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The Prosecutor's Obligation to Investigate Incriminating and Exonerating Circumstances Equally: Illusion or Reality?

Published online by Cambridge University Press:  24 January 2014

CAROLINE BUISMAN
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Abstract

This article examines whether the ICC Prosecutor has complied with its statutory obligation under Article 54(1)(a) of the Rome Statute to investigate incriminating and exonerating circumstances equally. By way of a number of striking examples of deficient investigations, it demonstrates that the ICC Prosecutor has so far failed to comply with this obligation. As a matter of competence and diligence, the Prosecutor is expected to conduct thorough investigations: this requires a critical assessment of each case and the supporting evidential material. An examination of the pending ICC cases shows that the Prosecutor has not met this expectation. The investigations conducted in all of these cases have been incomplete as far as both incriminating and exonerating circumstances are concerned. This article, however, also suggests that the defence is in a better position to search for exonerating evidence than the Prosecutor, and questions whether Article 54(1)(a) can be applied effectively under any conditions.

Keywords

Article 54(1)(a)ICC investigationsconfirmation hearingexonerating and incriminating circumstancescompetent and diligent Prosecutor
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals: Symposium: Expertise, Uncertainty, and International Law (Part 2)
Information
Leiden Journal of International Law , Volume 27 , Issue 1 , March 2014 , pp. 205 - 226
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 Article 54(1)(a) provides: ‘In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally’.

2 Cassese, Antonio, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, (1999) 10 European Journal of International Law, 168Google Scholar.

3 Bergsmo, M. and Krueger, P., ‘Article 54’, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article (2008), 1077Google Scholar.

4 Vol. 1 of the Report of the Preparatory Commission on the Establishment of an International Criminal Court, UN Doc. A/51/22, Proposal II.B.5 and 6, 113–14. For a similar explicit legal obligation on the prosecution to search for incriminating and exonerating evidence equally, see, for instance, Germany: § 160(2) Strafprozeßordnung (StPO). See Bohlander, M., ‘Basic Concepts of German Criminal Procedure: An Introduction’ (2011) 26 Durham Law Review 1Google Scholar, at 9. See also the Netherlands: Beijer, A., ‘34 Bewijs’, in Boksem, J. (ed.), Handboek Strafzaken (2006)Google Scholar, 34.1.4 Strategy of the Accused and Counsel. See also Arts. 50–4 quater of the Italian Criminal Code of Procedure.

5 J. Sprack, A Practical Approach to Criminal Procedure (2008), paras. 9.13–15.

6 ABA Formal Opinion 09–454 ‘Prosecutor's Duty to Disclose Evidence and Information Favorable to the Defense’, July 8, 2009, fn. 27:

Rules 1.1 and 1.3 require prosecutors to exercise competence and diligence, which would encompass complying with discovery obligations established by constitutional law, statutes, and court rules, and may require prosecutors to seek evidence and information not then within their knowledge and possession.

7 See comment [3] to Rule 1.13 (‘Client--Lawyer Relationship’) of the Model Rules, ibid. Available at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_13_organization_as_client/comment_on_rule_1_13.html. See also ABA Formal Opinion 95–396, July 1995: ‘[A]ctual knowledge may be inferred from the circumstances. It follows, therefore, that a lawyer may not avoid [knowledge of a fact] simply by closing her eyes to the obvious’. And ABA Formal Opinion 09–454 ‘Prosecutor's Duty to Disclose Evidence and Information Favorable to the Defense’, July 8, 2009, at 6: ‘Rule 3.8(d) ordinarily would not require the prosecutor to conduct further inquiry or investigation to discover other evidence or information favourable to the defence unless he was closing his eyes to the existence of such evidence or information.’

8 ABA Standards for Criminal Justice, Prosecution Function, Standard 3–3.11(c) (1993): ‘A prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage the prosecution's case or aid the accused’.

