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Wednesday, March 14, 2012

First Judgment at the ICC: Some Random Thoughts on the Lubanga Verdict (part 2): the investigation

Moving away from questions of form, as dealt with in my previous post, let's look at certain issues of substance, which I will broadly consider in the order they are dealt with in the judgment. Because I want to keep my posts short(ish), I will comment in over different posts...

  • ... but first, another comment on form and style
Having plowed through nearly 300 pages of the Judgment so far, there are already a number of parts that could have been seriously cut down. What is the point, for example, of recalling the case law on victim participation at the beginning? The same is true of the factual overview. International Judgments are not history books, and should not try to be history books. For one, they often get things wrong. More importantly, that is not their function. This overview should only be mentioned if it is relevant for the legal analysis (for the determination of the nature of the armed conflict, for example (more on this in Part 3)). 

On the related question of style, international judges have to stop acting as if they are giving a lecture to, depending on the section of the judgment, students/activists/fellow professionals/academics. They are Judges and are not meant and should not be expected to engage in academic debates unnecessarily. Two examples in what I've read so far (but I'm sure there are more). 
When discussing the nature of the armed conflict (again, more on the substance of this in Part 3 of this blog series), the Chamber refers to academic and jurisprudential discussions on the relevancy of the distinction between an international and a non-international armed conflict (§539). It then says, however, that: 
In the view of the Chamber, for the purposes of the present trial the international/non-international distinction is not only an established part of the international law of armed conflict, but more importantly it is enshrined in the relevant statutory provisions of the Rome Statute framework, which under Article 21 must be applied. The Chamber does not have the power to reformulate the Court’s statutory framework.
Of course I agree with this statement, but it shows how far we've gone in misunderstanding the role of the international criminal judiciary that these judges would feel the need to mention it explicitly in the judgment! It is a self-evident truth that is in-built in the role of these individuals as judges and should not have to be recalled in such a context.
A second example relates to the definition of the crime that was charged. The Statute clearly mentions the crime and the age of 15. There's no discussion in that respect. Why therefore does the Chamber feel the need to explain the historical reasons for this prohibition and the fact that "children are particularly vulnerable" (§605-606)? This is neither a course in the history of international crimes nor a course in sociology and such discussions have no place in a Judgment. And the counter-argument of pedagogy, once again, is lost in my opinion, when these 2 pages are drowned in the 600 pages of the judgment as a whole.

  • The Investigation Process generally
The Judgment details at length the investigative process of the OTP (starting at §124). This part of the judgment covers a number of issues relating to the investigation, notably the difficulty in gathering evidence and the security issues that were faced by the investigators. The Court highlights the fact that the team was composed of a number of former NGO personnel, as well as people from International justice and human rights (§126). Interestingly, the Court relays the testimony of one witness questioning NGO reports. The following quote from William Pace reproduced at §130 is quite telling in that respect:
Investigators also sometimes find it difficult to corroborate information provided by human rights groups who are eager to call international attention to crises. The gap between the assessment of the human rights groups and the evidence was sort of a surprise,” says Mr Lavigne, a French magistrate and former police detective, who heads the Congo investigation team. Mr Pace considered that “human rights and humanitarian organizations are lousy criminal investigators. They are not producing forensic evidence that can be used by a prosecutor.
This finds an echo in the recent Mbarushimana confirmation of charges decision, where the Prosecutor was criticised for relying too much on NGO reports. It more generally raises the issue of the professional conflation that exists between the various "communities" of international justice, where people easily switch from one activity to the other (academia, tribunals, activism) and more problematic even, often act in all these capacities at once, sometimes abusing their professional function to promote an activist agenda. Such conflation can also be seen in the style of the judgment (see above), with certain parts reading more like a lecture to LLM students than a judicial decision.

The Judgment also highlights the "inconsistent requests" that were made to the investigators due to the absence of clear guidelines and changes in investigative choices from the OTP (§144).

  • The use of intermediaries in particular

The major question that arose in relation to the investigation was the use of certain intermediaries by the Prosecutor and their alleged misconduct. This had led to a series of decisions in the course of the trial (see here and here) where prosecutorial actions were severely criticized, even leading to a stay of proceedings.

The Trial Chamber revisits this issue in the Judgment. In fact, it takes up 130 pages (more than a fifth of the judgment!). It considers the background to the use of intermediaries and considers the credibility of the evidence that was gathered by a number of them, concluding in a number of instances that the evidence is not reliable due to the lack of professionalism or even dishonesty of certain intermediaries.

