results in the courtroom; Enhance efforts by national authorities to fight impunity; Justice is brought as close as possible to affected communities The draft Strategic Plan states that “[t]he first condition for the Office to succeed is to define a realistic scope of operations and bring manageable cases.” Based on that, it outlines the Office’s intention to “prioritise situations and cases systematically and objectively, with the aim to reduce the existing scope, and to focus on the gravest crimes and the most realistic prospects of success while looking for every opportunity to enhance cooperation and complementarity with States and other stakeholders.”[3] The prosecutor has separately indicated an intention to "go deeper within a narrower range of situations.”[4] A certain degree of prioritization will always be necessary. It also reflects a certain realism about the mismatch between the court’s workload and the resources available to it. Unfortunately, despite the increase approved by the Assembly of States Parties at its last session, the court’s budget is still far below what is necessary.

The Office (and the court as a whole) should continue to make the case to states parties for the resources necessary in the court’s annual program budget to support the effective delivery on its mandate. At the same time, the Office should take steps to avoid an over selective approach to completion of investigations, as well as the selection of lines of inquiry and cases within a situation. This is a challenging balance.

The aim to “go deeper” aligns in certain respects with Human Rights Watch’s previous recommendation that bringing too few or too limited cases in each situation, without a clear vision of the change the court seeks to achieve by the time it completes its mandate, could frustrate its effective delivery of justice.[5] And yet, the prosecutor’s decision in the Afghanistan situation to de-prioritize the investigation of crimes allegedly committed by US and former Afghan government forces exemplifies the pitfalls of selectivity; we have seen in other ICC situations the devastating consequences when one-sided investigations are pursued, giving rise to perceptions of double-standards and a lack of independence that erodes the very notion of the rule of law.[6] To address the tension between expectations, workload, and resources, and in light of the recent announcements by the Office of the completion of the investigative phase in the situations in the Central African Republic (CAR) and Georgia, the design and implementation of robust situation-specific completion strategies is crucial.[7] In this respect, we welcome the Office’s commitment to “manage every situation and case through careful and constant planning, reviews, and implementation of high standards,” including through situational, investigative, cooperation, and outreach plans.[8] This is in line with the findings and recommendations of the Independent Expert Review to improve the Office’s strategic decision-making, as previously endorsed by the court.[9] In relation to “Situation Plans,” the draft Strategic Plan clarifies that these are “overall plan[s] for each situation, including an outline of potential cases, timeline, required resources and anticipated completion targets and strategies” (emphasis added).[10] Moving forward, completion strategies in particular should be developed on a court-wide basis and defined with respect to whether the court has achieved its mandate and under what conditions the court will be able to say it has done so. This primarily relates to whether the court has itself delivered impartial, independent, and meaningful justice. But it should also include a consideration of whether domestic authorities are ready to take over the court’s ongoing responsibilities of investigating and prosecuting Rome Statute crimes.[11] Our preliminary observations of the prosecutor’s recent announcements that investigative activities are now complete in the Georgia and Central African Republic situations, as well as the closure of the two preliminary examinations in Colombia and Guinea,[12] highlight the following important elements that should be included in the development of situation-specific completion strategies and their implementation. While these are only preliminary indications based on our monitoring to date, and the Office continues to engage in both country situations, it suggests the need to have clearer strategies in place prior to announcing the completion of key phases of the Office’s work.

