Tuesday, August 31, 2010

Outsourcing Investigations: The ICC and Intermediaries

The International Criminal Court’s first trial is once again on the verge of coming to an abrupt end before the completion of the proceedings. The defendant, Thomas Lubanga has again been ordered released, and the Office of the Prosecutor (“OTP”) is again appealing that order. (Prior IntLawGrrls posts) It’s déjà vu all over again – and why? For the second time, because of the controversial role of intermediaries in building the prosecution’s case.
What’s all the hubbub about? IntLawGrrl guest/alumna Yvonne McDermott's earlier post provides the details, but the big picture is this: the OTP has been using third parties to assist it in conducting its investigation of the situation in the Democratic Republic of Congo (“DRC”). These third party intermediaries include organizations like MONUC (the UN Mission in Congo) (emblem below left) that have long been involved in investigating the atrocities that have occurred in the conflict there. In June 2009, the OTP was unable to disclose evidence as ordered by the court because of confidentiality agreements with the third parties who provided the evidence; now, the OTP has not identified an intermediary whom witnesses have claimed encouraged them to provide false testimony.
In my recent article, Outsourcing Investigations, I assessed the benefits and risks that come with using third parties as intermediaries in an international criminal investigation.
On the one hand, it makes enormous sense for the OTP to make use of the contacts that MONUC and other IGOs and NGOs already have with victims and witnesses in the DRC and to take account of the evidence they have already uncovered. These organizations know the country, the situation and the involved parties very well. They have already carried out their own investigations and produced their own reports on the war crimes and crimes against humanity that the OTP began investigating far more recently. The OTP is also no competition for MONUC in the size and scope of its investigations, particularly since it has adopted a targeted and sequenced investigations policy that deliberately limits its investigations’ aims and resources. Due to all of these factors, the OTP has relied on the work done by third party intermediaries at a minimum as the basis for selecting the incidents on which it has focused, making initial contact with the witnesses the third parties have already interviewed, and obtaining and reviewing any evidence they have already secured.
But this reliance creates problems: problems with reliability, credibility, equality of arms, the right of the defense to confront witnesses, and confidentiality. The Lubanga case has demonstrated that these problems are very real. And the Lubanga case is not a one-off: similar questions have emerged in at least one other DRC case. Unless the OTP radically changes its investigations strategy and the amount of resources it puts into its investigations, it will continue to need intermediaries. But unless the OTP changes its approach to using intermediaries, the problems that have arisen in the Lubanga case are not going to disappear on their own.
Accordingly, the OTP needs to develop a more effective set of policies and practices for dealing with intermediaries. At a minimum, it needs to reach agreements with intermediaries in advance that will permit the disclosure of evidence and of sources of evidence that is necessary for the defendant to have a fair trial. In Outsourcing Investigations, I suggest two approaches that could help the OTP maximize the benefits and minimize the risks of using intermediaries:
► (1) The OTP could draw experts into its investigations from the UN mission and other IGOs and NGOs operating in the area and/or
► (2) The OTP could develop a detailed set of guidelines for intermediaries to follow in carrying out their investigations.
By taking either or both of these steps, the OTP could maintain some control over the methods of the investigation and thereby maximize the reliability of the evidence it obtains as well as the transparency of its provenance.

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