9 In the absence of an explicit legal obligation on prosecutors in common-law jurisdictions to search for exonerating information, let alone to equally incriminating information, defendants, however, are in a much weaker position to seek an effective remedy in respect of a prosecutor's failure to produce such evidence if undiscovered. Indeed, not only is the ethical obligation not firm but it rather depends on the circumstances of the case; ethical rules are ‘disciplinary rules, not statutes’, and as such, do not have the force of law and do not bind the courts ‘to implement the will of the Legislature’ (Mena v. Key Food Stores Co-Op Inc., 195 Misc.2d 402, 404 (2003)). Accordingly, ethical obligations are generally not treated in the same way as legal obligations. For instance, the collection of evidence in violation of a statutory obligation much likelier leads to the exclusion of the evidence than the collection of evidence in violation of an ethical obligation. See, e.g., Gidatex v. Campaniello Imports Ltd, 82 F.Supp.2d 119, 126 (S.D. NY District Court 1999).

10 Rule 68 of the ICTR/ICTY/SCSL Rules of Procedure and Evidence places a burden on the prosecution to disclose to the defence, as soon as practicable, ‘any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence’.

11 In each international criminal tribunal and court, there have been multiple debates between defence counsel and the Registry concerning the adequacy of the defence budget. In the ICTR, in November 2003, financial disagreements have even led to strikes of the accused as well as their lawyers (the author of this article was part of a defence team at the ICTR when this occurred). Recently, multiple rounds of discussions took place between ICC state parties, the ICC Registry and defence counsel about necessary cuts in the legal aid budget. These discussions resulted in a significant decrease of the ICC legal aid budget in March 2012. See internal ICC documents, on file with the author.

12 As stated in ibid., the already limited legal aid budget was cut drastically in March 2012. This decrease principally resulted in a cut in the salaries of members of defence teams and victim representatives. After heavy negotiations with defence counsel, the defence investigation budget has remained untouched. However, until now, there was significant leeway to request additional funds in conducting investigations, provided such request was justified. The defence in Lubanga and Katanga and Ngudjolo sought and received further funds on at least two occasions. With the budget limitations, it is questionable whether such requests will be approved in the future. See internal ICC documents, on file with the author.

13 For instance, in the Democratic Republic of Congo (DRC), the Prosecutor opened an investigation on 23 June 2004 – http://www.icccpi.int/en_menus/icc/press%20and%20media/press%20releases/2004/Pages/the%20office%20of%20the%20prosecutor%20of%20the%20international%20criminal%20court%20opens%20its%20first%20investigation.aspx). The Prosecutor's initial focus was on Ituri, a region in East Congo. Nearly two years had passed before Lubanga, the first suspect from that part of DRC, was transferred to The Hague. He arrived on 16 March 2006 and was assigned duty counsel (who then became his permanent counsel for over a year) on 20 March 2006 (Registrar's Appointment of Mr Jean Flamme as duty counsel for Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-40). The second suspect from Ituri, Katanga, was transferred to The Hague on 17 October 2007 and assigned permanent counsel on 23 November 2007 (Enregistrement de la designation de Maître David Hooper par M. Germain Katanga comme son conseil et des declarations relatives à cette designation, ICC-01/04-01/06-40), more than three years after the Prosecutor opened an investigation. For Ngudjolo, this was even longer. He was transferred on 7 February 2008 and assigned permanent counsel on 11 February 2008 (Enregistrement de la prorogation du mandat de Maître Jean-Pierre Kilenda Kakengi Basila en qualité de conseil de permanence de M. Mathieu Ngudjolo Chui, ICC-01/04-01/07-277).

14 Governments are often reluctant to offer the same services to the defence as to the prosecution. For instance, members of the Katanga defence team, including this author, were refused access to potential defence witnesses detained in the Kinshasa central prison. This refusal lasted two weeks and was repeated on a subsequent mission. The defence raised this before the Trial Chamber: Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Transcript, ICC-01/04-01/07-T-56-ENG, 3 February 2009, at 49–51. See also: Katanga Defence Request for Leave to Meet Four Defence Witnesses in The Hague Prior to Their Testimony, ICC-01/04-01/07-2709-Red, 17 February 2001; and ICC-01/04-01/07-2755-Red, Décision sur la requête de la Défense de Germain Katanga aux fins d'être autorisée à rencontrer des témoins à La Haye (article 64–6-f du Statut), 4 March 2011. In Kenya, on the other hand, the prosecution alleges that the government does not provide adequate co-operation, in particular since the defendants have been elected president and vice president of the country. See, e.g., Statement by ICC Prosecutor on the Notice to Withdraw Charges against Mr Muthaura, 11 March 2013, available at: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/OTP-statement-11–03–2013-aspx.aspx; and ICC-01/09-01/11-730-Red, Prosecution Response to the ‘Government of Kenya's Submissions on the Status of Cooperation with the International Criminal Court, or, in the alternative, Application for Leave to File Observations Pursuant to Rule 103(1) of the Rules of Procedure and Evidence’ (ICC-01/09-01/11-670), 10 May 2013. Whatever is true of that allegation, it is noteworthy that, at the time of the confirmation and a significant period of time thereafter, it was the Prosecutor's expressed view that the government of Kenya was fully co-operating. See ICC, Prosecutor Fatou Bensouda, Statement at the Press Conference at the Conclusion of Nairobi Segment of ICC Prosecutor's Visit to Kenya, Nairobi, available at http://www2.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/otpstatement251012. See also Luis Moreno-Ocampo, Address to the Assembly of States Parties, Ninth Session of the Assembly of States Parties, Speech, New York, 4 (6 December 2010).