The Key Performance Indicators (KPI) in the draft Strategic Plan specifically geared toward improving the Office’s cooperation with domestic authorities could provide useful benchmarks to strengthen this important aspect of the Office’s work.[20] The draft Strategic Plan refers to the secondment of personnel to the Office of the Prosecutor as offering “an additional important opportunity to exchange knowledge and assist in refining operating practices. Conversely, the secondment will contribute to the transfer of knowledge and experience, and to develop relationships that continue to strengthen the Rome System after the secondment has come to an end.”[30] It further explains how the development of a system of rotation of seconded forensic experts, as tested in the situation in Ukraine, can benefit the Office as well as the assisted and contributing countries.[31] This exchange of expertise can be beneficial to the different parties involved. Human Rights Watch remains concerned, however, that the Office risks becoming too reliant on seconded personnel. Voluntary contributions are not a sustainable funding model as they depend on states’ fluctuating political will. At the same time, they may raise concerns in terms of perceptions of independence, particularly when the public messaging around them by seconding governments links the contributions to specific situations, as has been the case for Ukraine. [32] [1] “Office of the Prosecutor, International Criminal Court, Strategic Plan, 2019-2021, Comments of Human Rights Watch,” Human Rights Watch, July 10, 2019, https://www.hrw.org/news/2019/11/13/office-prosecutor-international-criminal-court-strategic-plan-2019-2021-comments, July 10, 2019, pp. 1-2. [2] Office of the Prosecutor of the ICC, “(draft) Office of the Prosecutor Strategic Plan for 2023-2025 (OTP draft Strategic Plan), December 2, 2022, paras. 8, 11, and 49. [3] Ibid., para. 19. [4] Ibid., para. 13; Office of the Prosecutor of the ICC, “Towards a More Just World Every Day: Annual Report of the Office of the Prosecutor – 2022 (OTP Annual Report 2022),” December 1, 2022, https://www.icc-cpi.int/sites/default/files/2022-12/2022-12-05-annual-report-of-the-office-of-the-prosecutor.pdf (accessed January 30, 2023), p. 52. [5] Human Rights Watch, Unfinished Business: Closing Gaps in the Selection of ICC Cases, September 2011, https://www.hrw.org/sites/default/files/reports/icc0911webwcover.pdf, pp. 1-8, 12-22, 24-29, 31-36, and 39-45. [6] Ibid.; Human Rights Watch, Courting History: The Landmark International Criminal Court’s First Years, July 2008,https://www.hrw.org/report/2008/07/11/courting-history/landmark-international-criminal-courts-first-years. [7] No Peace Without Justice and Human Rights Watch, No Peace Without Justice and Human Rights Watch Joint Submission on the Draft OTP Policy on Situation Completion, April 21, 2021, https://www.hrw.org/sites/default/files/media_2021/04/NPWJ_HRW_OTPCompletionPolicySubmissionAPR21.pdf, para. 13. [8] Office of the Prosecutor of the ICC, OTP draft Strategic Plan, para. 21. [9] Independent Expert Review of the International Criminal Court and the Rome Statute System, “Final Report,” September 30, 2020, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/IER-Final-Report-ENG.pdf (accessed January 30, 2023), paras. 635, 679-683, and Recommendations 240-242; Overall Response of the International Criminal Court to the “Independent Expert Review of the International Criminal Court and the Rome Statute System – Final Report: Preliminary Analysis of the Recommendations and information on relevant activities undertaken by the Court,” April 14, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Overall%20Response%20of%20the%20ICC%20to%20the%20IER%20Final%20Report%20-%20ENG%20-%2014April21.pdf (accessed January 30, 2023), paras. 431-436. [10] Office of the Prosecutor of the ICC, OTP draft Strategic Plan, fn. 2. [11] Elizabeth Evenson and Alison Smith, “Completion, Legacy, and Complementarity at the ICC,” ed. Carsten Stahn, The Law and Practice of the International Criminal Court (2015), http://www.npwj.org/sites/default/files/ressources/ASmith_OxfordUniversityPress2015.pdf (accessed January 30), 2023, pp. 1267-1268. [12] We acknowledge that situations under investigation and preliminary examinations are very different phases in the work of the Office and have distinct statutory requirements. However, we believe that some of the lessons learned from the recent conclusion of preliminary examinations can also inform the Office’s approach to the completion of investigations. [13] Office of the Prosecutor of the ICC, OTP draft Strategic Plan, para.13 (Key area 6), and strategic goal 2; OTP Annual Report 2022, pp. 32-51. [14] Evenson and Smith, “Completion, Legacy, and Complementarity at the ICC,” p. 1268. [15] Franck Petit, “Central African Republic: Special Court "In the Starting Block" (2/2),” JusticeInfo.net, January 17, 2023, https://www.justiceinfo.net/en/111260-central-african-republic-special-court-starting-block-2.html, (accessed January 30, 2023); International Federation for Human Rights (FIDH), Observatoire centrafricain des droits de l’homme (OCDH), and Ligue centrafricaine des droits de l’homme (LCDH), “What prospects for justice in the Central African Republic?,” October 3, 2022, https://www.fidh.org/IMG/pdf/car_final_report_31_october_2022.pdf (accessed January 30, 2023), pp. 41-43; Human Rights Watch phone interviews with CAR justice official, December 16, 2022 and January 25, 2023. [16] Franck Petit, “Central African Republic: Special Court "In the Starting Block" (2/2).” [17] Franck Petit, “Central African Republic: Special Court "In the Starting Block" (2/2).” [18] Human Rights Watch phone interviews with civil society group representatives in Colombia, January 18-19, 2023. [19] Human Rights Watch phone interview with civil society group representative in Colombia, January 18, 2023. [20] Office of the Prosecutor of the ICC, OTP draft Strategic Plan, Annex 1, and in particular n. 6, the response rate of the Office to incoming Requests for Assistance (RFAs) within three months, and n. 7, the number of contributions to national cases leading to active prosecutions. [21] Ibid., para. 27. [22] “No Peace Without Justice and Human Rights Watch Joint Submission on the Draft OTP Policy on Situation Completion,” para. 13. [23] We are aware that the Office organized virtual meetings with a small number of domestic and international civil society groups in each of these situations on the day the completions were announced. [24] “Investigation of crimes committed during August 2008 war completed: What does it mean?”, Jam News, December 19, 2022, https://jam-news.net/investigation-of-crimes-committed-during-august-2008-war-completed-what-does-it-mean/ (accessed January 30, 2023). [25] Human Rights Watch phone interviews with justice official in CAR, December 16, 2022 and January 25, 2023. [26] Human Rights Watch phone interviews with civil society representatives in Colombia, January 18-19, 2023. See also International Federation for Human Rights (FIDH) and Colectivo de Abogados José Alvear Restrepo (CAJAR), “Request for review of the Prosecutor’s decision of 28 October 2021 to close the preliminary examination of the situation in Colombia,” April 27, 2022, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_03398.PDF (accessed January 30, 2023). [27] Human Rights Watch phone interview with civil society representative in Colombia, January 19, 2023. [28] “No Peace Without Justice and Human Rights Watch Joint Submission on the Draft OTP Policy on Situation Completion,” paras. 5 and 13. [29] International Criminal Court, “(draft) ICC Strategic Plan 2023-2025,” November 23, 2022, para. 66. [30] Office of the Prosecutor of the ICC, OTP draft Strategic Plan, para. 24. [31] Ibid., para. 20. [32] Human Rights Watch, Human Rights Watch Briefing Note for the Twenty-First Session of the International Criminal Court Assembly of States Parties, November 22, 2022, https://www.hrw.org/news/2022/11/22/human-rights-watch-briefing-note-twenty-first-session-international-criminal-court, pp. 4-6, 9-10; Open letter from the Coalition for the International Criminal Court (CICC) to the ICC and the ASP, “Victims could lose out with states’ double-standard on International Criminal Court resources,” March 30, 2022, https://coalitionfortheicc.org/news/20220330/OpenLetter_ICCresources (accessed January 30, 2023).

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