ICC Investigative Strategy Under Fire

Former court employees and rights groups say a flawed approach to investigating sexual violence crimes at the International Criminal Court, ICC, has meant many atrocities are going unpunished.



Ex-ICC investigators told IWPR that not enough analysis and effective planning has been done ahead of investigative missions to uncover human rights abuses in Uganda, the Democratic Republic of Congo, DRC, and Sudan.



Gender justice groups say this approach means the most appropriate charges are not always brought against suspected perpetrators of war crimes. They also argue that too few sexual violence charges – which are often complex and difficult to prove – are being issued.



However, prosecutors point out that limited resources mean that they are unable to pursue all the crimes an individual is suspected of having committed the charges against a suspect, just a selection. They insist they have made efforts to bring sexual violence charges, making sure all investigators are trained how to interview victims ahead of their deployment in the field.



Before an ICC investigation is carried out, prosecutors often decide on the investigative approach they will take after reviewing material from international and local NGOs, United Nations agencies, government bodies, national judiciaries and military police.



After this preliminary information is gathered and reviewed, investigators are told which alleged perpetrators and particular incidents – such as specific attacks on villages, mass killings or forced transfer of civilians – to focus on.



However, because there is great pressure on the ICC to intervene in countries embroiled in, or emerging from, conflict, investigators say they are being sent in to investigate before an adequate analysis of this information is complete.



Because they arrive in the country already focused on gathering evidence of a particular set of crimes, committed in specific locations and on specific dates, they say this means other atrocities are often overlooked.



Even when investigators stumble across evidence of other crimes not on their initial list, they say they lack the time to investigate these properly, meaning that the alleged perpetrators are less likely to be charged.



A LACK OF PLANNING BEFORE INVESTIGATIONS



A major problem cited by former ICC investigators is that they were sent to countries to gather evidence without sufficient time to review information already gathered from other sources operating on the ground.



As a young institution, the ICC is under enormous pressure to prove itself and bring justice to countries which cannot or will not prosecute grave war crimes domestically.



As a result, former investigators say that prosecutors have pushed them into situations before they have thoroughly collected and analysed existing information.



“We didn’t have sufficient time to do the preliminary collection of information,” said Martin Witteveen, who worked as an ICC investigator in Uganda, the first country to be investigated by the fledgling court.



“The prosecutor wanted indictments issued within a year, but the success of investigations depends on the first phases of information collection and analysis.”



Former ICC staffers say that investigators sent to Sudan to probe atrocities in Darfur said they were rushed to begin investigations before they had time to examine existing documentation. Former ICC staffers say that investigators sent to Sudan to investigate atrocities in the Darfur region were rushed to begin investigations before they had time to examine existing documentation.



Before the UN Security Council, UNSC, referred Darfur to the ICC in March 2005, a UN Commission of Enquiry was sent to investigate human rights violations there. The commission found that the government and allied “janjaweed” militias conducted widespread and systematic rape and sexual violence throughout Darfur. Women and children were enslaved, and girls as young as ten years old subjected to gang rape.



“Rape by janjaweed and government soldiers surrounding IDP [internally displaced persons] sites have occurred in sufficient numbers to instill fear of such incidents amongst women and girls, and has led to their virtual confinement inside these sites,” said the commission’s report.



While these findings were passed on to the ICC, former court staff say that prosecutors buckled under what was perceived as outside criticism for not moving fast enough, and launched the investigation before sufficient planning had been done.



Former staffers say more analysis should have taken place internally before investigators were sent out. As a consequence, they say, interviews with victims of sexual violence were not specifically planned as an aspect of the investigation.



Ex-investigators say evidence of these abuses only emerged when they spoke to survivors about what they suffered during crimes incidents that prosecutors wanted to probe.



Those who worked on a variety of different cases also say they were instructed to change direction in the middle of investigations to focus on a different set of incidents and crimes. This reflected an overall lack of strategic direction, and meant that the limited time they had was not used efficiently.



“You can start off looking for A and end up finding B, which may be a better basis for prosecution, but if you change what you are looking for, it wastes time as you do not build on what you gather,” said one former ICC staff member.



