IER Blog Series: Back to Basics – Improving ICC Investigations

This blog is part of a series on selected aspects of the ICC Independent Expert Review final report released on September 30, 2020.

Investigation shortcomings and the Office of the Prosecutor’s (OTP) limited success in court contributed to calls for a review of the International Criminal Court (ICC). Two acquittals, issued between June 2018 and January 2019, in the Bemba and Gbagbo and Blé Goudé cases respectively, highlighted significant gaps in evidence collection (see here and here) and exacerbated the OTP’s low conviction rate. While the court has numerous problems, including beyond the work of the OTP, the strength of investigations has direct bearing on the institution’s credibility. Understandably, the Independent Expert Review (IER) devoted significant parts of its report to strategic and policy matters surrounding investigations.

The report acknowledges upfront that the OTP lacks the resources and capacity to investigate all cases within its jurisdiction. It must therefore set clear priorities and close investigations where appropriate.  But limiting the number of investigations will not be enough to ensure better results. The OTP also needs to make radical reforms and improve the development of case theories and evidence gathering, in particular for cases against high-ranking officials. Among other steps, the decentralization of investigations could finally bring investigators closer to affected communities and ensure evidence identification and collection grounded in a more accurate understanding of each situation’s socio-political, cultural and historical context.

Strategy: Setting Priorities, Hibernating and Closing Situations

As discussed in a previous blog, the IER concluded that the OTP’s caseload exceeds its capacity. The IER report makes a number of recommendations on how the OTP should set priorities. According to the experts, the OTP should establish a hierarchy among case selection criteria, prioritizing: 1) the gravity of the crimes; 2) the strength and diversity of the evidence; and 3) the degree of responsibility of the potential suspects (R230). Seeking to maximize the use of resources, the report questions the OTP strategic plan’s proposal to prosecute mid-level accused. It recommends that the OTP should only do so when that is clearly part of a plan to prosecute leaders, there is likelihood to arrest those most responsible, and the possibility of negotiating guilty pleas has been accounted for (para. 670).

The report also makes a series of findings on feasibility (i.e., the likelihood of achieving results) as a factor for prioritization during the investigation phase. As discussed, it states that feasibility should not be a criterion during the preliminary examination stage, when deciding whether to open an investigation. By contrast, the experts agree with the OTP that feasibility could be relevant to prioritize investigations once opened, including in relation to decisions to hibernate situations (see below) (paras. 653, 661, 676-677, R244). However, the experts caution against focusing “too strongly” on feasibility during the case selection phase. They note that feasibility may shift depending on the level of priority assigned to a case or the resources allocated to it (para. 678).

When it comes to selection of charges for prosecution, the IER report takes note of the OTP’s laudable intention to represent “as much as possible the true extent of the criminality which has occurred in a given situation.” The report argues, however, that such an approach requires a significant time investment and has less chance of success in court (paras. 673-674). The experts strongly recommend that decisions on charge selection be guided by the evidence: “[t]he OTP would benefit from focusing on the factual allegations that are supported by the strongest, most diverse evidentiary basis” (para. 675; see also R231). While the experts’ practical stance might seem reasonable, it fails to take into account that the recommended approach could lead the OTP to refrain from actively seeking evidence to support other charges if it can obtain a conviction with a narrow, strong case. This could lead to significant disappointment among affected communities that expect the ICC to set a historical record of the events. It could also have an adverse impact on victims, as only those who suffered harm from the selected, narrow charges would be able to access reparations.

The experts note that the OTP cannot lead more than eight investigations at a time with the current level of staff and other resources. Consequently, they propose a system for prioritization with three levels: 1) prioritized investigations (active); 2) deprioritized investigations (active but with low level of activity); and 3) hibernated situations (para. 684). The report presents hibernation as a solution while acknowledging there is no perfect way out of the conundrum the OTP faces in light of resource stretch. Opening investigations once they meet Article 53 criteria but hibernating them would allow the OTP to collect evidence in order to preserve it, and conduct any other time-sensitive activity to enable later investigation, after the period of hibernation. This approach, the experts advocate, “would be more transparent, and more empowering for the Prosecutor, and for the states concerned” (paras. 654-655).

The IER report takes note of two documents the OTP is currently developing: guidelines for hibernating cases and a paper on completion strategies – “[b]oth of these are welcome developments” (para. 687). The report proposes that the guidelines outline criteria for de-prioritization and hibernation, as well as steps to be hibernate, re-activate and close situations (paras. 688-689). The OTP has opened 14 investigations since 2004 and it has closed none of them to date. According to the IER report, completion strategies are crucial and require the OTP to coordinate with both the Registry and the Trust Fund for Victims (para. 691). The report underlines the importance of outreach and consultation with affected communities for the design of completion strategies (para. 692). In addition, according to the report, completion plans must include modalities for cooperation with domestic jurisdictions in order to transfer evidence and assist local investigations and prosecutions (para. 693). Once the OTP has produced a paper on completion, it should – according to the experts – produce a comprehensive strategy for its ‘life-cycle’ involvement in each situation and monitor compliance with such a strategy (R248).

