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Investigating from Afar: The ICC's Evidence Problem

  • CHRISTIAN M. DE VOS
Abstract

The ICC's early history indicates that more attention must be paid to the investigative practices of the Office of the Prosecutor. The judicial record to date, and the increasing dissatisfaction amongst affected communities with the Court's work, belies the desirability of the ‘light-touch,’ low-cost approach to investigations that has hitherto been championed. Rather than positioning the ICC as a remote site of justice, the Office must locate its investigative work more thoroughly on the territories in which it is engaged. The composition of its staff has also been insufficiently reflective of the countries under investigation and its relationships with individuals and institutions on the ground poorly managed. Despite relying heavily on the knowledge that these local actors can bring, the OTP has too often employed a unilateral approach to evidence gathering, failing to integrate their concerns and priorities into the investigative process.

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1 See, e.g., N. Armoury Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010).

2 See, e.g., Del Ponte, C., ‘Investigation and Prosecution of Large-Scale Crimes at the International Level’, (2006) 4 Journal of International Criminal Justice 552; R. Goldstone, For Humanity: Reflections of a War Crimes Investigator (2000).

3 G. Simpson, Law, War & Crime (2007), 30.

4 Ibid., at 35.

5 Human Rights Watch, Unfinished Business: Closing Gaps in the Selection of ICC Cases (2011), 5.

6 See The Prosecutor v. Bahr Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, P.T.Ch. I., 8 February 2010; The Prosecutor v. Callixte Mbarushimana, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, P.T.Ch. I, 16 December 2011; The Prosecutor v. William Samoei Ruto et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373, P.T.Ch. II, 23 January 2012 (confirming charges against William Ruto and Joshua Sang, but declining to confirm charges against Henry Kosgey); The Prosecutor v. Francis Kirimi Muthaura et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, P.T.Ch. II, 23 January 2012 (confirming charges against Francis Muthaura and Uhuru Kenyatta, but declining to confirm charges against Mohammed Hussein Ali). In March 2013 the Prosecutor sought, and was granted, permission to withdraw charges against Muthaura as well, on the basis that ‘serious investigative challenges, including a limited pool of potential witnesses’, led her to the conclusion that there was no longer a reasonable prospect of conviction. See The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Prosecution Notification of Withdrawal of the Charges against Francis Kirimi Muthaura, ICC-01/09-02/11, T.Ch. V, 11 March 2013, para. 11.

7 See The Prosecutor v. Laurent Gbabgo, Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11, P.T.Ch. I, 3 June 2013. By majority, the Chamber considered that the evidence, ‘although apparently insufficient, does not appear to be so lacking in relevance and probative value’ as to leave it no choice but to decline confirmation. The Chamber adjourned the hearing and asked the Prosecutor to ‘consider providing, to the extent possible, further evidence or conducting further investigations’; see paras. 15, 44. The Ggabgo case is not the only instance in which judges have split on the proper role of the Pre-Trial Chamber during the confirmation of charges, or the appropriate standard of proof to be applied. See, e.g., Mbarushimana Decision, supra note 6, where the Chamber, also by majority, declined to confirm charges. In dissent, Judge Monageng stated: ‘[W]hat the majority sees as “insufficient evidence” I see as “triable issues” deserving of the more rigorous fact finding that only a Trial Chamber can provide.’ Ibid., para. 134.

8 War Crimes Research Office, Investigative Management, Strategies, and Techniques of the International Criminal Court's Office of the Prosecutor (2012), 9. The burden of proof during the ICC confirmation of charges stage is ‘substantial grounds to believe’. See Rome Statute of the International Criminal Court, UN Doc.A/CONF.183/9 (1998), Art. 61(7).

9 The Prosecutor v. Mathieu Ngudjolo, Judgement Pursuant to Article 74 of the Statute, ICC-01/04-02/12, T.Ch. II, 18 December 2012, para. 516.

10 The Prosecutor v. Thomas Lubanga Dyilo, Judgement Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, T.Ch. I, 14 March 2010, paras. 482–483.

11 The Prosecutor v. Uhuru Muigai Kenyatta, Decision on Defence Application Pursuant to Article 64(4) and Related Requests, ICC-01/09-02/11, T.Ch. V, 26 April 2013, Concurring Opinion of Judge Christine Van den Wyngaert, paras. 1, 4–5.