15 For instance, in Kenya, the Prosecutor received a 518-page report, as well as thousands of pages of supporting materials collected over the course of nearly a year and a half by the Kenyan Commission of Inquiry into the Post-Election Violence (also known as the ‘Waki Commission’) (see http://www.icc-cpi.int/menus/icc/situations%20and%20cases/situations/situation%20icc%200109/press%20releases/pr439). In addition, the OTP benefited from detailed reports compiled by the Kenyan National Commission on Human Rights (‘KNCHR’) (KNCHR, On the Brink of the Precipice: A Human Rights Account of Kenya's Post-2007 Election Violence (15 August 2008) (EVD-PT-OTP-00001_KEN-OTP-0001–0002), available at: http://www.knchr.org/Portals/0/Reports/KNCHR_REPORT_REPORT_ON_THE_BRINK_OF_THE_PRECIPE.pdf.), as well as by other human rights organizations such as Human Rights Watch (‘HRW’) (see for instance ICC-01/09-01/11-355 (24 October 2011)).

16 The author has personally experienced difficulties in securing co-operation from the UN or NGOs. See also C. Buisman, ‘The Ascertainment of the Truth in International Criminal Justice’ (PhD, 2012), 186–206, available online at: http://bura.brunel.ac.uk/bitstream/2438/6555/1/FulltextThesis.pdf. See also Buisman, C, ‘Defence and Fair Trial’, in Haveman, R., Kavran, O., and Nicholls, J. (eds.), Supranational Criminal Law: A System Sui Generis (2003), 198Google Scholar.

17 Bergsmo, M. and Krueger, P., ‘Duties and Powers of the Prosecutor’, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), 715Google Scholar at 716.

18 On 21 November 2012, the Chamber severed the cases of Ngudjolo and Katanga and notified Katanga of a possible change of modes of liability. See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-3319, Décision relative à la mise en oeuvre de la Norme 55 du Règlement de la cour et prononçant la disjonction des charges portées contre les accusés, 21 November 2012. A translation into English was issued on 17 December 2012. See ICC-01/04-01/07-3319-tENG/FRA, Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons, 17 December 2012 (Regulation 55 Decision). Within a month of this severance, the Chamber acquitted Ngudjolo on all charges. See Prosecutor v. Mathieu Ngudjolo, ICC-01/04-02/12-3, Jugement rendu en application de l'article 74 du Statut, 18 December 2012 (Ngudjolo Judgment).

19 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Transcript, ICC-01/04-01/07-T-81-Red-ENG, 25 November 2009 (Testimony of Katanga chief of investigations), at 16–17. This is in line with the interpretation given by the ICTR Appeals Chamber to the Prosecutor's duty to disclose exculpatory evidence, requiring him to disclose any document that is ‘potentially’ exculpatory even if questionable whether it is actually exculpatory (Prosecutor v. Kalimanzira, Appeal Judgment, Case No. ICTR-05-88, AC, 20 October 2010, para. 20). The jurisprudence of the ad hoc tribunals has further determined that potentially exculpatory material includes material which may suggest the innocence or mitigate the guilt of the accused, or affect the credibility of prosecution witnesses (Prosecutor v. Casimir Bizimungu et al., Trial Judgment and Sentence, Case No. ICTR-99–50-T, TC, 30 September 2011, para. 145).

