The International Criminal Court (ICC) celebrated the 20^th Anniversary of its founding treaty, the Rome Statute on 17 July 2018. This essay looks at improving the ICC’s effectiveness by improving its investigative and prosecutorial process, enhancing witness protection and building investigative skills and co-operation with police and peacekeeping forces.

 

Introduction

Domain experts have called into question the effectiveness of the International Criminal Court (ICC) and the international criminal justice system in general.[1]  This essay briefly reviews these issues with an emphasis on investigations, prosecutions, and witness protection in support of effective trials.  The International Criminal Justice system is essentially a network comprised of institutions at four levels: Domestic, International, Hybrid, and Regional.[2]  The principle of complementarity—where the ICC and national courts share responsibility for prosecuting war crime and crimes against humanity—makes effective interaction among the various potential layers of action imperative.  International courts are generally called to action when domestic organs refuse to or fail to act. Without vertical co-operation, the data (i.e., physical evidence, documents, witness testimony) necessary to a fair and effective investigation and prosecution are elusive and difficult to obtain.

 

Investigations and Prosecution

The problem is not an absence of information; the difficulty is finding and collecting it in a fair, unbiased manner that preserves a chain of evidence before taking it to the court.  The ICC has faced difficulties in the past with delivering evidence and witnesses to the Office of the Prosecutor (OTP) and the Trial Chambers, difficulties that have been identified as a source of delay and the cause of lengthy trial proceedings.  These criticisms have led to calls to reform the ICC prosecutorial processes.  In the Lubanga case[3], which resulted in a successful prosecution, the OTP was criticized for its conduct of the investigation.[4]  Specifically, OTP was said to have relied too much on third-party information.  This included reports from academics and human rights groups/non-governmental organizations (NGOs).

The Lubanga case highlights the extended timeframes involved in prosecuting international criminals.  Lubanga, a warlord from the Democratic Republic of the Congo, was tried and convicted for crimes against humanity, specifically the recruitment and use of child soldiers.  The investigation against him opened in 2004.  He was arrested two years later, his trial commenced in 2009, and he was finally convicted in 2012.[5] Five years passed from arrest to trial, then three years for the trial.  This appears exceedingly slow, yet the complexities of investigating and prosecuting the mass atrocities international crimes that often constitute international crimes are significantly more complex and demanding than all but the most extreme domestic crimes (e.g., major terrorist attacks).  As Professor Carsten Stahn of Leiden University in The Hague notes, “[t]he categories of crimes, i.e. war crimes, crimes against humanity and genocide, are particular in the sense that they are atrocity-related and linked to a longer history of conflict. This makes investigations and prosecutions more complex than in classical domestic proceedings, in terms of the actors involved, the gathering and selection of evidence.”[6]

The complexities of investigating international crimes are many.  Witnesses may not recall the specifics of the crimes many years later, they may change their testimony, their testimony may have been coerced or tainted, or their testimony may have been documented in a manner that lacks evidentiary integrity.  In many cases, the ICC relied on documentary evidence recounting witness statements taken by NGOs with traditional evidentiary safeguards.  These procedures may favor the prosecution and hamper a fair defense.  Lord Justice Fulford, the English jurist who presided over the Lubanga trial advocates reforming these bars to timely, reliable, and credible testimony by instituting “a system where field testimony would be filmed in the presence of a judge or a trained, qualified legal officer,”[7]

The reliance on local investigators and NGOs to gather statements is problematic but likely unavoidable given the long time frames and geographic diversity of cases, the delay from the initial crime, and the scarcity of resources available for international investigations and prosecutions.  These complicating factors can be mitigated in several ways.  First, the principles of complementarity and co-operation can be leveraged to enhance the quality and effectiveness of investigations and prosecution.  Second, qualified investigators adhering to common standards are essential.  Methods for collecting testimony and physical evidence must also be standardized.

Common protocols need to be developed and widely disseminated.  Police and prosecutorial investigators from all four layers of international justice need training in these procedures and domestic courts need to adopt these common protocols. In ICC cases, these common procedures then need to be vetted and validated by independent ICC/OTP investigators so it is admissible in court.  As the former head investigator for the ICTY John Ralston observed, “if the information is collected by others—then it is important for the investigators to go and gather the evidence themselves, to verify its reliability and make sure it meets the evidentiary threshold of the court.”[8]

These standards need to address the full range of potential evidence from mass graves and systematic forced disappearances with multiple crime scenes, to the potential use of prohibited weapons (chemical and biological weapons), to rape, sexual abuse, genocide, etc.  These crimes could occur over broad areas, in rural areas, in mega-cities, and in the digital and cyber realms.  They could also occur in a combination of all of the above.  New methods like geospatial visualization platforms with 3D mapping and crime scene reconstruction[9] and low cost[10] serology, toxicology, genetic analysis (for DNA and PCR), and ballistic, explosive analysis tools and procedures will be needed in the field and in crime laboratories.  These tools for criminalists will enhance forensic anthropology capabilities that enhance investigations for attribution, accountability, and prosecution.

