The Evolution of “Hibernation” at the International Criminal Court: How the World Misunderstood Prosecutor Bensouda’s Darfur Announcement

On December 12, 2014, International Criminal Court (ICC) Prosecutor Fatou Bensouda appeared before the UN Security Council to report on the situation in Darfur. She indicated that she would “hibernate investigative activities in Darfur,”[1] a statement widely reported as a suspension of the Court’s work, and celebrated by Omar Al-Bashir as a victory against the Court. Yet in March 2015, ICC Pre-Trial Chamber II ruled that Sudan had failed to cooperate with the Court in the Al-Bashir case and formally referred its finding to the UN Security Council. This referral came just days after the ICC Appeals Chamber confirmed the Court’s decision issuing an arrest warrant for Sudanese opposition leader Abdallah Banda. How can these developments be consistent?

In planning documents developed by the ICC Office of the Prosecutor (OTP) since Bensouda’s election as Prosecutor, the process of hibernation appears to have become an unremarkable stage of a case or investigation. Used with increasing regularity, hibernation refers to the phase of a case following the conclusion of investigative activities in which the OTP preserves evidence and material support pending a suspect’s surrender or arrest. In this essay, I define the concept of hibernation as used by the OTP and discuss its evolution at the ICC. I conclude that Bensouda’s December 2014 hibernation announcement was widely misunderstood by officials and overstated by commentators.

Definition

Hibernation is defined in a report by the OTP on the anticipated financial impact of the “new strategy” of the OTP released in October 2014. “Hibernation,” as used by the OTP, “broadly refers to the downgrading of activities in any given case to the minimal requirements needed to maintain it updated and alive, while also sustaining the necessary level of contacts with victims and witnesses. The hibernation of cases may be initiated for a variety of reasons.”[2] While reserving hibernation for multiple unenumerated circumstances, the OTP has only referred to hibernation in the context of non-executed arrest warrants—and used “hibernation” interchangeably with “cases awaiting arrest”—suggesting that pendency of arrest may in practice primarily account for hibernation.[3] Indeed, by the 2015 Report of the Court on the Basic Size of the Office of the Prosecutor, hibernation had been so narrowed to describe the state of a case “[w]here there is a lapse in time between the end of an investigation and the apprehension or voluntary appearance of a suspect.”[4]

According to the Prosecutor, in “cases . . . considered in hibernation . . . only the minimal activities needed to maintain the case updated and alive, while also maintaining contacts with witnesses and victims, will be undertaken.”[5] The OTP considers that “[h]ibernated cases always involve a variable amount of residual work, for both Investigation Division (regular contact with witnesses, protection issues and gap analysis, etc) and Prosecution Division (residual litigation, reports to the Court and gap analysis).”[6] The OTP has also referred to such investigations as “residual investigations in a so-called state of hibernation (i.e.: preservation of evidence, keeping contact with witnesses, etc., in order to allow quick and effective reactivation of the case if and when required).”[7] The case against Dominic Ongwen, a Ugandan rebel leader recently surrendered to the Court, provides an example of such “reactivation” or “de-hibernation,” where the suspect was taken into custody nearly a decade after an arrest warrant was issued. There, the OTP described that it was “now re-animating a case that has lain dormant for almost a decade” and referred to “the time the case has spent in hibernation.”[8]

Evolution

Perhaps the first reference to hibernation is in the OTP’s Urgent Request to Postpone the Date of the Confirmation Hearing of Bosco Ntaganda, filed on May 23, 2013.[9] There, the OTP explained that the seven-year delay between the issuance of the first arrest warrant for the Congolese General and his surrender to the Court required the OTP to take additional time to prepare the case. The OTP then described how it had “reconstituted” prosecution and investigation teams and reallocated resources to the case.

Contextually, it appears that the Ntaganda proceedings may have spurred the development for a hibernation procedure. Reference to hibernation next appears in the July 2013 OTP Major Programme document in the context of resource allocation as “the least demanding status in terms of OTP resources”:[10]

Even where an investigation is put into “hibernation”, on account of the non-execution of an arrest warrant, for example, there is still a need for some level of investigative activity, to maintain contact with witnesses and follow up on leads. . . . [I]nvestigations will be put or left in hibernation, with limited resource capability being assigned to perform the necessary activities to preserve evidence and leads and to contact and protect witnesses. The goal is to ensure that the cases in question are always kept updated, so that they can be swiftly resumed if necessary, and dedicated teams can restart operations effectively.[11]

In light of resource constraints, the report explains, “the Office has been forced to reassess its operational model for investigations, breaking it down into active investigations, cases awaiting arrest (investigations in hibernation) and trials.”[12] Within this framework, the OTP described its 2014 investigation objective to conduct five active investigations, at least one Article 70 investigation, provide investigative support to three trials and four appeals, and to maintain seven investigations in hibernation.

The document proceeds to describe hibernation with reference to the Ntaganda case:

[T]he recent detention and transfer to the Court of Bosco Ntaganda highlights the need to be able to transform a case in hibernation to pre-trial stage within a limited time frame. Thus, in order to ensure, for all cases in hibernation, that evidence is preserved by maintaining contact with witnesses, that security is monitored and that threats are mitigated, sufficient resources will need to be allocated. Currently, the seven cases in hibernation involve approximately 450 witnesses. Maintaining contact, updating profiles, monitoring the situation and responding to incidents and issues will require a minimum of one investigator per situation, corresponding to a total of our full-time staff.[13]

In its October 2013 Strategic Plan, the OTP continued to voice concern over the workload of the Court, identifying “active investigations which are understaffed and investigations in hibernation where the capacity is lacking to maintain contact with the witnesses and preserve their cooperation.”[14] The OTP articulated as an objective in its 2013 Strategic Plan “[t]o review the status of investigations in hibernation, to take stock of the work to date and assess the need for additional investigative and prosecutorial steps (2014-2015).”[15]

As discussed above, the OTP referred to hibernation in its February 2015 Application for Postponement of the Confirmation Hearing of Dominic Ongwen following his surrender to the Court, almost a decade after the issuance of a warrant for his arrest. This is at least the second such appearance of “hibernation” in the public filings of the OTP and mirrors its 2013 submission in the Ntaganda case to postpone a confirmation hearing. The OTP has recently identified the Blé Goudé case as a third case brought out of hibernation, however there appears to be no reference to “hibernation” in publically-available documents related to the case.

