1. Introduction
The investigation of atrocity crimes by international courts makes evidence gathering a difficult enterprise, often limiting the reliability of witness testimony,Footnote 1 the quality of available evidence, the security of international personnel, and even access to territories themselves.Footnote 2 Yet while the space between where crimes are committed and where they are judged complicates investigations it is also, in part, what makes international adjudication desirable. Spatial distance – away from the site of conflict – offers the possibility for institutions like the International Criminal Court (ICC) to ‘deliver impartial, majestic justice on behalf of the international community’, while an elite corps of investigators, prosecutors, and judges are those thought best placed to deliver it.Footnote 3 In Gerry Simpson's words, ‘The ICC is imagined as a way of removing from the field the local particularities and prejudices of national criminal justice systems, and putting in their place a unified system of transnational justice’.Footnote 4 An attendant presumption is that the ICC should remain, or be perceived to remain, at a distance from the social and political lives of the conflicts in which it intervenes. In the words of a recent Human Rights Watch report, the Court must ‘act impartially and be seen to be doing so’.Footnote 5 Yet this quest for impartiality, or at least its appearance, is precisely what can leave international courts poorly equipped to deal with the ‘peculiarities and prejudices’ of local context, making evidence gathering one of the great (if often overlooked) challenges for the international criminal justice project.
It is becoming increasingly clear that the ICC has an evidence problem. Of the 14 individuals who have undergone the confirmation-of-charges process before the Court to date, charges against five suspects, more than a third of those accused, have been dismissed or withdrawn in their entirety.Footnote 6 More recently, the confirmation decision against former Côte D’Ivoire president Laurent Gbagbo was ‘postponed’ by the Pre-Trial Chambers, also due to insufficient evidence.Footnote 7 One report notes that this is ‘a substantially higher rate of dismissal than the acquittal rate seen at other international criminal bodies following a full trial, even though the standard at trial – beyond a reasonable doubt – is higher than the burden at the confirmation stage’.Footnote 8 Furthermore, in December 2012, Trial Chamber II acquitted Mathieu Ngudjolo Chui, the ICC's second defendant, of all crimes, due to the absence of sufficient evidence; it also dedicated a portion of the judgement to criticizing the OTP's investigatory methods and the credibility of its witnesses.Footnote 9 Similar criticisms were raised in the judgement against Thomas Lubanga,Footnote 10 the first defendant to be convicted by the Court, and in the Kenya case, where the number of individuals facing trial has now been reduced by half. Indeed, in April 2013, Judge Christine Van den Wyngaert chastised the Office of the Prosecutor (OTP) for its ‘failure to investigate properly’ prior to confirming charges against the now president of Kenya, Uhuru Kenyatta, revealing, in her words, ‘grave problems in the Prosecution's system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff’.Footnote 11
The limited scope of charges in some cases has also raised doubts about the Prosecution's investigative strategy, creating the perception that proceedings might fail to reflect the true scale or gravity of a conflict. Pascal Kambale, a human rights advocate who was closely engaged with the ICC's intervention in the Democratic Republic of Congo (DRC), has noted in the context of the Lubanga trial that, ‘Many in the DRC found it deeply disturbing that, after two years of investigations, conscription of child soldiers was all that the ICC prosecutor was able to point to as being among “the worst crimes” committed in Ituri’.Footnote 12 Similar concerns have been raised over sexual and gender-based crimes, which the OTP has identified as a priority but are also those most vulnerable to failing judicial scrutiny.Footnote 13
The ICC presently has eight situation-countries on its docket, with the Prosecution's diminishing confirmation and conviction record tracking its expanded jurisdiction. In light of that record, this article considers ICC investigations as a site where the internationalizing impulse of impartial justice has too often overlooked the importance of a place-based approach to evidence gathering. The OTP has instead pursued a strategy of short, ‘focused’ investigations, choosing not to base any of its investigators in situation-countries or to develop a sustained field-based presence. Early intentions to recruit nationals of ICC situation-countries appear to have been abandoned as well. Rather, the OTP has increasingly relied on its relationships with local information providers, known as ‘intermediaries’. These individuals and organizations, while not ‘core’ ICC staff, nevertheless perform a variety of essential functions, including assistance with investigations. Unfortunately, rather than seeking to develop a more partner-based relationship with these actors, the OTP has too often failed to integrate their concerns and priorities into the investigative process and, in certain cases, to properly oversee their work in the field.
