ICC Prosecutor Symposium: Wanted–International Prosecutor to Deliver Justice Successfully Across Multiple Complex Situations with Inadequate Resources

[Jonathan O’Donohue is a consultant on international justice and human rights, formerly a Legal Advisor at Amnesty International. Be sure to also read Ewan Brown and William H. Wiley at Justice in Conflict.]

The vacancy announcement circulated globally in August last year emphasizes the extensive skills and experience that the next International Criminal Court (ICC) Prosecutor must bring to the role but makes no mention of the serious resource challenges the successful candidate will face when they take office.

The budget of the ICC Office of the Prosecutor (OTP) for 2020 is €47 million – hardly a shoestring. However, with the ICC bound by the United Nations system setting staff costs, this only provides the OTP with 420 staff to conduct nine preliminary examinations, nine active investigations (eight simultaneously), three trials, two appeals and four reparation proceedings. A closer examination of the Court’s resources demonstrates that this is inadequate for the OTP to conduct its work effectively.

Although there are no doubt other reasons that underlie concerns regarding OTP’s performance in its first two decades, lack of resources is a major factor.  

With only 12 staff of the Situation Analysis Division conducting nine preliminary examinations, delays in arguably the most important decision taken by the Prosecutor – whether to initiate an investigation – should not be surprising. It is difficult to see how the Division can promptly and effectively perform its central tasks of researching and examining jurisdiction, admissibility and the interests of justice in each situation, as well as assessing and responding to over 500 communications alleging crimes around the world each year.

The quality of investigations, and thus the OTP’s performance at the pre-trial and trial phases, are no doubt undermined by the OTP’s efforts to conduct eight active investigations with 177 staff of the Investigations Division. This may sound like a lot, but it is inadequate to conduct prompt, thorough and effective international criminal investigations of mass atrocity crimes across eight situations.

In 2016 the OTP stated that the Investigations Division requires 255 staff to conduct six active investigations effectively. As Stuart Ford points out, this would still be vastly less investigative resources compared to domestic mass atrocity investigations in Western Europe and North America, including the 1988 Lockerbie plane bombing, the 1995 Oklahoma City bombing, the 2005 London train bombings, the shooting down of MH17 in 2014 and the 2015 Paris attacks.

The situation was much worse when Prosecutor Fatou Bensouda took office in 2012. A lack of resources at that time forced the OTP to take a ‘stop-go’ approach to preliminary examinations because there were not enough staff to work on them simultaneously. Resources for investigations were so low that a rotational model had to be adopted, shifting resources (including investigators) from one case to another as they were most urgently needed. Many of the OTP’s first cases collapsed due to lack of evidence.

Between 2012 and 2016, the OTP was effective in convincing the Assembly of States Parties to increase its annual budget from €27 to €43 million – a 63 percent increase. This compared very favorably to funding for other Court activities. For example, an increase of less than 6 percent was provided for legal aid during the same period. However, as illustrated by the following statement by the OTP in 2015, it was still insufficient to adequately discharge its mandate and to meet the most pressing demands for the exercise of its jurisdiction at the time:

For instance, to cope with the unexpected surrenders of Bosco Ntaganda, Charles Blé Goudé and Dominic Ongwen, the Office has deprived ongoing investigations of essential resources, halted bringing hibernated investigations to a trial-ready state, and postponed new activities (such as new investigations in Côte d’Ivoire, Mali, Libya or Darfur).

At the end of 2015, the OTP took the ambitious step of issuing a new Strategic Plan for 2016-2018 including an objective to achieve a new ‘Basic Size’ by 2018 of 540 staff at a projected annual cost of €60.6 million. According to the OTP, this would allow it to conduct a core projected workload of: nine preliminary examinations; one new situation, six active investigations, nine hibernated investigations; five cases in pre-trial, five case at trial and two in appeals. 

Although the ‘Basic Size’ initiative was initially welcomed in a resolution by the Assembly, which requested the Court to prepare a full costing of implementing the ‘Basic Size’ for all organs of the Court, a number of the biggest financial contributors to the Court (which had been demanding zero growth in the ICC’s budget since 2008) were less than supportive.

During the Assembly’s next General Debate, Canada emphasized that ‘like any institution, the Court must pursue its mandate within the constraints of its resources’. Japan called on the OTP to ‘further examine the feasibility of the Strategic Plan by carefully looking into whether it can be implemented within the limited resources of the Court’.  The UK stated that the Court ‘needs to be realistic in its calls for resources’ and that ‘substantial year on year increases are not sustainable’.

Although the ICC went on the following year to project the costs of the Basic Size court-wide at €206 million, it was repackaged as a simulation model indicating that the Court considered there was a lack of political support to advance the initiative. Since then, it has never been expressly applied in developing annual budget proposals of the Court. The objective to achieve the Basic Size was removed from OTP’s Strategic Plan for 2019-2021, noting that it has ‘not sufficiently progressed’.

Beyond the statements above by of some states, the reasons for the failure of the Basic Size initiative are not publicly explained. Yes, the biggest financial contributors to the ICC – France, Canada, Germany, Italy, Japan, Spain and the UK – had been demanding zero growth in the overall budget of the ICC. But between 2012-2016, they had not gone as far as blocking increases in the OTP’s budget.

It would be naïve not to question whether the OTP’s decision to open a preliminary examination in Palestine in 2015 and its progress towards completing its preliminary examination in Afghanistan, including allegations of torture by US officials, motivated some states to suddenly clamp down on additional resources aimed at strengthening the capacity and work of the Office.

Since then, to the frustration of some NGOs, the OTP has been much less ambitious in its annual budget requests, with the result that the budget of the Office has risen by around €1 million per year (some of which is taken up by required increases in staff costs) to its 2020 budget of €47 million.

Instead the Office has pushed ahead with new investigations in Burundi and Bangladesh/Myanmar absorbing much of the costs. On the one hand, this is commendable – the independence and credibility of the OTP would be seriously compromised if it curtailed its implementation of the Rome Statute due to financial pressures from a handful of western and other powerful governments. On the other hand, the approach is unsustainable – important areas of work are being delayed and the quality of ICC investigations and prosecutions will inevitably suffer.

This situation will impact on the election of the next ICC Prosecutor. We will never know how many highly qualified potential candidates decided not to apply due to a combination of the notorious lack of resources, political support and effective cooperation provided by states parties that purport to champion the fight against impunity.

Candidates who have put themselves forward will need to tread carefully presenting their ambitions for the Office without ruling out the support of states that demand zero-growth. After all, the Assembly will make every effort to elect the Prosecutor by consensus.

With the election of the Prosecutor and six new judges scheduled for the next session of the Assembly in December, it is far from the perfect opportunity for the OTP to seek a much-needed significant budget increase for 2021. Elections will dominate the session and the politics surrounding them will impact other issues on the Assembly’s agenda. Nonetheless, following the Appeals Chamber’s Judgment authorizing an investigation in the Afghanistan situation, significant additional resources across the Court must be sought from the Contingency Fund for 2020 and in the ICC’s 2021 budget request or else the next Prosecutor will take office in July 2021 amidst a major resource crisis.

The challenge for all states parties at the December session of the Assembly is not only to elect the highest qualified candidate. The Assembly must also provide the OTP and the Court as a whole with sufficient additional resources so that the ICC at least has a fighting chance of achieving its mandate. Otherwise the Assembly is setting the Court up to fail, no matter who is in charge.