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ICC Prosecution Defends its Tactics

Chief prosecutor faces criticism over failure to broaden charges against the first accused taken into custody by the court.
The chief prosecutor at the International Criminal Court, ICC, Louis Moreno-Ocampo, has come under fire following an announcement on June 28 of the suspension of investigations into any further crimes which may have been committed by the first suspect ever taken into custody there.

The detainee, Thomas Lubanga, a Hema militia leader from Ituri province in the north-eastern corner of the Democratic Republic of Congo, DRC, is the founder and leader of the Union des Patriotes Congolais, UPC.

His militia has been widely condemned by human rights groups for their role in the killings, rapes and lootings that ravaged Ituri, coming to a head in 2002 and 2003. At least 50,000 people have been killed in the province since 1999, according to the United Nations.

Yet Lubanga only faces charges of conscripting children to fight as soldiers in inter-ethnic violence.

Further investigations are hampered by the current unstable situation in Ituri, where thousands of people are being driven from their homes amidst a campaign by the local United Nations mission, MONUC, against rebel groups in advance of elections at the end of this month.

Moreno-Ocampo made clear in information that he provided to the ICC’s pre-trial chamber, which is dealing with the Lubanga case, that as a result, it is currently “impossible” to collect sufficient evidence to press further charges against him in the current proceedings.

But human rights organisations are very concerned that this decision to prosecute on such a limited charge leaves many of the crimes committed in the DRC unaddressed, and diminishes the chance that they will ever be heard in court, or that anyone will ever be found accountable.

Some activists have privately criticised the prosecutor’s whole investigation strategy over the last eighteen months as apparently ill-conceived, arguing that the investigation teams could have come up with the evidence needed for further charges before now.

Christopher Hall, the senior legal adviser for the International Justice Project at Amnesty International, points out that Moreno-Ocampo has, from the start, been concerned with taking a different approach to prosecutions than that employed at the nearby International Criminal Tribunal for the Former Yugoslavia, ICTY.

The ICTY’s highest-profile case – against the former Yugoslav president Slobodan Milosevic – came to an end this year when the accused died of a heart attack. Milosevic faced a sprawling indictment relating to three separate theatres of war across the Balkans, and his trial had just entered its fifth year when he died.

Moreno-Ocampo, says Hall, is trying to present cases in a “radically different” way.

The ICC’s more limited focus, whereby prosecutors attempt to secure a conviction for a more restricted number of crimes by presenting cases with “good evidence, where they can ensure security of witnesses”, makes sense, says Hall.

The senior prosecutor in Lubanga’s case, Ekkehard Withopf, told IWPR that the Office of the Prosecutor, OTP, had been faced with a choice - to wait until they had the evidence to prove a wide range of crimes by the accused, or to go ahead with the charge of enlisting, conscripting and using child soldiers.

He explained that the OTP has been aiming at focused investigations and focused prosecutions, “Our aim is to show examples of the crimes in the indictments. This will limit the duration of the trials, and the number of witness we have to call. Shorter trials means there will be more trials, which is in the interests of efficient justice.”

But Richard Dicker, the head of the International Justice Programme at Human Rights Watch, says that even though “it is essential to learn the lesson of the ad hoc tribunals [such as the ICTY], that doesn’t justify a pendulum swing to the opposite direction”.

In the February 2006 arrest warrant against Lubanga, there was provision for substantial new charges to be added to the ones he already faces, providing that the collection of evidence met the appropriate threshold “within the next few months”.

Withopf confirmed that the OTP is up against a timeline. “The law allows us to amend charges at certain stages,” he said.

At the beginning of February, Moreno-Ocampo had said that further investigations into Lubanga’s activities would focus on allegations of attacks against the civilian population, murders committed during these attacks, pillaging, and ordering the displacement of civilians.

“We have investigated such crimes,” said Withopf, “but at this stage, the evidence collected does not meet the legal threshold of proof.”

He explained that at the moment, prosecution investigators cannot travel to the region because of violence and security concerns - for both themselves, and for victims and witnesses. He acknowledged the criticism the OTP faces over the decision to suspend the investigations into further crimes, saying, “We are caught by the realities, but it is not what we want.”

Many human rights groups contacted by IWPR are worried about the signals that the decision to suspend investigations may be sending out. A particular concern is whether sexual crimes are being ignored.

Brigid Inder, executive director of the Women's Initiatives for Gender Justice, told IWPR that prosecution investigators have left out a “huge part of the crime base in the DRC, including rape”.

Given that this is the ICC's first case, she says, women in conflict situations such as the DRC are looking for signs that this is a court of “inclusive justice”.

Inder says that at the moment “these signs are not being shown”.

The scale of crimes committed in the DRC is immense, argues Hall, of Amnesty International., “It is scandalous that so far we have seen only a few core people charged with these crimes - one person by the ICC, and 50 by DRC military courts.”

Of the 50 trials in government-run military courts, 40 people have been convicted of rape, he points out. He notes that even the Congolese authorities seem to be able to direct their limited resources to dealing with sexual crimes, which raises the question of why the ICC doesn’t seem to be taking sexual crimes seriously.