Relatively little has been written about ICC investigations to date, as they touch upon some of the Court's most sensitive practices and depend, in part, on confidentiality. Nevertheless, particularly in the wake of the departure of the Court's first Prosecutor, Luis Moreno Ocampo, the OTP's approach to investigations is in urgent need of reflection. In first providing a broad outline of how ICC investigations have been structured within the overall architecture of the OTP, this article contends that, at an institutional level, investigative practices have not been sufficiently prioritized. This lack of prioritization appears to be premised, in part, on a presumption that keeping the Court at a distance best preserves its impartiality and efficiency, particularly in the face of insistent demands by states parties to maintain a ‘zero-growth’ budget. The second part of the article therefore considers how the OTP's evidence-gathering practices have in fact been designed to minimize the time investigators spend in affected communities, and their degree of engagement with local actors. Drawing on the comments and reflections of former ICC staff, as well as an emerging jurisprudence critical of the Prosecution's investigative techniques, this article argues that the OTP should develop a more field-based orientation to its investigations, while also developing better relationships with the variety of local actors – individuals as well as non-governmental organizations (NGOs) – that it engages.
2. Investigating at the ICC
2.1. Structure of the Office of the Prosecutor
Investigations comprise one of three divisions within the OTP; the other two are the Prosecutions Division and the Jurisdiction, Complementarity, and Cooperation Division (JCCD).Footnote 14 Following the ICC's establishment in 2002, the Assembly of States Parties (ASP) elected Moreno Ocampo as its first Prosecutor, as well as two Deputy Prosecutors: Fatou Bensouda, the ICC's new Prosecutor as of June 2012, and Serge Brammertz, currently the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Bensouda was appointed Deputy Prosecutor for Prosecutions while Brammertz served as the Deputy Prosecutor for Investigations; notably, however, since Brammertz's departure from the Court in 2007, that position has been left empty.Footnote 15 Thus, whereas the Deputy Prosecutor leads the Prosecution Division, the Investigations Division (ID), like the JCCD, is led by a ‘head of division’ that the Prosecutor selects.Footnote 16 The current head of investigations, Michel De Smedt, has served in this position since January 2006.
Following a decision to proceed with an investigation, a ‘joint team’ consisting of staff from the OTP's three divisions is formed; one former investigator has referred to these teams as the ‘core operational units’ of the Office.Footnote 17 With respect to the composition of the investigative teams, it appears that the ICC has sought to employ investigators from various backgrounds, a decision that some have criticized as contributing to the evidence problem because of their lack of law-enforcement training. For instance, Bernard Lavigne, who oversaw the ICC's early investigations in the DRC, testified during the Lubanga proceedings that his team included ‘former members of [NGOs] who could provide better open-mindedness to enable the other team members not to limit themselves to their police backgrounds’. In his view, such limits ‘may have had a negative impact on the quality of their work’.Footnote 18
Regulation 32 provides that each team ‘shall regularly report its progress and activities’ to an Executive Committee composed of the Prosecutor, Deputy Prosecutor, and the heads of the ID and JCCD.Footnote 19 One former ICC investigator who led investigations against Germain Katanga and Ngudjolo Chui described the concept of the joint-team approach as one in which ‘investigators, prosecutors and cooperation staff . . . all work together from the very beginning of an investigation. . . . Decisions in the joint team are taken jointly’.Footnote 20 Notably, this tripartite approach distinguishes the ICC from its ad hoc predecessors, both of which followed a more ‘linear’ model in which ‘an entire investigation team . . . reports directly to the Chief Prosecutor or to his executive office’.Footnote 21 While this model aims at ‘adopting a more holistic and balanced investigative approach’,Footnote 22 Gregory Townsend cites several anonymous OTP staff members who likened the interdivisional concept to a ‘three-headed dragon’, insofar as it ‘divides authority, requires consensus throughout, and can subject all decisions to a difficult interpersonal dynamic’.Footnote 23 Townsend also notes that ‘the OTP's management and management culture is lacking’, with ‘poor results obtained in internal surveys’.Footnote 24
