ICC Under Fire Over Investigations

Simon Jennings

Africa Editor

Friday, 22 March, 2013

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An eventful week for the International Criminal Court, ICC, saw prosecutors drop charges against a former senior Kenyan official just before a Congolese rebel leader walked into the United States embassy in Kigali and asked to be sent to The Hague.

In light of both developments, international justice experts say ICC prosecutors need to review the way they investigate cases, and in particular ensure they have enough evidence to give them a strong chance of securing convictions.

On March 11 ICC prosecutors in The Hague announced that they were dropping charges against former Kenyan civil service chief Francis Muthaura. Muthaura had been charged alongside president-elect Uhuru Kenyatta for orchestrating and financing the violence that engulfed Kenya following its 2007 general election.

On March 9, Kenyatta was declared the winner of Kenya’s presidential election with 50.1 per cent of the vote, although the result is being challenged by his main rival, Raila Odinga, who polled 43. 3 per cent.

Prosecutors took the decision to drop the Muthaura case after it came to light that a key witness implicating him in an alleged plan to commit atrocities had lied in statements made to the court. The prosecutor said that other witnesses were now dead, and accused the Kenyan government of not cooperating fully with its investigation, an allegation denied by officials in Nairobi.

The lawyer of William Ruto, another of the Kenyan suspects, says that a witness due to testify in this case has withdrawn his testimony.

The decision on Muthaura comes soon after ICC judges acquitted a militia leader for crimes committed in the Democratic Republic of Congo, DRC. In their judgement in the case against Mathieu Ngudjolo in December, judges ruled that the prosecution’s case was not strong enough because its witnesses were unreliable and gave testimony that was "too contradictory and too hazy".

OTP is appealing the judges’ findings in relation to the reliability of its witnesses in the Ngudjolo case. However it says it is always trying to improve its investigations.

“To that end, we study and consider carefully all of the decisions of the judges,” OTP said, noting that “it is not always possible to investigate and find corroboration for witness accounts.”

Nor was the Ngudjolo case the first in which prosecutors have struggled to secure the kind of witness testimony that would support their case. After the trial of another Congolese militia chief, Thomas Lubanga Dyilo – the only individual the ICC has convicted to date – judges criticised the prosecutor’s office for employing intermediaries to gather witness testimony that was later deemed unreliable.

“A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on,” the Lubanga trial judgement of March 2012 read.

Lubanga remains in custody in The Hague pending an appeal hearing.

The ICC announced it was launching an investigation in Kenya in March 2009, after the country’s parliament failed to make arrangements to prosecute the perpetrators of violence that erupted in the aftermath of the December 2007 presidential election. A dispute over the outcome led to clashes along party-political and ethnic lines, resulting in the more than 1,100 deaths and 600,000 people displaced.

Of the six suspects originally summoned by the court in March 2011, judges confirmed charges against only four, divided into two cases – Kenyatta and Muthaura in one, and William Ruto (now Kenyatta’s electoral running-mate) and journalist Joshua Arap Sang. The withdrawal of charges against Muthaura came just four months before the trial date, scheduled for July.

Given that Muthaura was Kenyatta’s co-defendant, lawyers for the latter have asked judges to send his case back to the pre-trial chamber to verify whether the evidence still available to the prosecution actually merits a trial.

CONGOLESE COMMANDER HEADS FOR ICC

As Kenyatta celebrated victory in the election and prosecutors withdrew charges against Muthaura, another suspect – this time from DRC – offered himself up to the ICC.

On March 18, Bosco Ntaganda surrendered to the United States embassy in Kigali and asked to be taken to The Hague.

By March 22, Ntaganda was in the custody of ICC officials on a plane heading from Kigali to The Netherlands.

"This is a good day for victims in the [Democratic Republic of Congo] and for international justice. Today those who are alleged to have long suffered at the hands of Bosco Ntaganda can look forward to the future and the prospect of justice taking its course," Prosecutor Fatou Bensouda said in a statement.

The ICC issued a warrant for Ntaganda’s arrest in 2006, and has accused him of conscripting and using child soldiers in fighting in the Ituri district of eastern DRC, as well as orchestrating the murder, rape and sexual enslavement of civilians in 2002-03. The charges date to a different period of conflict in DRC than the present situation, in which Ntaganda was until recently a senior figure in the M23 rebel movement.

It not yet known exactly how Ntaganda crossed the border into Rwanda and reached the US embassy in Kigali. But following a defeat to a rival faction of the M23, which split in two last month, it is thought that he had become isolated and effectively faced a choice between death or surrender to the ICC.

Ntaganda’s case is expected to include much of the same evidence that was criticised by judges in the Lubanga and Ngudjolo cases, which date to the same period, and similar barriers exist to collecting new evidence.

In the Lubanga case, an ICC prosecution spokesperson told IWPR that, “The prosecutor’s access to witnesses or documentary evidence in that hostile environment was necessarily limited and difficult.”

The ICC’s critics say its struggle to obtain evidence in insecure and unfamiliar territory has been a common theme of its investigations in Africa.

