{"id":4158,"date":"2019-01-18T00:00:00","date_gmt":"2019-01-18T13:37:46","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/the-iccs-evidence-problem\/"},"modified":"2020-12-09T13:04:08","modified_gmt":"2020-12-09T12:04:08","slug":"the-iccs-evidence-problem","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-iccs-evidence-problem\/","title":{"rendered":"The ICC\u2019s \u2018evidence problem\u2019"},"content":{"rendered":"

On 15 January, Trial Chamber I acquitted<\/a> Laurent Gbagbo and Charles Bl\u00e9 Goud\u00e9 of crimes against humanity. This is an important decision. Gbagbo is the first former head of state to be tried by the ICC, and his acquittal comes just months after the controversial acquittal of Jean-Pierre Bemba, a rebel-cum-vice-president of the DR Congo. Of course, as with Bemba (see here<\/a>, here<\/a> and here<\/a>), international lawyers will disagree on the merits of the majority\u2019s ruling. Since the ruling itself is not available (and is likely to be appealed), I would like to offer some preliminary thoughts about the broader implications of this acquittal as regards the Office of the Prosecutor (OTP)\u2019s investigation methods and strategies.<\/p>\n

Investigations and Evidence at the ICC<\/strong><\/p>\n

The International Criminal Court (ICC) has an \u2018evidence problem\u2019<\/a>. This appraisal of the OTP\u2019s fifteen years of investigations has become so self-evident that it no longer raises eyebrows. Starting with the ICC\u2019s first case against Thomas Lubanga, the Court\u2019s judges have repeatedly criticised the OTP\u2019s investigation practices, noting in one instance \u2018grave problems in the Prosecution\u2019s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff\u2019 (Prosecutor v. Kenyatta<\/a>, ICC-01\/09-02\/11-728, para. 4).Although the \u2018confirmation of charges\u2019 stage was expected to streamline proceedings at the ICC (nothing equivalent existed at the ad hoc <\/em>tribunals), the Prosecutor has on several occasions failed to clear Article 61\u2019s lower evidentiary threshold of\u2018substantial grounds to believe\u2019 that a suspect is responsible for the crimes he or she is charged with (Abu Garda, Mbarushimana, Kosgey and Ali).<\/p>\n

In cases that have moved beyond the confirmation of charges stage, judges have on occasion dropped, or the OTP has withdrawn, charges due to insufficient evidence, notably in the case against the Kenyan President, Uhuru Kenyatta<\/a>. Most importantly, in the seven cases that have gone to trial, the Prosecutor has secured just three core crimes convictions (Lubanga, Katanga and Al-Mahdi) while three trials have led to acquittals or vacated charges (Ngudjolo, Bemba and Ruto\/Sang). If Gbagbo and Bl\u00e9 Goud\u00e9\u2019s acquittal is upheld on appeal, the ICC will have exonerated more alleged \u2018war criminals\u2019 than it has convicted \u2013 a rather awkward distinction for an international criminal tribunal.<\/p>\n

These figures should be kept in mind when discussing the Gbagbo\/Bl\u00e9 Goud\u00e9 acquittal. It is worth recalling that in 2013 the Pre-Trial Chamber adjourned<\/a> the Gbagbo proceedings to give the Prosecutor more time to conduct investigations, noting with \u2018serious concern\u2019 that the OTP \u2018relied heavily on NGO reports and press articles with regard to key elements of the case\u2019 and that such \u2018evidence cannot in any way be presented as the fruits of a full and proper investigation\u2019 (para. 35). In hindsight, maybe the judges should have simply declined to proceed with the case in 2013?<\/p>\n

Fast forward to January 2019: almost three years after the trial began, Judge Cuno Tarfusser, reading a summary of the decision, averred that the Prosecutor had \u2018failed to satisfy the burden of proof to the requisite standard\u2019. Specifically, afteranalysing the evidence, the Chamber found by majority, one judge dissenting, that the OTP had \u2018failed to demonstrate several core constitutive elements of the crimes as charged, including the existence of a \u201ccommon plan” to keep Gbagbo in power\u2019, and the commission of crimes against civilians pursuant to or in furtherance of a state or organisational policy.<\/p>\n

New Investigation Methods and Strategies?<\/strong><\/p>\n

A detailed analysis of the legal reasoning underpinning the acquittal will have to wait. At the time of writing, litigation<\/a> continues on whether the two Ivorians will be released from custody and, if so, on what conditions. For now, what seems clear is that the Gbagbo\/Bl\u00e9 Goud\u00e9 decision confirms a broader trend at the ICC. The very fact that the acquittal occurred without the defence even having to rebut the prosecution\u2019s evidence is a stinging rebuke of OTP\u2019s modus operandi<\/em>. The challenges of international criminal investigations \u2013 gathering linkage evidence, reliance on witness testimony rather than documentary proof, political interference, etc. \u2013 are well known. However, the ICC Prosecutor\u2019s recurring \u2018evidence problem\u2019 raises several specific concerns. Below I will address the three that seem to me most salient at this stage.<\/p>\n

First, the Gbagbo\/Bl\u00e9 Goud\u00e9 acquittal seems of a different order of magnitude. Bemba was acquitted too, but only after his Trial Chamber conviction was overturned on appeal by a 3-2 plurality decision<\/a>. Although the Ruto\/Sang<\/a> case collapsed, the majority refused to acquit in large part because of the Kenyan government\u2019s blatant non-cooperation and witness intimidation. By contrast, in Cote d\u2019Ivoire, the Prosecutor ostensibly had the government\u2019s full cooperation (at least initially) in bringing Gbagbo to trial. The worry is that if the OTP cannot gather credible evidence to prosecute deposed state actors, the likelihood of holding to account sitting government officials seems truly insurmountable. Does the Gbagbo\/Bl\u00e9 Goud\u00e9 acquittal confirm the sceptics\u2019 worst fears that the ICC is little more than a tribunal for non-state actors<\/a>?<\/p>\n