12 Pascal Kambale, ‘The ICC and Lubanga: Missed Opportunities’, SSRC Forums: African Futures, 16 March 2012, available online at www.forums.ssrc.org/african-futures/2012/03/16/african-futures-icc-missed-opportunities.

13 The Women's Initiatives for Gender Justice notes that gender-based crimes are the ‘most vulnerable category’ of crime at the ICC, with more than 50 per cent of such charges being dismissed before trial, attributable, in part, to ‘the Prosecution's use of open-source information and failure to investigate thoroughly’. See Legal Eye on the ICC (March 2012), available online at www.iccwomen.org/news/docs/WI-LegalEye3-12-FULL/LegalEye3-12.html.

14 See ICC, Regulations of the Office of the Prosecutor, ICC-BD/05-01-09, 23 April 2009, Regs. 7–9. The OTP also has an Executive Committee, which is responsible for strategic, policy, and budgetary decisions. Ibid., Reg. 4(1).

15 Although his resignation was submitted in June 2007, Brammertz had, in fact, been on leave from his position since early 2006. See ‘The Office of the Prosecutor of the ICC – 9 Years On’, FIDH, No. 579 (December 2011), 7, n. 8. Moreno Ocampo later sought to abolish the position of Deputy Prosecutor for Investigations entirely. The ASP rejected his effort to do so, however, on the basis that his successor ‘should have [the] same flexibility to decide on the composition of the Office of the Prosecutor’. See ‘Official Records of the Ninth Session of the ICC Assembly of States Parties’, ICC-ASP/9/20, Vol. 1, Part II, para. 23.

16 The ASP elected James Stewart as the Court's second Deputy Prosecutor in November 2011; Phakiso Mochochoko has led the JCCD since February 2011.

17 Luping, D., ‘Investigation and Prosecution of Sexual and Gender-Based Crimes before the International Criminal Court’, (2009) 17 American University Journal of Gender Social Policy and the Law 438, n. 7.

18 The Prosecutor v. Thomas Lubanga Dyilo, Deposition of Witness DRC‐OTP‐WWWW‐0582, ICC-01/04-01/06- Rule68Deposition-Red2-ENG, T.Ch. I, 16 November 2010, at 16–17; see also ICC-OTP, ‘Paper on Some Policy Issues before the Office of the Prosecutor’, September 2003, at 8. At the same time, it should be noted that tribunals like the ICTY have also championed a multidisciplinary approach to investigations with considerable success. See, e.g., ICTY Manual on Developed Practices (2009), at 12; see also War Crimes Research Office, supra note 8, at 33–4.

19 Regulations of the Office of the Prosecutor, Reg. 32.

20 The Prosecutor v. Germain Katanga and Mathieu Ngudjulo Chui, Transcript, ICC-01/04-01/07-T-81-Red-ENG, 25 November 2009, at 7:4–9; see also 29:17–19.

21 Fujiwara, H. and Parmentier, S., ‘Investigations’, in Reydams, L., Wouteres, J., and Ryngaert, C. (eds.), International Prosecutors (2012), 590.

22 Ibid., at 593.

23 G. Townsend, ‘Structure and Management’, in G. Townsend, International Prosecutors (2012), 590.

24 Ibid., at 293.

25 See ICC-OTP, ‘Report on Prosecutorial Strategy’, 14 September 2006, 5, para. 2(b); ICC-OTP, ‘Prosecutorial Strategy 2009–2012’, 1 February 2011, 5, para. 20. The Office has also developed an Operational Manual as a framework for its investigations; however, it is not available to the public.

26 K. Glassborow, ‘ICC Investigative Strategy on Sexual Violence Crimes under Fire,’ Institute for War & Peace Reporting, 27 October 2008, available online at http://iwpr.net/report-news/icc-investigative-strategy-under-fire. Glassborow's article quotes Beatrice Le Fraper du Hellen, who headed the JCCD from 2006 to 2010.

27 An early OTP policy paper noted that its ‘operations are informed by three basic principles’, one being that ‘it functions with a variable number of investigation teams’. See ICC Paper on Policy Issues, supra note 18, at 8.