Those investigating war crimes in DRC expressed frustration that one day, without explanation, prosecutors told the team probing an ex-leader of the Union of Congolese Patriots, UPC, Thomas Lubanga, to drop a year and a half of investigative work and focus solely on the use of child soldiers.



In the course of investigating incidents like mass killings in a village, they say they had also found evidence of torture, pillage, rape, and enslavement.



“It was bizarre and surprising,” said a former investigator. “We had been investigating killings, attacks on villages, the flow of illegal weapons – but one day a decision was made to focus just on child soldiers.”



The same ex-employee says he thought that this might have happened because the investigation had already taken a long time, and prosecutors wanted something to present at court as soon as possible.



“For a year and a half, we didn’t just investigate the use of child soldiers – sexual violence was part of the overall investigation – but the decision to focus meant that all the things we had done for the last year and a half was gone,” he said.



“I cannot remember how and when the explanation was given, but it was important for the office [of the prosecutor] to present a case before the court.”



Christine Chung, a former senior trial attorney at the ICC who steered investigations for the prosecution in Uganda and DRC, acknowledged that there was pressure on prosecutors to start cases.



However, she told IWPR that this pressure did not adversely affect investigations.



“Pressure to start cases was there, but that factor did not cause planning for the investigation of sexual violence crimes to be impaired,” she said, insisting that any obstacles encountered were due to the lack of security on the ground.



“The office of the prosecutor does a great deal of pre-investigation planning – many think for too long – [and] at some point you need to go to the field.”



Beatrice Le Fraper du Hellen from the ICC prosecutor’s office, OTP, du Hellensays that in early investigations there was a sense that to build the institution, the most important thing was to start cases.



“There was a lot of analysis to find out the situations of the most serious crimes… and start as soon as possible. The idea was if we want to get the court started, there was no way we could investigate for years and years and not have cases. Once we have sufficient evidence, we have to move.”



Critics and insiders agree that things have changed for the better in recent investigations such as the Central African Republic, CAR, where planning was a lot more extensive than in previous investigations before investigators were deployed to the field.



“We have a field office in the CAR and everything was ready before we announced the investigation. We already identified the places we wanted to investigate, so the planning was good,” said Le Fraper.



NARROW FOCUS OF INVESTIGATIONS



According to former investigators, a common strategy used by ICC prosecutors is to instruct investigators to focus on a limited set of incidents which have been reported by organisations on the ground, such as the looting of a village, for example.



But they note that concentrating on a narrow range of incidents means other crimes are never fully investigated or prosecuted.



Human rights groups, meanwhile, accuse the prosecution of looking to secure quick convictions, rather than striving to capture a representative range of crimes committed during a given conflict.



In the case of the insurgency in northern Uganda – which was referred to the ICC by the country’s government at the start of 2004 – prosecutors made a decision early on to focus investigations around what they considered to be the six most brutal attacks by the rebel Lord’s Resistance Army, LRA, in the north of the country since 2002.



Before beginning investigations, ICC prosecution analysts received documents from local NGOs and rehabilitation centres where children abducted and held captive as child soldiers, porters and sex slaves gathered when they came out of the bush. They also collected evidence from the Ugandan authorities, which had documented the actions of the LRA over the last 20 years, and rooted through newspaper articles written about attacks.



After gathering examining this body of evidence, prosecutors decided to limit their investigation to six incidents. This decision – made at the end of September 2004, when they had been in the country for just four weeks – was never changed.



“Nothing else other than those six incidents was [ever] investigated,” said Martin Witteveen, who worked as an ICC investigator in Uganda.



One year later in July 2005, arrest warrants were issued for five LRA members for 33 counts of crimes against humanity and war crimes. Despite evidence that crimes of sexual violence were widespread during the 20-year conflict, only two of the top commanders have been charged with such crimes.



LRA leader Joseph Kony is accused of sexual enslavement, rape and ordering rape, while his deputy Vincent Otti – who the LRA say is now dead – is charged with sexual enslavement and ordering rape.



Investigators say that because the investigation was so narrowly focused, sexual crimes were not given special attention.



“In retrospect, we should have done better on the thematic charges [for systematic crimes committed by the LRA throughout the conflict], like sexual crimes and use of child soldiers,” said Witteveen.



He said that while rape and sexual enslavement were not specifically investigated, evidence of these crimes was uncovered when investigators interviewed girls in order to glean information about the incidents being investigated.