20 Testimony of Katanga chief of investigations, with at 34.

21 Ibid., at 17.

22 Ibid., at 11–20, 26.

23 At the time of this writing, a confirmation hearing has been scheduled in the case of Ntaganda. This case is not subject to review in this paper because the confirmation hearing has not taken place yet even if the proceedings have started.

24 The author has been unable to identify many debates on Article 54(1)(a) from the Bemba trial. More issues may have been raised, but this is difficult to verify in light of the fact that a large part of the Bemba proceedings is held in closed session.

25 It is noteworthy that, on 21 April 2013, the defence notified the Chamber of the death of Mr Saleh Mohammed Jerbo Jamus (see Public Redacted Version of ‘Defence Notification of the Death of Mr Saleh Mohammed Jerbo Jamus’, ICC-02/05-03/09-466-Red). On 6 May 2013, the Prosecutor responded that, until Mr Jerbo's death is confirmed, the case against him should remain open (see Public Redacted Version of the Confidential Prosecution's Observations Regarding the ‘Defence Notification of the Death of Mr. Saleh Mohammed Jerbo Jamus’, ICC-02/05-03/09-471-Red). At the time of this writing, no public decision has been issued on the matter yet. Thus, the case is still pending against both defendants.

26 Press release: ‘ICC Judges in Case against Katanga and Ngudjolo Chui Visit Ituri’, ICC-CPI-20120127-PR765. The author participated personally in this judicial site visit.

27 This visit included Luis Moreno-Ocampo and a few others but nobody from the actual prosecution team in the case of Katanga and Ngudjolo. See DRC-OTP-1063-0002, EVD-D03–00101, EVD-D03–00102 (Prosecution Video about Ocampo visit to Zumbe, 10 July, 2009, exhibited in the Ngudjolo and Katanga trial).

28 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Second Corrigendum to the Defence Closing Brief, 23 April 2012 (Katanga Closing Brief), paras. 450–2; Transcript (Katanga Final Oral Submissions), ICC-01/04-01/07-T-338-CONF-ENG, 21 May 2012, at 75–6; as confirmed by the testimony of Katanga chief of investigations, supra note 19, at 65–6.

29 Katanga Closing Brief, para. 453; as confirmed by the testimony of Katanga chief of investigations, supra note 19, at 68.

30 Katanga Closing Brief, paras. 454–458; as confirmed by the Testimony of Katanga chief of investigations, supra note 19, at 21, 40, 57, and 64.

31 Ngudjolo Judgment, supra note 18, paras. 117, 118.

32 EMOI stands for Etat-major opérationnel intégré, which was a military structure based in Beni, set up by the Kinshasa government. For further details, see Katanga Closing Brief, paras. 602–639.

33 Katanga Closing Brief, para. 459; Testimony of Katanga chief of investigations, supra note 19, at 70, 73. It is noteworthy that the two defence teams took a different position as to whether Uganda was involved in the Bogoro attack. Only the Ngudjolo defence takes the view that the Ugandans were directly involved; all the more reason for the prosecution to interview Ugandan officers about the allegations against them.

34 Katanga Closing Brief, paras. 602–639.

35 Ngudjolo Judgment, supra note 18, para. 119, mentioning amongst others Colonel Aguru, who was part of EMOI, and Blaise Koka, who was an APC captain.

36 Testimony of Katanga chief of investigations, supra note 19, at 20–1.

37 Ngudjolo Judgment, supra note 18, paras. 122, 123.

38 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Order on the ‘Urgent Defence Motion for Cooperation of the DRC’, ICC-01/04-01/07-2019-Conf-Exp-Red, 23 April 2010; and Décision relative à la seconde requête de la Défense de Germain Katanga visant à obtenir la coopération de la République démocratique du Congo, ICC-01/04-01/07- 2619-Red 17 August 2011.

39 Prosecutor v. William Samoei Ruto et al., Transcript, ICC-01/09-01/11-T-6-Red-ENG, 02 September 2011, at 116.

40 This point was made by the Ruto defence: Prosecutor v. William Samoei Ruto et al., Transcript, ICC-01/09-01/11-T-5-ENG, 01 September 2011, at 91.

