International Criminal Court: Recent Developments in Other ICC Investigations and Cases

Recent developments in the ICC’s Libyan investigation and cases have been examined.[1] There also have been interesting developments in four of the other situations under investigation by the ICC: the Democratic Republic of Congo (DRC or Congo), Uganda, Darfur (Sudan), and the Ivory Coast.

Congo. The evidence and arguments in the ICC’s first case to go to trial are over, and the decision of the Trial Chamber is expected early in 2012.[2] The ICC’s Deputy Prosecutor, Mrs. Fatou Bensouda, recently reflected on the lessons of this case for the Office of the Prosecutor (OTP).[3]

• Foremost was implementation of  the prosecution’s conceded obligation to disclose to the defense (a) incriminating evidence to be used by the prosecution; (b) evidence that is potentially exonerating or may affect the credibility of the prosecution’s evidence; and (c) evidence that is material to the preparation of the defense. Complications arose in this case because of the prosecution’s countervailing duty of confidentiality towards certain witnesses, and the Appeals Chamber decided that the Court had to respect such confidentiality agreements. Thereafter protective procedures were developed to provide such information to the defense despite such agreements.
• Contrary to the practice of the ad hoc international criminal tribunals and U.S. courts, the ICC has held that the parties and counsel cannot meet with their witnesses in advance to discuss their anticipated testimony. Thus, what is referred to internationally as “witness proofing” is prohibited.
• Some witnesses, especially former child soldiers, had been admitted into the Court’s witness protection program, and the Trial Chamber allowed them to testify with voice and face distortion and pseudonyms to protect their identity from the public while providing that information to the defense.[4]
• Some other witnesses provided testimony via video link from the DRC without any technical problems.
• The prosecution uses confidential intermediaries in the field, in the DRC in this case, to facilitate contact with potential witnesses and other sources of information. In this case, the defense alleged that some intermediaries were suggesting false testimony be given, and problems arose over the Trial Chamber’s order for disclosure of the identity of the intermediaries before protection had been provided to them.

The DRC’s presidential and parliamentary elections will be on November 28th, and reports of pre-election violence prompted the ICC’s OTP to issue a public statement that it was closely monitoring the situation and would investigate and prosecute any crimes within the Court’s jurisdiction that were committed.[5]

Uganda. The ICC has issued arrest warrants for Joseph Kony and three other top members of the Lord’s Resistance Army (LRA), but they all are at large.[6] In October President Obama ordered the deployment of 100 U.S. armed military advisors to central Africa to assist local forces in combating the LRA. The President did so pursuant to the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act. If the U.S. forces assisted in the arrest of any of these top LRA leaders, they would be turned over to the ICC.[7]

Sudan (Darfur). The ICC has issued an arrest warrant for Sudanese President Omar Hassan Ahmed Al Bashir, who is the current head of state and who is still at large.[8] Recently Bashir was in Malawi and was not arrested even though Malawi as an ICC State Party had an obligation to do so. As a result, the ICC Pre-Trial Chamber requested Malawi to submit observations on its failure to arrest Bashir.[9]

Ivory Coast. In early October the ICC’s Pre-Trial Chamber authorized the Prosecutor to conduct an investigation of the situation in the Ivory Coast.[10] Later that same month the Prosecutor visited the country to meet with government officials, members of the Opposition, victims and the country’s Truth, Dialogue and Reconciliation Commission.[11]