What investigative resources does the International Criminal Court need to succeed? A gravity-based approach.

• Published date: 01 January 2017
• Author: Ford, Stuart
• Date: 01 January 2017

I. INTRODUCTION

There is an ongoing debate about what resources the International Criminal Court (ICC) needs to be successful. (1) On one side of this debate are many of the Court's largest funders, including France, Germany, Britain, Italy, and Japan. (2) They have repeatedly opposed efforts to increase the Court's resources even as its workload has increased dramatically in recent years. (3) On the other side of the debate is the Court itself and many of the Court's supporters within civil society. (4) They have taken the position that it is underfunded and does not have sufficient resources to succeed. (5) This debate has persisted for years and disagreements over the ICC's funding level are now a central feature of the Court's budgeting process. (6)

As this long-running debate demonstrates, reaching an agreement on the level of resources the ICC needs is very difficult. This Article contributes to that debate by using an empirical gravity-based approach to understand what investigative resources the ICC needs to succeed. This is an important part of the overall question of what resources the Court needs because the investigations are a critical and sizable component of the ICC's work. First, the investigations are critical because successful investigations are a necessary predicate to the trials that are the principal work of the ICC (7). Second, the investigations are a sizable part of the Court's work because they are very resource intensive. (8) Thus, understanding what resources the ICC needs to complete successful investigations is important in determining what resources the Court needs as a whole.

This Article assesses the ICC's needs by looking at the investigative resources that states assign to domestic mass atrocity crimes and then comparing them to the investigative resources available to the ICC. (9) One would expect that similar crimes would require similar resources to investigate. Thus, the resources devoted to domestic atrocity crime investigations can shed light on what resources the ICC needs to be successful. If the ICC has similar resources to those devoted to domestic mass atrocity investigations, this suggests that the ICC is adequately resourced. If, on the other hand, the ICC has fewer resources to conduct its investigations than domestic systems use in comparable circumstances, this suggests that the ICC is under-resourced.

This comparison depends on a way to measure and compare domestic and international crimes. This Article uses the concept of gravity for that purpose. At its simplest, gravity refers to the seriousness of the crime. (10) It is not, however, an objective characteristic of crimes that can be easily or directly measured. (11) Moreover, there is no generally accepted definition of gravity that already exists and can be applied to mass atrocity crimes. (12) Thus, the first step in comparing the gravity of different crimes is finding a way to measure gravity.

One of this Article's most important contributions is its creation of an empirical measure of crime gravity. This measure is based upon a synthesis of the work of the Office of the Prosecutor (OTP) at the ICC, the jurisprudence of the Court, the existing scholarship on the gravity of international crimes, and domestic studies of crime severity. The result is a measure comprised of both quantitative and qualitative factors that permits the relative gravity of different crimes to be assessed. This allows the crimes investigated by the ICC to be compared to crimes investigated in domestic systems.

Once the crimes investigated at the ICC are compared to the most serious mass atrocity crimes investigated in domestic systems, it becomes clear that the crimes typically investigated by the ICC are of greater gravity than the most serious mass atrocity crimes investigated by states. (13) The crimes typically investigated by the ICC occur in more places and over a longer period of time. They involve more victims of all kinds, including more murder victims, and also regularly involve acts of exceptional cruelty. They involve a number of types of victimization that are not present in the domestic mass atrocity crimes, including rape, torture, unlawful detention, and the forcible displacement of the civilian population. In addition, they have a larger impact on the societies where they occur. In short, they are more grave.

As a result of their greater gravity, one would expect that investigating the crimes that come before the ICC would require greater resources than investigating domestic mass atrocities. Yet, a comparison of the investigative resources available to the ICC and the investigative resources committed to domestic investigations show that national governments are willing to devote vastly more resources to domestic mass atrocity investigations. (14) In fact, states faced with mass atrocity crimes have been willing to devote dozens to hundreds of times more resources to those investigations than the ICC is able to devote to its own investigations. This disparity is startling and highlights how the ICC has tried to investigate some of the most serious crimes imaginable with meager resources.

There are three main conclusions that can be drawn from the comparison of the investigative resources available in domestic and international crimes. First, and most obviously, the ICC does not have sufficient investigative resources. It has significantly fewer resources than states think is appropriate when investigating similar atrocity crimes committed on their own territory. Second, this lack of resources has contributed to the ICC's relative lack of success so far. The ICC's investigations have been too "thin" and several prosecutions have collapsed or been compromised as a result. (15) There are, of course, other reasons for the difficulties the ICC has experienced. (16) Nevertheless, the ICC's lack of resources is also to blame for its failure to live up to its members' expectations. Third, increasing the ICC's investigative resources would be an important step in improving the Court's outcomes. The comparison between domestic and international investigations suggests that the ICC would be more successful if it had the resources to conduct investigations more like those carried out in response to domestic mass atrocity crimes. Given that most states agree that a successful ICC is desirable, (17) it follows that most states should support increasing the ICC's investigative resources because doing so would be in their own interest.

This Article will proceed as follows. Part II explores the meaning of crime gravity and its relationship to investigative difficulty. Part III explores the gravity of the average ICC investigation and compares that to a range of domestic mass atrocity investigations. Part IV describes the investigative resources available during the average ICC investigation and compares that to the resources available in domestic mass atrocity investigations. Finally, Part V contains this Article's conclusions.

II. THE GRAVITY OF CRIMES

The concept of gravity is central to this Article. Gravity serves as the key to comparing the crimes investigated at the ICC to crimes investigated in domestic systems. Without a measure of gravity how could one meaningfully compare the shooting down of MH17 over Ukraine to the bombing of Pan-Am flight 103 over Lockerbie? (18) Or, how could one compare the London train bombings to the attack on the Oklahoma City federal building? (19) It would be even more difficult to compare these domestic crimes to the crimes investigated by the ICC, like the post-election violence in Kenya or the attacks on civilian protesters in Libya. (20) Certainly all of these crimes are very serious, but they are also different. They are carried out in different ways, by different groups, for different purposes, occur in different places, over different time periods, and result in different numbers of victims of different types. They are all serious, but which is more serious and why? (21) Creating a measure of relative gravity permits crimes committed in different jurisdictions to be compared to one another meaningfully.

Gravity also serves a second purpose in this Article. In addition to measuring the seriousness of crimes, it serves as a proxy for the difficulty of the resulting criminal investigation. This is because the investigative resources necessary to successfully investigate a crime increase as the gravity of the crime being investigated increases. (22) Thus, gravity can be used to make inferences about the investigative resources that one would need to successfully investigate different crimes. One would expect that crimes of similar gravity would be assigned similar investigative resources, while crimes of greater gravity would require greater investigative resources. Less grave crimes, on the other hand, would usually require fewer investigative resources. This relationship between gravity and investigative resources makes it possible to evaluate the level of investigative resources available to the ICC by comparing the ICC's resources to the resources available in domestic investigations of comparable gravity. If the ICC consistently has fewer resources than domestic investigations despite investigating similarly grave crimes, this suggests that the ICC is under-resourced.

Without a way to measure gravity, this Article would not be possible. Thus, the first step is to define gravity and find a way to measure it. The second step is to explore the relationship between gravity and investigative difficulty. Both of these issues are addressed below.

A. Defining Gravity

Generally, gravity refers to the importance or seriousness of a phenomenon. (23) Of course, it has other meanings, (24) but in this Article it refers to the importance or seriousness of a crime or group of related crimes. The concept of crime gravity is roughly synonymous with both crime severity and crime seriousness, (25) but...