2.2. The OTP's approach to investigations
While the Rome Statute is silent as to how evidence collection is to be carried out, the OTP adopted early on a policy of ‘focused investigations’.Footnote 25 As articulated by the former head of the JCCD, ‘The ICC prosecutor's policy is to carry out investigations in a few months, involving as few witnesses and incidents as possible’.Footnote 26 Related to this policy is the Office's use of small teams of rotating investigators to carry out its investigations.Footnote 27 Lavigne testified that his investigation teams in the DRC never consisted of more than 12 people for the entire country, a number that he considered to be ‘insufficient’.Footnote 28 Similarly, in the case against Laurent Gbagbo eight investigators reportedly work on the ground ‘in rotating teams of two’.Footnote 29 And, in Libya, the investigative team consisted of ten professional-level staff members and one general services assistant.Footnote 30 According to the OTP's proposed 2012 budget, only 44 professional staff were requested for the ‘Investigations Teams’ section of the ID, to be dispersed among the eight situation-countries.Footnote 31
This strategy has meant that ICC investigators spend relatively little time in the field. Although Moreno Ocampo remarked in 2004 that some investigators ‘will be based in headquarters and others will be deployed in the field’,Footnote 32 in practice all ICC investigators are Hague-based and travel ‘on mission’, undertaking repeated, short-term trips. In the DRC, the OTP reported that, as of 2006, investigators had ‘conducted more than 70 missions inside and outside the DRC, interviewing almost 200 persons’.Footnote 33 The same report noted that since opening its investigation in July 2004, the Ugandan joint team had conducted ‘[i]n just ten months . . . over 50 missions to the field’. Darfur investigators have ‘conducted more than 50 missions in 15 countries’, though, significantly, not in Darfur itself.Footnote 34
2.3. Budgeting for investigations
The OTP's approach to investigations is closely linked to austerity measures that have been imposed on the Court. Indeed, the number of small missions conducted in a relatively short period was extolled in a 2009 document on ‘efficiency measures’ as part of the ‘Court-wide efficiency drive’.Footnote 35 The report noted that the OTP's strategy ‘of having a small, flexible office’, as well as ‘lean and flexible’ investigation teams, had ‘enabled [it] to perform more investigations and prosecutions simultaneously, with the same number of staff’.Footnote 36 These ‘achievements’, it noted, ‘are also reflected in the OTP's proposed budget for 2010, where no increase in resources is requested’.Footnote 37 These figures are consistent with a financial picture in which, since 2009, the Court's budget has increased just over 4 per cent even as the situations under investigation have increased by 75 per cent.Footnote 38
Yet while the commitment to small investigation teams has been praised for its cost efficiency, the Office's ‘lean and flexible’ approach has been criticized for its effectiveness and the strain it places on Court staff. In a private 2008 letter that Human Rights Watch sent to the OTP Executive Committee (later made public), the organization expressed concern with the high attrition rate of ICC investigators and noted that there were ‘simply not enough of them to handle the rigorous demands for conducting investigations’.Footnote 39 One former senior ICC investigator similarly notes that, by the mid-point of the Lubanga trial, the OTP had ‘lost much of its experienced staff and was relying upon increasingly young personnel, whose considerable intellect and enthusiasm was matched only by their collective ignorance of sound investigative methodology in high-threat environments’.Footnote 40
