Our joint symposium on the next ICC Prosecutor continues. Ewan Brown is Senior Analyst at the Commission for International Justice and Accountability; his prior service includes appointments as head of the Military Analysis Team at the ICTY-OTP, as Darfur Team Leader at the ICC-OTP and as an officer in the British Army. William H. Wiley is the Executive Director of CIJA; he has also served variously as an intelligence analyst, investigator and legal advisor with the Canadian war-crimes program, the ICC-OTP, the ICTY-OTP, the ICTR-OTP and the Iraqi High Tribunal, in addition to his service as a Canadian Army officer. Be sure to also read Kate Vigneswaran and Melinda Taylor at Opinio Juris.
The collapse of the prosecution cases against Mr. Laurent Gbagbo and Mr. Charles Blé Goudé constituted the latest serious setback for the ICC’s Office of the Prosecutor (OTP) which, since 2003, has experienced a great deal more defeat than victory. Factors unique to any given casefile will explain why (i) an investigation does not give rise to a prosecution and, where allegations are brought before a panel of judges, (ii) the prosecution fails to see charges confirmed and convictions registered. That noted, a consistent pair of shortcomings invariably inform unsuccessful ICC-OTP investigations and prosecutions: an insufficiency of evidence as well as the failure of the OTP to assess properly such prima facie evidence which it has chosen to adduce.
It is undoubtedly the case that the reasons for this undesirable state of evidentiary affairs do not all lie with the OTP. The OTP is often compelled to operate within politically unstable environments which present significant physical-security challenges; to its credit, over the last two to three years the OTP Investigations Division has responded deftly to these realities, often through increasing cooperation with non-State actors, including private investigative entities, which have shown themselves to be capable of collecting information of ostensible probative value. That noted, Gbagbo and other prosecutorial failures would suggest that the OTP continues to struggle in its efforts to conform to the highest standards of information-cum-evidence collection planning, collection management and evidence review. This post will address in turn each of these pillars of successful international criminal investigations and prosecutions.
Evidence Collection Planning
The practice of international criminal and humanitarian law (ICHL) has long distinguished between crime base and linkage evidence, with OTPs – including that of the ICC – showing, in most cases, a marked inclination towards the over-collection of crime base materials and the under-collection of linkage information with evidentiary value. This injurious practice reflects the failure of the profession of international criminal investigations and prosecutions to implement rigorous evidence collection planning protocols. If the ICC-OTP does not address this shortcoming, it will continue to see a great many of its investigations and prosecutions come to grief.
Crime Base Evidence
Crime base evidence is used to satisfy the physical elements of the offences alleged; as such, it does not concern itself with the mental elements of crimes nor the mental and material legal requirements of the modes of liability set out in ICHL. Given its limited scope, prima facie crime base evidence is relatively easy to secure. This, in part, explains the widespread tendency towards its over-collection. For this and other reasons, not least finite-resource considerations, it is essential that crime base information-cum-evidence should be sought in accordance with properly prepared and detailed collection plans.
Linkage evidence can be defined as that which is required to meet the mental and material elements of the alleged modes of liability as well as the mental elements of the offences. Given that, in the first instance, international criminal investigations should not be individual-target driven, and failed cases have often been the result of poor quality linkage evidence, the bulk of the initial collection effort should be assigned to ensuring a comprehensive understanding of key linkage themes, including: the relevant military, security, political and paramilitary structures and their activities; the commanders, staff officers and other key governmental, party-political and security personnel operating within these structures; the command, control and communications (C3) apparatus linking command and staff headquarters to deployed units; and the disciplinary procedures at the disposal of the command, both de jure and de facto. Within these themes it is the detail that matters and the collection of exhaustive linkage evidence needs to be fully understood by all involved. Convictions can only be gained through a fundamental understanding of linkage evidence, placing linkage collection at the heart of investigations, through the imaginative use of multiple sources and the work of professional collection managers.
The building of linkage cases against high-ranking suspects requires considerable collection and analytical capacity. However, once the functioning of the relevant structures has been understood in significant detail – an effort which should absorb the overwhelming majority of the resources assigned to a complex criminal investigation – it is a relatively straightforward matter to identify the top leaders of the said structures and, in turn, link them through the C3 arrangements to underlying criminal acts.
The field of international-criminal investigations and prosecutions has evolved to the point that it is necessary to consider a third category of evidence, that being of a contextual nature. Here it will be recalled that in Gbagbo and Blé Goudé, the majority (see here and here) was withering in its critique of the flawed OTP contextual narrative in its written reasons for ordering the acquittals of the accused.
Contextual evidence needs to be taken more seriously by ICC-OTP investigators, analysts and prosecutors – and be seen as a distinct evidential theme – owing to the unique nature of ICHL investigations. Conflicts in which ICHL violations occur generally take place in the midst of highly charged political, ethnic and/or religious tensions; in turn, these tensions are invariably linked to complex historical backdrops which often generate deeply entrenched narratives which may or may not correspond to indisputable fact. Received uncritically, such narratives can (in particular, when presented through victim/witness testimony) lead to prosecutorial theories reinforcing the damaging myths, historical inaccuracies and misplaced grievances which gave rise to the conflict with which an OTP is grappling. As such, objective contextual evidence collection is crucial to build detailed, objective and accurate prosecutorial narratives which articulate the wider background, development and description of events within which the criminality and more general conduct of the alleged perpetrator(s) is assessed as having taken place.
