Outsourcing Investigations: The ICC and Intermediaries

The International Criminal Court’s first trial is once again on the verge of coming to an abrupt end before the completion of the proceedings. The defendant, Thomas Lubanga has again been ordered released, and the Office of the Prosecutor (“OTP”) is again appealing that order. (Prior IntLawGrrls posts) It’s déjà vu all over again – and why? For the second time, because of the controversial role of intermediaries in building the prosecution’s case.
What’s all the hubbub about? IntLawGrrl guest/alumna Yvonne McDermott's earlier post provides the details, but the big picture is this: the OTP has been using third parties to assist it in conducting its investigation of the situation in the Democratic Republic of Congo (“DRC”). These third party intermediaries include organizations like MONUC (the UN Mission in Congo) (emblem below left) that have long been involved in investigating the atrocities that have occurred in the conflict there. In June 2009, the OTP was unable to disclose evidence as ordered by the court because of confidentiality agreements with the third parties who provided the evidence; now, the OTP has not identified an intermediary whom witnesses have claimed encouraged them to provide false testimony.
In my recent article, Outsourcing Investigations, I assessed the benefits and risks that come with using third parties as intermediaries in an international criminal investigation.
On the one hand, it makes enormous sense for the OTP to make use of the contacts that MONUC and other IGOs and NGOs already have with victims and witnesses in the DRC and to take account of the evidence they have already uncovered. These organizations know the country, the situation and the involved parties very well. They have already carried out their own investigations and produced their own reports on the war crimes and crimes against humanity that the OTP began investigating far more recently. The OTP is also no competition for MONUC in the size and scope of its investigations, particularly since it has adopted a targeted and sequenced investigations policy that deliberately limits its investigations’ aims and resources. Due to all of these factors, the OTP has relied on the work done by third party intermediaries at a minimum as the basis for selecting the incidents on which it has focused, making initial contact with the witnesses the third parties have already interviewed, and obtaining and reviewing any evidence they have already secured.
But this reliance creates problems: problems with reliability, credibility, equality of arms, the right of the defense to confront witnesses, and confidentiality. The Lubanga case has demonstrated that these problems are very real. And the Lubanga case is not a one-off: similar questions have emerged in at least one other DRC case. Unless the OTP radically changes its investigations strategy and the amount of resources it puts into its investigations, it will continue to need intermediaries. But unless the OTP changes its approach to using intermediaries, the problems that have arisen in the Lubanga case are not going to disappear on their own.
Accordingly, the OTP needs to develop a more effective set of policies and practices for dealing with intermediaries. At a minimum, it needs to reach agreements with intermediaries in advance that will permit the disclosure of evidence and of sources of evidence that is necessary for the defendant to have a fair trial. In Outsourcing Investigations, I suggest two approaches that could help the OTP maximize the benefits and minimize the risks of using intermediaries:
► (1) The OTP could draw experts into its investigations from the UN mission and other IGOs and NGOs operating in the area and/or
► (2) The OTP could develop a detailed set of guidelines for intermediaries to follow in carrying out their investigations.
By taking either or both of these steps, the OTP could maintain some control over the methods of the investigation and thereby maximize the reliability of the evidence it obtains as well as the transparency of its provenance.

Guest Blogger: Nancy Amoury Combs

It's IntLawGrrls' great pleasure to welcome Dr. Nancy Amoury Combs (right) as today's guest blogger.
Nancy's the 2009-11 Cabell Research Professor of Law at William & Mary Law School in Williamsburg, Virginia, which she joined in 2004 and where she teaches Human Rights Law, International Criminal Law, International Law, and Transitional Justice, all areas on which her scholarship touches. In her guest post below, Nancy discusses her just-published book on fact-finding by international criminal tribunals.
She holds a Ph.D. from Leiden University in the Netherlands. Her J.D. is from the University of California-Berkeley, where she served as Articles Editor of the California Law Review and received the Thelin Marrin prize for graduating 1st in her class. After law school, she clerked for Judge Diarmuid O'Scannlain, U.S. Court of Appeals for the Ninth Circuit, and U.S. Supreme Court Justice Anthony M. Kennedy. She also earned a Certificate from the Hague Academy of International Law, and served as legal advisor at the Iran-United States Claims Tribunal in The Hague. Nancy was graduated summa cum laude with a B.A. in philosophy from the University of Portland in Oregon.
Along with IntLawGrrls' guests/alumnae Margaret deGuzman, Yvonne McDermott, and Jenia Iontcheva Turner, Nancy serves as an Expert Researcher for the Netherlands-based International Expert Framework on International Criminal Procedure. Our distinguished guest/alumna, Judge Patricia M. Wald, belongs to the IEF Advisory Board.
Before attending university, Nancy owned and operated a chimney sweeping business.
Heartfelt welcome!