28 Lubanga Deposition, supra note 18, at 16:11–16.

29 J. James, ‘Ivory Coast: Who's Next after Laurent Gbagbo?’, 146 International Justice Tribune, 29 February 2012.

30 War Crimes Research Office, supra note 8, at 24, n. 45.

31 Ibid. The report further notes that the number of professional staff employed in the investigations division ‘has decreased since 2007, despite the increase in the number of situations in which the Court is active’. Ibid., at 30–1 (emphasis in original); see also ‘Proposed Programme Budget for 2012 of the International Criminal Court’, ICC-ASP/10/10, 21 July 2011, at 47.

32 Statement of the Prosecutor Luis Moreno Ocampo to Diplomatic Corps, 12 February 2004, at 2, available online at www.iccnow.org/documents/OTPStatementDiploBriefing12Feb04.pdf.

33 ICC-OTP, ‘Report on the Activities Performed during the First Three Years (June 2003–June 2006),’ 12 September 2006, at 11.

34 Ibid., at 15, 19.

35 ‘Second Status Report on the Court's Investigations in to Efficiency Measures’, ICC-ASP/8/30, 4 November 2009, para. 4.

38 R. Hamilton, Closing ICC Investigations: A Second Bite at the Cherry for Complementarity?, HRP Research Working Paper Series (2012), at 6.

39 Human Rights Watch, Letter to the Executive Committee of the Prosecutor, 15 September 2008, available online at www.article42-3.org/Secret%20Human%20Rights%20Watch%20Letter.pdf.

40 Wiley, W., ‘The Difficulties Inherent in the Investigation of Allegations of Rape before International Courts and Tribunals’, in Bergsmo, M., Skre, A.B., and Wood, E. (eds.), Understanding and Proving International Sex Crimes (2012), 375–6.

41 Personal interview with former ICC investigator, October 2011.

42 Wiley, supra note 40, at 384.

43 ICC Paper on Policy Issues, supra note 18, at 9.

44 F. Bensouda, Address to the Assembly of States Parties, Eleventh Session of the Assembly of States Parties, 14 November 2012, paras. 7, 19.

46 G. Boas and G. Oosthuizen, Suggestions for Future Lessons-Learned Studies: The Experience of Other International and Hybrid Criminal Courts of Relevance to the International Criminal Court (January 2010), para. 47.

47 War Crimes Research Office, supra note 8, at 29–30; see also ICTY Manual on Developed Practices, supra note 18, at 16.

48 J. Hagan, Justice in the Balkans: Prosecuting War Crimes in The Hague Tribunal (2003), 137.

49 Ibid., at 154.

50 Lubanga Judgement, supra note 10, para. 165; Lubanga Deposition, supra note 18, at 75:7–8.

51 Human Rights Watch, Courting History: The Landmark International Criminal Court's First Years (2008), 55.

52 Lubanga Judgement, supra note 10, para. 166; Lubanga Deposition, supra note 18, at 75:16–18.

53 Kambale, supra note 12.

55 Ibid. According to local NGOs and UN staff in Bunia, ‘Investigators never spent more than a few days’, n. 21.

56 Mbarushimana Decision, supra note 6. The Chamber, by majority, expressed ‘concern’ over the OTP's apparent attempt to ‘keep the parameters of its case as broad and general as possible’, pleading certain charges with insufficient specificity and ‘in such vague terms,’ seemingly ‘in order to allow it to incorporate new evidence relating to other factual allegations at a later date without following the procedure [governing amendments to the charges]’, paras. 82, 110. In the case against FDLR commander Sylvestre Mudacumura, a separate Pre-Trial Chamber denied the OTP's first request for an arrest warrant for a similar ‘lack of specificity’. It later granted the warrant but excluded all of the requested counts of crimes against humanity, while noting that the application bore ‘some similarities’ to the case brought against Mbarushimana. See The Prosecutor v. Sylvestre Mudacumura, Decision on the Prosecutor's Application under Article 58, ICC-01/04-01/12, P.T.Ch. II, 13 July 2012, paras. 20, 22–29.

