What Investigative Resources Does the International Criminal Court Need to Succeed?: A Gravity-Based Approach
16 Washington University Global Studies Law Review 1 (2017)
70 Pages Posted: 18 Feb 2016 Last revised: 19 Apr 2017
Date Written: February 17, 2016
There is an ongoing debate about what resources the International Criminal Court (ICC) needs to be successful. This Article contributes to that debate by using an empirical gravity-based approach to understand what investigative resources the ICC needs to succeed. It does this by assessing the gravity of the ICC’s investigations and the gravity of the most serious mass atrocity crimes investigated in domestic systems to identify comparable crimes. It then compares the investigative resources available to the ICC to the resources states assign to comparable situations.
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. 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. 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. 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.
There are three main conclusions that can be drawn from this. 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. 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.
Keywords: International Criminal Court, ICC, mass atrocities, criminal investigation, gravity
JEL Classification: K33, K14
Suggested Citation: Suggested Citation