1. Origins of Article 54(1)(a) of the Rome Statute
The Rome Statute puts high demands on the Prosecutor. Not only does it require that the prosecution disclose all exculpatory evidence within its possession, it also mandates the prosecution to ‘investigate incriminating and exonerating circumstances equally’. This obligation is set out in Article 54(1)(a) of the Rome Statute, which ascribes the role of an independent and neutral truth-finder to the Prosecutor.Footnote 1
The ICC proceedings are adversarial with an important role and a budget for both parties to conduct their own independent investigations. They are, therefore, more akin to common-law than to civil-law criminal proceedings, but have incorporated a number of important civil-law principles. Article 54(1)(a) embodies one such principle, and is based on the rationale that the Prosecutor should not merely act as a party to the proceedings ‘whose exclusive interest is to present the facts and evidence as seen by him or her in order to accuse and to secure the indictee's conviction’, but also as ‘an impartial truth-seeker or organ of justice’.Footnote 2
Article 54(1)(a) attempts to strike the balance between common-law and civil-law traditions, and ‘to build a bridge between the adversarial common law approach to the role of the Prosecutor and the role of the investigating judge in certain civil law systems’.Footnote 3 It finds its origin in a German proposal that was widely supported by civil-law jurisdictions where a prosecutor has a similar explicit obligation.Footnote 4
In common-law jurisdictions, on the other hand, the prosecutor's obligation is in principle limited to the disclosure of exculpatory material in his or her possession without the additional requirement to search actively for it. The active search is left to the accused through counsel who, at least in theory, is provided with adequate resources to conduct defence investigations.Footnote 5 However, in some circumstances, ethical obligations of diligence and competence may require common-law prosecutors to seek exonerating information not yet within their knowledge and possession.Footnote 6 And in any event, prosecutors cannot ‘ignore the obvious’,Footnote 7 even if ‘it will damage the prosecution's case or aid the accused’.Footnote 8 Thus, even though the obligation described in Article 54(1)(a) finds its origin in civil law, common-law principles of ethics may also require prosecutors to be on the lookout for exonerating evidence, at least to some extent.Footnote 9
2. Article 54(1)(a): a needed improvement to rectify an imbalance?
The adoption of Article 54(1)(a) appears to strengthen the position of the defence in comparison to its position at the ad hoc tribunals. In the ICTR, the ICTY, and the SCSL, the Prosecutor is under the sole duty to disclose exonerating evidence if it happens to come into his or her possession,Footnote 10 but the burden of collecting exonerating evidence is left to the defence. To be able to search effectively for exonerating evidence, the defence must be afforded adequate time and resources. What that means in reality is in dispute and subject to continuous debates.Footnote 11 But it is undeniable that, unless the defence is privately funded, there is an imbalance in power and resources between the defence and prosecution. This imbalance exists in both domestic and international criminal-justice systems but is arguably greater in the latter.
The prosecution has a much greater budget and manpower to conduct investigations than does the defence.Footnote 12 The prosecution also has significantly more time to investigate than the defence. In international justice, investigations have often gone on for years before suspects are identified and charges are brought. In the ad hoc tribunals, defence counsel is appointed after an indictment is issued. In the ICC, the defence is already involved before the charges are confirmed. Nonetheless, in most ICC cases a significant time passes between the Prosecutor's opening of an investigation and the appointment of counsel for a particular defendant, before which point counsel cannot conduct investigations on behalf of his client.Footnote 13
In addition, the prosecution, being an official organ of the Court, has greater powers than the defence to enforce unwilling governments to co-operate unless it is investigating the conduct of members or allies of the government.Footnote 14 The prosecution also significantly benefits from the assistance of the UN and NGOs,Footnote 15 which are generally more reluctant to co-operate with the defence.Footnote 16 Thus, the prosecution may also have greater access to information and be in a better position to collect evidence than the defence. Article 54(1)(a) intends to redress this imbalance between the parties.Footnote 17
In light of these realities of international justice, not only the defence, but also the judges, in carrying out their task to ascertain the truth, as well as the victims of the conflict, could potentially benefit from a Prosecutor who is actively and equally investigating incriminating and exonerating circumstances, provided she does so adequately.
3. Scope of the Prosecutor's obligation under Article 54(1)(a)
The next question, then, is how wide the scope is and should be of the Prosecutor's obligation under Article 54(1)(a). Should the Prosecutor pursue every potentially exonerating ‘clue’ that presents itself, or is she sometimes justified in determining beforehand that the clue is not worth pursuing or is not likely to result in credible and relevant evidence? This author is of the view that the Prosecutor should pursue any lead that may reasonably lead to the discovery of exonerating evidence. At all times should the prosecution investigators keep an open mind about results that are unanticipated or inconsistent with the prosecution theory of the case. Only then is the Prosecutor in a position to satisfy her obligation to investigate incriminating and exonerating circumstances equally.