An overburdened (and underexperienced) investigations unit also raises the question whether investigations have been sufficiently prioritized by the OTP. One former official who led the Court's investigations in Uganda made clear that the former Prosecutor routinely undervalued the investigations unit, with too little time given to conduct thorough investigations;Footnote 41 another lamented the ‘long history of investigative mismanagement’.Footnote 42 It would also appear that financial constraints have altered the OTP's ability to structure its investigations as originally envisaged. An early policy document noted, for instance, that ‘to the extent possible, individuals would ‘remain part [of investigation teams] until the end of the trial, in order to ensure that the knowledge of the situation acquired during the different phases remains accessible to the team’.Footnote 43 Yet, in her inaugural address to the ASP, Prosecutor Bensouda explained that – with financial cuts having now ‘reached the bones’ – a ‘rotation model’ was in effect, wherein ‘staff move between teams depending on the phases, workload and case priorities’.Footnote 44 Bensouda noted that this approach has provided the Office with ‘significant savings, in comparison with what would normally be the ideal situation of having full teams moving at maximum pace on all the cases simultaneously’.Footnote 45
3. Three critiques
3.1. Limited field presence
The most notable aspect of the Prosecution's approach to evidence gathering has been its failure to locate any investigators in country on a permanent (or semi-permanent) basis. In this respect the ICC departs from the practice of predecessor tribunals like the International Criminal Tribunal for Rwanda, which had several investigators based in-country.Footnote 46 Moreover, while tribunals like the ICTY have also adopted a mission-based approach to investigations, unlike the ICC's small-team arrangement, investigation teams at the ICTY ‘consisted of up to twenty members’, with ‘up to ten separate teams operational at a given time, even though the geographic jurisdiction of the Tribunal was limited to the territories of the former Yugoslavia’.Footnote 47 OTP leadership also prioritized field investigations. Louise Arbour, the tribunal's former Prosecutor, ‘made it an organizational priority during the Kosovo period to get as many OTP employees into the field “on mission” as possible’.Footnote 48 Another ICTY investigator recalled fieldwork being an ‘all-consuming’ enterprise, where it was ‘common to work through ten at night, every day, for three, four weeks’.Footnote 49
By contrast, ICC investigators working in the DRC spent only an average of ten days in the field,Footnote 50 making it difficult for them to even interview witnesses, much less to develop the sort of long-term connections that a more sustained field presence would enable. As a 2008 report by Human Rights Watch noted:
The opportunities for Hague-based investigators to interact and develop strong contacts with witnesses are limited in number and timeframe . . . [E]ven when key witnesses agree to a specified time to meet with investigators, circumstances may change, rendering them unavailable by the time that the Hague-based members of the investigative teams travel to the field.Footnote 51
The small-team approach also made the possibility of a permanent presence in the field impossible. As summarized by the Lubanga Trial Chamber, ‘because there were only a few investigators it was not possible to have someone in the field permanently’, even though, according to Lavigne, ‘This would have been the correct approach’.Footnote 52
In his assessment of the trial, Kambale has argued that the OTP's failure to bring charges against other, higher-ranking commanders was ‘a direct result of the prosecutor's strategy of conducting quick investigations with the lowest cost possible’.Footnote 53 In his view, the investigative teams assigned to Ituri ‘were too undersized and too short-term to generate good analysis of the intricately entangled criminal activities’ taking place in the region.Footnote 54 Kambale further recalls a meeting in December 2003, at which Moreno Ocampo reportedly told a group of international NGOs that the investigative teams deployed to the field ‘would be composed almost entirely of temporary staff’.Footnote 55 Although this plan was later reconsidered, the ‘cost-efficient’ approach still meant that investigators were ‘sent to the field for short periods of time’. The Prosecution's minimal field presence in the Kivus region of eastern DRC – which has been even more limited than its presence in Ituri – has led to similar results: in December 2011, the Court declined to confirm any of the charges against Callixte Mbarushimana (a Rwandan national residing in France) for crimes committed by FDLR troops in the DRC.Footnote 56
