26 January 2016

Africa: An Inside Look Into How the ICC Works

Countless hours are spent speculating what the Office of the Prosecutor at the International Criminal Court will do next. Will there be an investigation into crimes allegedly committed by the current Ivorian president, Alassane Ouattara? What will be the next investigation into the Democratic Republic of Congo? Why does it take so long for a case to get to trial?

Last year, the OTP began planning its future budgetary requests to the Assembly of States Parties. In the process, it managed to answer quite a few of the questions that had prompted a lot of speculation. The Basic Size document, as it is known, is over 80 pages long and is the brain-child of Michel de Smedt - head of investigations at the Court.

In the Basic Size, the OTP breaks down its activities into concrete actions and timelines in order to estimate how much time and effort needs to be put into tasks. The process is both time-consuming and complicated, but it works as a rough guide for how the OTP functions, what is required in the different stages of a case and how the manpower is (ideally) allocated.

Step in the right direction for the ICC

Elizabeth Evenson, senior counsel in the International Justice Program at Human Rights Watch, sees Basic Size as a step in the right direction for the Court: "The Basic Size is an effort by the OTP to put its cards fully on the table, to say to states: this is what we need to be able to do, this is where we are falling short and these are the resources we will need to bridge the gap, if states are willing to engage seriously on the merits."

The Basic Size attempts to strike a balance between being realistic about the Court's capabilities, but at the same time it takes a demand-driven approach. It recognises that what it proposes would mean that the OTP will still need to carefully prioritise its efforts.

A maximum of six investigations per year

It can clearly be seen in the estimated investigations scheduled for this year, according to Evenson: "The best illustration of this is to look at the number of investigations the Basic Size envisions: six investigations per year, with each investigation taking an average of three years. That's more than the ICC can do now. It only had resources for four active investigations in 2015, but it is still far too little to make inroads on an existing backlog and to prepare to meet future needs."

Difference in approach between Ocampo and Bensouda

The OTP's approach to its work has taken a sharp turn since Chief Prosecutor Fatou Bensouda succeeded Luis Moreno Ocampo. Whilst Ocampo was known as an impact-driven prosecutor - aiming to make the Court as relevant as possible in his time at the helm - Bensouda has taken a process-driven approach.

Unpredictability of the future

This unpredictability of the future in relation to the work of the Court is also one of the major drawbacks in the document, according to Elizabeth Evenson: "This is the major drawback of the Basic Size. Even if states were to get on board -- and we saw little evidence of this from the 2016 budget negotiations, where the OTP received less than what it had asked for to put it on track to achieving the Basic Size in 3 years -- it is likely that the Basic Size will be outdated as soon as it is achieved, or sooner, with a major referral from the UN Security Council, for example."

However, while the Basic Size document lays a foundation for crucial discussions on budget and financing, it also provides interesting insights into how the Office of the Prosecutor functions. It carefully details which resources are needed for what stages of the OTP's work. As a document, it sheds light on some highly debated issues surrounding the Court, such as the witness interviewing process.

Animation by Inês Morais

For the full article about how the ICC works, check the Justice Hub site.

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