A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court? (Part I)

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Last month was a mixed one for the ICC Office of the Prosecutor. On 8 July 2019 it appeared that the ICC “had found its footing”, with a Trial Chamber delivering a staid, methodical judgment in Ntaganda. This was a double victory for the OTP: a conviction of a rebel leader in a truly horrific conflict; and a public affirmation that it could present a well-run and coherent case. However, on 16 July 2019, reasons for the ‘no case to answer’ decision were released in Gbagbo and Blé Goudé (‘Gbagbo’) in which the majority (Judges Henderson and Tarfusser) were scathing in their assessment of the OTP’s performance. Then on 26 July 2019 the OTP released the final version of its Strategic Plan 2019-2021 which noted, with some understatement, there has been “a period of mixed results in court” and “significant setbacks”. In fairness to the OTP no-one, not even the majority in Gbagbo, doubts that the OTP has hard-working and dedicated staff prosecuting cases of great complexity (see para 9 of the Reasons of Judge Henderson). The question is, how can the same Office produce such different results? A key problem in Gbagbo was that the majority of the Trial Chamber were completely unpersuaded by the Prosecutor’s ‘system of evidence’ and case theory. Yet, this was not a problem in Ntaganda. What accounts for the difference?

Over three blog posts I propose to look at: first, what went right in Ntaganda; second, what went wrong in Gbagbo; and, third, to ask whether the new OTP Strategic Plan has learned the right lessons and set the right priorities. I will also reflect in that final post on whether these results pose a significant challenge to my recent posts critical of ICC performance (spoiler alert: no, they do not).

 What went right in Ntaganda

Certainly Judges Frer, Ozaki and Chung (and their supporting legal officers) deserve praise for delivering a solid, methodically reasoned judgment in Ntaganda with no dissenting or separate opinions. The judgment lays out a coherent framework for analysis. First, it reviews the charges and their scope. Second, it lays out very clearly the approach taken to the evaluation of evidence, including its assessment of the credibility of sixteen key witnesses. Third, it makes a series of factual findings which are very densely footnoted to the transcripts, with extensive footnote-level explanation of how evidence was weighed. In particular, the Trial Chamber makes it clear that it: “does not address all the arguments raised by the parties and the participants and does not refer to the testimony of every witness or every item in the trial record …  the Chamber has discussed the evidence on the trial record to the extent that it considers it necessary to provide a full and reasoned statement of its findings and conclusions, as required by Article 74(5) of the Statute”. That is, the Trial Chamber has discussed as much or as little as it needs to in order to reach a relevant conclusion, based on all the evidence and argument before it. This avoids the exhaustive review of every argument and piece of evidence which makes many international criminal tribunal judgments an interminable slog through formalistic recitations of legal submissions running to hundreds of pages, producing decisions of interminable and indigestible length. At a mere 539 pages Ntaganda is almost light reading by international criminal law standards.

Fourth, having laid out these evidentiary and factual matters, the judgment states the law in an unfussy, textbook fashion – making careful findings in respect of the contextual elements of war crimes and crimes against humanity – and then, fifth, applies the law to the facts with reference to Mr Ntaganda. It first finds him guilty of a number of (not all) charges as a direct perpetrator: murder and persecution (relating to his personal killing of a priest).

It then considers Mr Ntaganda’s culpability as an indirect co-perpetrator. The Trial Chamber carefully skirts some of the controversy surrounding this mode of liability, holding it to fall within the idea of co-perpetration and not to constitute a stand-alone form of liability. They follow the co-perpetration through an organisation approach to the doctrine articulated in Katanga (involving a group of leaders who devise a criminal plan, which is then executed through a group of interchangeable subordinates whose individual will is subjugated by the leaders). Notably, the judgment is somewhat less doctrinaire than the Katanga Trial Chamber about the requirements for proving the existence of such an organisation (paras 771-780). On this basis, Mr Ntaganda was found guilty of attacks on (and killings of) civilians, ensuing sexual assaults committed against civilians and sexual slavery, the pillage of civilian property, the forcible displacement of civilians, and attacks on protected objects. These crimes were all an intended part of the plan of the UPC/FPLC (Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo) leadership, which included Mr Lubanga, to expel ethnically Lendu people from particular areas.

If one were to quibble with any aspect of the decisions approach to the evidence, it might be that a Trial Chamber can convict based on “incidents” falling within the scope of a charge, but which were not the basis of the confirmation decision (para 40). Essentially, this gives the Prosecutor a second shot at trial to introduce new evidence to make out a charge. This might be thought, once again, to undermine the utility of Pre-Trial Chamber proceedings; and if one purpose of the confirmation of charges process is to give the defendant adequate notice of the case to answer, it may raise questions of fairness. (I am indebted to a discussion with Yvonne McDermott on this point.)

Overall, though one is left with the sense of a very solid and transparent approach to the evaluation of evidence and – after the appeal in Bemba – a careful eye to what an Appeals Chamber might make of the case. Convicting Mr Ntaganda as both a direct and indirect perpetrator also increases the likelihood of his conviction withstanding appeal.

Several features of this approach are noteworthy. Principally, it appears drafted precisely to avoid the withering criticisms of Judges Van den Wyngaert and Morrison about the quality of fact-finding in by the Trial Chamber in Bemba. The evidentiary basis for each finding is, in their terms, “clear, comprehensive and comprehensible”. Extensive cross-referencing where facts are being established is avoided. The cross references come later, when the law is applied to the facts as found. To the extent hearsay is relied upon, evidentiary considerations regarding such evidence are clearly laid out (Ntaganda, paras 67-68) and in footnote level discussion it is clear the Trial Chamber was reluctant to accord weight to hearsay without some form of corroboration (eg pp. 229-30, 243).

So, is Ntaganda a turning point for the ICC? Plainly, the OTP knew in this case what it took to make a credible and convincing case and mounted one, based on exhaustive evidence gathering. The bench was able to – as it is required by Article 74(5) of the Statute – issue one and only one judgment with no dissenting or separate opinions appended. The decision is, by the lights of international criminal justice, brisk and parsimonious.

However, a number of factors weigh against taking too rosy a view of what the case portends for the future of the ICC and the OTP. Largely, this result would appear to confirm my thesis in earlier posts: the ICC can succeed when the OTP: goes ‘deep’ rather than ‘wide’ and focusses on conducting a detailed investigation and multiple prosecutions arising out of a single situation; pursues rebel leaders; and when it does so with a relatively narrow group of charges. Thus, Ntaganda benefited from the OTP’s investigators and prosecutors having had 14 years of experience in gathering evidence and building cases arising out of the Ituri region in the DRC by the close of the trial. (I am indebted to Phil Clark for reminding me of this history.)

Ntaganda is thus not a stand-alone success but the culmination of long efforts and hard-won experience. Further, while the case lead was more complex than Lubanga (which proceeded on a charge of recruitment of child soldiers alone), the facts underlying the charges were essentially two operations involving systemic attacks on civilians, and subsequent (quite horrific) sexual offences including slavery. The OTP thus deserves credit for leading a case which was neither too simple (thus excluding some offences made out by the evidence) nor too complex (erecting a case theory going beyond what the evidence would bear). Finally, the case hinged on perpetration rather than more complex forms of responsibility, such as superior responsibility.

Tomorrow, in Part II, I will consider what went wrong in Gbagbo and Blé Goudé according to the judges in the majority in the Trial Chamber. The short answer, regrettably, is quite a lot.

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