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Wednesday, April 13, 2016

Why bother measuring the gravity of crimes?

In my previous post I argued that the factors used to measure the gravity of the crimes investigated by the International Criminal Court (ICC) could also be used to measure the gravity of crimes investigated and prosecuted in domestic systems and compare them to the crimes investigated by the ICC.  The main response I got was something like "ok, but why would we want to do that?"  Today, I will try to answer that question.

The ICC is an international organization.  It was created by states pursuant to a treaty (the Rome Statute) and membership is voluntary.  The member states then fund the court's operations through annual dues.  Dues are not divided evenly among members but are distributed according to relative wealth.  As a result, the richest member states pay the largest portion of the ICC's costs.  The five largest contributors to the ICC are thus Japan, Germany, Britain, France and Italy.  They account for nearly 60% of the ICC's dues.

Over the last several years, these rich ICC members have fought to institute a "zero growth policy," which essentially means that the ICC's five largest contributors have agreed to try and prevent the ICC's budget from rising at all for the foreseeable future.  They have justified this position by arguing both that: 1) the ICC has plenty of resources and 2) that they are unable to afford higher contributions.

The ICC and most of its other supporters have pushed back on this narrative.  They argue that the ICC does not have sufficient resources and that it should be given significantly more resources.  For example, the Prosecutor at the ICC recently released a report arguing that for the Office of the Prosecutor to conduct "adequate" investigations, it would require a significant increase in resources.  See here at paras. 14-15 (noting that this would require an increase in funding of 43% and an increase in staff of 33%).    This would, of course, mean that the big five contributors would have to shoulder a large chunk of the cost of these additional resources.

Thus, central to the question of what level of funding the ICC should have is the issue of what level of resources it needs to successfully carry out its mandate.  This is not, however, an easy question to answer.  It would be very difficult, for example, to directly model the investigative resources necessary to investigate a particular crime.  (At least, I was not able to think of a way to do this that I thought was workable.  The data necessary for this sort of approach might be out there in the records of the ad hoc tribunals like the ICTY and the ICTR, but it is not publicly available.)  Instead, my article uses a comparative approach.  It tries to understand what level of resources states devote to the investigation and prosecution of crimes of approximately the same gravity.  My hypothesis is that the level of resources that states devote to the investigation of crimes should shed some light on the level of resources the ICC could be expected to need to investigate crimes of the same approximate gravity.  We can then compare this to the resources available in the typical ICC investigation to help us understand whether the ICC's current resource level is too high or too low.

Now, this comparison between crimes of approximately equivalent gravity only makes sense if one assumes that investigative resources increase as crime gravity increases.  I have an argument in the paper about why it is that I believe that the investigative resources needed to successfully investigate a crime do increase as the gravity of the crime increases, but I won't have time to get into the details of that argument today.  (If there are questions about this in the comments, I may return to this issue in a later post.)  Note that I am not arguing that there is a perfect correlation between gravity and investigative resources, but rather that the investigative resources needed to investigate a crime will generally increase as the gravity of the crime increases.

Anyway, I see I have written 700 words again, so I will have to leave my paper's conclusions for another post.  I recognize that the question of what level of resources the ICC needs is one that probably only appeals to a niche audience, but I think it is an important question.  At least one prerequisite to the success of the ICC must be that it has adequate resources to carry out its mandate.  Thus this somewhat dry topic is important to the overall success of the ICC as an institution.





Posted by Stuart Ford on April 13, 2016 at 11:30 AM | Permalink


Perhaps I misunderstand the argument, and if so I apologize; this isn't my area. But I would think the answer to how many resources should be given to any particular law enforcement agency is a direct question of cost/benefit: What precisely would the agency do with more money, and what would it lose if resources were cut? Answer that, and then figure out if the added bang is worth the buck. In contrast, a comparative perspective can't readily answer the question.. Even if you assume that A is just like B -- which is its own can of worms -- you don't have an answer to whether what B is doing is correct in order to shed light on what A should do. Or that's what it seems like to me; I confess I haven't read the paper.

Posted by: Orin Kerr | Apr 13, 2016 8:18:03 PM

That makes sense! I'm really interested to read the paper.

Posted by: Andres | Apr 13, 2016 7:01:12 PM

That's an interesting question. However, as it turns out, there are very few crimes investigated in domestic settings that are comparable to the gravity of ICC investigations. Essentially the only domestic crimes that qualify are mass atrocity crimes involving hundreds to thousands of victims. These are almost all terrorism cases. And it appears that domestic mass atrocity crimes investigations are not predicated on any expected return. Indeed, one of the striking characteristics of domestic mass atrocity investigations is that the highest political institutions within the state tell the various investigating agencies that price is no object. The state then marshals whatever resources it believes are necessary to carry out the investigation.

So, while your concern may affect the allocation of investigative resources in the more typical kind of criminal investigations conducted in domestic settings, I don't think it applies to the kinds of domestic investigations I focus on in my article.

Posted by: Stuart Ford | Apr 13, 2016 1:42:39 PM

Perhaps your paper explores this objection, but it seems that states oftentimes expend investigatory resources on those crimes that have a high rate of financial return. For instance, police departments frequently expend massive amounts of resources on policing drug crimes and traffic violations because police budgets frequently rely upon the income from seizures and traffic tickets. Meanwhile, rape kits sit in evidence lockers untested. Under the IOC's definition of gravity, surely rapes would receive more attention than drug crime under factor 2, 4, 5, 6, and 7.

In contrast, the IOC doesn't have any financial incentive to arrest or prosecute.

How do you incorporate financial motives behind investigatory expenditure in state investigations?

Posted by: Andres | Apr 13, 2016 1:04:31 PM

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