In theory, the prosecution appears to share the author's view, as staff members have expressed on multiple occasions. In the ICC case of Katanga and Ngudjolo,Footnote 18 the Chamber called the chief of investigations as a witness of the Court and asked her multiple questions on the prosecution's methodology applied in its search for exonerating evidence. The witness explained that the ICC prosecution considers that, under Article 54(1)(a), it has a continuous obligation ‘to investigate potentially exonerating evidence’ and ‘to critically look at the evidence that we collect’.Footnote 19
The chief of investigations also testified that the prosecution identifies and investigates exonerating themes, as well as locates any new witnesses or sources who could provide new information or evidence on such themes.Footnote 20
In addition, the witness stated:Footnote 21
We question the credibility of information that we receive and we try and corroborate it with multiple sources. We test the reliability of the sources that we use, and we don't take information for granted. We check the origin to the extent possible we can to make sure we understand the nature of it.
She further said that the prosecution investigators refrain from asking leading questions and are open to any answers, incriminating or exonerating alike. According to her testimony, they seek to duly report the witness's account as he or she has experienced the events and take good care not to manipulate the answers. Investigators, she insisted, have no preconceived notion as to what they want, or expect, to hear.Footnote 22
Accordingly, it appears that there is no dispute as to the scope of the prosecution's obligation to search for exonerating evidence. Indeed, if what the chief of investigations in the Katanga and Ngudjolo case said were actually done in reality, the prosecution would be fully compliant with its obligation to search for incriminating and exonerating evidence equally.
4. Research questions
The central question in this paper is whether this stated position, as shared by the author, is reflective of the prosecution's actual practice. In order to answer this question, this paper will address the following four sub-questions, all of them narrowly intertwined:
1. Does the prosecution make sufficient attempts to look for potentially exonerating witnesses or documents?
2. Does the prosecution search adequately for information potentially undermining the credibility of its incriminating witnesses?
3. Does the prosecution follow up any investigative clues that could reasonably lead to the discovery of potentially exonerating evidence?
4. Does the prosecution seek to obtain both incriminating and exonerating information from any witness it questions?
These questions are examined on the basis of an assessment of the Prosecutor's investigative practice in the ICC cases which so far have proceeded to the confirmation stage or further:Footnote 23Lubanga, Katanga and Ngudjolo, Bemba,Footnote 24Abu Garda, Banda and Jerbo,Footnote 25Kenya I (Ruto, Sang, Kosgey), Kenya II (Kenyatta, Muthaura, Ali), Mbarushimana, and Gbagbo. This assessment is made by scrutinizing the issues raised by the defence with respect to the Prosecutor's obligation to search for incriminating and exonerating evidence equally, as well as the Chamber's reaction to those submissions, if any.
4.1. Does the prosecution make sufficient attempts to look for potentially exonerating witnesses or documents?
As aforementioned, the prosecution's office claims that it makes sufficient attempts to look for potentially exonerating witnesses or documents. The defence has, however, challenged this claim in most cases. For instance, the defence for Katanga noted in its written and oral closing submissions that, apart from the judicial site visit, which took place in January 2012, together with the judges, parties, and participants,Footnote 26 and an outreach visit from the former chief prosecutor to Zumbe,Footnote 27 the prosecution never visited the localities where the accused Katanga and Ngudjolo lived and had their base.Footnote 28
This is a significant omission in searching for exonerating evidence. The starting point of such a search is the locality of the accused where the prosecution may discover many things about the accused, both incriminating and exonerating. The prosecution also failed to visit neighbouring villages, central to their case theory.Footnote 29 Even Bogoro, the crime scene, was visited only very sporadically by members of the prosecution office. During these sporadic visits, no proper exhumation was conducted to identify the number and causes of deaths and the status (civilian or military) of the victims.Footnote 30 There may therefore be a range of exonerating evidence which the prosecution has failed to discover and disclose as a result of their deficient investigations. In its judgment of Ngudjolo, the Chamber expressed its regret that the prosecution had failed to visit the villages of the accused and to conduct a timely forensic inquiry in Bogoro.Footnote 31
In addition, the prosecution failed to interview numerous persons with key, and potentially exonerating, information on the case. Remarkably, no contacts were undertaken with the Kinshasa government or any government body like the Maison Militaire or EMOI,Footnote 32 its army (FAC), the regional political party that was chased out of the region (RCD-K/ML), its army (APC), or any Ugandan officers notwithstanding the defence allegations of their involvement in the attack on Bogoro with which Katanga and Ngudjolo were charged.Footnote 33 The issue of the involvement of the DRC government and the role of the RCD-K/ML are both crucial and potentially fatal to the prosecution's theory of common plan and have been a principal defence theme from the beginning.Footnote 34 In Ngudjolo's judgment, the Chamber noted the prosecution's failure to interview a number of seemingly important APC and EMOI witnesses.Footnote 35
