, NAIROBI, Kenya, Oct 22 – Experts say a new investigation strategy due to be adopted by the International Criminal Court (ICC) needs to address longstanding issues about evidence-gathering that have left multiple trials on an uncertain footing.
Full details of the guidelines, sent to the ICC’s 122 member states last week, have yet to be released, but they focus on ways to ensure that the Office of the Prosecutor (OTP) can present a watertight case at trial.
Key elements include plans for prosecutors to ensure that cases are ready at an earlier stage of proceedings, and for court investigators to corroborate evidence that is collected by third parties. The need to safeguard the security of both investigators and witnesses also remains a serious challenge.
In its first 11 years of operation, the ICC has often struggled to gather sufficiently convincing evidence against suspects.
The conviction of Congolese warlord Thomas Lubanga Dyila in 2012 – the prosecution’s only success to date – was a milestone for the court. But judges on the case were scathing about the way the OTP handled the investigation, particularly its reliance on intermediaries and its failure to properly probe evidence that later turned out to be false.
The Lubanga judgement also highlighted a tendency for investigators to rely too much on third-party information such as reports from human rights groups and academics.
Similar flaws in the ICC’s investigative procedures have been uncovered elsewhere.
When Callixte Mbarushimana, a senior figure in the Democratic Forces for the Liberation of Rwanda or FDLR, came before the ICC in 2011 for alleged human rights abuses in the eastern Democratic Republic of Congo (DRC), judges ruled there was not enough evidence to send the case to trial.
More recently, judges at the ICC declined to confirm charges against the former president of Ivory Coast, Laurent Gbagbo, after the OTP failed to present compelling evidence linking him to crimes on the ground.
Gbagbo remains in custody while the prosecution appeals against this decision.
In the court’s investigations in Kenya, prosecutors were forced to drop their case against former civil service chief Francis Muthaura after it emerged that one key witness had lied to investigators.
Since Prosecutor Fatou Bensouda made that decision in March, it has emerged that several witnesses have withdrawn from the cases against Kenyan President Uhuru Kenyatta and Deputy President William Ruto since charges were confirmed in January 2012.
Bensouda has repeatedly highlighted “unprecedented levels” of interference in her cases in Kenya. On October 2, judges unsealed an arrest warrant against a former journalist who is accused of bribing witnesses.
The succession of setbacks has prompted widespread concern over how the OTP conducts its investigations and why it has found it so hard to gather enough evidence to secure convictions.