By Niklas Jakobsson
The International Criminal Court faces difficult decisions regarding which cases it takes on. The former prosecutor, Luis Moreno Ocampo, was in favour of multiplying activities in order to increase the impact of the Court. Fatou Bensouda has adopted a different approach, trying to balance the quantity and quality of the work, carefully expanding the number of investigations. Justice Hub spoke to Michel de Smedt, the ICC’s Head of Investigations, about how the Office of the Prosecutor tackles this in the Basic Size document.
“The Basic Size document had as an objective to try and balance quantity and quality of work. In the period that we had the previous prosecutor, he was mainly aiming at having impact on the ground by multiplying our activities without the resources following the same pace.
“He was successful in doing that to a certain extent because he made the institution relevant by responding to all the situations which we needed to respond to. At the same time, we noticed that there was a downside to that strategy, which was we weren’t getting the results we were hoping for in court – for many different reasons beyond purely resources.”
Quality over quantity
“But the resources element next to the prosecutorial strategy element were two very important elements. So the approach that the new prosecutor took when she took office was to say that we’ve got to prioritise quality over quantity of work. So let’s do the work with more depth by properly staffing those cases that we have.
“We saw those results materialising, and that’s why we then said to the states parties that we can continue, but not to the detriment of the quantity of work. Because there are too many things that are on the backburner that we should be dealing with, that we’re not doing. Côte d’Ivoire II for instance – we’ve had it on the book for quite a few years, and each year either it was Bosco (Ntaganda) turning up, or it was (Dominic) Ongwen turning up or there was Charles Blé Goudé suddenly turning up. So each time, we had to recalibrate what we were doing.
Two simple questions
“The way in which we have approached it was answering two simple questions. The answers to those questions was a lot more difficult. The first question was: What do we think will be the demand for the institution in future years? The second question was: What do we need to meet that demand? Those two questions are very simple questions, but technically speaking they’re quite complex.
“On the first one we had to do an exercise of first choosing the right methodology. Can we really predict what is coming towards us based on data for future cases? The answer is no. Could we use a ratio of the number of preliminary examinations versus the number of situations to open for investigation, versus the number of investigations per situation, versus the number of trials? You can produce a mathematical model, but it’s a nonsensical model because those ratios don’t mean anything.
“So in the end, we ended up with answering the first question in the following way. The simplest way is to look at what we’ve done in the past, map that out properly, then correct it to the new strategy and then see what we think is the workload. Then see what we already have in the pipeline and see whether those match up. We gave the conclusion, at least on the OTP side, that if we have five trials simultaneously, if we have six investigations going on, if we have 9 or 10 preliminary examinations, then we should be okay for the coming years.
The second step
“The second step was to calculate capacity to match those requirements. That was also an exercise which was broken down into different pieces. The biggest chunk of the resources go down into the core business of preliminary examinations, investigations and prosecutions. Based on our new strategy, we defined the basic composition of teams for each of our core activities and the support capacity. We combined these with the duration of each activity, as they had been identified when we did the extrapolation of the past strategy into the new one to answer the first question.
“That we then used to match up with the workload that we were anticipating to have. That have us at 80-90 per cent of what we are requiring in terms of resources.
“Then we looked into what I’d call indirect activities, which are not directly related to the core business but are still required. You still need somebody looking into policy issues, you still need to have a small HR and IT activities. So those were put on top. Then we looked into what extra investments were needed to maintain or improve the quality of our work. Those were about training, about acquiring new equipment to stay on top of the technological evolution/
“The last element was to see what we have in terms of efficiencies in the pipeline that we can apply. If you combine all of this you end up with the Basic Size”
Q: .You had initially a three-year plan to reach Basic Size. Realistically, if we look at your budget increase, how long will it take the OTP to reach Basic Size?
“I haven’t done the exact calculations of our final budget for 2016, and it will also depend on what is the appetite of states parties to support further growth, at what pace. That will be determined by what is the impact on the Court as a whole. So I think the exercise that the Court needs to do for next year is to come up with a Basic Size. States have also asked for this. That will influence the political discussion on what states parties are willing to see as a timeline. My guess is that it’s certainly not going to take three years – it’s going to take longer. That’s already obvious. But if it’s going to take five years, four years or six years or longer is very hard to predict at this stage.”
Q: Do you feel that states parties don’t understand the difference of resources that the national system have and the ICC has?
“That’s a difficult question because I don’t know what they’re thinking, so that would be speculating, and I don’t like to speculate, to be honest.
“I can see, from having been in a national system and being in the international system, how comfortable I was in the national system. I knew I had much more capacity to fluctuate. Using the terrible example of what was happening in Paris, and you can see how you can easily mobilise an enormous amount of capacity. I can’t do that because I’m already overstretched. If I have to mobilise, I have to cut things completely. I don’t think that’s very healthy given the importance of the cases we have to do. But that’s up to us to convey as a message to the states parties, and then it’s up to them to decide what they want to or can do the Basic Size.”
Q: The majority of the increase is for the investigation division. Can you explain why that is?
“I think it’s a combination of different factors. First of all, the investigation division itself was – in comparison to what we need to do – heavily understaffed.
“So we decided that we needed to grow, and there have been increases over the last two years. But in the increase for the OTP, we also took the deliberate decision to say that priority goes to cases that are going to trial. In the new strategy, we’ve said that if we want to have impact, we need to show results in court. So prioritising these cases and supporting the needed increase in the prosecution division also influenced the pace of growth of ID.
“A fully staffed team from the Investigation Division perspective – at cruising speed – is 20 people. So then you already end up with 120 investigators and analysts for 6 active investigations. On top of that, you have the increase on the side of the support units – protection units, operations support units and forensics. They’re interlinked with that growth, and that explains why you see that quite drastic increase. Next to this, we also have the trial support which requires investigators and analysts, which wasn’t needed to the same extent in the past. And we have the Art 70 (obstruction of justice) which is also becoming a constant feature.”
Q: Once you reach Basic Size, what are the downsides or flaws in it?
“I think one of the difficulties will be that the Basic Size is based on six active investigations being enough to absorb all the cases that we need to do. I can sense from civil society, and in particular from those speaking for victims of most serious crimes, a very strong pushback on this point, that we’ve underestimated and need to go for an optimal size. I can’t predict at this stage whether or not that is right or wrong. That’s one element worthwhile taking into account.
“A second element is that I can’t predict how developments in technology are going to influence our ability to be more efficient. I think it’s going to have an influence, but more analysis is required to concretely understand the impact. So it might be that I can further refine or even reduce the requirements.
“As an Office we have already said that we would refine the Basic Size concept in a few years’ time, as we acquire more data and refine the model.”