The prosecution further considered it unnecessary to speak to any of the féticheurs (traditional doctors), despite many witnesses having ascribed a significant role to them in leading the war operations carried out by the militia of which the accused were allegedly chiefs. Throughout the proceedings, the judges showed a clear interest in their precise role in the conflict and asked the chief of investigations why the prosecution had not sought to contact them.Footnote 36 Again, the Chamber recognized this as a gap in the Prosecutor's investigations.Footnote 37
The prosecution also failed to search for potentially exonerating documentary evidence. Presumably, there are volumes of intelligence documents in the possession of the DRC government. The government has refused to disclose any such documents, relying on the protection of state security. The prosecution has never made a serious effort to persuade it to disclose at least some of these documents. The defence sought to receive intelligence documents, as well as documents concerning the demobilization and reintegration programmes. When the DRC government was non-responsive to its requests, the defence requested the Chamber's intervention in obtaining them. The Chamber rejected this request to the extent that it concerned intelligence documents, since the actual existence of these documents was based on speculation. As for the demobilization documents, the Chamber directed the Registrar to liaise with the DRC government with a view to receive the documents requested.Footnote 38 No response from the government has, however, ever been forthcoming.
Potentially exonerating documents were also largely untouched in the Kenya cases. It is presumably not difficult to at least make a cursory effort to obtain tangible and documentary evidence in Kenya. ‘Kenya is not Somalia’, as counsel for Mr. Ruto, one of the suspects in Kenya I, affirmed during the confirmation hearing.Footnote 39 Kenya is a well-structured society with much traceable paperwork. Among the six Kenyan suspects (three of whom are to stand trial) were very senior politicians, including two (Mr. Kenyatta and Mr. Ruto) who won the presidential elections in March 2013 and are currently the president and vice president respectively of Kenya. Their paths are permanently followed by the active Kenyan media. Contemporaneous videos, press clips, radio broadcasts, and newspaper articles exist which can show a pattern of their conduct and the public statements they made during the relevant period.Footnote 40
In Kenya II, similar complaints were made. The defence for Muthaura submitted that the prosecution did not even make an attempt to conduct ‘the necessary and most basic investigations’ and never interviewed anyone from the inner circles of the suspect.Footnote 41 General Ali's defence complained that the prosecution had completely failed to exploit Ali's efforts to combat the Mungiki because these efforts undermined the prosecution's ‘theory of “inaction” designed to create a “free zone” for violence’.Footnote 42 The defence also claimed that the prosecution ‘consistently downplays evidence that many Kenya Police officers regularly received actionable intelligence from General Ali’.Footnote 43 The defence referred to the police raid on the Stem Hotel in Nakuru on 10 January 2008 to illustrate that General Ali had conveyed vital intelligence to his officers, which made this raid possible.Footnote 44 According to the defence, police orders were issued and patrols intensified in the affected areas in an attempt to get the security situation under control. Notwithstanding that this information is well documented and known to the prosecution, it failed to incorporate it in the story it presented to the Pre-Trial Chamber.Footnote 45
Also in Gbagbo, the defence complained that the Prosecutor had failed to satisfy her obligations under Article 54(1) and failed to visit the significant sites, but instead relied on the reports of human rights organizations without even cross-checking the information.Footnote 46 In failing to visit sites where, for instance, shelling allegedly occurred, the Prosecutor missed an opportunity to conduct ballistic tests and have military and/or ballistic experts verify the plausibility of the circumstances in which the alleged shelling took place.Footnote 47 The Pre-Trial Chamber agreed with this defence observation and requested specific additional evidence of a forensic nature.Footnote 48
The Gbagbo defence also pointed at multiple missing documents: official army and security forces documents, orders or other communications from military superiors to their subordinates, documents relating to the activities of Ouattara's rebel movement, and military intelligence documents which were available to the United Nations and France during their intervention in the post-election crisis.Footnote 49 The defence further pointed at missing interviews with several persons, including police officers present at the academy during alleged rapes. The Prosecutor based these and other allegations of rape and murder solely on media and human rights reports without identifying the victims and perpetrators by name or interviewing any eyewitnesses, family members, or sources relied upon in these reports.Footnote 50 The Pre-Trial Chamber was unimpressed and required additional evidence in support of these allegations.Footnote 51
In addition, the defence claimed that the prosecution investigations had been carried out in a biased fashion. The prosecution largely relied on information received from the current Ivorian regime under President Ouattara, who himself was a significant player in the post-election crisis in the Ivory Coast. This, the defence suggested, resulted in a distorted prosecution narrative, placing the responsibility for atrocities ‘firmly and exclusively on the doorstep of President Gbagbo’Footnote 52 while turning a blind eye to any wrongdoing on the part of the rebels loyal to Ouattara. According to defence submissions, the Prosecutor accepted this ‘black and white picture of one camp representing evil and another camp representing good’ as the ‘gospel truth’, and based her findings on erroneous assumptions rather than on thorough, impartial investigations.Footnote 53
