THE ICC IN ACTION: USING PLEA-WITH-COOPERATION AGREEMENTS TO BRING GOVERNMENT LEADERS TO JUSTICE.

• Author: Dutton, Yvonne M.

1. INTRODUCTION 3 II. THE ICC: SOME HISTORICAL BACKGROUND 8 III. THE OTP SHOULD EMLJRACE A POLICY OF OFFERING PLEA-WITH-COOPERATION DEALS TO LOWER- AND MID-LEVEL SUSPECTS 11 A. The Cooperation Deficit Allowing Government Leaders to Escape Accountability at the ICC Requires Embracing New Strategies 12 B. Offering Plea-With-Cooperation Agreements to Lower-Level Suspects is a Sound Way to Build Strong Cases Against High-Level Suspects 14 C. Pursuing Plea-With-Cooperation Agreements with Lower-Level Suspects Offers the Possibility of Swift and Efficient Justice 19 IV.USING PLEA-WITH-COOPERATION DEALS IS CONSISTENT WITH ICL AND PERMITTED BY THE ROME STATUTE 22 A. Despite Critiques, The Practice of Using Plea-Bargaining is Consistent with ICL 22 B. The Rome Statute Allows the OTP to Enter into Plea-With-Cooperation Agreements with Lower-Level Suspects 26 V. THE RELEVANT STAKEHOLDERS SHOULD DEVELOP SPECIFIC GUIDELINES AND COOPERATE TO ENSURE THE PLEA-WITH-COOPERATION STRATEGY IS IMPLEMENTED SUCCESSFULLY 29 VI. CONCLUSION 33 I. INTRODUCTION

   Created in 2002, after the required sixty states had ratified the Rome Statute, (1) the International Criminal Court (ICC) is the first permanent, treaty-based international criminal court established to help end impunity for perpetrators of genocide, crimes against humanity, war crimes, and aggression. (2) High hopes accompanied the court's creation. (3) U.N. Secretary-General Kofi Annan expressed his belief that the court would deal a "decisive blow" to impunity. (4) William Pace of the Coalition for the International Criminal Court (5) suggested that the ICC represented a "new system of international criminal justice" and a "great victory for the protection of universal human rights and the advancement of human security." (6) The Rome Statute itself reflects these high hopes: according to the Preamble, a primary goal of the court is to end impunity for the perpetrators of the most serious crimes of concern to the international community. (7)

   After almost two decades in action, however, states and other commentators have begun to question whether the court can achieve the lofty goals set for it--at least without some fundamental changes in how the ICC does business. (8) Critics note, among other things, the absence of concrete results in holding perpetrators accountable for mass atrocities. (9) The statement of a U.K. spokesman at the 2018 Assembly of States Parties meeting is telling:

   [W]e cannot bury our heads in the sand and pretend everything is fine when it isn't. The statistics are sobering. After [nearly] 20 years, and 1.5 billion Euros spent we have only three core crime convictions. As others have said, and I quote "it is undeniable that the Rome project still falls short of the expectations of the participants at that ground-breaking conference in Rome." (10) Indeed, as of late 2021. the ICC's Office of the Prosecutor (OTP) has successfully convicted only four defendants of crimes against humanity or war crimes charges. (11) Further, none of the ICC's four convictions is against a government actor-much less, a high-level government leader. (12) Most recently, on February 4, 2021, an ICC Trial Chamber found Dominic Ongwen, former Lord's Resistance Army (LRA) commander, guilty of crimes against humanity and war crimes based on violent attacks carried out at various camps for internally displaced persons in northern Uganda. The court sentenced Ongwen to twenty-five years' imprisonment, though his attorneys have since appealed the verdict against him. (13) In 2016, the court sentenced Ahmad Al Faqi Al Mahdi, a member of an Islamist militia group, to nine years' imprisonment after he pleaded guilty to the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion in Mali. (14) In 2014, the court sentenced Germain Katanga, a former leader of an armed rebel group, to twelve years' imprisonment for crimes against humanity and war crimes based on his role in an attack committed against persons and property in the Ituri district of the Democratic Republic of the Congo in 2003. (15) And finally, in 2012, the court sentenced rebel leader Thomas Lubanga Dylio to fourteen years' imprisonment for enlisting and conscripting children under the age of fifteen to participate in hostilities in the Ituri district. (16)