In its judgement acquitting Ngudjolo Chui, Trial Chamber II also drew attention to the Prosecution's lack of field presence in assessing deficiencies in the evidence presented. While acknowledging the difficulty of conducting investigations in a ‘region still plagued by high levels of insecurity’, the chamber emphasized the importance of ‘mak[ing] as many factual findings as possible, in particular forensic findings . . . in loci in quo’.Footnote 57 The chamber noted that it would have been ‘beneficial for the Prosecution to visit the localities where the Accused lived and where the preparations of the attack in Bogoro allegedly took place, prior to the substantive hearings’.Footnote 58 The chamber had itself travelled to these localities – Bogoro, Aveba, Zumbe, Kambutso – in early January 2012 as part of a judicial site visit, the first (and only) time an ICC chamber has done so.Footnote 59 Its visit was described as enabling the Chamber to ‘gain a better understanding of the context of the events’, as well as to ‘conduct the requisite verifications in situ of certain specific points and to evaluate the environment and geography of locations’.Footnote 60 The judgement refers repeatedly to the Chamber's visit, providing examples of how such knowledge would have provided it with a clearer appreciation of the evidence.Footnote 61
The security question raised by the Trial Chamber one that has understandably informed the OTP's ‘light-touch’ approach: most ICC investigations are conducted in situations of ongoing conflict, or where conflict has only recently ended. As a result, ensuring the security of both ICC personnel and witnesses is a constant source of concern. Lavigne, for instance, testified that the security situation in the DRC had ‘a marked impact on the [OTP’s] ability to undertake its work because it was impossible for the team to go to the villages and meet with potential witnesses, and there were limited meeting places’.Footnote 62
Yet there has also been public criticism that the OTP has been too risk-averse in assessing its ability to operate on the territory of situation-countries. For instance, although Moreno Ocampo defended his decision not to investigate in Darfur on security grounds, he was sharply criticized by Professor Antonio Cassese, chair of the United Nations Commission of Inquiry on Darfur, whose report helped, in part, spur the referral of the situation to the Court. Cassese criticized the ‘[e]xceedingly prudent attitude of the ICC Prosecutor’Footnote 63 and, in an invited amicus curiae brief, the failure to pursue even ‘targeted and brief interviews’ in Darfur, noting that the UN Commission had successfully insisted upon such access during the course of its investigations.Footnote 64
Andrew Cayley, the ICC's first senior trial attorney for Darfur, concurs with Cassese's assessment. Reflecting on the Darfur investigation, Cayley notes:
It was a mistake that the court did not establish a presence on the ground in Darfur. . . . It is not to say that establishing an office in Darfur would have been easy but it should be emphasized that the OTP was extremely risk averse when I worked there. By encouraging some risks I am not proposing recklessness. The reality, as we all know, is that you have to take risks and you have to have courage to do this work. Professor Cassese . . . personally went to Khoba prison in Khartoum and interviewed very sensitive witnesses. He demanded access with nothing more than a Security Council resolution in his hand. The OTP ICC got no further than the Hilton Hotel in Khartoum.Footnote 65
More recent cases conducted by the Court suggest that little has changed with respect to the OTP's strategy. During the confirmation-of-charges proceedings against the suspects in Kenya – where security risks were considerably less than in DRC or Darfur – submissions by both defence and victims’ counsel raised questions about the OTP's lack of in-country investigations.Footnote 66 Similarly, while arrest warrants were issued against three Libyan indictees in May 2011 (just three months after the Security Council's referral), it appears that the OTP only began conducting in loci investigations there in November 2011.Footnote 67
To be sure, security is a legitimate concern, and one that poses crucial ethical responsibilities for all ICC staff. At the same time, however, there is a legitimate concern that security, and the attendant obligations of confidentiality, have been used to deflect much of the critique directed at investigations. As one ICC defence counsel (who has herself conducted extensive investigations in the DRC), noted, ‘[I]nvestigations in war-torn . . . societies will always involve some level of risk no matter how much one seeks to reduce it: this cannot be allowed to reduce the quality of the investigations to the extent the OTP has done so far’.Footnote 68 Similarly, in her concurring opinion, Judge Van den Wyngaert rejected the Prosecution's ‘mere invocation . . . of generic problems with the security situation in Kenya’, which did not ‘adequately justify the extent and tardiness’ of the OTP's post-confirmation investigation there.Footnote 69