41 Prosecutor v. Francis Kirimi Muthaura et al., Muthaura Confirmation Brief, ICC-01/09-02/11-374-Red, 2 December 2011 (Muthaura Confirmation Brief), paras. 71–72. The defence submitted evidence in support of this allegation: EVD-PT-D12-00063 at para. 2; EVD-PT-D12–00062 at para. 13; EVD-PT-D12–00088 at para. 2; EVD-PT-D12–00054 at para. 6; EVD-PT-D12-00053 at para. 5.

42 Prosecutor v. Francis Kirimi Muthaura et al., Ali Confirmation Brief, ICC-01/09-02/11-373-Red, 2 December 2011 (Ali Confirmation Brief), para. 23 citing: ICC-01/09-02/11-T-5-CONF-ENG, at 41, 42 (all three NSIS reports referenced had corresponding Situation Reports sent from General Ali to his PPOs).

43 Ibid., para. 27.

44 Ibid., para. 27.

45 Ibid., paras. 27–30, 46.

46 Prosecutor v. Laurent Gbagbo, Transcript, ICC-02/11-01/11-T-19-Red-ENG, 26 February 2013, at 22–3.

47 Ibid., at 22–3.

48 Prosecutor v. Laurent Gbagbo, Public Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 03 June 2013, para. 44(6).

49 Prosecutor v. Laurent Gbagbo, Transcript, ICC-02/11-01/11-T-18-Red-ENG, 25 February 2013, at 27–8.

50 Prosecutor v. Laurent Gbagbo, Transcript, ICC-02/11-01/11-T-16-Red-ENG, 21 February 2013, at 43–4; ICC-02/11-01/11-T-18-Red-ENG, 25 February 2013, at 49–50; ICC-02/11-01/11-T-19-Red-ENG, 26 February 2013, at 29–30; ICC-02/11-01/11-T-20-Red-ENG, 27 February 2013, at 59.

51 Prosecutor v. Laurent Gbagbo, Public Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013, para. 44(5).

52 Prosecutor v. Laurent Gbagbo, Transcript, ICC-02/11-01/11-T-15-Red-ENG, 20 February 2013, at 16–17.

53 Prosecutor v. Laurent Gbagbo, Transcript, ICC-02/11-01/11-T-15-Red-ENG, 20 February 2013, at 16–21; ICC-02/11-01/11-T-18-Red-ENG, 25 February 2013, at 28–9; ICC-02/11-01/11-T-19-Red-ENG, 26 February 2013, at 10–12.

54 Prosecutor v. Charles Pierre Bemba, Transcript, ICC-01/05-01/08-T-98-Red-ENG, 11 April 2011, at 31–5, 66–8.

55 Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Defence Request for a Temporary Stay of Proceedings, ICC-02/05-03/09-274, 06 January 2012, para. 2.

56 Ibid., paras. 37–39.

57 Ibid., para. 100.

58 Ibid., para. 100.

59 Ibid., paras. 155, 156, and 159.

60 Indeed, without visiting the crime scenes, the parties miss the opportunity to meet with the witnesses closest to the events.

61 See Observations of the United Nations High Commissioner for Human Rights invited in Application of Rule 103 of the Rules of Procedure and Evidence, ICC-02/05-19, 10 October 2006; Observations on Issues Concerning the Protection of Victims and the Preservation of Evidence in the Proceedings on Darfur Pending before the ICC, ICC-02/05-14, 1 September 2006. See also Cassese, Antonio, ‘Is the ICC Still Having Teething Problems?’, (2006) 4 JICJ 434Google Scholar.

62 Prosecutor v. Thomas Lubanga, No. ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute, 14 March, 2012 (Lubanga Judgment), paras. 160–161, 172–174, 480, 482; ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 18 November, 2010, 17–20, 32–4; Katanga Closing Brief, supra note 28, paras. 27, 32–36, 60–68, 156, 166–171.

63 Ibid.

64 ICC-01/04-01/06-2690-Red2, paras. 124, 128, 8 March, 2011; citing prosecution confidential filing ICC-01/04-01/06-2678, paras. 14, 18. See also ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 16 November 2010, 48–52.

65 In the Ngudjolo Judgment, the Chamber duly noted that it was the defence, rather than the prosecution, which produced documentary evidence relating to the correct age and military status of the prosecution witnesses. See Ngudjolo Judgment, supra note 18, para. 121.

66 Lubanga Judgment, supra note 62, paras. 478–484; Ngudjolo Judgment, supra note 18, para. 203 (P-280), paras. 177–180 (P-279), paras. 234–237 (P-28).

