From Nuremberg to Kenya: compiling the evidence for international criminal prosecutions.

• Author: Stanley, Jennifer

ABSTRACT

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to carry out her mandate and achieve justice for victims. The solution is to add an article to the Rome Statute that includes several procedural requirements governing the use of third-party evidence. This structural addition will properly strike the balance between the Prosecutor's need to rely on third-party evidence and defendants' rights.

TABLE OF CONTENTS I. INTRODUCTION II. THE ROME STATUTE FRAMEWORK FOR INVESTIGATIONS A. The Office of the Prosecutor B. Articles 12 and 13: Exercising Jurisdiction C. Article 53: Initiation of an Investigation D. Article 54: Duties and Powers of the Prosecutor with Respect to Investigations E. Article 55: Rights of Persons During an Investigation F. Articles 56, 61, and 64-67: The Rights of the Accused G. Articles 69 and 73: Evidence III. EVIDENTIARY ISSUES IN ICC INVESTIGATIONS A. The Lubanga Case B. The Kenya Investigations C. Evaluating Reliance on Third-Party Evidence 1. Lubanga and the Rome Statute 2. Kenya and the Rome Statute IV. PROPOSED SOLUTION: ARTICLE 72 BIS V. CONCLUSION I. INTRODUCTION

On December 5, 2014, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a notice of withdrawal of charges against accused Uhuru Muigai Kenyatta of Kenya, (1) who had been charged with the crimes against humanity of murder, deportation or forcible transfer of population, rape, persecution, and other inhumane acts. (2) The Prosecutor gave insufficient evidence as the reason for withdrawing the charges, citing the Trial Chamber's December 3, 2014 ruling. (3) In that ruling, the Trial Chamber declined, after three years of proceedings and one six-month adjournment, to postpone trial proceedings further. (4) The Chamber reasoned that despite five years of investigations into the Kenya situation, the prosecution had not demonstrated a "concrete prospect" that it would collect sufficient evidence to prove the charges beyond a reasonable doubt. (5)

The decision by the Prosecutor to withdraw the charges against Mr. Kenyatta was the culmination of several years of evidentiary wrangling with the Kenyan government. In March 2011, the Kenyan government filed an application challenging the admissibility of the Kenyan cases in the ICC. (6) The court rejected this application, (7) and the ensuing exchanges between the Kenyan government and the OTP grew increasingly hostile. (8) In May 2013, a responsive filing by the OTP alleged that "the Office of the Prosecutor ... has encountered serious difficulties in securing full and timely cooperation from the Government of Kenya ...," (9) The response went on to note that certain evidence key to the Prosecutor's investigation of the Kenya situation was available only through the Kenyan government. (10) Additionally, the OTP response stated that though the government had cooperated with certain OTP requests, it had refused to grant others, severely undermining the investigation. (11) The document proclaimed that "the [Government of Kenya] has constructed an outward appearance of cooperation, while failing to execute fully the OTP's most important requests." (12) In its response to these allegations, the Government of Kenya rejected the Prosecutor's accusations as factual misstatements and declared that it had cooperated fully with and, indeed, helped to facilitate the OTP's investigation. (13)

In her statement addressing the withdrawal of the charges, Prosecutor Fatou Bensouda blamed the failure of the Kenyatta proceedings on the Kenyan government. (14) She also alleged additional factors that had hindered her investigations: "A steady and relentless stream of false media reports," social media efforts to identify protected witnesses, and widespread attempts to harass and intimidate would-be witnesses. (15)

Compare the ICC investigations in Kenya to those of Nazi war criminals carried out by the Allies in the wake of World War II. The International Military Tribunal at Nuremberg, where between 1945 and 1946 the highest-ranking Nazi officials and leaders were prosecuted for war crimes, crimes against peace, crimes against humanity, and conspiracy, (16) marked the inception of international criminal law. (17) The Nuremberg trials, which have received their fair share of criticism, (18) have nonetheless been widely perceived as setting the standards for international criminal proceedings. (19) Indeed, the establishment of the ICC fifty years after the trials has been heralded as the fulfillment of the Nuremberg legacy. (20)

Though one objective of the Nuremberg proceedings was to bring individuals charged with heinous crimes to justice for their actions, (21) the trials also served the function of preserving a meticulously documented historical record of the Holocaust and Nazi crimes. (22) Allied prosecutors relied extensively on records created by the Germans themselves. (23) The Nazis maintained precise documentation of their activities and were unsuccessful in destroying many of their records at the end of the war. (24) Consequently, Robert Jackson and his team of prosecutors had their pick of evidence as they prepared their case, ultimately sorting through thousands of tons of documents for trial. (25) Robert Jackson eschewed the use of victim testimony at Nuremberg, relying instead on "a straightforward paper trail of the case, one that would not be open to criticism directed towards the credibility of victim testimony." (26)

Unfortunately for the Office of the Prosecutor at the ICC, today such documentation of modern international crimes is hard to come by. Several reasons may explain why documentary evidence is often unavailable for a modern criminal trial. (27) A non-cooperative state may refuse to produce documents. (28) Militant groups, which lack the hierarchical structure of a military or government, may not give direct orders or maintain documentation of orders; moreover, actual chains of command may be different than those reflected on paper. (29) The current standards for evidence, especially as they relate to defendants' rights, may prohibit the use of Nuremberg-style documents even when they do exist. (30) As prosecutor Anton Steynberg observed during his opening statement at the trial of Kenyan defendants William Ruto and Joshua Sang:

[T]he criminal organisation in question . . . was not a formal military or governmental body. It did not have formal ranks, offices, or letters of appointment. It did not keep formal records in the form of cabinet minutes, nor did it report its activities via military situation reports. Rather, this network was a criminal organisation in the style of a mafia group or a triad organisation; namely an association in fact of individuals connected by ethnic ties and a shared criminal purpose. (31) This Note will demonstrate, as evidenced by the Prosecutor's investigations in Kenya, that when faced with multiple such situations, the ICC Prosecutor has primarily relied on alternate forms of evidence--namely witness testimony and the reports of nongovernmental organizations (NGOs) and other third-party investigators.

This Note argues that the Office of the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the OTP's dependence on third-party evidence has stunted the Prosecutor's ability to carry out her mandate and achieve justice for victims of the most heinous international crimes, as illustrated by the Kenya investigations. The solution is to add an article to the Rome Statute--the governing document of the ICC that includes several procedural requirements governing the use of third-party evidence. This structural addition will properly strike the balance between the Prosecutor's need to rely on third-party evidence and defendants' rights. Far from extending the time and resources necessary to bring an international criminal prosecution to trial and conviction, including these additional procedural hurdles at an early stage in the investigation will ensure that the OTP is only investing its energy in those prosecutions it can successfully complete.

This Note proceeds in Part II by outlining the statutory framework governing ICC investigations. Part III analyzes several of the problems plaguing the current system of ICC investigations, employing the Prosecutor u. Thomas Lubanga Dyilo case and the investigations in Kenya as lenses through which to view the broader investigation infrastructure developed by the Office of the Prosecutor. This Part goes on to critique the resultant problems stemming from undue reliance on third-party evidence. Part IV evaluates the merits of a structural addition to the Rome Statute, aimed at better balancing the prosecution's need to rely on third-party sources of evidence with the accused's rights. Part V concludes by summarizing how a change in evidentiary procedure would help the ICC come closer to its intended goals of holding the most heinous international criminals responsible for their actions and ensuring the fair and just rule of law.

2. THE ROME STATUTE FRAMEWORK FOR INVESTIGATIONS

   The Rome Statute is the treaty that established the ICC and that governs its operations. (32) The Statute...