Outsourcing Investigations

Abstract

This article addresses the International Criminal Court’s reliance on third-party investigations in the absence of its own international police force. In addition to cooperation from sometimes reluctant states, the ICC and other international criminal tribunals have come to rely on a network of NGOs and UN entities focused on postconflict justice work to provide critical evidence. This reliance raised problems in the ICC Office of the Prosecutor's first case against Thomas Lubanga. The use of third-party evidence raises questions regarding confidentiality and disclosure, the integrity of the evidence-gathering process, and the equality of arms between the prosecution and the defense. Nevertheless, this article concludes that the Office of the Prosecutor should take advantage of embedded organizations’ contextual knowledge and local connections. The author ultimately proposes two approaches the OTP could consider to effectively use NGO and UN expertise while maximizing control of its investigation: (1) the OTP could insert third-party experts already operating in the relevant areas into its investigations; and/or (2) it could develop a set of detailed guidelines for the UN and NGOs to follow in carrying out their investigations.

Keywords: International Criminal Court, Networks, International Criminal Law, Investigations, Evidence, Non-Governmental Organizations, United Nations

JEL Classification: K14, K33, K41