New Approach to Investigations at the International Criminal Court

The Prosecutor of the International Criminal Court has announced that her office is making important changes in its approach to investigations. She spoke about the change in remarks delivered at the Free University of Brussels on Thursday on the occasion of an award to her of an honorary doctorate. Prosecutor Bensouda said that a document explaining the changes is about to be posted on the website of the Office of the Prosecutor.

There was a strong sense in her remarks that the current approach to investigations, developed by her predecessor Luis Moreno-Ocampo, had not delivered the sort of results that were expected. More than once she referred to the fact that the judges had set higher standards and expectations about the amount and quality of evidence than the Office was in a position to provide at various stages in the proceedings.

She said that the Office of the Prosecutor plans to move away from the ‘focussed investigations’ that were the hallmark of the first nine years of activity. For example, in the Lubanga prosecution the scope of the prosecution was ‘focussed’ on the child soldier offences whereas, she indicated, many other charges might have been considered but were not. In the future, she said that more alternatives would be considered at early stages in the investigations.

Prosecutor Bensouda said that future investigations might not be directed at those ‘most responsible’ for atrocities in a given situation. Rather, the Office might try to start at the base, and build up. This is an approach reminiscent of that developed by Richard Goldstone when he was Prosecutor of the International Criminal Tribunal for the former Yugoslavia in the mid-1990s.

She also said that there would be a move away from the very heavy reliance upon eye witness testimony.

The Prosecutor said that rather than prepare investigations in stages, depending upon the procedural requirements of the Statute, the Office will now endeavour to have its cases as close to trial ready as possible as early as possible. This has been a source of frequent criticism from judges of the Court.

This report is based upon notes taken during her remarks. Probably the document setting out the new approach will complete our understanding of what the Office proposes to do.

The new prosecutorial approach is a welcome development. At the very least, there is a recognition that something within the Office has failed and needs to be changed. What remains to be seen is whether these changes will be effective and whether they will be adequate. In particular, the difficulties of the Office of the Prosecutor, and of the Court more generally, may well go beyond the approach to investigations. In her remarks in Brussels on Thursday, the Prosecutor did really address what may be a far more important source of difficulty for the Court, namely its relationship with the African Union, African States more generally and the political forces that are at work there and elsewhere. On this point, she said only that she would ‘not consider broader matters concerning peace and security’ and that she would ‘respect the mandates of others’.

As always, she presented her views in a modest and accessible manner. Her personal style is a sharp contrast with the hectoring, arrogant and very over-confident manner of the previous Prosecutor.