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Kenya

ICC to unveil new investigation strategy

Boots on the ground
Failures to meet the evidentiary threshold set by the judges has prompted criticism that ICC investigators place too much emphasis on third-party sources like NGO and media reports, rather than on collecting evidence.

War crimes expert Cherif Bassiouni, who has chaired five separate United Nations investigations into post-conflict situations, thinks this is a huge problem and wonders whether in some cases the ICC might be being too cautious.

“How can you build an effective case if you are sitting in The Hague and the only thing you have is a few witnesses with insufficient corroborating evidence because you have not been in the field?” he asked.

Bassouni’s most recent investigation was into crimes allegedly committed during the 2011 uprising in Libya. He said that when he began the investigation, he contacted Prosecutor Moreno-Ocampo and invited him to send in some investigators, but the ICC’s security advisors said that the situation was not safe enough.

The problem with relying on a third party’s report is that proof of criminal guilt is based on the work of academics or NGO whose research did not have this purpose.

“The real skill in being an investigator is not just to collect information, but to make sure that this information can be used as evidence in a courtroom,” said John Ralston, former head of investigations at the International Criminal Tribunal for the former Yugoslavia. “If the information has been collected by others – NGO reports, for example – then it is important for investigators to go and gather the evidence themselves, to verify its reliability and make sure it meets the evidentiary threshold of the court.”

Ken Wafula, a human rights activist from Eldoret in the Rift Valley region of Kenya, complained that when the ICC opened its investigation into the country in 2010, investigators spent too long in Nairobi and not enough time in other areas where the violence took place.

“I think the ICC really missed an opportunity to engage directly with all the interlocutors in the (Eldoret) region – with the witnesses and the victims – which could have made (their) case very strong,” Wafula said.

Wafula argued that if investigators had come to Eldoret earlier and engaged more with victims, this could have helped them build a stronger case. Wafula said that he did not meet investigators until early 2011.

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De Smedt argues that there is a legitimate purpose in using secondary sources, particularly when prosecutors need to demonstrate the background to the crimes charged.

“Next to forensic evidence, we will always have to also rely on witness testimony or first-hand sources to prove that crimes took place in the first place,” said De Smedt. “But in order to demonstrate a pattern behind the crimes, then we should be allowed to rely on other evidence, such as third-party reports if they are based on a proper methodology and independent from each other.”

The OTP is often forced to rely on evidence gathered by a third party because of the need to protect witnesses, as well as providing security for its own staff,.

For De Smedt, witness safety is a far bigger worry than staff security, and is the key reason that the ICC has chosen to tread softly in some areas.

“We can manage staff security, and there have been very few serious threats against (ICC) staff,” said De Smedt. “Witness security, on the other hand, is far harder to deal with. We have a duty to protect witnesses under the (ICC’s treaty) Rome Statute. Investigators can always leave, but witnesses and their families are caught up in the country. We shouldn’t risk the lives of people to build a case. It is much better to lose a case than the life of a witness.”

Witness protection is also a matter of credibility for the court.

“If witnesses are put in severe danger in one case, then we may face difficulties in getting witnesses to testify for another one,” De Smedt said.

Bassiouni accepts such concerns, but underscores the importance of getting investigators on the ground as early as possible, since key pieces of evidence can disappear over time.

“Injuries may heal or they may take on a different form,” he said. “If people have been put in a mass grave, then the bodies might decompose and the trace of the bullet may not be so evident.”

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In response to such concerns, the ICC is looking at establishing a permanent field presence in certain countries. But it does not have the luxury of being welcomed everywhere it needs to work.

“Of course this depends on two crucial things – security and state cooperation – so wouldn’t be possible everywhere,” De Smedt said. “In Mali, I am mindful that we are dealing with terrorist organisations which could be a real threat to investigators. In Sudan, it seems unlikely that the government will ever let us have an office in Darfur.”

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