3.2. Absence of national investigators
In addition to its minimal field presence, none of the OTP's investigators to date have been nationals of countries where cases are under investigation; indeed, only a small number are African.Footnote 70 While other OTP staff members have supported such a proposal – which was identified as an early goal of the Office's plan for investigationsFootnote 71 – it was never implemented during Moreno Ocampo's tenure. Kambale's notes from a 2004 meeting with OTP staff indicate that the choice not to seek out experienced national investigators was deliberate. Part of the ‘short and focused’ investigative strategy, as articulated by the then Prosecutor, was ‘the fact that it would minimize the need for having local people in the investigative teams, thus helping avoid situations where impartiality is questionable’.Footnote 72 Unlike predecessor tribunals the OTP has also hired no country experts as either permanent or temporary staff.Footnote 73 In the DRC, it appears that there was only one Congolese national who served for a brief period of time, in a formal capacity, as a country expert and adviser to investigators.Footnote 74
The price of this interest in impartiality, or at least its appearance, has undoubtedly compromised the quality of OTP investigations. As articulated by one intermediary from Ituri:
The Court faces difficulties in assessing places and [it] was unfamiliar with the socio-political context [in the DRC.] It did not understand the complicated war-time alliances, and did not grasp the subtleties of ‘who was close to who’ in a toxic environment nor ‘who could do what’.Footnote 75
Similarly, a study conducted by the International Refugee Rights Initiative (IRRI), in consultation with the Congolese NGO Aprodivi, notes that:
[T]he fact that Court staff was . . . dominated by internationals did little to diminish the sense that the Court could have done more to understand the local context. . . . Failure to [‘verify the information that they got’], and to engage the ‘real community leaders’, left the ICC ‘looking ridiculous a large percentage of the time’.Footnote 76
The Ngudjolo Chui judgement suggests that the chamber would have similarly appreciated attention to local context: the judges expressed interest, for instance, in questions of ‘socio-cultural framework’, so as to ‘prompt a more informed debate from the outset’.Footnote 77
The OTP's decision not to locate any of its investigators in the field, or to hire nationals of the country being investigated, stands in contrast with other organs of the Court. The Registry, for instance, while admittedly performing a different function than the OTP, has hired Congolese and Ugandan nationals to conduct outreach on behalf of the Court in situation-countries.Footnote 78 The role and participation of victims in ICC proceedings further provides an interesting counterexample to the Prosecution's approach. During the pre-trial stage of the Kenya cases, the two counsels who were assigned to represent victims each had a staff of three country-based field assistants. Kenyan nationals all, these individuals had long associations with Kenyan civil society and human rights organizations in the country. Based in Nairobi, they travelled regularly to other conflict-affected regions of the country, while another was based in the Rift Valley Province, a key site of the post-election violence.Footnote 79
While the model adopted in Kenya represented a more directed, streamlined approach to the ICC's victim participation regime that has drawn criticism,Footnote 80 the victims’ counsels and their assistants played an active role in exposing early gaps in the OTP's case and pushing it (if unsuccessfully) to investigate further. One filing from the victims’ representative in the case against William Ruto and Joseph Sang, in particular, sought to make further submissions to the Court about its views and concerns with respect to the Prosecution's case. The motion stated that the OTP had not conducted a ‘meaningful investigation into eyewitness experiences’ and that the victims – who numbered nearly 300 at the time – had reportedly not been interviewed by the OTP, were not aware of anyone in their locality having been interviewed, and were not aware of the Prosecution having ever come to their localities to conduct on-site investigations.Footnote 81 The victims’ counsel further observed that some victims ‘felt that the failure of the OTP to conduct on-site investigations or to interview victims could explain why the case as presented . . . did not fully accord with [their] own personal experiences’.Footnote 82
