Week 3: Investigations

• State cooperation – problems of effectiveness and fairness (defense not in a position to conduct investigations means no fair trial)

• The importance of on-site investigations

• Importance of testimonial evidence – changing in some situations/cases

• Use of intermediaries in the collection of evidence

• Very little forensic evidence but changing, see week 5

• Many types of investigation not regulated – question of principle of procedural legality

Power of prosecutor with regard to investigations

(Rule 36 IRMCT : power to collect evidence but since the mechanism is based on no new cases, the rule has been changed and need to go back to Rule 39 of ICTY)

Duties and Powers of the Prosecutor with respect to investigations

• no investigative powers in preliminary investigations stage (only after the investigation has been authorised)

• very broad reference to the power to collect evidence

• power to question witnesses and victims

unconditional power of the prosecutor to conduct on-site investigations

forms of cooperation and assistance (93 + 96) regulated by conditions stipulated in Art 99 → not unconditional powers to conduct on-site investigations

Pros:

• Witnesses and victims reluctant to testify in presence of state officials

• Standards for admission and probative value

Cons:

• more limited powers for on-site investigations at ICC

• OTP cannot take coercive measures (eg search or seizure) without state assistance

• Needs permission for non-coercive (exceptions e.g. voluntary interviews with witnesses)

• Requirement to go through PTC for cooperation requests to states (take evidence, testimony under oath, searches and seizures, protection of victims & witnesses)

→ It is very strict, and not ideal

→ it is also very difficult to refuse the prosecutor to gain access to the territory.

→ It is a minimum (art99) so fortunately many states do more (such as field office), can further arrangements can be made on security arrangements for example. But you do not want the domestic forces to be present while doing the investigations such as during witness interviews because it would be intimidating. So out of the way except to ensure security.

Judicial Investigations at request of prosecutor, Rule 55, proprio

motu or request of either party: order, summons, subpoena

+

Rule 120 IRMCT: Trial Chamber power to order

production of additional evidence at trial, summon witnesses

– rarely used

Involvement of PTC judge in investigations

• Chapter 9: mainly a role in facilitating State cooperation

• Art 56: Role of PTC in relation to a “unique investigative opportunity”, some powers on own initiative

• Art 57(3)(c): preserve evidence in failed states

• Art 64(6)(b): order production of evidence or witness testimony (by obtaining, if necessary, assistance of States)

Rights of the Accused

• under this article, defense has the following powers

  • Evidence Disclosure

  • Ability to do own investigations (own budget)

• But

  • no duty for states to cooperate with defense

  • also good because no statutory conditions for on-site investigations

Rights of the Accused (similar to ICC Art. 67)

• Prosecutor: broad powers and discretion, but not unlimited. Usually limitations are requirements to go through PTC to get certain cooperation requests approved

• Judges: in principle no investigative powers under ICL, but at ICC have some powers (but this is still more a facilitative function)

• Defense: not an organ, so no investigative powers; any investigative powers follow from the rights of the accused

  • note that rights of the defense are more inherent in adversarial nature of international criminal proceedings, as opposed to inquisitorial nature of (exceptionally) ECCC

  • Defense counsel problems at the level of the icc

    (1) No quality investigations because not as experienced & naturally less resources than prosecutor

    (2) They do not recognize that

Important Because:

• Principle (Art 21(3) RS)

  • ICC should respect HR law; written in such a way so that every law of the ICC should be interpreted with HR law

• Admissibility of evidence (cp. Art 69(4) and 69(7) RS (some standards outlined)

  • 69(7) if the evidence has been obtained in such a way that it would damage the proceedings, then it must be excluded (obligatory exclusion of evidence) (Necessary when: e.g. evidence obtained by torture)

    • Is it necessary to exclude evidence when right to privacy violated? (ICTY: minor HR violation, then can admit the evidence)

Problems:

• HR norms not respected in investigations

• Procedural legality deficit? Lack of proper regulation of (invasive) investigations (See Sluiter)

• Compensation?: duty to investigate incriminating and exonerating evidence equally, Art. 54(1)(a): more theoretical than real?

  • e.g. if French judge is requested by ICC to authorise investigations, can do this assuming the ICC has the relevant powers, but they actually have no safeguards (invasive investigations)

Investigations problematic at the ICC, acquittals as a result of weak investigative output

a. Challenges

• Crime base v linkage evidence (missing for high-level perp)

• Restricted access to evidence

• Over-reliance on intermediaries for investigations

• Lack of cooperation by States and other actors

• Ongoing security concerns

• Cultural and linguistic barriers

• Different views on best practices in multinational teams

• Internal reviews: Kenya internal OTP review, see also independent expert review

  • Biggest concern: 100s of recommendations, easy to ignore

• Bureaucratic reforms at ICC-OTP (2020 IER)

  • New guidelines, a code of conduct, and a model contract for intermediaries

• Outsourcing investigations, role for civil society, see ‘ICC prosecutor and Eurojust launch practical guidelines for documenting and preserving information on international crimes’

• Novel forms of investigation, use of modern technology (week 6): cyber investigations, remote interviewing

= statutory interpretation; rules laid out must be followed (cannot be changed, interpreted differently)

In International criminal law, maybe more leeway since it is a new field, but relevant authority MUST have solid basis to change/interpret this

Problems Identified :

1. The Failure to Adequately Discharge the Prosecution’s Obligation Under Article 54 to Investigate Exculpatory Information Equally

   1. Defense counsel have regularly asserted that OTP fails to conduct its investigations in accordance with Rule 54 (rule to conduct investigations objectively: both incriminating & exonerating circumstances)

2. The Timing and Length of Investigations

   1. Judges have also been concerned with the continuation of investigations long after the commencement of proceedings. Some defense teams have accused the Prosecution of changing their case theory in response to newly acquired witnesses and evidence late into the case

3. The Quality of the Evidence Collected During the Investigation and Presented in Court

   1. Commencing a prosecution before completing a comprehensive investigation directly impacts the quantum and quality of the evidence available to a chamber. (One of the criticisms of the Gbagbo Chamber was the Prosecution’s heavy reliance on anonymous hearsay, documentary, and summary evidence. The Chamber expressed its “serious concern” about the quality of the evidence presented during the confirmation hearing)

4. The Inappropriate Delegation of Investigative Functions

   1. Especially use of intermediaries to perform key investigative functions. This issue came dramatically to the fore when the first witness in the Lubanga case returned after the lunch break and recanted his earlier testimony that he had been abducted on the way home from school and conscripted into the Union of Congolese Patriots (UPC). His recantation cast immediate suspicion on those involved in bringing him forward as a witness

5. The Failure to Properly Analyze Evidence and Disclose Potentially Exculpatory Material

   1. The handling of evidence gathered during the investigation has also been an issue to the extent that it has had implications for OTP’s proper discharge of its disclosure obligations.