In the case of Bemba, the defence noted that approximately 30 military officers from the DRC and Central African Republic who were essential to the case and who could offer potentially exculpatory evidence were not called notwithstanding the Prosecutor's obligation to help the court establish the truth.Footnote 54
In the case of Banda and Jerbo, both parties are unable to enter Sudan to conduct onsite investigations. The government of Sudan not only refuses to co-operate, but has also made any co-operation with the ICC a criminal offense.Footnote 55 Consequently, the prosecution is not able to investigate exonerating circumstances in the crime-base region. In seeking for a stay as long as the parties cannot enter the country, the defence presented its most significant examples of failures to investigate exonerating circumstances relating to the conduct of the government in the relevant temporal and geographical area. Through no fault of its own, the prosecution failed to interview relevant potentially exonerating witnesses residing in Sudan and obtain essential contemporaneous documents.Footnote 56
The Chamber dismissed the motion for a stay on the ground that ‘the investigation and prosecution of the most serious crimes of international concern should not become contingent upon a state's choice to co-operate or not co-operate with the court’.Footnote 57 Accordingly, the Chamber held that it ‘should not automatically conclude that a trial is unfair, and stay proceedings as a matter of law, in circumstances where States would not allow defence (or prosecution) investigations in the field even if, as a result, some potentially relevant evidence were to become unavailable’.Footnote 58 Therefore, rather than staying the proceedings, the Chamber decided that the defence complaints would be dealt with, if need be, during or after the presentation of the evidence.Footnote 59 The Chamber's approach is questionable, given the impossibility of conducting complete and thorough investigations into both incriminating and exonerating circumstances without the ability to visit the crime scenes.Footnote 60 The importance of on-site investigations in Sudan was firmly acknowledged by Antonio Cassese and Louise Arbour, who also expressed the view that the prosecution could have carried out such investigations before Sudan closed its borders.Footnote 61
4.2. Does the prosecution search adequately for information potentially undermining the credibility of its incriminating witnesses?
In order to assess the credibility of its own witnesses, the prosecution would be expected to verify their stories with any person they refer to, other witnesses to the events they describe, and their family members or close allies, as well as contemporaneous documents. None of that has been done in any of the cases so far brought before the ICC. For instance, both in Lubanga and in Katanga and Ngudjolo, the age of witnesses who claimed to be child soldiers at the time relevant to the charges became a contentious issue. The prosecution had failed to interview family members, or collect the birth certificates, school bulletins, or identity cards of these witnesses to corroborate their ages.Footnote 62 The prosecution claims it omitted to take any of these basic steps because it did not want to put the witnesses at risk by showing up in their neighbourhoods, thereby making it obvious that these persons were in contact with the ICC.Footnote 63 It therefore relied heavily on intermediaries for any local investigations and for the identification of witnesses.Footnote 64 In both cases, the defence produced documentary evidence and witnesses demonstrating that the alleged child soldiers were in fact older than they claimed.Footnote 65 Both in Lubanga and in Ngudjolo, this led the Chamber to disregard the testimonies of all alleged child soldiers.Footnote 66 The case of Katanga is still pending, but many of the witnesses are the same as in Ngudjolo's case. The Chamber already noted that it would not rely on these and a number of other unreliable witnesses in assessing Katanga's criminal liability.Footnote 67
In Kenya I and II the prosecution did not seek to corroborate with contemporaneous documents the allegations from witnesses that the suspects were present at specific meetings. The defence claimed that numerous publicly available contemporaneous documents, including videos and press clips, demonstrated that the suspects were occupied elsewhere at the specific dates of these alleged meetings.Footnote 68
In addition, when the prosecution alleged that the suspects purchased weapons, it relied solely on anonymous witnesses. It had not made any discernible efforts to verify whether purchase receipts, bank transfers, or other tangible evidence exist. In a society like Kenya, if it exists, it should presumably have been possible for the prosecution to obtain it. This should particularly have been possible at the time of the confirmation hearing when the Prosecutor clearly expressed the view that the Kenyan government was co-operating and before two of the three remaining Kenyan defendants were governing the country.Footnote 69
In Abu Garda, the prosecution failed to provide existing previous statements of witnesses relied on for the confirmation hearing. As the defence pointed out, a previous statement is a critical device to test the credibility and consistency of a witness and ‘could show a huge change in a witness’ account, so much so that it may render the second statement completely incredible’.Footnote 70
4.3. Does the prosecution follow up any investigative clues that could reasonably lead to the discovery of potentially exonerating evidence?