67 See Regulation 55 Decision, supra note 18, para. 39: where the Chamber gave the Katanga advance notice that it intends not to rely on witnesses P-219 and P-250, which it subsequently confirmed in the Ngudjolo Judgment, supra note 18, paras. 157–159 (P-250), 281–283 (P-219). This judgment also identifies P-279 and P-280 as unreliable witnesses common to both defendants (paras. 189–190, 281–283), and P-28 as a witness whose credibility is diminished (paras. 251–254).

68 For instance, the Ruto defence argued that evidence of Ruto's absence at alleged meetings because he was elsewhere was readily available. See: Prosecutor v. William Samoei Ruto et al., William Samoei Ruto Defence Brief Following the Confirmation of the Charges Hearing, ICC-01/09-01/11-355, 24 October 2011 (Ruto Defence Brief), para. 7; and oral submissions, Transcript, ICC-01/09-01/11-T-6-Red-ENG, 2 September 2011, 62–72.

69 See supra note 14. This was one of the arguments of the defence in support of its claim that the prosecution failed to investigate properly. See, for instance, Transcript, ICC-01/09-01/11-T-12-ENG, 8 September 2011, 41–5. See also Muthaura Confirmation Brief, supra note 41, paras 71–72. The Kenyan government insists that, even today, it fully co-operates with the ICC, a position shared by the defence. See, e.g., ICC-01/09-01/11-670, Government of Kenya's Submissions on the Status of Cooperation with the International Criminal Court, or, in the alternative, Application for Leave to File Observations Pursuant to Rule 103(1) of the Rules of Procedure and Evidence, 8 April 2013; ICC-01/09-01/11-727-Red, Public Redacted Version of ‘Defence Response to the Government of Kenya's Observations Pursuant to Rule 103(1) of the Rules of Procedure and Evidence on the Status of Cooperation with the International Criminal Court’, 8 May 2013; and ICC-01/09-01/11-729, Sang Defence Response to Submissions by the Government of the Republic of Kenya, 8 May 2013.

70 Defence oral submissions, transcript, ICC-02/05-02/09, 30 October 2009, 70–1.

71 ICC-02/05-02/09-243-Red, 8 February 2010, paras. 46–47.

72 Prosecutor v. Bahar Idriss Abu Garda, Decision on Witness to be Called by the Defence at the Confirmation Hearing, ICC-02/05-02/09-186, 19 October 2009.

73 Ruto Defence Brief, supra note 68, para. 20.

74 Ibid., para. 19; relying on EVD-PT-OTP-00464; -00433; -00434; -00463; -00464.

75 Ibid., para. 19; relying on EVD-PT-D09–00048.

76 Ibid., paras. 19–21; Joshua Arap Sang Defence Brief Following the Confirmation of Charges Hearing, ICC-01/09-01/11-354, 24 October 2011, paras. 34–35.

77 Ruto Defence Brief, supra note 68, para. 22.

78 Ibid., para. 23.

79 Prosecutor v. . Laurent Gbagbo, Transcript, ICC-02/11-01/11-T-19-Red-ENG, 26 February 2013, at 12.

80 Ibid., at 19.

81 Ibid., at 30.

82 Prosecutor v. Laurent Gbagbo, Public Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 03 June 2013, para. 44(6).

83 Prosecutor v. Mbarushimana, Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 51.

84 Ibid.

85 Ibid., para. 255.

86 Ibid., para. 255.

87 Ibid., paras. 248 and 257.

88 Ibid., para. 51.

89 Prosecutor v. Callixte Mbarushimana, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled ‘Decision on the confirmation of charges’, ICC-01/04-01/10-514, AC 30 May 2012 (Mbarushimana Appeal Judgment).

90 Lubanga Judgment, supra note 62, 63–220.

91 Ibid., 101–220; also Redacted Decision on the ‘Defence Application Seeking a Permanent Stay of the Proceedings’, ICC-01/04-01/06-2690-Red2, 8 March 2011; Redacted Decision on Intermediaries, ICC-01/04-01/06-2434-Red2, 31 May 2010.