Ultimately, the ICC's role is to lead on these issues, Hall says, and to be a “catalyst to get states investigating and prosecuting serious crime”.

Inder says that leaving sexual crimes out of the arrest warrant is even more surprising when the weight of evidence that has already been produced is taken into consideration. “Widespread and systematic use of sexual violence across the DRC, [has been] documented by the Secretary General of the United Nations and countless NGOs [non-governmental organisations],” she said.

Excluding these crimes “sends a message that the ICC is either unable to effectively investigate gender-based crimes, or doesn’t believe these crimes have occurred, or they are not important enough to be investigated and prosecuted”, said Inder.

But Mark Ellis, Executive Director of the International Bar Association, points out that it would be unreasonable to think that an individual can always be brought to justice for all of the crimes they may have committed. “There are not the resources,” he said, adding that a huge and wide-ranging indictment, in some cases “does not address the needs of victims, nor their desire for closure and justice”.

Inge Genefke, the founder of the International Rehabilitation Council for Torture Victims, agreed that it is sometimes better to have a speedy trial for the sake of the victims, leaving time and money to try other war crimes suspects. “The most important thing,” she said, “is to remember that justice heals."

It is also prudent to remember that the prosecution is under an obligation to show the outside world they are making proper use of resources. “The scope of our investigations is determined by our resources, which are not unlimited,” said Withopf.

But Dicker, of Human Rights Watch, questions how those resources have been put to use. He points out that “conducting efficient investigations in regions as difficult as Ituri, where there is widespread insecurity and no government force, means you can’t do it with only a handful of investigators”.

“These are lessons the prosecutor needs to wrestle with,” he emphasised.

Withopf said the OTP has investigated the allegations in respect of gender crimes orchestrated by Lubanga, but the evidence at this stage is not seen as sufficient to prove the link between the individual rapists and Lubanga himself.

Inder argued that human rights groups have interviewed numerous victims of rape and sexual violence and collected thorough evidence from women who are ready and willing to talk, “They want to see those responsible for the violence in the DRC held accountable, and had high hopes the ICC would do this.”

But Withopf stressed the difference between just collecting information on crimes, and using evidence to prove them beyond a reasonable doubt in a court of law. “We are trial lawyers,” he said, “and the bottom line for our determinations is the evidence.”

He also points to a further dilemma that would be faced if the prosecution decided to include gender crimes in an indictment, despite not being completely confident that they could prove the allegations beyond reasonable doubt, “We would have to call victims as witnesses, and if [then] the accused was acquitted, you can imagine the negative impact on the victims and the message this sends to the outside world.”

Withopf was keen to stress that gender crimes are included in arrest warrants that have been issued in another ICC case against individuals in Uganda. A statement issued by the chief prosecutor on July 6 said evidence collected by his office was expected to show that the Lord’s Resistance Army, LRA, in Uganda had been systematically “abducting children to use them as soldiers and sex slaves”.

Even so, Inder argues that ICC prosecutors could still include gender crimes within its focus on child soldiers in the DRC.

She said that girls conscripted into militia groups there are commonly raped, assigned to commanders for the purpose of sex, and forced to provide domestic labour within the militia camps. But still, she says, “None of these crimes have been addressed by the ICC.”

Withopf, however, cautions against such an interpretation. He says that if “at first glance” Lubanga’s arrest warrant appears to be limited, in the course of the trial it will still go “significantly beyond this”.

The sole charge of conscripting child soldiers was staunchly defended by Moreno-Ocampo himself at a press briefing on July 6. He said that prosecuting Lubanga on this count sends a message to the world that turning children into killers is a very serious crime.

Amid all the talk about the narrowness of the arrest warrant against Lubanga, Genefke agrees that the seriousness of the crime in question should not be under-estimated, “Defenceless children are being dehumanised, and taught how to kill and even rape. The prosecution of this horrible torture crime is sufficient.”

Another concern is that Lubanga is from the Hema ethnic group, and his rival militia leaders from the Lendu ethnic group, who have been equally blamed in reports for instigating violence, have so far not been charged.

Inder wonders what will happen if a member of a rival militia is charged with rape. Would that imply that sexual violence against Hema women is worse than that against Lendu women? She suggests that such decisions could reinforce the ethnic tensions that have fuelled the violence.

Withopf argues that the prosecution must always be neutral. “Our criteria are the evidence, and it may be that the evidence is better against a rival militia leader, which leads us to the conclusion we could prove this beyond a reasonable doubt,” he said.

Hall concedes that there is no sense that the OTP is brushing sexual crimes under the carpet. “We have pushed the prosecutor to take crimes of rape and sexual slavery more seriously, and are pleased he has said that he will do so,” he said.

Amid all this debate, Moreno-Ocampo has made it clear that he is not prepared to completely close off the possibility of further investigations against Lubanga in the future. In his June 28 announcement to the court, he said that he might continue investigations after the close of the current case.

If additional investigations establish reasonable grounds to believe that Lubanga is criminally responsible for additional crimes, he said, “the prosecutor will apply to the pre-trial chamber for a new warrant of arrest”.

Katy Glassborow is a regular IWPR contributor in The Hague.

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