During the interviews, the girls also told investigators about the sexual violence they had suffered. A complex system of sexual enslavement emerged, he said.



“Girls were not randomly dispersed among commanders, [they] were maids in households, and then grew up in the ranks and given to the commanders for sexual pleasure,” said Witteveen.



“What they were allowed to do, what they were forced to do, and by what age was perfected and written down – it was orchestrated, thought about and laid out in rules.”



It was only because investigators uncovered this evidence when pursuing other leads that sexual crimes ended up on Kony and Otti’s indictments.



But Le Fraper defended the prosecutor’s policy, telling IWPR that it is impossible to investigate for years and collect everything.



“During the analysis phase we collect [information from] open sources, communications, reports by NGOs and out of that try to see what the period was of most violence, and which region [suffered most]. Then we select a few incidents and this is where the frustration comes from for investigators, and I understand it entirely,” she said.



“But we have to set the standards and the focus of the investigation, and we can only select a few incidents; we need a good selection and cannot investigate hundreds of similar incidents.



“[The procedure] is probably is not perfect and can be criticised, but at one time, we need to settle on our incidents which [reflect] our own evidence.”



She said that focused investigations were central to the way ICC prosecutors work.



Le Fraper says the ICC has learned lessons from cases at the international war crimes tribunals that came before it, like the trial of former Serbian president Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia, ICTY.



It took the tribunal six years to prepare three separate indictments against Milosevic, covering crimes committed in Bosnia, Croatia and Kosovo over the course of almost a decade. The accused died four years into the trial, before a judgement could be passed.



In contrast, Le Fraper says du Hellen the ICC prosecutor’s policy is to carry out investigations in a few months, involving as few witnesses and incidents as possible.



“In Uganda, it was a matter of drawing the balance between covering the widest range of victimisation, which is one of the main guiding principles of prosecutorial strategy, and conducting a focused investigation in a short time to have charges ready against those we considered most responsible,” she said.





Chung agreed that it is not possible to investigate every lead.



“If this was the [office of the prosecutor’s] practice, no sexual violence victim would obtain timely justice,” she said.



MISSED OPPORTUNIES



Ex-investigators say that a different approach to investigations could have led to more extensive sexual violence charges being brought in relation to the conflicts in DRC and Uganda.



Witteveen said that in Uganda, more evidence of sexual crimes could have been gathered had the investigation been broadened.



“We interviewed a number of ‘wives’ (girls forced to live with senior LRA men) but questions were focused on their relationship to commanders, not on rape and sexual enslavement,” he said. “We should not have limited ourselves to this kind of witness – we should have widened it out to speak to other victims of sexual violence.”



He added that ICC staff missed the chance to reflect the allegedly organised nature of sexual crimes committed by the LRA.



While sexual crimes feature on two of the LRA indictments, many observers say that these in no way show the systematic and widespread sexual violence that was a feature of the conflict.



Kony’s arrest warrant, for example – which has been heavily redacted, presumably to protect victims’ identities – suggests that the sexual enslavement charge against him relates only to one specific incident in 2003.



Brigid Inder, director of Women's Initiatives for Gender Justice, WIGJ, agrees that an opportunity has been lost. According to her, each of the indicted LRA commanders could have been charged with rape as a crime against humanity because they were all active in overseeing and enforcing this act.



Observers say that failing to prosecute sexual crimes, when evidence exists that they have been committed, sends a damaging message.



“This is dangerous, because it leaves out victims who feel unacknowledged for the crimes they suffered, and gives the message that sexual violence crimes are not crimes,” said Binaifer Nowrojee, director of the Open Society Initiative for East Africa.



She accused ICC prosecutors of taking a narrow approach to administering international justice, by focusing on individual crimes in order to secure a conviction, rather than prosecuting a wider range of crimes and establishing a broader narrative of everything that happened.



But Le Fraper du Hellen maintains that the systematic nature of sexual crimes has been covered in the charges against Kony, who she said is accused of ordering the abduction of girls to distribute to commanders as rewards.



Meanwhile, Chung said the Uganda investigation focused on systematic sexual crimes far more than any prior investigation brought in any other international criminal tribunal.