3.3. Intermediaries: quasi-investigators?
While country nationals have not been formally a part of OTP investigations teams, the Office has nevertheless made extensive use of intermediaries. Intermediaries are not ICC employees as such, but may assist the Office (and other organs of the Court) in a volunteer capacity; in certain cases, intermediaries have also been hired on a short-term, contract basis.Footnote 83 No definition of ‘intermediary’ is found in the Rome Statute or the Rules of Procedure and Evidence; however, the Court currently defines an intermediary as:
[S]omeone who comes between one person and another; who facilitates contact or provides a link between one of the organs or unit of the Court or Counsel on the one hand, and victims, witnesses, beneficiaries of reparations and/or affected communities more broadly on the other.Footnote 84
In short, intermediaries are locally based actors who, ‘[b]ecause of their long-term presence’,Footnote 85 carry out important functions for the Court. As summarized by the Lubanga chamber, they ‘undertake tasks in the field that staff members cannot fulfil without creating suspicion; they know members of the community, and they have access to information and places that are otherwise unavailable to the prosecution’.Footnote 86
Although intermediaries were also a feature of the ad hoc tribunals (albeit far more limited), the ICC's scant resources, combined with the multiple countries in which it must carry out its operations, ensure that they will be a permanent part of the Court's landscape. They have attracted particular attention in the wake of the Lubanga trial, where the Chamber determined early on that the role of a small number of key intermediaries, together with the manner in which they discharged their functions, had become ‘an issue of major importance’.Footnote 87 Ultimately, in its judgement, the Chamber found that the ‘essentially unsupervised actions of three of the principal [Prosecution] intermediaries [could not] safely be relied upon’,Footnote 88 a determination that, in turn, led to the exclusion of the testimony of witnesses who claimed to have served as child soldiers in Lubanga's rebel army.
The uncertain relationship of intermediaries to the OTP (and to the Court at large) underscores the crucial, but potentially destabilizing, role that they can play in investigations. On the one hand, as the Trial Chamber concluded, the OTP inappropriately ‘delegated’ its investigative responsibilities to intermediaries, relying on them, in some cases, not only to contact but also to propose potential witnesses. At the same time, the role of intermediaries overall was apparently ‘limited, in the sense that [they] were excluded from the decision-making process’.Footnote 89 As it was explained to the Court, intermediaries ‘were not supposed to know the objectives of the investigation team’, nor were they ‘given any substantive information about the case’, as it would have been ‘too complicated to enable discussions with anyone who was not a member of the investigation division’.Footnote 90
Thus, despite recognizing that intermediaries are often better placed to gather evidence than many Hague-based investigators, it would appear that, as a matter of policy, they remain at the margins of the OTP's decision-making process. Kambale notes that local Congolese NGOs and activists ‘had more raw intelligence on the crimes than any other entity, [but] were deliberately sidelined and their invaluable expertise not fully integrated into the investigative process’.Footnote 91 Phil Clark makes a similar point, arguing based on his extensive ethnographic research in the DRC that:
the Court has generally failed to foster meaningful relations with . . . ground-level institutions that are vital to its cause. . . . [T]he ICC has not always sought this collaboration and often perceived itself as the lead organisation to which all others are answerable.Footnote 92
Protection for intermediaries has been another point of contention. Chidi Odinkalu of the Open Society Justice Initiative notes that a number of intermediaries – a ‘community of refugees’ – had become early targets for persecution in their countries as a result of their co-operation with the Court, yet ‘neither support nor recognition was available from the ICC or most of its supporters’.Footnote 93