In September 2015, the Report of the Court on the Basic Size of the Office of the Prosecutor provided further clarity on the concept of hibernation and its newfound role in the OTP. The Report explains that “where there is a lapse in time between the end of an investigation and the apprehension or voluntary appearance of a suspect, a case is considered hibernated.”[16] Hibernation is defined as “a freezing of investigative activity.”[17] A branch point therefore arises upon conclusion of the investigation phase of a case where a proceeding will either enter into a trial phase or be placed into hibernation if “there is no expectation of an imminent arrest.”[18] In this regard, the confirmation hearing is seen as “a critical event”: if a suspect is available, charges will be confirmed and the case proceeds to trial, otherwise, the case enters hibernation. The Report contains the “current standards” of a new prosecutorial policy according to which a case is made trial-ready before it is hibernated. After a case is hibernated, it is envisioned that the OTP must remain prepared to participate in subsequent judicial proceedings and preserve evidence.[19]

To this end, the 2015 Report identifies a “basic hibernation team” whose staff is primarily charged with carrying out tasks related to hibernation. Additionally, the team is expected to conduct similar “hibernation type” activities in closed cases and serve as a staffing “buffer” for active investigations and prosecutions where necessary.[20] The burden of hibernated cases is substantial: for example, the Report anticipates OTP interaction with 1,530 witnesses per year in hibernated cases, out of an estimated 2,890 total witnesses with whom the OTP has contact annually.[21] The Report provides that the OTP will require a staff of 37 in its Investigations Division to manage hibernated cases, and 15 staff members in its Prosecutions Division, constituting a substantial proportion of the OTP’s overall requirement of 540 staff.[22]

The 2015 Report identifies nine cases currently in hibernation and acknowledges that some of these cases were not made trial-ready prior to hibernation in accordance with the new prosecutorial strategy; bringing such cases into a trial-ready posture is expected to require additional resources.[23] A “de-hibernation ratio” is estimated in the Report based on the Court’s nine-year experience, during which time three cases have been transitioned out of hibernation, suggesting that one hibernated investigation will be “de-hibernated” every three years. However, the Report acknowledges that the factors dictating whether a case will enter hibernation or trial “are random” insofar as they are based on “a fugitive turning up every 3 years.”[24]

Conclusions

Until very recently, the concept of hibernation arose primarily in budgeting documents and discussions of Court resources, suggesting a focus on managing and allocating OTP resources. However, reasons for the establishment of a discrete hibernation procedure at the OTP are also practical in nature. The Ntaganda, Blé Goudé, and Ongwen cases exposed the need to keep case files trial-ready in the event proceedings ultimately move forward upon a suspect’s arrest or surrender. By late 2015, therefore, hibernation evolved from shorthand for resource diversion into a staffed component of a prosecutorial strategy to ensure that cases remain trial-ready between the end of investigation and the apprehension of a suspect.

The most recent OTP documents indicate that the reason for hibernating a case is the absence of a suspect at the conclusion of investigation, due either to non-execution of an arrest warrant or failure to appear voluntarily. During hibernation of a case, the OTP has strategies to “preserve” that case in a state of trial-readiness in order for proceedings to commence without significant delay upon arrest of a suspect. In this sense, hibernation serves an important function in preventing the delay of justice and contributes significantly to the fight against impunity.

It is therefore unsurprising that ICC proceedings in the Sudan situation have continued to develop notwithstanding the hibernation announced by Prosecutor Bensouda in December 2014. Indeed, on March 3, 2015, the ICC Appeals Chamber confirmed the Court’s decision issuing an arrest warrant for Sudanese opposition leader Abdallah Banda.[25] And on March 9, 2015, Pre-Trial Chamber II ruled that Sudan had failed to cooperate with the Court in its case against President Al-Bashir and formally referred its decision to the Security Council under the regulations of the Court.

Prosecutor Bensouda confirmed this conclusion in an interview to Radio Dabgana on March 31, 2015. There, the Prosecutor explained that “[h]ibernating the case simply means that the office’s activities in Darfur will be limited to monitoring the Sudan situation. . . . But I want to be absolutely clear, really, that the situation has been hibernated does not in any way mean that the office’s abandoning the cases in Darfur.”[26]

The best interpretation of Prosecutor Bensouda’s December 2014 statement to the Security Council is that it was an attempt to stir the Council into action, but nothing more. The Court simply reached a point where it could take no further action until arrest warrants in pending cases in the Sudan situation were executed. Reports of the Darfur investigations’ demise are overstated, and Al-Bashir’s celebration of Prosecutor Bensouda’s “hibernation” statement was misplaced: his arrest is still actively sought by a Court waiting impatiently to wake its Darfur cases from hibernation.

About the Author: Thomas Weatherall, an ASIL member, is an Attorney-Adviser in the Office of the Legal Adviser at the United States Department of State. The views expressed herein are the author’s own and not necessarily those of the Department of State or the U.S. Government.