92 Ngudjolo Judgment, supra note 18, 117–23.

93 Ibid., paras. 157–159 (P-250), 189–190 (P-279), 218–219 (P-280), 254 (P-28), 281–283 (P-219).

94 See, for instance, J. Easterday, ‘Ngudjolo Acquitted by ICC’, 18 December 2012:

Trial Chamber I in the trial of Thomas Lubanga, the first ICC judgment, harshly criticized the prosecution for the quality of its evidence and its charging strategy. Although the judges in this case did not make any overt criticisms of the prosecution, this decision is a blow to the legacy of the first ten years of the ICC's Office of the Prosecutor (OTP). It suggests that the new prosecutor, Fatou Bensouda, will need to make significant changes to the OTP's prosecution and investigation procedures in order to preserve the integrity of the court.

Available at: http://www.katangatrial.org/2012/12/ngudjolo-acquitted-by-icc.

95 Prosecutor v. Callixte Mbarushimana, Prosecution's Document in Support of Appeal against the ‘Decision on the Confirmation of Charges’ (ICC-01/04-01/10-465-Red, ICC-01/04-01/10-499-Corr, 12 March 2012).

96 Mbarushimana Appeal Judgment, supra note 89.

97 Prosecutor v. William Samoei Ruto et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-373-Red, 23 January 2012 (Ruto Confirmation Decision), para. 51; Prosecutor v. Francis Kirimi Muthaura et al., Decision on the Confirmation of Charges Pursuant to Article 67(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012 (Muthaura Confirmation Decision), para. 63.

98 Prosecutor v. Bahar Idriss Abu Garda, Pre-Trial Chamber I, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, 8 February 2010, para. 48; Ruto Confirmation Decision, paras. 51–52; Muthaura Confirmation Decision, ibid., paras. 63–64.

99 Judge Kaul Dissenting Opinion to: Ruto Confirmation Decision, ibid., supra note 97, 50–51, citing: Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence’, ICC-01/04-01/06-568, AC, 13 October 2006 (Lubanga Disclosure Appeal Judgment), para. 54.

100 Judge Kaul Dissenting Opinion to: Ruto Confirmation Decision, supra note 97, para. 52.

101 Judge Kaul Dissenting Opinion to: Muthaura Confirmation Decision, supra note 97, para. 62.

102 Lubanga Disclosure Appeal Judgment, supra note 92, para. 54 (acknowledging that the Prosecutor may continue his investigation beyond the confirmation hearing, but stating that ‘ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing’). See also Mbarushimana Appeal Judgment, supra note 89, para. 44.

103 Prosecutor v. Uhuru Muigai Kenyatta, Trial Chamber, Decision on Defence Application Pursuant to Article 64(4) and Related Requests, ICC-01/09-02/11-728, 26 April 2013, paras. 118–125, at 119.

104 Ibid., at para. 119.

105 Ibid., at para. 121.

106 Ibid., at para. 121.

107 Ibid., at para. 125. See also the Concurring Opinion of Judge Christine Van Den Wyngaert where she states that she

would have gone further in that I am of the view that there are serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation. In fact, I believe that the facts show that the Prosecution had not complied with its obligations under article 54(1)(a) at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started.

(ICC-01/09-02/11-728-Anx2, 26 April 2013, para. 1).

108 Prosecutor v. Laurent Gbagbo, Public Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013, para. 36.

109 Ibid., paras. 15, 37, 42–44. One judge, however, dissented on the ground that the adjournment in the particular circumstances of the case and the instructions by the majority exceeded the role of the Pre-Trial Chamber. He stated that ‘it is for the Prosecutor and not for the Chamber to select her case and its factual parameters’ (Dissenting Opinion of Judge Silvia Fernandez de Gurmendi, ICC-02/11-01/11-432-Anx, 3 June 2013, para. 51).