It is the practice of OTPs to offer trial panels, by way of introduction to core prosecutorial arguments, of supposedly comprehensive contextual narratives touching upon questions of historical, political, and military matters as well as issues of ethnicity and/or religion. Such narratives will invariably (or ought to) address matters relating to the general context within which a conflict or crisis unfolded, and the relevant organizational structures involved. Notwithstanding the importance of this contextual component, it has long been the practice of investigative-cum-prosecutorial teams to prepare only at the last minute those aspects of the case narrative which stand metaphorically furthest from the alleged misconduct of the accused, often relying upon secondary source materials and other information designed to highlight the so-called victim perspective. The ICC-OTP has been criticised for, at times, appearing to replicate such shoddy practice and a tightening of discipline in this respect would surely follow the establishment of contextual evidence collection – from the outset of an investigation – as a standard operating procedure.
The sheer volume of crime base, contextual and, most especially, linkage evidence required to mount a successful prosecution against high-level suspects constitutes an immense management challenge which the ICC-OTP has largely failed to master. The addition of professional collection managers, seated at the right hand of investigative team leads, would go a considerable way towards keeping investigative teams abreast of their shared progress in the collection of crime base, linkage and contextual evidence whilst at the same time rectifying the twin problems of unfocussed as well as superfluous information-cum-evidence collection.
Collection management is not to be confused with investigative management; the latter has a far wider scope, concerned as it is with, amongst other matters, the establishment of the overall direction of a case; the tasking of investigators; the work of team analysts, language and support staff; the general monitoring and direction of the collection effort; mission planning and execution; security and witness-protection issues; the production of reports and updates for higher OTP management; and personnel-management issues.
Collection management has a far narrower focus insofar as it deals predominantly with the production, maintenance and monitoring of detailed collection plans. These should be written at the beginning of a case and involve the drafting of detailed and focused lists of questions on all pertinent evidential aspects of the investigation (crime base, linkage and contextual). These should be matched to the sources that could potentially answer such questions. Most critically, collection management involves taking responsibility for monitoring the overall collection effort through an ongoing forensic review of all evidence in order to identify whether collection plan questions have been answered. Furthermore, professional collection management highlights evidential gaps, minimises over-collection and ensures the themes, issues, elements of offences and the legal requirements of the modes of liability set out in the collection plan are being addressed adequately in evidentiary terms.
The establishment of collection management as a professional, explicit, stand-alone function, staffed by seasoned personnel who are familiar with such processes, is not currently a feature of complex international-criminal investigations. In this respect, ICC-OTP investigations differ markedly from those of domestic public bodies – in particular, Western militaries and security/intelligence services – in which the profession of collection management is a skill that has become deeply embedded within the relevant organisational cultures. The ICC-OTP would do well to mimic relevant domestic practices in this regard.
Since 1993, the absence of robust evidence-review procedures has infected international OTPs in a chronic manner, not least at the ICC. At the Court, adroit pre-trial and trial chambers have shown themselves prepared to address this illness, most especially in recent years, although the prophylaxis ought to be put in place by the OTP itself in the interests of the holistic long-term health of the ICC.
It is essential that OTP-wide evidence review procedures should be put into place and, in turn, applied from the commencement of any given investigation. By way of a start, it would be immensely helpful if individual investigative teams encouraged devil’s advocacy, that is, a culture where ostensible prima facie evidence was subjected to ongoing challenge by all team personnel, without regard to professional rank. What is more, the sort of robust collection planning and management which has formed the core of the foregoing discussion would, if implemented as a matter of course during complex criminal investigations, lay the groundwork for effective review within investigative teams as well as by external experts. The latter could be assigned from within the OTP itself, that is, from ranks external to the investigative team whose evidence is being reviewed. Conversely, outside parties subject to standard non-disclosure agreements – and possessed of the requisite experience of complex ICHL investigations and prosecutions – could be retained for this purpose. On the question of outside expertise, it will be recalled that there are a great many highly skilled, erstwhile investigators, analysts, prosecutors, trial clerks and judges in semi-retirement who could assist.
ICC-OTP investigative practices have, on the whole, replicated the methodological shortcomings witnessed more generally within all of the international OTPs established since 1993. Were the ICC-OTP operating in post-conflict environments with a United Nations Security Council Chapter VII mandate, it might replicate successfully earlier, insalubrious practice which saw OTPs undertake the bulk of the meaningful (i.e. linkage) evidence collection during trial; this was most especially the case at the ICTY and the ICTR. Ethical considerations aside, such an approach will not work for the ICC-OTP, particularly given the oversight exercised with increasing ferocity by the Court’s pre-trial chambers. Shovelling more funding towards the OTP shall likewise make no difference where serious investigative-methodological shortcomings remain. Rather, if the reputation of the ICC-OTP, and by extension that of the Court as a whole, is to be rehabilitated, it is essential that the OTP address its inconsistent application of the basic standards of collection planning, collection management and evidence review. Until the ICC-OTP’s inadequacies in these areas are resolved effectively, the ICC shall continue to fall into disrepute in the eyes of conflict-affected societies, the victims of armed conflict, the Assembly of States Parties and many of those employed by the Court.
This post is extracted from Ewan Brown and William H. Wiley, “International Criminal Investigative Collection Planning, Collection Management and Evidence Review,” in Xabier Agirre, Morten Bergsmo, Simon De Smet and Carsten Stahn (eds.), Quality Control in Criminal Investigations, Torkel Opsahl Academic EPublisher, Brussels (forthcoming, 2020).