In Abu Garda, the defence also complained that, contrary to its investigative duties under Article 54, the prosecution never requested the exonerating evidence mentioned by one prosecution witness despite his expressed willingness to provide it.Footnote 71 The defence even asked that the chief of investigations of that case be called at the confirmation hearing to explain why certain steps were not taken. Unfortunately the entire testimony is in closed session and thus the explanations remain unknown to the public.Footnote 72
Similar complaints were made in Kenya I, where the prosecution failed to follow up the issue of ‘coaching witnesses, being paid 60,000 and being . . . rented mansions’ mentioned by one of its witnesses. During his interview, prosecution investigators told this witness that, for now, all they were interested in was the facts, and they would come back to this issue on another occasion. They did not, however, follow it up before the confirmation hearing.Footnote 73
In the same case, the prosecution disclosed a handful of newspaper articles and video clips of two persons, who said ‘they were coached and induced to implicate Ruto and recruited others to do the same’.Footnote 74 According to the defence, they ‘were allegedly asked to co-operate and change their statements, so they could be systematic and consistent, in exchange for upkeep, paid apartments, and relocation outside of Africa’.Footnote 75 These persons worked for organizations on whose reports the prosecution relied. Yet it had not investigated the allegations of impropriety. The prosecution did not even ask any of the witnesses about these inducements.Footnote 76
In addition, one witness told the prosecution that Citizen TV had recorded a rally at which Ruto allegedly ‘addressed a crowd of youths and told them to prepare to barricade roads, destroy property and kill the Kikuyus’.Footnote 77
Another witness stated that he had read in the newspaper that grenades were found at the house of Ruto's accomplice Cherambos.Footnote 78 The prosecution failed to search for these recordings and newspaper articles and thus missed an opportunity to verify the accuracy of the stories of witnesses it relied on as witnesses of truth.
In Gbagbo, the defence provided multiple examples of prosecution failures to follow up investigations. For instance, the defence stated that, despite her awareness of investigations being carried out by a military tribunal in Abidjan in respect of the shelling incident at Abobo, blamed on Gbagbo, the Prosecutor failed to monitor, and elicit, information from those investigations.Footnote 79 Nor did the Prosecutor ever seek to find out at what time the alleged shelling took place, how many shells were fired and from which direction, notwithstanding drastic inconsistencies between witness accounts on these matters.Footnote 80 At no time did the Prosecutor consult a military expert on these matters. The Prosecutor also failed to verify the assertion by one of their key witnesses that 18 members of the Invisible Commando had infiltrated the population, but simply concluded that the Abobo shelling area was exclusively populated by civilians.Footnote 81 The Pre-Trial Chamber acknowledged these failures and was unwilling to confirm the charges without ‘“forensic or other evidence” indicating who fired the ammunitions and what their alleged target was’.Footnote 82
4.4. Does the prosecution seek to obtain both incriminating and exonerating evidence from any witness it questions?
In Mbarushimana, the Pre-Trial Chamber raised concern about the prosecution's investigation technique of putting leading questions to witnesses during interviews and being impatient with their answers if incompatible with their theory of the case. The Pre-Trial Chamber qualified this technique as ‘utterly inappropriate’ and contrary to the prosecution's duty under Article 54(1) to establish the truth by investigating incriminating and exonerating evidence equally. In the Mbarushimana confirmation decision numerous examples are cited of the prosecuting investigators ‘showing resentment, impatience or disappointment whenever the witness replies in terms which are not entirely in line with his or her expectations’.Footnote 83
The Pre-Trial Chamber referred specifically to suggestions made by the prosecution investigators to a witness that he may not be ‘really remembering exactly what was said’, that he does not ‘really understand what is important’ to the investigators of the case, or that he may be ‘trying to cover’ for the suspect.Footnote 84
By majority, the Pre-Trial Chamber observed that ‘none of the FDLR insider witnesses directly and spontaneously confirm the existence of an order emanating from the FDLR leadership’ to launch attacks against the civilian population and to create a ‘humanitarian catastrophe’ in the manner alleged by the prosecution.Footnote 85 Some witnesses deny having heard of such an order. Others state the opposite, which is that there were specific instructions to protect the civilians from the consequences of the fighting.Footnote 86 Many of those who remember that such an order was issued by the FDLR leadership remember it only after the investigator persistently spelt out the existence of the order, its timing, and its specific content.Footnote 87
The Pre-Trial Chamber, left with the impression that the prosecution investigators were so attached to their case theory that they lost their impartiality, attached significantly less weight to answers prompted in such a manner.Footnote 88 In part this led to the non-confirmation of the charges, a decision upheld by the Appeals Chamber.Footnote 89
5. Reaction from the chambers
The Lubanga Trial Chamber devoted 157 pages of its judgment to discussing the deficiencies of the prosecution investigations.Footnote 90 Throughout the trial the Chamber made critical remarks with respect to the prosecution's investigative techniques, particularly its use of unaccountable intermediaries.Footnote 91 Consequently, none of the nine alleged child soldiers who testified were relied upon as a child soldier. That constitutes a striking condemnation of the investigative methods.