However, she stressed that in order to charge each of the LRA officers with the crime of sexual enslavement, active participation in and enforcement of a criminal policy of sexual enslavement must be proven. Although proof of other commanders’ involvement emerged later, this was not adequately developed until after prosecutors submitted their evidence to judges and requested arrest warrants, she said.



Rights groups have also called for further charges to be brought against Lubanga, condemning the decision to charge the militia leader solely in relation to the use of child soldiers, and urging prosecutors to investigate killings, rape and torture which they say have been perpetrated by all armed groups in DRC.



Out of the same set of investigations in the Ituri district of DRC, Lubanga’s deputy, Bosco Ntaganda, was also charged with similar crimes to his chief – enlisting, conscripting and using child soldiers to fight in the UPC. Like Lubanga, he was not charged with crimes of sexual violence.



Inder told IWPR that the first series of investigations in Ituri failed to bring charges for rape and other forms of sexual violence committed by militia groups because they were poorly conducted and lacked rigour.



“The first investigations did not follow up on leads of sexual violence, rape and sexual enslavement and failed to develop community relationships with local women's NGOs who could have facilitated access to victims and witnesses,” she said.



She pointed out that the DRC is known internationally as having amongst the highest rates of sexual violence crimes in the world.



“We documented over 112 cases of gender-based crimes in Ituri, of which 31 interviews related to the commission of sexual violence by the UPC,” she said.



Inder told IWPR that her team shared this evidence with prosecutors in August 2006, and passed on contacts of women willing to be interviewed, who were able to identify commanders involved in attacks, and testify about the scale of the sexual violence committed.

“[Prosecutors] ignored the information and have never investigated gender-based crimes committed by the UPC,” said Inder.

Former DRC investigators said their teams were keen to investigate sexual violence and identify new leads within the confines of the incidents they were tasked with investigating.



“We knew that during killings, rapes happened [but] the idea was that the first ICC trial could not fail. To organise a good trial, the prosecutor selected child soldiers as the only charge against Lubanga and to drop the others… against the will of many investigators,” said a former investigator.



But Bernard Lavigne, who worked as an investigator on the Lubanga case – the future of which is now uncertain following judges’ ruling that prosecutors were guilty of malpractice in their handling of evidence – said prosecutors had to proceed with the charges for which they had the strongest evidence.



“To organise a good trial with solid evidence and witnesses, the prosecutor selected the recruitment and use of child soldiers as the only charge against Lubanga, and decided to postpone other charges,” he said.



He added that the evidence collected relating to killings and sexual violence did not meet the necessary legal threshold for bringing charges.



While former investigators told IWPR that they understood the concerns of pressure groups, they said that evidence emerged to suggest that within Lubanga’s UPC, rapes were opportunistic, not ordered by commanders, and that perpetrators were punished.



“Nothing was found in our investigations to confirm that orders were given to humiliate through rape. If we’d found leads, we would have immediately investigated further,” said one former investigator.



Chung cited the particular difficulties involved in investigating and pursuing sexual violence charges in the DRC.



“Finding the victims who can help you link the highest commanders to the rapes and enslavement that happened at the times and places that are the focus of the investigation is very difficult,” she said.



Former investigators agree that sexual violence crimes are extremely difficult to prove because victims are often reluctant to testify.



Rape victims, who are stigmatised by their communities following an attack, can often suffer further by testifying. They could also be at risk of retributive violence from the militias or government troops against which they give evidence.



“Protecting sexual violence victims… has special complications because they are highly identifiable. In the DRC, the perpetrators and their friends are still active,” said Chung.



Chung said that other investigations in the DRC – into the National Integrationist Front, FNI, militia headed by Germain Katanga and Mathieu Ngudjolo Chui – had led to charges of sexual violence crimes.



Following arrest warrants issued in July, judges confirmed in September that there was enough evidence to support sexual slavery and rape charges against both men for crimes committed during an attack on Bogoro in February 2003.



Chung, who was one of the prosecutors directing this investigation, said that from the outset, the aim was to try to include sexual violence crimes in the application for arrest warrants.



“We conducted missions specifically devoted to interviewing sexual violence victims and we were helped a lot by NGOs who were willing to share information,” she said.