In the summary of the judgment, the judges issued a strong condemnation of the Prosecutor's actions:

17.An issue that occupied the Chamber for a significant part of this trial concerned the use by the prosecution of local intermediaries in the DRC. The Chamber is of the view that the prosecution should not have delegated its investigative responsibilities to the intermediaries as analysed in the judgment, notwithstanding the extensive security difficulties that it faced. 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.
18.The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of the alleged former child soldier witnesses, given their youth and likely exposure to conflict, they were vulnerable to manipulation.
This is all very nice, but the childish glee one gets from seeing the Prosecutor criticized once again has now lost its appeal through toothless repetition and been replaced with the frustration of nothing coming out of it. In particular, I don't share Kevin's enthusiasm, over at Opinio Juris, that this shows the judges "listened" to the Defense. Big deal. Time and again, in this instance as in a number of other occasions, the Prosecutor has received harsh rebukes from the Chambers in relation to such futile issues of his public statements, to more important issues relating to his investigations as well as egregious cases such as this one where, not only the Prosecutor showed, at best, gross negligence in his choice of intermediaries, but actually refused to comply with clear orders from the Court to release their names. A slap on the wrist is no longer sufficient. There exist tools in the Statute, such as Articles 70 and 71 that allow for the sanction of the Prosecutor for this kind of conduct and it is about time that they are used.

Moreover, back on the length of the judgment, I'm not quite sure, in light of this unfolding intermediary fiasco, why this was not dealt with months ago. If one of these people was entirely untrustworthy, it should have been considered when the whole issue arose and the stay of proceedings was decided. 20% of the final judgment on this issue is ridiculous.

All in all, this part of the judgment shows the difficulties of investigating such crimes in such circumstances. It also dramatically identifies the failures of the OTP, even in such circumstances. There is clearly a pattern here, when you add the two decisions declining to confirm charges that have occurred. People tend to blame the outgoing prosecutor for these failings. For me, as I've said before, the jury is still out and I am not willing to give an automatic blank check to the new Prosecutor, Fatou Bensouda, whatever appreciation I might have of her as an individual. Indeed, I have difficulty believing that such systemic and repeated errors are the sole responsibility of one man. I hope I am proven wrong on this.

(to be continued, stay tuned)


  1. I wouldn't have described my comment as "enthusiasm," but fair enough. I find it curious, though, that you take issue with my comment but then suggest that the OTP should have been sanctioned under Articles 70 or 71 -- which would have had no effect on the judgment itself. What else do you think the judges should have done in the judgment regarding the OTP's misconduct, other than call attention to it?

  2. In relation to your comment on opinio juris which I can't respond to there for some reason...I'm with you on the ICTY being a tad trigger-happy when it comes to contempt (and possibly, though have yet to read it in full, on the issue of the judgement not being the appropriate place to go on and on about misconduct) but when it comes to penalising the OTP's misconduct, I wouldn't have described them *quite* as such.

  3. Hi Kevin, my characterisation of your approach as enthusiastic by certainly be a little exaggerated, certainly. But it stems from my general frustration, which I know you share, that the conduct of the OTP in the past 9 years has been often critised without any result. As I said, I'm no longer satisfied with yet another verbal rebuke.

    You're right about that the use of articles 70 and 71 are not relevant for the judgment itself. And there isn't much that the judges could do in that particular context (although they could have made a grand statement to the effect that Lubanga did not get a fair trial and should be released immediately, a somewhat radical and unrealistic option, I admit). That is why I question the fact that nothing was done before the judgment. The sanction of the Prosecutor, the prosecuction of those intermediaries under articles 70-71, which the chamber calls for, the dismissal of those intermediaries and the evidence they provided, all this should have been dealt with when the issue first came up.

    It wasn't, and I can only agree that all the Chamber could do at this late stage is call attention to the situation. But what a missed opportunity to put some order in the OTP...

  4. Dov,

    I completely agree -- the TC should have acted earlier and much more forcefully. Could they have fined LMO?

  5. Dear Dov, I think your posts could do with a little more substance and far less emotion. You repeatedly use strong terms (e.g. "ridiculous") and analogies (lectures for LLM students) but provide far too little evidence to back up any of these claims. You are writing for a general audience, many of whom do not intuitively *know* what you're talking about. Unless you provide concrete excerpts or references (e.g. "certain parts of the judgment" is pretty vague) with which you take issue, your post reads more like some personal vendetta or academic navel-gazing than anything of real significance.

  6. Hi Kevin, Articles 70 and 71 have not been used yet to my knowledge, but the RPE (Rules 161 and 171) provide that the fine can be up to 50% of a person's assets for a violation of Article 70 and up to 2000 euros for a violation of article 71.

    Dear Anonymous,
    Thank you for coming forward so courageously... I know the tone of my posts can sometimes be critical. That is a choice I make, and a risk I take. But 1) don't confuse criticism with emotion and 2) this does not mean that the criticism is not backed up. I reproduce or refer to specific paragraphs of the judgment to make my point, as for the "LLM lecture comment". I invite to read things more carefully before you make hasty comments...
    As for my audience, I would love it that you were right about it being general, but I fear that the 20 hits I get a day (and that's on a good day...) are from friends and colleagues who actually do know what I'm talking about, or family who will agree with me whatever I say. In any case, this is an international (criminal) law blog that does imply some pre-existing knowledge, not CNN...

    In that respect, of course there is some "academic navel-gazing" involved, in the sense that I'm speaking to those who are part of the same epistemic community. I have neither the ambition nor arrogance that what I say has any direct "real significance" beyond that. So I'm not sure what you're trying to say exactly...

  7. PS: by the way the reference to the "lecture to LLM students" is a comparison, not an analogy, i.e, I don't take that example to draw similar conclusions in relation to the judgment.