By Niklas Jakobsson
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. Next week, Justice Hub will publish an interview with de Smedt in which he explains how the document came about.
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.”
Evenson also advocates the OTP moving towards an ‘optimal capacity’ rather than a Basic Size: “The Basic Size is just that – a basic size. The OTP has been clear that this is the minimum size necessary, and that even with the resources envisioned in the Basic Size — resources the OTP does not yet have — there will be investigations that need to be done, based even on its current projections but will have to be delayed.”
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.
Her approach, and that of deputy prosecutor James Stewart, is clearly reflected in the Basic Size. The model was originally created to be reached in three years, after which the OTP would reach a level at which they could absorb a predicted amount of situations. But, as with the rest of the document, it is also realistic. It states that a referral of a major situation – for example, Syria – would instantly throw off the calculations for Basic Size, and it would have to be revisited.
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
Based on the calculations, the OTP also lays out a hypothetical timeline of how a situation should proceed to a case and to a possible appeal. It was initially criticised by observers because the timeline sets out a 10 to 12 year procedure from the initial preliminary examination to handing down the appeals verdict. Even more so, the estimate can’t take into account external factors such as judicial decisions, witness issues or the health of accused.
Size of the team
It also sheds light on the highly criticised, yet vital, initial stage of preliminary examinations. In Basic Size, the OTP envisions 15 analysts working across the situations, as well as a head and deputy head of section – a step up from the current team of 13. The entire group currently deals with the full scope of preliminary examinations, as well as Article 15 submissions
In an attempt to bring the discussion on budget and capacity forward with states, the OTP has managed to create a small insight into how they function. Regardless of the outcome of future budget discussions and the time it takes for the OTP to reach a Basic Size, we can see firsthand at least why some processes and developments take such a long period of time.
Lead image: New premises of the International Criminal Court (Photo: Martijn Beekman/ANP)