110 The defence has alleged bad faith on the part of the prosecution, but the prosecution maintains the non-disclosure was in error but not in bad faith. The prosecution asserts it was the result of a failure ‘to appreciate that the affidavit contained an inconsistent statement and was thus disclosable as impeachment material’. See, e.g., ICC, Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11-664-Red2, Public Redacted Version of the 25 February 2013 Consolidated Prosecution Response to the Defence Applications under Article 64 of the Statue to Refer the Confirmation Decision back to the Pre-Trial Chamber, 7–9, 41, 44–6 (26 February 26 2013). Mr Kenyatta was also affected by this witness and asked that his case be referred back to the Pre-Trial Chamber for a new confirmation hearing, given that the evidentiary basis for confirming the charges had significantly changed now that the recanting witness could no longer be relied upon. See, e.g., ICC, Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11-622, Defence Application to the Trial Chamber Pursuant to Article 64(4) of the Rome Statute to Refer the Preliminary Issue of the Confirmation Decision to the Pre-Trial Chamber for Reconsideration (5 February 2013). The Chamber did not find that the prosecution acted with bad faith, but instead found that the failure to disclose this crucial information was the result of ‘a grave mistake’ and a deficient internal review system within the prosecution (Prosecutor v. Uhuru Muigai Kenyatta, Trial Chamber, Decision on Defence Application Pursuant to Article 64(4) and Related Requests, ICC-01/09-02/11-728, 26 April 2013, paras. 93–94). Instead of granting Mr Kenyatta's request to refer the case back to the Pre-Trial Chamber, the Chamber reprimanded the Prosecutor and required her to conduct a complete review of the case file and certify before the Chamber that she had done so, as well as to make appropriate changes to the internal review process (ibid., paras. 97–104). Judge Van Den Wyngaert made even stronger criticism against the ‘Prosecution's negligent attitude towards verifying the trustworthiness of its evidence’, stating that ‘thorough and comprehensive due diligence with regard to the reliability of the available evidence is an ongoing obligation of the prosecution under Article 54(1)(a)’ (ICC-01/09-02/11-728-Anx2, paras. 1, 4). In an earlier decision, the Trial Chamber confirmed the Prosecution's subsequent notification of withdrawal of the charges against Mr Muthaura. See ICC, Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11-687, Prosecution Notification of Withdrawal of the Charges against Francis Kirimi Muthaura (11 March 2013); ICC, Press Release, Statement by ICC Prosecutor on the Notice to Withdraw Charges against Mr. Muthaura (11 March 2013), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/OTP-statement-11–03–2013.aspx; ICC, Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11-696, Decision on the Withdrawal of Charges against Mr Muthaura (18 March 2013).

111 Prosecutor v. William Samoei Ruto et al., Prosecution's Written Submissions Following the Hearing on the Confirmation of Charges, ICC-01/09-01/11-345, 30 September 2011, para. 67. See also para. 69.

112 See, for instance, the observations made by David Hooper QC, defence counsel at the ICC, at the SCL lecture on 14 December 2001, held at T. M. C. Asser Institute, The Hague.

113 This corresponds with the author's own experience in conducting investigations.

114 This corresponds with the author's own experience in conducting investigations. Among the communities loyal to the defendants, there can be distrust towards the prosecution and reluctance to co-operate with it.

115 Prosecutor v. Kordić and Čerkez, Decision on Motions to Extend for Filing Appelant's Briefs, TC, 11 May, 2001, para. 14; Prosecutor v. Kordić and Čerkez, Appeals Chamber Judgement, 17 December, 2004, paras. 183, 242; Prosecutor v. Blaskć, Decision on Production of Discovery Materials, TC, 27 January 1997, para. 50.1; Prosecutor v. Blaskć, Appeals Chamber Judgement, 29 July 2004, para. 264; Prosecutor v. Karemera et al., Decision on Interlocutory Appeal Regarding the Role of the Prosecutor's Electronic Disclosure Suite in Discharging Disclosure Obligations, AC, 30 June 2006; Prosecutor v. Théoneste Bagosora et al., Decision on Interlocutory Appeals on Witness Protection Orders, Case No. ICTR-98–41-A, AC, 6 October 2005.

116 See supra notes 11, 12.

117 Emphasis added by the author.

118 See, for instance, the American Bar Association's Prosecution Ethics Guidelines, Advocates Rule 3.8(a) ‘Special Responsibilities of a Prosecutor’ requiring a prosecutor in a criminal case ‘to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause’.

119 Lubanga Judgment, supra note 62, 90–220.

120 For detailed criticism relating to the ICC Prosecutor's investigations carried out so far, see Buisman, Caroline, ‘Delegating Investigations: Lessons to Be Learned from the Lubanga Judgment’, (2013) 11 Nw. J. Int'l Hum. Rts. 30Google Scholar. http://scholarlycommons.law.northwestern.edu/njihr/vol11/iss3/3.