 

Protecting Witnesses

According to Professor Stahn, “the testimony of witnesses is essential for truth-telling. In many cases, this testimony has suffered from intimidation and external interference.”[11]  In the Kenya cases, this interference led to the collapse of the cases.  Naturally, the protection of witnesses is essential to ensure valid court proceedings.  OTP Prosecutor Fatou Bensouda dropped the case against defendant Francis Muthaura after it was found a key witness lied about his alleged crimes.  Since that decision, several other witnesses have withdrawn from the cases against Uhuru Kenyatta and William Ruto, Kenya’s President and Deputy President.[12]  Witness tampering, intimidation, and bribery have tainted the witnesses complicating prosecution.  Currently, dozens of potential witnesses are missing and feared to be “forcibly disappeared” in Burundi.[13]  Witness tampering [14] is suspected in this case as the government of Burundi attempts to escape scrutiny by leaving the jurisdiction of the court.[15]  Building global co-operation among states to protect witnesses is, therefore, imperative.

 

Conclusion: Skill and Capacity Building

The tools, skills, and capacity necessary to enhance the effectiveness of the ICC and its partners at all layers must be developed and maintained. In Africa, where the court’s effectiveness has faced severe challenges, these partnerships could include the African Court of Justice and Human Rights (ACJHR)[16], a prospective African regional criminal court with jurisdiction over international crimes.  These can be developed in partnership with other organizations including Interpol, the United Nations Police and Peacekeeping offices, and specialized training centers including UNICRI (United Nations Interregional Crime and Justice Research Institute) and the Center of Excellence for Stability Police Units (CoESPU), as well as numerous potential global academic institutions.[17]  The ICC does not have its own police service nor its own network of crime labs.  It does, however, have the ability to partner with other players in the realm of international justice and to serve as an advocate for forging co-operation and harmonizing international justice mechanisms at all levels. Building investigative skills for addressing war crimes and crimes against humanity within international police and peacekeeping forces and enhancing co-operation with these forces has the potential of enhancing the effectiveness and capacity of the ICC and its international partners in the fight against atrocities.

 

Notes:

[1] See Jessica Hatcher-Moore, “Is the world’s highest court fit for purpose?” The Guardian, 5 April 2017, https://www.theguardian.com/global-development-professionals-network/2017/apr/05/international-criminal-court-fit-purpose.

[2] Domestic courts are national courts, International courts include the ICC and International tribunals such as the International Tribunal for the former Yugoslavia (ICTY) and International Tribunal for Rwanda (ICTR), hybrid courts include the Special Court for Sierra Leone (SCSL), regional courts include the Inter-American Court of Human Rights. See Carsten Stahn (2016), Fair And Effective Investigation And Prosecution Of International Crimes: Inventory And State-Of-The-Art: Context, Cluster 1 And Cluster 2. Nuremberg: International Nuremberg Principles Academy, https://www.nurembergacademy.org/fileadmin/user_upload/Fair_and_Effective_Investigation_and_Prosecution_of_International_Crimes.pdf.

[3] The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-01/06-2842.

[4] Blake Evans-Pritchard and Simon Jennings, “ICC to Unveil New Investigation Strategy,” Institute for War and Peace Reporting, ACR Issue 367, 21 October 2013, https://goo.gl/D8vpJf.

[5] Id. Note 4.

[6] Carsten Stahn (2009), “The Future of International Criminal Justice,” Hague Justice Journal, 257-266, https://www.elevenjournals.com/tijdschrift/hjj/2009/3/HJJ_187-4202_2009_004_003_008.

[7] Id. Note 3.

[8] Id. Note 3.

[9] See “Platform Visualizes Forced Disappearances in Mexico,” MacArthur Foundation, 14 September 2017, https://www.macfound.org/press/from-field/platform-visualizes-forced-disappearances-mexico/ and “El Caso Ayotzinapa,” Forensic Architecture, http://www.plataforma-ayotzinapa.org.

[10] Bernice González Durand, “Low-cost tools in the wake of crime,’ El Universal, 8 November 2017, http://www.eluniversal.com.mx/english/low-cost-tools-wake-crime.

[11] Carsten Stahn, Lecture; “Enhancing Effectiveness,” International law in action 2: Module 4, Video 4, https://www.coursera.org/learn/international-law-in-action-2/lecture/26fv6/enhancing-effectiveness.

[12]  See The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, https://www.icc-cpi.int/kenya/kenyatta and The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, https://www.icc-cpi.int/kenya/rutosang.

[13] Situation in the Republic of Burundi, ICC-01/17, https://www.icc-cpi.int/burundi.

[14] “Where are Burundi’s missing witnesses to crimes against humanity?” IRIN News, 16 November 2017, https://www.irinnews.org/news/2017/11/16/where-are-burundi-s-missing-witnesses-crimes-against-humanity.

[15] “Burundi becomes first nation to leave international criminal court,” The Guardian, 27 October 2017, https://www.theguardian.com/law/2017/oct/28/burundi-becomes-first-nation-to-leave-international-criminal-court.

[16] For Background on the ACJHR see http://www.africancourtcoalition.org.

[17] Such a partnership is in place with the European Committee for the Prevention of Torture.  See “The European Committee for the Prevention of Torture to assist the ICC in the monitoring of the conditions of sentenced persons,” Press Release, International Criminal Court, 13 November 2017, https://www.icc-cpi.int/Pages/item.aspx?name=pr1343.