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Xabier Agirre, Morten Bergsmo, Simon De Smet and Carsten Stahn (eds), Quality Control in Criminal Investigation

Year: 2021
Type: book-review
Abstract: The sweeping, eight-year Quality Control Project of the Centre for International Law Research and Policy has published its latest and final installment: Quality Control of Criminal Investigation.1 The volume is available online at https://www.toaep.org/ps-pdf/38-qcci. As a disclaimer, in light of the scale of the project itself and for reasons of readability and word limits, I restrain myself to mentioning just some contributions of the many that left an impression. No intention to deliberately exclude any contributions should be inferred from this. Prior anthologies concerned fact-finding and documentation: M. Bergsmo and C. Stahn (eds), Quality Control in Fact-Finding (Torkel Opsahl Academic Epublisher, 2020), available online at https://www.toaep.org/ps-pdf/19-bergsmo-stahn-second (visited 17 August 2021), and preliminary examinations: M. Bergsmo and C. Stahn (eds), Quality Control in Preliminary Examination: Volume I (Torkel Opsahl Academic Epublisher, 2018), available online at https://www.toaep.org/ps-pdf/32-bergsmo-stahn (visited 17 August 2021), M. Bergsmo and C. Stahn (eds), Quality Control in Preliminary Examination: Volume II (Torkel Opsahl Academic Epublisher, 2018), available online at https://www.toaep.org/ps-pdf/33-bergsmo-stahn (visited 17 August 2021). X. Agirre and M. Bergsmo, ‘Investigative Bottlenecks and the Mindset of Quality Control’, in X. Agirre, M. Bergsmo, S. De Smet and C. Stahn (eds), Quality Control in Criminal Investigation (Torkel Opsahl Academic EPublisher, 2020) 1–34, at 5. C.M. De Vos, ‘Investigating from Afar: The ICC’s Evidence Problem’, 26 Leiden Journal of International Law (2013) 1009–1024. International Expert Review of the International Criminal Court and the Rome Statute System, Final Report, 30 September 2020, available online at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/IER-Final-Report-ENG.pdf (visited 17 August 2021), at 785–801. See e.g. TRIAL International, Universal Jurisdiction Annual Review 2020, available online at https://www.coalitionfortheicc.org/sites/default/files/cicc_documents/TRIAL-International_UJAR-2020_DIGITAL.pdf (visited 17 August 2021); B. Wible, ‘De-Jeopardizing Justice: Domestic Prosecutions for International Crimes and the Need for Transnational Convergence’, 31 Denver Journal of International Law & Policy (2002) 265–295. Carsten Stahn opens the volume with an invitation to rethink the foundations and the architecture of existing international criminal justice system. This claim is further unpacked by Thijs Bouwknegt who, by way of critically analysing ICC investigations, questions both the ability and the practicality of the Office of the Prosecutor (OTP) to effectively carry out the investigations in general. This fundamental structural question of whether organizational set-up allows for historical or forensic truth to be uncovered is premised upon the authors’ findings related to often simplistic prosecution arguments, evidently biased towards incrimination. The call for independence of thought in order to improve decision-making in criminal investigations continues with Moa Lidén pointing towards the one denominator that these processes have in common: ‘[T]hey are all fundamentally dependent on the decision-making processes of humans operating inside of them.’7 M. Lidén, ‘Confirmation Bias in Investigations of Core International Crimes: Risk Factors and Quality Control Techniques’, in Agirre, Bergsmo, De Smet and Stahn (eds), supra note 3, 461–528, at 461. Agirre and Bergsmo, supra note 3, at 6. The authors identify seven ‘bottlenecks’ to ‘effective and fair investigation and preparation of fact-rich cases’. See e.g. D. Kahneman, D. Lovallo and O. Sibony, ‘A Structured Approach to Strategic Decisions’, 60 MITSloan Management Review (2019) 67–73; A. Sagana, ‘The Downward Spiral of Biases in Criminal Investigations: From Eyewitnesses to Forensic Experts and Judges’, in S. Barton et al. (eds), Vom hochgemuten, voreiligen Griff nach der Wahrheit': Fehlurteile im Strafprozess (Nomos, 2018) 133–146. In addition to Lidén, several other contributions demonstrate the importance of empirical methods to understanding (and improving) prosecutorial decision-making. Matthias Neuner, by way of analysing public ICC pre-trial records, finds that the OTP struggles to maintain consistency in advancing modes of liability, and thus to realistically assess the results of its investigation. Cale Davis, combining multiple methods, including numerical analysis and practitioners’ interviews, explores the rationales for cumulative charging, and provides added explanatory layers to Neuner’s assessments. Davis discusses multiple reasons for and against cumulative charging, as explained by the individuals issuing those charging documents. Rather than searching for prescriptive solutions, he acknowledges the diversity in the discretion of international criminal law practitioners, and argues for an approach to quality control different from normative benchmarks: the extent to which prosecutors are willing to have a meaningful debate and accept critique of their decisions, as well as amending their choices. In other words, transparency and open-mindedness may suffice where subjectivity in prosecutorial choices is perhaps inevitable. Beyond the direct lessons to be learnt from the contributions, the volume highlights several strands for further inquiry. Alf Butenschøn Skre makes an important observation, suggesting the need for ‘more empirical research on which policies and practices of criminal investigations may help maximize efficiency and reliability’.10 A. Butenschøn Skre, ‘Investigation Plans as a Tool for Managing Investigations in Norway’, in Agirre, Bergsmo, De Smet and Stahn (eds), supra note 3, 887–902, at 887. Agirre and Bergsmo, supra note 3, at 4. See e.g. G. Pike, C. Havard, G. Harrison and H. Ness, ‘Eyewitness Identification Procedures: Do Researchers and Practitioners Share the Same Goals?’ 23 International Journal of Police Science & Management (2021) 17–28; Academy of Social Sciences, Making the Case for the Social Sciences, 2013, available online at https://www.acss.org.uk/wp-content/uploads/2013/11/mtc4_crime.pdf (visited 17 August 2021); G.L. Wells and A. Quigley-McBride, ‘Applying Eyewitness Identification Research to the Legal System: A Glance at Where We Have Been and Where We Could Go’, 5 Journal of Applied Research in Memory and Cognition (2016) 290–294. Overall, the Quality Control project has certainly brought to the fore many voices in the fact-finding and investigations domain that might otherwise have not been heard or been openly available to the public. While improving diversity of contributions in terms of gender, geographical spread and professional backgrounds would have been very much desirable, the editors have demonstrated remarkable transparency and open-mindedness. Even though a majority of the contributors have practised at one of the international criminal courts and tribunals, their experiences are contrasted with domestic ones, including Italian, Norwegian, French, Indian, British, American and Israeli. The comparative potential of the anthology is its major strength, and an important lesson for future projects concerning the assessment of the mechanisms to ensure quality control in fact-rich cases: there are lessons to be learnt, both from national jurisdictions and international ones, from the academia and from practice. The editors should be commended for creating a space which made this exchange possible. Now, with the project coming to the end, it might be time to consider a synthesis of the cross-cutting, pragmatic proposals to inform future research, set the agenda for upcoming projects and support practitioner–academia collaborations on this important matter.
DOI: 10.1093/jicj/mqab056
Language: English
Subfield: Law
Open Access status: hybrid
Estimated APC paid: $3,896
OpenAlex ID: W3210154918
Cites: 6
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Related to: 10