Justice Doesn’t Come Cheap. Can the ICC Afford It?
By Alison Cole
The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) made public new findings on Tuesday with respect to alleged crimes committed in Nigeria. After receiving 59 complaints since 2005, the OTP has concluded that there are grounds to believe that Boko Haram, a militia group mainly active in northeastern Nigeria, has committed the crimes against humanity of murder and persecution.
The OTP report said it had found that the group has, since July 2009, “launched a widespread and systematic attack that has resulted in the killing of more than 1,200 Christian and Muslims civilians in different locations throughout Nigeria.”
This moves the OTP into the final stages of its decision whether to open a new investigation. The timeline for a final decision has not been announced.
The prospect of greater involvement in Nigeria also underlines the increasing demands on the ICC, as the report comes just days after the OTP filed its 2014 budget request, which included a 26.5 percent jump in funding requested of member states compared to the 2013 budget. The responsibility now shifts to member states to fully support the ICC’s mandate to provide accountability for atrocity crimes.
The ICC depends on voluntary cooperation from states in order to implement its mandate. The court does not have its own enforcement powers so relies on national assistance for critical aspects of its work, ranging from executing arrest warrants to accessing crime scenes to gather evidence. In the years following the establishment of the ICC in 2002, ICC staff were largely focused on securing buy-in from states. This buy-in would have been harder to achieve with a hefty price tag. Justice cannot be done on the cheap, but the ICC has certainly been forced to try.
The initial strategy of cheaper, “focused investigations” (i.e. limiting the number of costly investigation missions in-country), has resulted in cases with limited evidence, leading to an acquittal/conviction rate of roughly 1:1. At trial, there has been one conviction and one acquittal; at the confirmation of charges stage, four have been confirmed and are awaiting trial, and four were acquitted, with two trials in progress and one confirmation hearing ongoing.
States have consistently demanded that the ICC comply with a “zero growth” approach to its budget. The ICC was reluctant to push back on this, given the need to maintain good relations with states to secure cooperation. The OTP has not requested substantial increases in funding despite the dramatic increase in its caseload—from nine cases receiving operational support in 2009 to a current total of 18.
The Nigeria findings show that the demands on the OTP will not decrease. The OTP is mandated to review any potential international crime occurring in any of the 122 member states that have accepted the ICC’s jurisdiction, including those submitted by individuals or organizations under the Article 15 communication procedure, as was the case with Nigeria. The OTP has currently undertaken preliminary examination of new facts in seven countries (although there may be more which remain confidential). There is also the potential for new facts arising in one of the seven countries that already have cases open.
The findings in Nigeria also suggest that the OTP is struggling to carry out its mission within its existing financial resources. The OTP report announcing its findings concerning Boko Haram refers to sources such as Human Rights Watch, the UN, and the news media, rather than any in-country investigative work by its own staff. In recent ICC judicial decisions—particularly those resulting in acquittals—the judges have cautioned the OTP against relying overly much on material which they did not collect themselves, especially reports that might be based on summarized anonymous hearsay.
The 2014 budget request acknowledges these shortcomings and represents an important recognition of the need for OTP to change its methods. But these changes will be more expensive and OTP has made its strongest ever case for states to provide greater financial support.
Most importantly, the OTP introduces its request for greater funding by indicating that this would be the first in a series of annual requests for greater financial support from states. The OTP asserts that the “phased increase in resources” is designed to be “a sensible and more affordable way” to address the needs of international justice within the current global climate of financial austerity.
This is directly in line with the directions of the ICC’s judges. First, the OTP indicates that it aims to be “trial-ready” at the pre-trial stage of confirming the charges against the accused, so that proceedings can move to the full trial sooner. This has been a consistent demand from the judges since the prosecution’s preparation for the case against Thomas Lubanga was criticized in 2006. More recently, the judges this year suspended the confirmation hearing in the case of Laurent Gbagbo, the former president of Ivory Coast, ordering the prosecution to do further investigations.
This new approach requires a greater investment in the earlier stages of a case, such as during the months leading to a decision whether to open an investigation—the stage reached right now for the Nigeria situation.
The ICC judges have also indicated that the OTP must be on the ground sooner and must employ greater use of forensic technologies, conduct fuller inquiries and do more thorough crime scene analysis, negotiate greater access to insider witnesses, and appreciate the cultural context. As a result, most of the increases in the OTP’s budget relate to increased travel for field investigations and new structuring for case teams with staff members designated for each case, as opposed to the previous “rotational model,” whereby staff were moved frequently depending on the most pressing need.
The question now falls to the states, who will discuss the proposed budget at the meeting of the Assembly of State Parties in The Hague in late November.
Fatou Bensouda, the new ICC prosecutor, has been in her post for over a year and, in November, she will be joined at The Hague for the first time by her new deputy prosecutor. She has made the first ever strong request for financial support. The onus now is clearly on the states. As the OTP states in its budget request “[w]ithout increased resources, the OTP cannot achieve the success that it hopes for, and that victims, affected communities, and the international community expects.”
Until October 2016, Alison Cole was the Open Society Justice Initiative legal officer for international justice.