In its judgment of Ngudjolo, Trial Chamber II also expressed criticism regarding the Prosecutor's investigative failures.Footnote 92 Most notably, the Chamber dismissed the testimonies of all alleged insider witnesses and acquitted Ngudjolo.Footnote 93 Ngudjolo being the second defendant who has received judgment by the ICC, this might be considered a major blow to the Prosecutor's office.Footnote 94
In Mbarushimana, the Pre-Trial Chamber examined the witness statements in great detail before concluding that the prosecution had not sought to obtain exonerating information. The prosecution argued that in doing so the Pre-Trial Chamber exceeded its role as a confirmation chamber.Footnote 95 However, the Appeals Chamber found no error on the part of the Pre-Trial Chamber.Footnote 96
The Pre-Trial Chamber in both Abu Garda and Kenya I and II was more reluctant to take alleged investigative failures into account. They took the position that the alleged prosecution failure to comply with its Article 54 obligations ‘does not fall within the scope of the Chamber's determination pursuant to Article 61(7) of the Statute’.Footnote 97 Accordingly, defence arguments to this effect can only be viewed in the context of the purpose of the confirmation hearing, and should thus be regarded as a means of seeking a decision declining to confirm the charges. It follows, therefore, that the defence's objection raised, in this instance, cannot in itself cause the Chamber to decline to confirm the charges on the basis of an alleged investigative failure on the part of the prosecution. Rather, this objection may have an impact on the Chamber's assessment of whether the Prosecutor's evidence as a whole has met the threshold of ‘substantial grounds to believe’.Footnote 98
Thus, the Prosecutor's duty to search for incriminating and exonerating evidence equally was not looked at as a distinct issue at the confirmation stage. In Kenya I and II Judge Kaul, dissenting, expressed his disagreement with the majority ruling that this issue does not fall within the scope of the confirmation hearing. He pointed out that Article 54 required the prosecution investigations to cover all incriminating and exonerating facts and evidence. In his view, these requirements are fundamental and must be respected at the confirmation stage. He acknowledged that the Appeals Chamber authorized the prosecution to continue its investigations after confirmation. However, he pointed out that this is only permitted ‘in certain circumstances,’ and in particular ‘in situations where the ongoing nature of the conflict results in more compelling evidence becoming available for the first time after the confirmation hearing’.Footnote 99 Thus, the bulk of the investigations must be carried out in advance of the confirmation hearing. Given this situation, Judge Kaul stated the following:Footnote 100
I underline once again the absolute necessity for the Prosecutor to exhaust all ways and means to make the investigation ab initio as comprehensive, expeditious and thus as effective as possible, as required by Article 54(1) of the Statute. I hold that it is not only desirable, but necessary that the investigation is complete, if at all possible, at the time of the Hearing, unless the Prosecutor justifies further investigations after confirmation with compelling reasons, such as those mentioned above in paragraph 50. In case a Pre-Trial Chamber is not convinced that the investigation is complete, it may use its powers under Articles 61(7)(c) and 69(3) of the Statute in order to compel the Prosecutor to complete his investigation before considering committing any suspect to trial. I consider this issue to be of utmost importance for the success of this Court.
Accordingly, in the opinion of Judge Kaul:Footnote 101
[T]he Chamber cannot satisfy itself solely with the evidence, which the Prosecutor claims to be relevant and reliable, in order to effectively and genuinely exercise its filtering function. Such a general approach would have, in my view, the untenable consequence that Prosecution evidence would be considered as credible almost by default through the formal act of its presentation. Likewise, it would have the equally untenable consequence that the role and rights of the Defence would be dramatically and unfairly curtailed.