Phil Clark, an expert in international justice at the University of London's School of Oriental and African Studies, SOAS, says there is inadequate funding by the countries that back the court - known collectively as the Assembly of States Parties – which he says has limited the quality of investigations. (See for example Mali Case Throws Spotlight on ICC Budget Constraints.)

“The big question is whether the Assembly of States Parties is willing to fund the ICC to the level that it would need to, to carry out effective investigations in the field,” Clark said. “I think [the court has] tried to do justice on the cheap and what we’re seeing is that, as a result, the court is overstretched.”

Of the 14 cases that have come before the ICC, five have lacked enough evidence to go forward to trial, and of the two that were completed, Lubanga was convicted but Ngudjolo acquitted.

Legal experts say prosecutors need to review their strategy for pursuing investigations if they are to ensure convictions in future cases, such as that of Ntaganda.

“I hope they are going through a lot of soul-searching, and they had better solve the problem [of securing convictions] soon,” William Schabas, a professor of law at Middlesex University, told IWPR shortly after the charges against Muthaura were dropped. “I think more and more people realise that there is something very unsatisfactory about the performance of the court.”

The Office of the Prosecutor, OTP, argues that success is not just about convictions; it should also be measured by the deterrent effect of undertaking proceedings against those accused of atrocities.

“Justice is not just about securing convictions. There are various facets to justice,” a spokesperson for the OTP said in an email to IWPR. There is also “the court’s preventative role and its capacity to defuse potentially tense situations that could lead to violence”.

The OTP and former ICC prosecutor Luis Moreno Ocampo have both said the court’s intervention in Kenya following the 2007-08 bloodshed played a deterrent role in ensuring peace this time round.

SECURING EVIDENCE TO BUILD STRONG CASES

In the wake of previous judgements, there are questions about the court’s use of eyewitness testimony, something that can be notoriously unreliable compared with other forms of evidence.

According to Schabas, the first trials at the ICC have been “very witness dependent” compared with those at other international courts such as the International Criminal Tribunal for the Former Yugoslavia, ICTY.

“Although they [at the ICTY] hear quite a lot of witness testimony, I don’t think they have had cases standing or falling on the testimony of one or two witnesses,” Schabas said.

Memories fade over time and trauma can inhibit recollections of events, so testimony given by different witnesses about the same incident can vary greatly. Witnesses may also be pressured by outsiders to give certain testimony.

Experts say court rules that limit contact between lawyers and witnesses make this challenge even more difficult.

Jens David Ohlin, a law professor at Cornell Law School, says this prevents prosecutors from building a thorough case from the beginning of their investigation.

“If you have unrestricted access to the witness by the prosecutor’s office, they will be able to do a very good job of weeding out at the very beginning [or at] the interim stages the witnesses who are going to be reliable and those witnesses who are going to be problematic,” he said. “And so you get the case straightened out at a much earlier stage, and you don’t have cases falling apart mid-stage or late-stage.”

David Kaye, a law professor at the University of California, told IWPR that one of the problems facing the ICC is the type of cases it selects.

He says prosecutors need to look more carefully at the likelihood of securing a conviction at trial before pursuing certain individuals.

“[Assessment of the evidence] has to be integrated into the case selection criteria of OTP,” he said. “It is one thing to say we know that this person is a viable target for prosecution, but it is another to say they can secure a conviction. [OTP] has to weigh on what [evidence] it can go forward, and against who it can go forward.”

The OTP denies that case selection is a problem and says it only moves ahead with cases if it feels there is a reasonable prospect of a conviction. It says the fact that it dropped charges against Muthaura is evidence of this approach.

“This action last week [in the Muthaura case] makes absolutely clear that the OTP does put great emphasis on assessing the likelihood of being able to secure a conviction at trial,” the OTP spokesperson said.

SHIFT TO AREAS WHERE HARD EVIDENCE IS EASIER TO GET?

Besides witness testimony, prosecutors at the ICTY use a wealth of documents including minutes of meetings between senior government officials and military and intelligence records to prove that events happened and the suspects are culpable.

Investigations at the ICC, however, often take place during an ongoing conflict, or implicate current leaders, making the process much more challenging. The ICC has not been able to rely on documentary evidence to the same extent as the Yugoslav tribunal.

“The kinds of documentation that the ICTY had available to it would not be available for most of the cases on the ICC’s docket right now, and that is a problem,” Kaye said.

But if reliable witnesses and documentary evidence are hard to come by, there may be another way forward.

Schabas suggests that ICC prosecutors could move away from the type of cases they are currently investigating. He points out that it has been the court’s choice to prosecute cases stemming from rebel conflicts in the DRC and electoral violence in Kenya. He argues that the ICC could equally select other crimes in other parts of the world, on the basis that stronger evidence is available.

“Somewhere at the root of this is the problem of the selection of the cases and the situations,” Schabas said.

“The prosecutor will say that these cases require eye-witness testimony so maybe [OTP] should just get other cases that don’t.”

Simon Jennings is IWPR’s Africa Editor.