Greater support and recognition for intermediaries is not only ethically responsible, it is practical as well. IIRI, which has worked extensively with intermediaries in the DRC, Uganda, and Sudan, notes that, in the context of the DRC, the prosecution did not know enough about who was giving it information and why. This ‘lack of expertise . . . was viewed as reducing the capacity of the office [in The Hague] to navigate the complex local politics and resulting in the office relying blindly on some actors’. In the words of one interlocutor, ‘They trusted anyone who called themselves civil society’.Footnote 94 The Lubanga Trial Chamber drew a similar conclusion, finding that ‘There was no formal recruitment procedure for selecting intermediaries. An intermediary was simply someone who could perform this role; there was no process of candidacy or application and instead it was a matter of circumstance’.Footnote 95
Some strides have been made in this area. Draft Guidelines – described as an attempt to ‘provide a framework with common standards and procedures in areas where it is possible to standardize the Court's relationship with intermediaries’Footnote 96 – were first circulated in 2010 and later revised. Importantly, they address the existing legal and policy framework governing the ICC's relationship with intermediaries and seek to provide greater clarity as to the rights intermediaries may expect from the ICC, including their selection, payment (where appropriate) of their expenses, and their protection when placed at risk. Unfortunately, the ASP has failed to adopt the Guidelines as yet, and it remains unclear when it might do so.
The Guidelines should be adopted as a matter of priority; however, they alone will not overcome the more fundamental question of the ICC's orientation to the field. Rather than assets to be ‘managed’, the OTP must take greater care in cultivating more partner-based relationships with those individuals and organizations that know best the complex terrains in which the Court operates.Footnote 97 Indeed, while the Prosecution's missteps with respect to a small number of ill-intentioned intermediaries have largely dominated discussions to date, it should not be forgotten that most of them are committed advocates who have sought to help the ICC, often at great personal risk.Footnote 98 Without them, the Court simply could not function.
4. Conclusion
The ICC's early history indicates that greater capital must be invested in the OTP's investigative practices. The judicial record to date, and the increasing dissatisfaction amongst affected communities with the Court's work, belies the desirability of the ‘light-touch’ approach to investigations that the OTP, at least under Moreno Ocampo's tenure, has championed. While deliberate, this approach has also elided larger constraints confronting the ICC, ranging from an ever-dwindling appetite to appropriately resource the Court, to an institutional reluctance to assume the greater risks that a long-term ground presence might present.
Such reluctance is perhaps more understandable in the context of coercive interventions – for instance, those where Security Council referrals led to the ICC's engagement. Yet even in states that have invited the Court in, the OTP's field presence has been minimal, the composition of its staff predominantly (if not exclusively) international, and its relationships with local actors damaged by a Hague-centric approach to evidence gathering. Presently, it is unclear the extent to which these policies may change under Bensouda's leadership. She promisingly noted in her inaugural speech to the ASP that the OTP is ‘sending longer investigative missions with less frequent travel’; however, she also made clear that ‘there shall be no structural changes in the Office, neither shall there be a departure from established policies and methods of operation’.Footnote 99
Rather than positioning the ICC at a distance from the countries and regions in which it intervenes, this article has argued that the OTP must locate its investigative work more thoroughly on those territories. Furthermore, the Prosecutor needs to more effectively integrate individuals and NGOs based in ICC situation-countries into its investigations from the outset, not merely to better manage them but to more fully recognize the expertise and local knowledge they bring as well. As one ICC senior analyst has noted, ‘Local expertise is indispensable to interpret the relevant information in its authentic social context, including aspects of culture, politics, economy and linguistics.’Footnote 100 Distance may have its virtues but it would seem that, for the ICC, the space between successful prosecutions in The Hague and responsible investigations in the field has grown unsustainably wide.