Guest Blogger: Yvonne McDermott

It's IntLawGrrls' great pleasure to welcome Yvonne McDermott (left) as today's guest blogger.
Yvonne is a Ph.D. candidate and doctoral research fellow at the Irish Centre for Human Rights, National University of Ireland-Galway, where she is also a Lecturer on Children's Rights. Her research focuses on due process in international criminal proceedings, and her guest post below examines the jurisprudential doctrine of abuse of process, an ongoing issue in 3 International Criminal Court cases now proceeding against defendants from the Democratic Republic of Congo.
Yvonne holds a Diploma in Irish (Gaeilge), a Bachelor of Corporate Law and a Bachelor of Laws from the National University of Ireland, Galway. In 2008, Yvonne earned an LL.M. cum laude in Public International Law from Leiden University in the Netherlands. Her scholarship includes the journal article Victims and International Law: Remedies in the Courtroom (2009), for which last year she was named the inaugural recipient of the Böhler Franken Koppe Wijngaarden advocaten Hague Academic Coalition Award for Young Professionals. Yvonne is the Managing Editor of the Oxford Reports in International Criminal Law.
Yvonne chooses to dedicate her post to 2 Irish women. Both "are perhaps better known for their associations with famous men," she writes, but both "deserve to be recognised in their own right." Yvonne continues:

Mary Ann McCracken [left; 1770-1886], the sister of executed United Irishman Henry Joy McCracken, was born in Belfast. She too was committed to social reform, and was a dedicated philanthropist and activist, committed to helping the poor of Belfast,
pioneering for equal rights for women and the abolition of slavery. There are descriptions of her at the age of 88 handing out leaflets at the docks of Belfast to those heading for the southern ports of the United States, where slavery was still practiced.
Maud Gonne [below right; 1866-1953] was born in England but her legacy is cemented as a pivotal player in the Irish struggle for independence. She was particularly involved in countering evictions and in famine relief in counties Connaught in the late 19th century. She was the founder of Inghinidhe na hÉireann (Daughters of Ireland), an Irish nationalist feminist organisation, in 1900, and was fiercely devoted to the promotion and preservation of Irish culture through the arts. In spite of her own achievements, Maud Gonne is often celebrated as the muse of William Butler Yeats and the mother of diplomat and Nobel Peace Prize winner, Seán MacBride.

Today Gonne (prior post) and McCracken join the foremothers' list just below our "visiting from..." map in the righthand column -- and thus also join what Yvonne aptly calls "the wonderful Mná na hÉireann so honoured on this blog before me." The "Women of Ireland" to whom she refers are foremothers Grace O'Malley/Gráinne Ní Mháille, Eva Gore-Booth, Mary Harris "Mother" Jones, Eibhlín Dhubh Ní Chonaill, Hanna Sheehy Skeffington, and Constance Markiewicz.

Heartfelt welcome!

Abuse of process & the ICC trial in Lubanga

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

As is well known to readers of this blog, the first trial of the International Criminal Court, respecting charges that Congolese rebel leader Thomas Lubanga Dyilo (left) had recruited child soldiers, was delayed back in 2008 because the Prosecutor’s failure to disclose exculpatory materials rendered the fair trial of the accused impossible. Late in that year a resolution was reached, and the ICC trial commenced in January 2009. (photo credit)
Difficulties in the proceedings did not, however, end.
To the contrary, the first prosecution witness raised eyebrows and paved the way for what was to become the singlemost controversial issue in the trial to date: the pretrial conduct of 'intermediaries', non-ICC employees who interviewed potential witnesses in the field on behalf of the Prosecutor.
The first witness testified that his initial statement was untrue and that he had been trained what to say by one of the prosecution intermediaries. This testimony later was recanted. But as summarised in the Decision on Intermediaries (Trial Chamber I, 15 May 2010), several later witnesses provided similar accounts of promises in exchange for giving fabricated accounts of having served as child soldiers. In that decision, the Chamber ordered the disclosure of further details on some intermediaries who were already known to the Prosecutor. Crucially, the disclosure of one intermediary, P-143, was ordered, pending protective measures.
The P-143 disclosure order-- and the issues it raises in the context of the "abuse of process" doctrine that has emerged out of the jurisprudence of the ad hoc international criminal tribunals -- is the crux of this post.
Before discussing the P-143 order further, however, it is important to note another ruling, Decision on the press interview with Ms Le Fraper du Hellen, issued on the same date. In that ruling, Trial Chamber I took serious issue with an interview in which a member of the prosecution team inter alia insinuated that the accused, Lubanga, had intimidated witnesses while they testified. The Chamber, which comprises Judges Adrian Fulford (Britain) (far right), Elizabeth Odio Benito (Costa Rica) (middle right), and René Blattmann (Bolivia) (near right), said that the remark by the interviewee

