At the end of last year, the Office of the Prosecutor (OTP) at the ICC clearly signaled a new emphasis on more robust investigations with its new strategic plan. But the court’s judges are now addresssing a number of troubled cases whose outcome may create the impression that nothing has in fact changed in the prosecutor’s office. The OTP will be under pressure to demonstrate that lessons have been learned, and improvements made.
This Friday, March 7, the ICC will deliver its third judgment, in the case against Germain Katanga from the Democratic Republic of the Congo (DRC). Katanga’s case was originally joined with the co-accused Mathieu Ngudjolo Chui, who was acquitted last year due to the prosecutor’s inability to prove that certain facts took place, as well as the lack of insider witnesses who could link the accused to the crimes. These two cases were separated at the end of the trial hearings because the judges found that the legal characterization of responsibility would be different for each accused.
This should cause for nervousness for the prosecution given that the investigation methods applied in the Katanga case would be the same as those which resulted in an acquittal for Ngudjolo. However, the prosecution has appealed the acquittal of Ngudjolo, and the appeal judgment may also be issued this year. Since these judgments will be assessing OTP’s work prior to the 2013 change in strategic planning, the OTP will have to make a concerted effort to explain how their new approach focusing on field-based investigations addresses any potential concerns raised by the judges.
Also in the Democratic Republic of the Congo situation, the ICC has recently completed the confirmation of charges hearing in the case against the militia leader Bosco Ntaganda, after he voluntarily surrendered to the United States embassy in Rwanda last year. These pre-trial proceedings focused on whether there is sufficient evidence to merit moving the case forward to trial. Regardless of the relatively low standard of proof at this pre-trial stage, the judges have consistently urged the prosecution to ensure that their evidence is already trial-ready. There will be increased scrutiny of the OTP’s conduct in this case because this will be the first proceeding after the OTP’s commitment in its strategic plan to make their cases trial-ready at the confirmation of charges hearing stage.
The OTP faces a similar scenario in the Cote d’Ivoire situation concerning the first ICC arrest of a former head of state, Laurent Gbagbo. The confirmation of charges hearing was suspended in the case against Gbagbo in June last year, in order to allow the OTP to provide further evidence with respect to the charges, in particular an alleged attack against civilians. This was the first time that the pre-trial judges had ever suspended a confirmation of charges hearing, although in the past, pre-trial judges have also asked the OTP to provide further evidence to support the charge of genocide in the arrest warrant against Bashir. However, in making this decision in the Gbagbo case, the judges noted that it would allow the OTP some degree of latitude, given that the jurisprudence regarding the extent of evidence required was relatively new at that time. It is unlikely that the judges will continue affording this latitude to the prosecution.
The OTP was originally due to start trial proceedings on February 5 against the Kenyan president, Uhuru Muigai Kenyatta. However, the OTP requested a three month adjournment after a key witness refused to testify and another confessed to giving false evidence. The prosecutor reflected the jurisprudence on evidence thresholds, by citing the “high evidentiary standards required at trial” as the basis for concluding that the case requires further investigations. Although the trial against an additional two co-accused continues (regarding William Samoei Ruto and Joshua arap Sang), it remains to be seen how Kenyatta’s case will proceed, which represents one of the greatest challenges the OTP faces in 2014.
The mid-point of the year will be marked by the start of the first trial in the Darfur situation. The case against Abdallah Banda Abakaer Nourain is due to start on May 5 relating to alleged war crimes committed against a peacekeeping mission in North Darfur. There also is a possibility that the ICC will render its fourth trial judgment in the second half of 2014 in the case against Jean-Pierre Bemba relating to the Central African Republic. The defense closed its case in November last year, although there may be delays to judgment as the judges proceed on the case concerning alleged witness tampering by Bemba and members of his defense team.
Aside from these significant courtroom dates in the current case load, the remaining ICC situations may still escalate to trial proceedings during the course of 2014. Litigation continues regarding whether the two accused in the Libya situation will be tried in The Hague or in Libya. Meanwhile, investigations continue in Mali regarding alleged abuses committed during the conflict, and it is an open question whether arrest warrants will be issued in 2014, which would be the first arrest warrants issued under the new OTP strategic direction of increased field investigations to ensure early trial-readiness. It cannot be ruled out that, during 2014, the ICC may secure arrests against any of the 11 fugitives still at large across Uganda, DRC, Darfur, and Cote d’Ivoire. Furthermore, the OTP issued a new policy on preliminary examinations at the end of 2013, indicating that updates on the current eight countries under examination can be expected in 2014. Meanwhile, agencies such as the UN High Commission for Human Rights continue to push the UN Security Council to refer the conflict in Syria to the ICC.
It is clearly an understatement to conclude that the ICC has a busy year ahead. It will be a year caught-up in transition as the results of the past 10 years finally come to judgment, in the midst of an acknowledgment by OTP that new methods are needed. Yet the results of new approaches adopted now may not come fully to fruition for several years. The challenge will be to navigate the time until then, with technical skill, transparency, and accountability.