Second, what does this tell us about the OTP\u2019s investigation methods and strategies going forward? Not only is the ICC\u2019s evidence problem an open secret, it can be traced directly to certain policies put in place by the first Prosecutor, Luis Moreno Ocampo. His successor, Fatou Bensouda, has sought to adjust the OTP\u2019s methods in response to emerging challenges. Most notably, Bensouda discarded Ocampo\u2019s policy of short, focused investigations led by small teams of investigators in favour of in-depth, open-ended investigations where cases should be as \u2018trial-ready\u2019 as possible by the confirmation of charges stage.<\/p>\n

There are legitimate debates about how to investigate international crimes, but one constant in the OTP\u2019s prosecutorial strategy which has gone virtually unchallenged since Ocampo\u2019s tenure is the idea that the ICC should investigate just a handful of cases (usually 2 or 3) in each situation. A variety of reasons are offered for this policy, most importantly the ICC\u2019s (very real) budgetary constraints. But it is important to underscore that this is a policy choice. Most importantly, its origins lie in Ocampo\u2019s understanding of the ICC\u2019s role in global affairs \u2013 one in which the Court is a major player on the international stage and whose high-profile arrest warrants (oftentimes irrespective of their evidentiary foundations) instil fear among world leaders.<\/p>\n

Of course, prosecuting those most responsible has intuitive appeal. But the Gbagbo case, like Bemba and Kenyatta before it, reveals yet again why this policy carries significant risks. It assumes that evidence against high-ranking officials can or will eventually be found, rather than basing arrest warrants on actionable evidence developed over time against a larger group of suspects (it is unlikely the Gbagbo arrest warrant, issued just two months after opening the Cote d\u2019Ivoire situation<\/a>, resulted from a thorough investigation). To be sure, there are unavoidable trade-offs in pursuing a broad investigation strategy within a single situation. It may reduce the number of active situations and produce trials of less spectacular defendants before getting to the \u2018big fish\u2019. But it would also reduce the possibility of spectacular failures like the ICC\u2019s investigations in Kenya, CAR I, and now Cote d\u2019Ivoire. Which prompts the following question\u2026<\/p>\n

Third, by what standards should we judge the OTP\u2019s performance? To be sure, it is unreasonable to expect the Prosecutor to get only convictions. However, the particulars of the Gbagbo\/Bl\u00e9 Goud\u00e9 case bring to the fore a variety of questions. If the evidence was this weak, why did the Prosecutor bring this case in the first place? It is one thing to \u2018lose\u2019 at trial; it seems quite different to so grossly underestimate the plausibility of one\u2019s case. How did this happen?<\/p>\n

More importantly, given the recurring pattern of evidentiary problems, how does the OTP hold itself accountable for policy and strategic decisions? If the rate of convictions vs. acquittals is not a suitable metric, what other method of assessment should be used? Prosecutor Bensouda has sought to distance herself from Ocampo, partly because of allegations against her predecessor, but there is also a (surprising?) degree of continuity in the OTP\u2019s organisation, composition and strategies. With elections of the next Prosecutor scheduled for December 2020, the performance question arguably needs more attention (see here<\/a>).<\/p>\n

Conclusion<\/strong><\/p>\n

The Gbagbo\/Bl\u00e9 Goud\u00e9 acquittal has prompted a spirited debate about the value of acquittals. It is suggested that acquittals are \u2018integral to the credibility\u2019 of tribunals (Kersten<\/a>) and that \u2018the fairness of any criminal justice system must be judged by acquittals\u2019 (Goldstone<\/a>). This is true. But the Gbagbo case must not be viewed in isolation. It epitomises a set of investigative policies and practices dating back to 2003. So while there is no problem in acquittals per se<\/em>, a thorough evaluation of the Prosecutor\u2019s performance is overdue. There is also the harsh geopolitical reality that an international criminal justice system that acquits more alleged \u2018war criminals\u2019 than it convicts is unlikely to retain the support of key international actors. How the OTP responds to the challenges of conducting effective investigations in the coming years will define the Court\u2019s future.<\/p>\n

 <\/p>\n

Patryk I. Labuda<\/a> is a Hauser Global Fellow at New York University School of Law.<\/em><\/p>\n

\u00a0<\/strong><\/p>\n

Cite as: Patryk Labuda, “The ICC\u2019s \u2018evidence problem\u2019: The future of international criminal investigations after the Gbagbo acquittal”, V\u00f6lkerrechtsblog<\/em>, 18 January 2019, doi: 10.17176\/20190118-145208-0.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

On 15 January, Trial Chamber I acquitted Laurent Gbagbo and Charles Bl\u00e9 Goud\u00e9 of crimes against humanity. This is an important decision. Gbagbo is the first former head of state to be tried by the ICC, and his acquittal comes just months after the controversial acquittal of Jean-Pierre Bemba, a rebel-cum-vice-president of the DR Congo. […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[5053],"article-categories":[6000],"doi":[5054],"class_list":["post-4158","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-patryk-labuda","article-categories-article","doi-10-17176-20190118-145208-0"],"acf":{"subline":"The future of international criminal investigations after the Gbagbo acquittal"},"meta_box":{"doi":"10.17176\/20190118-145208-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4158","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=4158"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4158\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=4158"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=4158"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=4158"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=4158"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=4158"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=4158"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}