involved a clear imputation against the judges.

The Chamber further held that the interviewee had “seriously intruded” on the role of the Chamber, in a way that prejudged the outcomes of the abuse of process issue and the trial itself.

The Press Interview decision is significant in that it points to the emerging pattern of frustration over the conduct of the prosecution. An apex was reached on 8 July, when Trial Chamber I granted another stay of proceedings on account of the Prosecutor's failure to comply with the Decision on Intermediaries.

The Chamber based this stay on two grounds:

► Disclosure of P-143 had not been carried out as ordered, even though the ICC Victims and Witnesses Unit had expressed confidence that the limited disclosure agreement reached would protect the safety of P-143; and

► It appeared that the Prosecutor was operating in accordance with his own interpretation of the Rome Statute. The Prosecutor, Trial Chamber I underscored,

declines to be 'checked' by the Chamber.

Whether the Prosecutor’s delay in following orders stands as an abuse of process in and of itself is debatable. A stay of proceedings stemming from an abuse generally only stems from the most exceptional of circumstances, and specifically for prosecutorial misconduct, when a court is convinced that a suitable caution could not cure the prejudice. It is notable that the current stay arose not from an abuse of process motion from the defence, but from the Chamber itself, as a Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU.
Speaking for the trial panel, Judge Fulford further had indicated that, pursuant to Article 71 of the ICC Statute, Trial Chamber I would consider sanctioning the Prosecutor at some later date:

'The Prosecutor has failed to implement two of the Chamber's orders; those of 7 July, 2010. For the reasons set out in the decision imposing the stay, this constituted a deliberate and in our judgment, wholly unjustified refusal to comply with the directions of the Court. ... [However, i]t is fair that the issue of sanctions should await the outcome of the appeal.'

Despite the stay, the accused remains in custody. At July's end, citing a risk that the defendant might flee, the ICC Appeals Chamber suspended an order to release Lubanga that Trial Chamber I had issued mid-month.

Meanwhile, developments in Lubanga are beginning to affect another case arising out of the ICC's Situation in Democratic Republic of the Congo.
In the background to the drama of the Lubanga stay, defendants in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui have continued to express their discontent, asserting that they are affected by the same issue of intermediaries. Accordingly Trial Chamber II, in its mid-July Ordonnance urgente relative à la mise en oeuvre de mesures de protection, ordered that the Victims and Witnesses Unit provide a report on the safety situation of intermediary P-143, the central figure in the Lubanga stay. It may be presumed that the Unit's confidential report will reiterate its assertion in Lubanga that the limited disclosure, as ordered, would not place P-143 under threat. If so, stays of proceedings -- as well as consideration of prosecutorial misconduct -- may be forthcoming in the cases against Katanga (near left) and Ngudjolo (far left).

Whether the most recent finding of Trial Chamber I with respect to abuse of process in Lubanga will be upheld on appeal remains to be seen.

In 2008, the Chamber lifted its stay of proceedings at the point that the conditions of abuse no longer existed, due to the Prosecutor's assurances that he would disclose the material he had previously failed to reveal. Regarding the present situation, if the Prosecutor offered finally to release the identity of P-143 and promised to comply unhesitatingly with all orders of the Chamber, the stay could very well be lifted, and the trial would proceed.
If this were to happen, the Court would then have to examine what is, in my view, the real issue at hand. The real questions concern the intermediaries:
► Whether the intermediaries in fact were involved in encouraging false witness testimony; and
► If yes, whether the Prosecutor knew or should have known about this.
If both points are answered in the affirmative, and another stay is therefore granted, it is difficult to imagine how the abuse of process could be remedied. The prosecution's case is closed, and all of its witnesses have been heard. The result in such a scenario could very well be “third time lucky” -- permanent release for Lubanga.