   The OTP has not ignored its mandate to prosecute government leaders who have committed serious international crimes, but its efforts to bring that category of defendant to justice have, thus far, resulted in well-publicized defeats. Consider the case of President Omar al-Bashir of Sudan. Numerous states failed to arrest and surrender al-Bashir after the OTP issued a warrant for his arrest in 2009 for crimes against humanity, war crimes, and genocide based on violent acts committed by his government forces against civilians. (17) Kenya, Chad, South Africa, Djibouti, and Uganda, in fact, welcomed al-Bashir to their countries and allowed him to return to Sudan. (18) These states advanced various reasons for refusing to arrest al-Bashir, including legal challenges to the ICC's ability to prosecute a leader who might otherwise enjoy immunity from prosecution as a head of state of a country that had not joined the ICC. (19) Nevertheless, al-Bashir remained beyond the ICC's reach even though various ICC Pre-Trial Chambers granted the OTP's many motions for findings of non-cooperation against the states that had refused to arrest and surrender the then-President when he was on their territory. (20) Only now that al-Bashir has been ousted does it appear that Sudan's transitional government may consider handing him over to the ICC for prosecution. (21)

   In several other cases, the OTP has proceeded to trial against government leaders, yet failed to obtain a conviction. In December 2014 and April 2016, respectively, the ICC prosecutor dropped its crimes against humanity charges against President Uhuru Kenyatta and Deputy President William Ruto of Kenya, alleging that the defendants had interfered with witnesses and that Kenya had obstructed the OTP's efforts to gather evidence. (22) In March 2016, the OTP obtained a conviction against former Congolese Vice President Jean-Pierre Bemba for crimes against humanity and war crimes, alleging that he was responsible for crimes his troops had committed in the Central African Republic. (23) In June 2018, however, the Appeals Chamber overturned the conviction, "finding 'serious errors' in the trial judges" assessment that Bemba did not take necessary measures to prevent, repress, or punish the commission of crimes by his subordinates." (24) Finally, in January 2019. ICC judges acquitted Laurent Gbagbo, the former president of the Ivory Coast, and his minister of youth of crimes against humanity charges based on their alleged roles in the violence committed following the country's 2010 elections, concluding that the OTP failed to satisfy its burden of proving several core elements of the case. (25)

   Considering these public setbacks, commentators have voiced concerns that in the future, the OTP will avoid efforts to hold government leaders accountable for their crimes. (26) Prosecuting government actors necessarily poses unique challenges that make convictions especially difficult to obtain. Unlike rebels or other non-governmental actors, high-level government leaders not only control state machinery, but they also have powerful allies both in-state and out-of-state who can help them frustrate the ICC's efforts to obtain custody over them or to gather sufficient evidence to prove their involvement in criminal activity. (27) But states did not create the ICC for it to pursue only rebels, and an ICC with a better "track record" of convictions cannot be the only goal. The ICC must also be able to bring justice to the many victims who suffer atrocities at the hands of their own leaders who are frequently untouchable since they are typically unwilling to prosecute their own. (28) Indeed, unless the ICC prosecutes such government leaders, they will enjoy impunity.

   This Article argues that the OTP should pursue a policy of entering into pleawith-cooperation agreements with some lower- and mid-level defendants to help the Office build strong cases against powerful leaders who orchestrate mass violence-and who, as the record demonstrates, often escape justice. (29) In other words, the OTP should enter into plea agreements with lower-level suspects, agreeing to recommend a reduced sentence in exchange for the suspect's agreement to plead guilty to the crimes he committed and cooperate by providing evidence and testimony to aid in building strong cases against high-level suspects. (30) Doing so would not require the OTP to abandon its goal of pursuing accountability for individuals "most responsible" for the crimes committed--a goal which, in any event, is not mandated by the Rome Statute." Instead, it would simply require employing a different strategy to reach the same ultimate goal. Indeed, though it did not mention plea-with-cooperation agreements specifically, in its 2012-2015 Strategic Plan, the OTP appeared willing to consider that, in some circumstances, it may need to first investigate and prosecute lower-level perpetrators in order to build a stronger case against those at the highest levels. (32) As the OTP has acknowledged, in the types of complex cases it investigates, higher-level perpetrators typically keep "distance between themselves and the crimes and us[e] different mechanisms to hide their role." (33) By pursuing lowerlevel perpetrators and requiring them to plead guilty to their crimes and cooperate in exchange for recommendations of leniency in sentencing, the OTP can increase the likelihood of building solid cases against the government leaders who insure that they are not "on the ground" committing crimes.

   This Article recognizes that some commentators question whether...