Le Fraper du Hellen said that overall, she and her colleagues were satisfied that they had properly emphasised sexual violence investigations and succeeded in bringing representative charges.



Chung agreed, saying, “Overall, I believe the [office of the prosecutor] has done well in making sexual violence a priority and bringing charges that represent the scope of sexual violence.”



“Sexual violence crimes are adequately represented, and ICC cases reflect more representation [of crimes committed] than has been achieved at any of the other tribunals. Of course they will continue to build on lessons learned.”



SEXUAL VIOLENCE CHARGES TOO LIMITED



Many commentators still maintain that the ICC should not only bring greater numbers of sexual violence charges against suspects, but also charge them with more specific crimes. They say that this is possible under the court’s founding Rome Statute, in which sexual slavery, enforced prostitution, forced pregnancy and enforced sterilisation have been set out as prosecutable offences for the first time under international law.



Nowrojee told IWPR that the term “rape” does not adequately capture the range of violations directed at women. She said that prosecutors must take a broader approach to prosecuting various types of sexual violence, not just rape in the narrow sense of vaginal penetration.



“Prosecutors need to have a clearer sense of where the line is drawn between rape versus sexual mutilation, sexual slavery, enslavement and forced marriage,” she said.



However, Chung says that instead of pushing for more varied sexual crimes charges to be brought at this stage, campaigners should instead be calling for the arrest of war crimes fugitives wanted by ICC. Currently only four ICC indictees – out of a total of 12 – are in custody in The Hague.



“The problem needing desperate attention is the fact that not even one of the LRA’s sexual violence victims is likely to have a day in court. Victims should be advocating for arrest and trial rather than seeking to add allegations to a piece of paper that, as any good prosecutor should tell you, proves nothing by itself,” she said.



“In the LRA case, we can add more charges, including a sexual violence charge, if someone gets arrested.”



Le Fraper du Hellen said that her team would not hesitate to bring additional charges against the LRA commanders once the suspects are brought to court, if there is evidence to support this.



She added that prosecutors were following with interest the ground-breaking work of their counterparts at the Special Court for Sierra Leone, SCSL, who are the first to charge suspects with forced marriage, saying this crime accurately described the experience of Sierra Leonean women kidnapped by soldiers and rebel groups.



Observers say this charge could adequately reflect the experience of girls conscripted into militias during other conflicts, including the LRA insurgency.



Le Fraper Du Hellen said at the time when the arrest warrant application was made in the LRA case, prosecutors knew the LRA called the girls “wives”, but this was not evidence that forced marriage had taken place. Yet she added that ICC prosecutors now had more evidence in their files, leaving open the possibility that the further charges, including that of forced marriage, could be brought following the arrest of the suspects.



ADVANCES MADE IN TACKLING SEXUAL VIOLENCE CRIMES



Prosecutors at the court argue that they are working hard to support investigators pursuing evidence of sexual violence crimes.



In August 2004, they set up a dedicated Gender and Children’s Unit to advise investigators and trial lawyers how to investigate and prosecute crimes of sexual violence.



The head of the unit, Gloria Atiba-Davies, said her team is involved from the analysis stage when the court receives information from states, the international community or NGOs about grave crimes of sexual violence. The unit offers investigators training before they are deployed, and organises cultural awareness sessions for each particular country.



ICC prosecutors say that since the court was established, they have made great progress in pursing sexual crimes, and point out that the charging strategy has become stronger and more descriptive.



A major step forward came in July, when ICC prosecutors asked judges to indict Sudanese president Omar al-Bashir for conducting genocide in Darfur, in part through a campaign of rape – the first time the court has attempted to prosecute the crime in this way.



Prosecutors accused al-Bashir of organising the destruction of the Fur, Zaghawa and Masalit communities in Darfur through rape, fear and hunger. Three months earlier, ICC judges issued arrest warrants for Sudanese minister Ahmed Harun and janjaweed militia leader Ali Kushayb, for 51 counts of war crimes and crimes against humanity, including the charge of rape.



To prosecute rape as genocide, prosecutors need to prove the intention to destroy a group in whole or in part. Le Fraper du Hellen said that rape was an integral part of attacks on Fur, Masalit and Zaghawa villages.



In their application to judges for an arrest warrant against al-Bashir, prosecutors sought to show that rape was systematic.