57 Ngudjolo Judgement, supra note 9, paras. 115–117.

58 Ibid., para. 118.

59 Ibid., paras. 22, 68–69.

60 Ibid., para. 70.

61 Ibid., para. 118.

62 Lubanga Judgement, supra note 10, para. 153.

63 Cassese, A., ‘Is the ICC Still Having Teething Problems?’, (2006) 4 Journal of International Criminal Justice 438.

64 Situation in Darfur, Observations on Issues Concerning the Protection of Victims and the Preservation of Evidence in the Proceedings on Darfur Pending before the ICC, ICC-02/05-14, P.T.Ch. I, 25 August 2006, at 5. Louise Arbour, then the UN's High Commissioner for Human Rights, was also invited to submit a brief to the Court, in which she similarly called for ‘an increased visible presence of the ICC in Sudan’, insisting that it ‘is possible to conduct serious investigations of human rights during an armed conflict in general, and Darfur in particular, without putting victims at unreasonable risk’. See Situation in Darfur, Observations of the United Nations High Commissioner for Human Rights Invited in Application of Rule 103 of the Rules of Procedure and Evidence, ICC-02/05, P.T.Ch. I, 10 October 2006, para. 64.

65 Cayley, A., ‘Witness Proofing: The Experience of a Prosecutor’, (2008) 6 Journal of International Criminal Justice 763, at 779–80. In 2010, all of the OTP charges against Bahr Idriss Abu Garda – one of only three accused in the Darfur situation to have actually appeared before the ICC – were dismissed. The Pre-Trial Chamber unanimously found that the evidence presented was ‘so scant and unreliable’ that it could not find substantial grounds to confirm the allegations. Abu Garda Decision, supra note 6.

66 See, e.g., The Prosecutor v. William Samoei Ruto et al., Request by the Victims’ Representatives for Authorisation to Make a Further Written Submission on the Views and Concerns of the Victims, ICC-01/09-01/11, P.T.Ch. II, 9 November 2011, paras. 10–12; The Prosecutor v. William Samoei Ruto et al., William Samoei Ruto Defence Brief Following the Confirmation of Charges Hearing, ICC-01/09-01/11-355, P.T.Ch. II, 24 October 2011, paras. 24–29.

67 See ‘Third Report of ICC Prosecutor to UN Security Council Pursuant to UNSCR 1970’, 16 May 2012, para. 11.

68 Buisman, C., ‘Delegating Investigations: Lessons to Be Learned from the Lubanga Judgment’, (2013) 11 Northwestern Journal of Human Rights 30, at 71; personal interview with Caroline Buisman, July 2012.

69 Van den Wyngaert Concurring Opinion, supra note 11, para. 2.

70 Personal interview with member of ICC Investigations Division, July 2012.

71 The OTP's 2003 policy paper states that ‘Investigation teams will include staff members who are nationals of the countries targeted by the investigations’. This ‘inclusive strategy’ would ‘help the OTP have a better understanding of the society on which its work has the most direct impact, and will allow the team to interpret social behavior and cultural norms as the investigation unfolds’. See supra note 18, at 9.

72 Kambale, supra note 12, n. 22.

73 In contrast, both Louise Arbour and Carla del Ponte, former Prosecutors of the ICTY, hired specialists to act as political advisers in dealing with governments and key figures within the former Yugoslavia. See V. Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (2008).

74 Personal interview with member of ICC Investigations Division, The Hague, July 2012.

75 G. Carayon, ‘Increased Use of Intermediaries: Increased Discontent’, ACCESS: Victims’ Rights Working Group Bulletin (Spring 2012), available at www.vrwg.org/ACCESS/ENG20Rev.pdf, at 4.

76 IRRI and Aprodivi-ASBL, Steps towards Justice, Frustrated Hopes: Some Reflections on the Experience of the International Criminal Court in Ituri (January 2012), 20.

77 Ngudjolo Judgement, supra note 9, para. 123. The Chamber expressed particular interest in testimonies that allowed it ‘to appreciate the special significance of the local customs and the function of family relationships in Ituri’, as ‘notions of hierarchy and obedience were likely to be interpreted very differently’. Ibid., para. 122.

78 Personal interviews with ICC Field Office Staff in Kampala, Uganda, and Kinshasa, DRC, June 2011.

79 Personal interview with legal assistants to victims’ representatives, Nairobi, January 2012.

80 See, e.g., M. Kiai, ‘Despised and Neglected, PEV Victims Are Now Being Abandoned by ICC’, Daily Nation, 8 June 2012, available at www.nation.co.ke/oped/Opinion/-/440808/1423430/-/lr0avoz/-/index.html.

