New Opinion Piece Series: The Cost of Hibernated Investigations

Over the next three weeks Amnesty International’s Centre for International Justice and the World Federalist Movement/Institute for Global Policy will host a series of opinion pieces by civil society organizations challenging the Independent Expert Review’s recommendation to hibernate International Criminal Court (ICC) investigations as a solution to underfunding.

Capacity Crisis at the ICC

When the new ICC Prosecutor, Karim Khan, took office one month ago, he took on a daunting challenge – to lead the ICC Office of the Prosecutor, which is beset with capacity and performance challenges, overwhelming demands for international justice and weak support from the states that created the Court.

Whilst the Office of the Prosecutor is struggling to conduct nine active investigations in 2021 on a  relative shoestring,  additional investigations have also been initiated in Afghanistan and Palestine. Moreover, in recent months, the former Prosecutor, Fatou Bensouda, completed preliminary examinations in Nigeria, Philippines and Ukraine concluding that there is a reasonable basis to open an investigation in each situation. Preliminary examinations in other situations, including Colombia, Guinea and Venezuela, are also advanced and could lead to further investigations.

Conducting prompt, thorough and effective investigations in these situations could easily double the workload of an already overstretched Office of the Prosecutor and other parts of the Court. However, a number of States Parties to the Rome Statute that championed the ICC to advance their shared determination to put an end to impunity are steadfast that they will not support increasing the Office’s resources. Even though States Parties launched a major Review of the ICC acknowledging the need to strengthen the performance of the Court in 2019, some insist unrealistically that any reforms must be achieved within existing resources.

Proposals to Hibernate Investigations

In light of the clear capacity crisis at the ICC, it was hoped that an Independent Expert Review commissioned by the Assembly last year to conduct the ICC Review would make a strong case to examine the Court’s resource needs. However, the recommendations in the Experts’ final report in September 2020 were disappointing. Although they acknowledged that the Investigation Division of the Office of the Prosecutor is “severely under-resourced, having 87 less full time staff than estimated to provide the basic needs of the Division” to conduct its current workload, they concluded:

‘The Court should accept the legitimate authority of the ASP to decide its budget and should tailor its activities to match the resources available.’

Instead of proposing an examination of the resources necessary to respond to the high demands on the ICC, the Experts recommended that:

‘Feasibility-related factors should be seriously considered after the opening of an investigation. Should more situations reach the investigation stage without sufficient resources available to conduct serious investigations, the OTP should hibernate de-prioritised investigations.’

The full meaning of this recommendation is not immediately clear. In their report, the Experts go on to recommend that the Office of the Prosecutor should develop guidelines to ensure that such a hibernation policy is applied consistently. However, it is clear that the second sentence recommends hibernating (i.e., suspending) open investigations that are deemed to be a non-priority in order to manage resource limitations when new situations reach the investigation stage. The first sentence indicates that this may include hibernating new investigations based on “feasibility related factors”, which the Experts define as:

‘operational criteria, such as the amount and quality of evidence available, international cooperation, security situation and ability to protect witnesses.’

This purportedly pragmatic approach is likely to attract broad support from many States Parties, some of which have already been insisting that the Court must prioritise its activities within the budget allocated by the Assembly.

Even the Office of the Prosecutor, which is overstretched and vulnerable due to the lack of political support by States Parties, appears to see this as a way forward. Having failed to ask for additional resources to meet its increasing workload for several years, the ICC has responded to the Experts’ recommendation to hibernate investigations by stating that it reflects the existing practice of the OTP.

Some prioritization will always be necessary. Indeed, as the OTP notes, it currently hibernates investigations, downgrading its activities “[w]here there is a lapse in time between the end of an investigation and the apprehension or voluntary appearance of a suspect.” However, that is very different to hibernating new or on-going investigations because they are difficult or resource intensive. The ICC was created specifically to step in to deliver justice in situations where impunity is entrenched.

Civil Society Concerns

Many civil society organizations are bitterly disillusioned by the Experts’ recommendation and the Office of the Prosecutor’s response. In many cases they represent or work with victims who have been waiting for justice for many years while the Office of the Prosecutor has seemed to drag its feet in completing preliminary examinations and investigations in their regions, countries and situations.

These organizations fear that, if adopted, a general policy of hibernating investigations is likely to shut the door on victims’ only hope of justice; further politicize the ICC that they rely on to deliver international justice independently and impartially – in particular if applying a “feasibility” standard as suggested by the Experts; leave civil society, victims and witnesses vulnerable to threats, intimidation and attacks by perpetrators seeking to take advantage of delays to undermine the ICC and destroy evidence; and render future investigations impossible.

Moreover, while the Experts state that the “scarcity of resources makes it necessary for the Office of the Prosecutor to hibernate some investigations,” it appears that the policy may cost more in the long run, as staff and resources would still need to be allocated to the investigation whilst it is hibernated. In addition, the resources required to bring an investigation out of hibernation would also need to be considered in any cost-benefit analysis.

So far, these concerns have not been sufficiently heard in the “State Party-driven” ICC Review process. It is sincerely hoped, therefore, that the views of civil society in situation and preliminary examination countries will feature much more prominently in the process of assessing the Experts’ recommendations.

The following series of opinion pieces by civil society representatives in Afghanistan, Cote d’Ivoire, Nigeria, Palestine, Philippines, Ukraine and Venezuela aim to highlight the serious concerns that hibernating investigations raise for those who are on the front line of the fight against impunity in their countries and regions.

Some representatives from civil society will report on the devastating impact that delays by the Office of the Prosecutor are already having in situations, including in Afghanistan, Cote d’Ivoire and Palestine. Those in Afghanistan, Nigeria, Palestine, Philippines and Ukraine where investigations are pending, and Venezuela, where the outcome of a preliminary examination is expected shortly, will highlight their significant concerns regarding the uncertainty of whether ICC investigations would proceed in these situations.

Together, these opinion pieces highlight the need for the ICC and the Assembly to consider fully the risks associated with the Experts’ recommendation.

The Need for a Solution That Will Advance the Fight Against Impunity

As the Assembly and the ICC prepare to formally assess the Experts’ recommendations and Prosecutor Khan leads the development of the Office of the Prosecutor’s strategies for the next years, it is hoped that these opinion pieces will prompt States Parties and the ICC to conduct a genuine discussion about the resource needs of the Court and how to manage the existing demands for justice effectively in light of the current challenges.

If the Expert’s recommendation is adopted,  clear and transparent criteria for deprioritizing and hibernating investigations must be established that are consistent with the Office of the Prosecutor’s obligations to act independently, impartially and objectively and to conduct investigations promptly, thoroughly and effectively consistent with internationally recognized human rights.

It is said that for every complex problem, there is an answer that is clear, simple and wrong. A general policy of hibernating investigations – and even more so, one that lacks any clear and transparent criteria – will not only fail to provide effective answers to the current capacity challenges facing the ICC. It will also further politicize the Court, undermine its performance and potentially cause more harm than good to victims and affected communities. If that happens the ICC’s capacity crisis may quickly escalate into an existential crisis.

The full series of opinion pieces will be posted over the next three weeks on the Centre for International Justice’s website – https://hrij.amnesty.nl – and the World Federalist Movement/Institute for Global Policy’s website –  https://www.wfm-igp.org. To receive updates when opinion pieces are posted, follow @AmnestyCIJ and @worldfederalist on Twitter.

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