Is not the view expressed by Judge Kaul on this issue correct? The prosecution has a duty to investigate incriminating and exonerating circumstances equally from the outset of its investigations, the major part of which must be conducted prior to the confirmation. If the full picture is not presented to the Pre-Trial Chamber, the latter risks confirming charges that should not have been confirmed. It is precisely the task of the Pre-Trial Chamber to ensure that only those cases are confirmed that should proceed to trial. This also corresponds with the Appeals Chamber's view that the investigation should largely be completed at the stage of the confirmation-of-charges hearing.Footnote 102
Trial Chamber V expressed a similar view in the case of Kenyatta, emphasizing that the Prosecutor ‘is not responsible for establishing the truth only at the trial stage by presenting a complete evidentiary record, but is also expected to present a reliable version of events at the confirmation hearing’.Footnote 103 Indeed, the Chamber stated that ‘[t]he Prosecutor should not seek to have the charges against a suspect confirmed before having conducted a full and thorough investigation in order to have a sufficient overview of the evidence available and the theory of the case’.Footnote 104 In the event that, after the confirmation, the Prosecutor continues to investigate ‘for the purpose of collecting evidence which it could reasonably have been expected to have collected prior to confirmation’,Footnote 105 it is within the Trial Chamber's discretion to determine the appropriate remedy, which ‘could include the exclusion of all or part of the evidence so obtained’.Footnote 106 In this case, the Chamber granted additional time to the defence to investigate and prepare for trial in light of the new evidence.Footnote 107
In Gbagbo, the Pre-Trial Chamber criticized the prosecution for relying heavily, if not solely, on anonymous hearsay from NGO, UN, and media reports and describing many of the incidents in summary fashion. The Chamber further observed that it is also presented with an incomplete picture as to: (i) the structural connections between the so-called ‘pro-Gbagbo forces’ acting across the incidents, and (ii) the presence and activities of the armed forces opposing them. Ultimately, the Chamber is asked by the Prosecutor to draw numerous inferences from actions or conduct of Mr Gbagbo, his inner circle, and the ‘pro-Gbagbo forces’, but the Chamber does not have enough information to determine whether these inferences are sufficiently supported by the evidence in order to meet the required threshold for confirmation.Footnote 108
However, instead of declining to confirm the charges, the Pre-Trial Chamber granted the Prosecution additional time to present additional, more specific information in support of its allegations.Footnote 109
Thus, the Prosecutor's investigative failures were seemingly important factors in finding that the Prosecutor had failed to prove to the requisite confirmation standard of ‘sufficient grounds to believe’ that Abu Garda, Mbarushimana, and Gbagbo, as well as two out of the six Kenyan suspects, were guilty as charged. In addition, the charges against Francis Kirimi Muthaura were withdrawn after confirmation, essentially because the key witness against him had recanted a crucial part of his evidence. The prosecution was already in possession of this witness's recanting statement at the time of the confirmation hearing, but had failed to make timely disclosure thereof to the defence.Footnote 110 Had the Pre-Trial Chamber been able to review this recanting statement, it would most probably not have confirmed the charges against Muthaura.
5. Role of the Prosecutor redefined
These examples, though incomplete, clearly demonstrate that the prosecution has largely ignored its obligation under Article 54(1)(a) to investigate incriminating and exonerating circumstances equally in any of the pending or completed cases. There is no sign that the Prosecutor made a genuine effort to comply with this obligation. The Prosecutor's principal response to the defence complaints in the Kenya cases was that
[t]he purpose of the confirmation of charges hearing is not to assess whether the Prosecution has fulfilled its duty under Article 54(1) nor is it to evaluate the sufficiency of the evidence presented against hypothetical evidence which may or may not exist and which the Defence loosely contends could have been collected.Footnote 111
However, its efforts to comply with Article 54(1) were no better in the course of the trial proceedings in the Lubanga and Katanga and Ngudjolo cases. And the whole point of Article 54(1) is to conduct complete investigations in order to determine whether hypothetical evidence exists. The outcome of investigations cannot, nor should it, be known in advance; and the mere collection of evidence which the Prosecutor knows exists is simply not good enough to comply with Article 54(1).
But is it realistic to expect a Prosecutor in international justice to investigate incriminating and exonerating circumstances with an equal level of commitment? And is the Prosecutor best placed to do so? Or is Article 54(1)(a), imposing a schizophrenic role on the Prosecutor, a graft that will not take?
Some, mostly common-law, practitioners before the ICC are sceptical about the compatibility of neutrality and the task of prosecuting in an adversarial procedure.Footnote 112 They also doubt that the notion of a truly independent Prosecutor searching for evidence that undermines his or her own case is a workable concept in an essentially adversarial international criminal-justice system, as the ICC is. Most prosecutors in international justice are not trained as magistrates or the like. In addition, unlike most civil-law procedures, the ICC procedure does not constitute a joint search for the truth, duly reported in a dossier, in which the defence is an active participant and engages with the prosecution to suggest certain investigative steps. Rather, it is an evidence-gathering exercise carried out by two autonomous parties.