81 Victims’ Representatives Request, supra note 66, paras. 10–11.

82 Ibid., para. 10.

83 Testimony from the Lubanga proceedings indicates that the term ‘intermediary’ ‘began to be used in the summer of 2004, but intermediaries only received contracts much later’. See Lubanga Judgement, supra note 10, para. 194. Furthermore, while travel expenses for intermediaries were generally reimbursed, ‘the majority of the intermediaries were not paid and did not request payment’; ibid., para. 198.

84 Draft Guidelines Governing the Relations between the Court and Intermediaries (August 2011), at 5.

85 Lubanga Judgement, supra note 10, para. 167.

86 The Prosecutor v. Thomas Lubanga Dyilo, Redacted Decision on Intermediaries, ICC-01/04-01/06, T.Ch. I, 31 May 2010, para. 88.

87 Ibid., paras. 135–138; see also De Vos, C. M., ‘“Someone Who Comes between One Person and Another”: Lubanga, Local Cooperation and the Right to a Fair Trial’, (2011) 12 Melbourne Journal of International Law ??

88 Lubanga Judgement, supra note 10, para. 482.

89 Ibid., para. 181.

90 Ibid., para. 183.

91 Kambale, supra note 12.

92 P. Clark, ‘If Ocampo Indicts Bashir, Nothing May Happen’, 13 July 2008, available at www.csls.ox.ac.uk/documents/Clark_Final.pdf.

93 C. Odinkalu, ‘Concerning the Criminal Jurisdiction of the African Court: A Response to Stephen Lamony’, African Arguments, 19 December 2012, available at www.africanarguments.org/2012/12/19/concerning-the-criminal-jurisdiction-of-the-african-court-a-response-to-stephen-lamony-by-chidi-anselm-odinkalu; see also K. Glassborow, ‘Intermediaries in Peril’, Institute for War & Peace Reporting, 28 July 2008, available at www.iwpr.net/report-news/intermediaries-peril.

94 IRRI and Aprodivi-ASBL, supra note 76, at 20.

95 Lubanga Judgement, supra note 10, para. 195. The Prosecutor also drew heavily on evidence gathered from confidential agreements with intermediaries in its cases against Katanga and Ngudjulo Chui, leading the Pre-Trial Chamber to similarly lament ‘the reckless investigative techniques during the first two years of the investigation into DRC’. Prosecutor v. Katanga, Decision on Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material to the Defence's Preparation for the Confirmation Hearing, ICC-01/04-01/07, P.T.Ch. I, 20 June 2008, para. 123.

96 Draft Guidelines, supra note 84, at 3. It should be noted that while many organizations (for instance, local NGOs) can also serve as intermediaries, the Guidelines only govern the ICC's relationships with individuals. In addition to the Guidelines, a draft ‘Code of Conduct for Intermediaries’ and a ‘Model Contract for Intermediaries’ have also been created (draft of April 2012; on file with author).

97 On this point, see, e.g., Baylis, E., ‘Outsourcing Investigations’, (2009) 14 UCLA Journal of International Law and Foreign Affairs 121; see also Haslam, E. and Edmunds, R., ‘Managing a New “Partnership”: “Professionalization”, Intermediaries and the International Criminal Court’, (2013) 24 Criminal Law Forum 49.

98 See, e.g., Lubanga Judgement, supra note 10, para. 184, where the Court notes that most intermediaries are ‘activists, most of whom [are] fully aware of developments within the sphere of international criminal justice and the objectives of the investigators’.

99 Bensouda ASP Address, supra note 44, paras. 3, 6.

100 Aranburu, X. A., ‘Methodology for the Criminal Investigation of International Crimes’, in Smeulers, A. (ed.), Collective Violence and International Criminal Justice (2010), 359.

* JD (American University); MSc (LSE); PhD Researcher at the Grotius Centre for International Legal Studies, Leiden University []. This article is part of a larger research project on Post-Conflict Justice and ‘Local Ownership’, supported by the Netherlands Organisation for Scientific Research. The author thanks Abigail Baim-Lance, Caroline Buisman, John Jackson, Sara Kendall, Susana SáCouto, Carsten Stahn, Larissa van den Herik, Marnie Whelan-De Vos, and two anonymous reviewers for helpful comments, corrections, and conversation. The insights and experiences of former and current ICC personnel who granted interviews with the author, as well as those of interlocutors in Kenya, Uganda, and the Democratic Republic of Congo, are also gratefully acknowledged.

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