- As my friend Nikki noted today, the OTP did not pursue conspiracy charges against Lubanga for ordering the use of rape as a tool of war. Instead, the charges were limited to the solicitation of child soldiers. I haven't followed this case closely - and must admit to not being an expert in international criminal law - so I'm not sure why this decision was made. Was the OTP unable to procure enough evidence? Did they consider the child soldiers issue a more serious crime? Did they want to stay conservative so as to ensure their first trial resulted in a conviction? I'm not sure about any of the answers to any of these questions, but would be interested in my friends who do know commenting below. I think these questions can help define the move forward.
- As my friend Indi pointed out, the Court slams the OTP in the judgment for failing to adequately supervise the investigations, resulting in a mishandling of evidence and the corruption of witness statements so they are no longer reliable. In para 842 (with relevant facts set out earlier), the Court states that "[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 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." The criticism by the Court is therefore two-fold: (a) the OTP's failure to oversee the investigations adequately compromised the evidence, and essentially wasted the Court's time; and (b) the failure also put vulnerable former child soldiers in a position to be manipulated.
Since I don't have any answers for the first issue, I'm going to concentrate on the second. The criticisms of the ICC reflect interesting work done by Nancy Combs, who has concluded that most international criminal trials suffer from deficiencies in evidence and testimony that should call into question their legitimacy and accuracy. Amongst the problems that Combs identifies is that there is not a "smooth flow of questions and answers between counsel and witnesses." While counsel may ask for a detail about the events, the response they receive does not address that question asked, but instead may provide information on another issue or may not provide the court with relevant information at all. There are also contradictions by witnesses, who state one thing early in the process and another later on, or whose testimony overlaps with someone else whose story is vastly different. While Combs recognizes that some of the testimonial inconsistency is a natural consequence of time and memory, the prevalence of inconsistent and unclear testimony is widespread.
Yet, it rarely undermines the prosecution's case. According to Combs, inconsistencies are not always even acknowledged in judgments, and when they are, the inconsistencies are "unquestioningly" attributed to innocent causes. Convictions are then based, sometimes exclusively, on this testimony.
The problematic nature of this international legal precedence is exacerbated when we consider that international tribunals are specifically targeted to states that are unable or unwillling to undertake the process of prosecutions themselves. This is now a hard law requirement under the ICC's complementarity principle, but it was also evident in the choice of the establishment of previous international criminal tribunals and international intervention into transitional states. In a 2009 HRQ article, Laurel Fletcher and others established that prosecutions and international intervention are most likely to happen in states with a weak rule of law, a history of low public confidence in the judicial system, a history of international intervention, and that are new or weak democracies. The international community intervenes in these situations, requires, or highly encourages (to be read euphemistically) the use of prosecutions, sometimes through an international tribunal. Then, it fails to implement standards that we would expect from these states if they are to demonstrate their ability to provide fair and genuine trials. Instead, our international criminal prosectuions come to resemble the type of prosecution we most fear in transitional states: vengeance prosecutions.
The purpose of international criminal law is supposed to be to ensure the perpetrators of international crimes face justice. But justice cannot be had where the judicial process lacks credibility. Prosecutorial misconduct undermines the credibility of the process and harms the ultimate goals of the system: to ensure those who are most culpable are recognized as such and suffer the legitimate and just consequences of their action. If we utilize inadequate or inappropriate testimony or evidence to convict those we "just know" have committed atrocities because "everyone knows their guilty", we have given power to those who claim the ICC is nothing more than "victor's justice" or neo-Colonialism. We have also undermined the purpose of providing international criminal tribunals for states that unable or unwilling to undertake genuine prosecutions on their own because we haven't provided that genuine prosecution.
The international criminal legal system should be a light to those who have little experience with legitimate judicial processes. It should be both a symbol for those who struggle under domestic oppression and a teaching tool for those who seem uncertain about how to effectively implement the rule of law domestically. Currently, though, it does not accomplish this latter purpose and it undermines the former. With the current troubles with testimony, those who struggle with oppression can not hope that one day an , full and credible report of what has occurred will be made. They cannot hope that, like Nuremberg, one day the evidence used for a criminal conviction can also be used as a historical record to show what was known. They aren't provided the promise of learning the "truth, the whole truth and nothing but the truth," but rather they are being provided a judgment, order, and ultimately, history, that is based on a compromised system of justice. When the international criminal system is so fundamentally broken, it is difficult to imagine local citizens in contentious States Parties feeling protected and encouraged by the supposed "rule of law." And as a consequence, one of the recognized principle means of reparations in the field of transitional justice - historical acknowledgment - becomes disconnected from the realm of international prosecutions to which they are supposed to be intricately linked.
In the end, this type of misconduct by the OTP - coupled with the international courts' willingness to unquestionably rely on witness testimony - leaves a legacy for weak states that the rule of law is a fallacy and that prosecutions do not need to be fair and honest and transparent. And surely this, in and of itself, undermines the purpose of the ICC.
I'm sure this will be blogged elsewhere in the days to come and I'm looking forward to hearing some solutions or paths forward for the ICC and international criminal law.
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