In this context, it is perhaps over-idealistic to expect a prosecutor to search purposefully for information that is contrary to his or her perception of the facts and his or her case. It is not in the nature of the beast to investigate, with a high level of diligence and persistence, those elements that undermine one's own case. The defence, on the other hand, has the task of advancing the interests and case of the accused and to challenge those aspects of the case against him or her which are in dispute. In doing so it is more likely that the defence will take the extra step often required to find exonerating evidence. To conduct such an investigation adequately requires significant time, patience, and effort. It may be necessary to open doors that appear firmly closed. The defence is clearly the most suitable party to do so.Footnote 113
It is also more difficult for the Prosecutor to do so without the advantage of viewing events through the eyes of the accused. As the Prosecutor does not, as a rule, question the accused or otherwise have his or her account of events, it is questionable whether she can have a realistic basis for such an enquiry. In addition, while the prosecution may be better equipped to deal with reluctant states and international entities, this is not true of the community, family, and friends of the accused who may not be as open to a prosecution investigator as they would be to someone representing the interests of the individual accused.Footnote 114
Accordingly, it may be in the interests of both parties if the role of the Prosecutor and the scope of her duty to investigate incriminating and exonerating circumstances equally were to be reconsidered. There are, however, problems with this proposition, most notably that exonerating evidence obtained by the defence may be looked at with more scepticism than if it had been obtained by the prosecution. In addition, the defence's access to potentially exonerating evidence can be limited if, for instance, it comes from state authorities.
Any inequality of investigative means of the two parties must then be remedied through the channels of the Court's assistance and disclosure obligations on the prosecution, as it is done in adversarial common-law systems as well as the ICTR, ICTY, and SCSL. In the ad hoc tribunals, the duty to disclose exonerating evidence has been rated as important as the duty to prosecute.Footnote 115 It is then also of the utmost importance that the defence is given an adequate investigation budget. This budget does not need to equal the prosecution budget but must be sufficient to allow the defence to conduct a thorough investigation into the exonerating circumstances of the case, which can be a costly and time-consuming exercise. Regrettably, the defence budget was recently decreased considerably.Footnote 116
6. Duty to conduct effective investigations
Irrespective of the scope of the Prosecutor's obligation to search for exonerating evidence, she must conduct a thorough and complete investigation into her case. This not only stems from the obligation to search for incriminating and exonerating evidence equally, it also falls under the obligation to ‘[t]ake appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court’ under Article 54(1)(b) of the ICC Statute.Footnote 117 In any jurisdiction, common-law and civil-law alike, the prosecution is expected to examine its case from all angles and to consider alternative case theories. It is a question of both ethics and competence that the prosecution critically reviews the reliability and credibility of the evidence on which its case relies.Footnote 118 No prosecutor who prides himself on being diligent and competent would deliberately present a weak case and have it publicly destroyed.
Also in this respect, the Prosecutor has so far clearly failed. In the pending cases, the prosecution has been insufficiently thorough in conducting investigations, and uncritical with respect to the veracity of its own evidence. The above examples clearly demonstrate that important basic steps were not taken and relevant evidence was left alone. The investigations were thus incomplete, missing potentially both exonerating and incriminating material. The main reason for these deficiencies is that the prosecution rarely conducts on-site investigations but relies on intermediaries instead. This practice has been severely criticized by the Lubanga Trial Chamber.Footnote 119 It has resulted in the dismissal of nine ‘child soldier’ witnesses in the case of Lubanga and, at least in part, in the dismissal of four out of 15 cases at the confirmation stage, and one adjournment of the confirmation decision. With the withdrawal of the case against Muthaura and Ngudjolo's acquittal, it is time for a drastic change in the Prosecutor's investigation policy.Footnote 120
7. Conclusion
In conclusion, the above examples demonstrate that, whether from a standpoint of competency or stemming from its Article 54 obligations, the prosecution failed to investigate any of its cases with the thoroughness expected from a diligent prosecutor. Whilst the prosecution can never have the advantage of knowing the accused's case on which to base any parallel investigation, especially where an affirmative defence is proffered, it could and should do more in terms of addressing weaknesses in its own case and proceed or not proceed accordingly. Given the record thus far, it is overdue for the Prosecutor's office to critically review and alter its investigation policy with a view to guaranteeing more thorough and complete investigations in future cases. More rigorous internal scrutiny would serve to both meet the objectives of Article 54 and result in early exoneration or mitigation where appropriate and stronger evidence against those who are rightfully charged.