“[Government-backed janjaweed] didn’t need to kill people in the camps, but surround the camps and wait for the women to come outside, and rape them and let them go back to tell the stories. Over five years, they can destroy the group,” said Le Fraper du Hellen.



“This is systematic targeting of a specific group, and shows the intent to destroy.”



Sexual violence charges also feature heavily in the indictment of former DRC vice-president Jean-Pierre Bemba, who is charged with six counts of crimes against humanity and war crimes, including rape, in relation to events in CAR.



Bemba, the latest suspect to be indicted at the ICC, is accused of orchestrating rape as a crime against humanity and a war crime; torture; and outrages upon personal dignity, in particular humiliating and degrading treatment, again in relation to sexual violence.



Inder said that these are strong charges, and when considered in tandem with the explicit charges of rape as a crime in and of itself, they reflect both the purpose and impact of the use of sexual violence in the armed conflict.



Le Fraper du Hellen said that during the CAR investigation, prosecutors overcame an initial hesitancy to initiate a case which featured more sexual violence charges than killings.



Although preliminary evidence gathered from local NGOs and international organisations showed a massive campaign of rape, analysts and investigators were not initially certain whether the rapes and sexual violence crimes committed were numerous enough and grave enough to constitute crimes against humanity and war crimes.



Prosecutors, apparently, had no hesitation, based on the evidence, that the campaign of rape met the necessary legal threshold, according to Le Fraper du Hellen.



They worked with community groups in the country to show that prosecuting rape was high on the ICC’s agenda.



“When [Chief Prosecutor Luis Moreno-Ocampo] visited CAR, some women’s associations wanted to show him mass graves, but he was interested in how rape was dealt with and whether records of the attacks were kept,” she said.



Prosecutors say they are proud of their decision to prosecute rape extensively in relation to CAR, recognising that in certain circumstances the crime is also an act of torture and an outrage upon personal dignity.



“Rape of a little girl for one hour in a village is rape, and it is torture. A local leader raped for a very long time and publicly is a case of rape requiring additional charges of torture and outrages upon personal dignity,” said Le Fraper du Hellen.



INCREASED COOPERATION WITH LOCAL COURTS



As investigators prepare to launch their long-awaited investigation in North and South Kivu in the east of DRC, they are planning an initiative which will see them work with local courts to support sexual violence prosecutions of lower-level suspects.



Observers say this decision to cooperate with the local judiciary is long overdue.



A recent survey by the International Centre for Transitional Justice, Berkeley University's Human Rights Centre and the Payson Centre for International Development confirmed the prevalence of sexual violence as a tool of conflict in the Kivus.



Moreno-Ocampo said that ICC investigations of these crimes will aim to support the national justice system by sharing evidence with local judges.



As the court’s investigators gather evidence against those believed to be most responsible for the most serious crimes, they will also identify lower-level suspects and build up dossiers of evidence against them for use in local trials.



Announcing this new strategy at a gender justice conference in The Hague in July, prosecutors acknowledged there would be associated problems, including how to go about protecting witnesses.



In spite of this, investigators say this should have been implemented sooner.



Lavigne said it was a “mistake” not to hand over to the local judiciary evidence of sexual violence crimes gathered in the Lubanga investigation, after ICC prosecutors decided to focus exclusively on charges relating to child soldiers.



“It is a pity that we didn’t hand over evidence [so local courts could organise sexual violence trials],” he said. “Thanks to our resources, we collected forensic evidence that could have been useful for them, but the prosecutors were not interested in handing it over.”



But prosecutors said that safety and security were sticking points, and stressed that handing over evidence would require enhanced protection for witnesses and the judiciary.



“[An] assessment [is required] to decide whether and how to turn information over to national authorities. There are usually concerns about witness protection, for example,” said Chung.



The Congolese justice system is in dire need of help, with both the military and civilian branches plagued by lack of resources, corruption and insufficient independence from government.



Lavigne says a relationship with the ICC could raise the standard of local trials, and persuade renegade militias and corrupt government officials to start respecting the rule of law.



However, other former investigators say any arrangement must be carefully planned to avoid already over-stretched ICC investigative teams being spread even more thinly.



Katy Glassborow is an IWPR international justice reporter in The Hague.