Radical Reforms to Improve Investigations

The experts make a number of key recommendations to improve the quality of investigations. They urge the OTP to change its approach to planning and cooperation, expertise development, field presence, evidence analysis, and quality control.

The IER found that the OTP lacks long-term, multi-year plans for each investigation, and recommends that it develop such plans (para. 747, R270).

With a view to improving cooperation, the experts propose memoranda of understanding with various actors, and a uniform cooperation framework that allows for more interaction and contact between court staff and national investigators (R274, R277). According to the report, the OTP also needs staff with the necessary technical and contextual knowledge to develop cooperation requests that are specific enough, and to inspire confidence in national authorities (para. 756). The report tackles long-standing complaints from investigators that handling of cooperation requests by another OTP division, the Jurisdiction, Complementarity and Cooperation Division, hinders cooperation dynamics. The report notes that contacts between investigators and their national counterparts at working level could help advance cooperation through informal inquiries about the information sought (R280).

During a workshop organized in March 2020 by the Justice Initiative and the Amsterdam Center for International Law to provide input to the IER process, participants highlighted the lack of adequate expertise within the OTP Investigations Division, in particular the absence of “experienced and competent investigators and analysts.” The IER report only identified gaps with respect to expertise on financial investigations and tracking of fugitives (para. 762). Participants at the workshop also criticized the inadequate size of investigation teams, a matter the IER report does not address.

As described in another blog, the report is critical of the OTP’s limited presence in situation countries and related lack of knowledge of such countries (para. 779). According to the experts, the current practice of investigators travelling to situation countries for two or three weeks at a time is “inefficient and ineffective” (paras. 781-782). This “remote investigations” approach has been criticized since its inception. In addition to reducing costs, local presence has other benefits including “the ability to collect and assess evidence in a more-timely manner; increased access to witnesses and the local community, including civil society organisations [and] stronger OTP-driven outreach” (para. 781). During the March 2020 workshop, participants advocated for a “radical conceptual shift” with respect to outreach, calling on the OTP to stop seeking distance from the affected communities, and to treat outreach not (only) as a communications strategy but as a core part of investigations. The Justice Initiative welcomes the news that the Investigations Division is looking into options for permanent deployment of investigators in the field (para. 784).

The report makes substantial recommendations aimed at improving evidence analysis, noting that deficiencies in analysis are one of the reasons for OTP failure in court (para. 785). According to the report, OTP analysts are undervalued and not appropriately involved at all stages of the investigation, including evidence collection plans and case preparation (paras. 786, 788). The report recommends immediate steps to remedy this: the OTP should recognize and value analysts, recruit additional staff in that role, and adequately integrate them at all stages of evidence review and case preparation, including the development of case theories (R299-R304).

The experts are also very critical of the OTP’s approach to evidence review. Problems with evidence review include insufficient time allocated by the OTP to this type of exercise, inadequate composition of review panels (prioritization of seniority over expertise), and questionable methodology (possible exclusion of diverse views and dissenting voices) (paras. 798-801). They recommend that these shortcomings be addressed through a more efficient peer review system (R305-R130).

Finally, the experts take issue with the lack of OTP commitment to learning lessons from past investigations. They note, for example, that the Kenya lessons learnt exercise was not made available to staff and that the OTP has not initiated a review of the Bemba and Gbabgo and Blé Goudé acquittals (para. 807). Currently discussions of past successes and failures are limited to divisional meetings or exchanges among senior management that exclude the staff involved in the case. The experts find this approach “wholly inadequate” (para. 808-809). Among other recommendations, the report proposes to make lessons learnt part of performance appraisals for managers and part of teams’ workflow (R313, R315).

Silence on Investigation of Sexual and Gender-Based Crimes

The IER report does not make any specific recommendation on the investigation of sexual and gender-based crimes (SGBC). Although improvements in the conduct of investigations overall would also benefit SGBC inquiries, the latter are specific and require a specialized approach. During the March 2020 workshop, participants observed that there is a need to strengthen OTP staff capacity, including that of senior management, “especially regarding the nature of SGBC and the gendered nature of the crimes.” They also observed “a lack of consistency in oversight and assessment of how SGBC […] are included at the PE, investigations, and charging phases of situations and cases.” To date, the OTP has obtained no final convictions for SGBC, but that could change if the recent Ntaganda and Ongwen trial convictions are upheld on appeal.

A new prosecutor will take office in June 2021. Spearheading these reforms within the OTP will be among his first tasks. Although a leader sets the tone and can drive the institution in a certain direction, reforms in relation to investigations and other important recommendations proposed in the report require a change of institutional culture. In particular, active commitment by OTP senior management to admit mistakes, learn lessons, and overcome resistance to change will be crucial.