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II. Office of the Prosecutor

A. Overview

The Office of the Prosecutor is the driving engine of the court. The prosecutor’s investigative and trial strategy is central to the court’s relevance and its impact in the communities most affected. Indeed, the court’s ability to bring justice for serious crimes is largely shaped by the prosecutor’s selection of situations for investigation and ultimately by the selection of cases for trial. For victims, the prosecutor’s selection strategy provides the earliest and most visible measure of how the court will address the suffering that they have endured. The prosecutor’s selection of alleged perpetrators and charges also has practical implications for victims: it determines which victims will be eligible to have their voices heard as participants in proceedings.105 The office’s ability to conduct effective investigations and prosecutions is, therefore, of paramount importance.

1. The structure of the Office of the Prosecutor

The current prosecutor of the International Criminal Court, Luis Moreno-Ocampo, was elected by the Assembly of States Parties and assumed office in June 2003. He was elected for a term of nine years.106 Beyond the prosecutor and his immediate staff, the Office of the Prosecutor is organized into three main divisions: the Investigation Division; the Prosecution Division; and the Jurisdiction, Complementarity and Cooperation Division (JCCD).

The Investigation Division is responsible for, among other tasks, conducting investigations, analyzing information and evidence collected prior to and during investigations, defining investigation plans, providing investigative support, and, in collaboration with the Victims and Witnesses Unit (VWU) in the Registry,107 preparing the necessary security plans and protection policies for each investigation to ensure the safety of victims and witnesses involved in the office’s investigations.108 Within the Investigation Division there are four units executing a number of essential functions: Operations Services, Analysis, Gender and Children, and Forensics. The staff of the Investigation Division represents approximately 50 percent of the Office of the Prosecutor overall.109

The Prosecution Division, led by the deputy prosecutor for prosecutions, now Fatou Bensouda of Gambia, participates in the determination of the investigative strategy and provides legal advice on issues that arise during the investigation, prepares litigation strategies, and prosecutes cases in court.

The Jurisdiction, Complementarity and Cooperation Division has a number of functions, two of which relate to novel—and central—features of the Rome Statute: the International Criminal Court’s broad territorial jurisdiction and its complementary role to national proceedings. The JCCD plays a central role in analyzing referrals and communications in multiple potential situations simultaneously, reflecting the reality of the court’s wide-reaching jurisdiction.110 Further, the JCCD monitors national proceedings involving ICC crimes in situations under examination to advise the prosecutor on whether ICC intervention is appropriate. In addition to these important functions, the JCCD coordinates networks for information sharing and facilitates the cooperation of states and others to carry out the functions of the office.

In addition to these divisions, there are also two sections within the OTP: the Legal Advisory Section and the Services Section. The responsibilities of the Legal Advisory Section include providing legal advice to the prosecutor as needed, facilitating legal research, and providing legal training to office staff. The Services Section handles important administrative functions for the office, such as managing evidence and information, providing oral and written translations, and preparing the office’s budget.

Coordinating all of the activities of the office and providing strategic guidance is the Executive Committee, or “Ex-Comm.” In addition to providing advice to the prosecutor, the Ex-Comm is responsible for the development and adoption of the strategies, policies, and budget of the office. It is composed of the prosecutor and the heads of the divisions of the office.111

In addition, we note that a post of senior gender advisor had been created in the OTP, but this post was never filled. Human Rights Watch believes that recruiting a gender adviser could enhance efforts to mainstream issues relating to gender, including sexual violence crimes, in its prosecutorial strategy. We, therefore, urge the office to fill this vacancy with a qualified candidate.

2. Significant progress in the face of enormous challenges

The challenges facing the ICC prosecutor in investigating war crimes, crimes against humanity, and genocide cannot be overstated. The ICC’s broad geographic jurisdiction means that the prosecutor can act in a number of unrelated country situations simultaneously. Within each country situation, the practical difficulties are considerable. To effectively conduct investigations on the ground and to build cases for trial, staff in the prosecutor’s office must become intimately familiar with the history of the respective conflicts, the applicable national criminal law, and relevant cultural norms to communicate with victims and witnesses, among other responsibilities. These investigations require operating in a number of different languages, thus making them even more demanding for the OTP.

A significant complicating factor is the fact that the Office of the Prosecutor executes its mandate in situation countries where the conflict is still ongoing. This reality presents a number of logistical hurdles for staff security in the field and in protecting witnesses, victims, and others at risk because of their interaction with the court. Weaknesses in the infrastructure in the various country situations, such as the lack of reliable and secure transportation or haphazard communications systems, add to these hurdles.

Further, the ICC’s lack of police or other enforcement unit means that it must rely on the cooperation of states to effectively investigate and prosecute cases. This cooperation may not always be forthcoming, particularly in conflict-ridden or otherwise unstable situations. In those circumstances, the prosecutor may be subject to enormous pressure from states and intergovernmental actors who, in pursuit of other objectives (such as peace negotiations or peacekeeping deployment), do not always provide the cooperation and support that his office needs to conduct its investigations and to execute its warrants. Where cooperation by national authorities in situation countries is more forthcoming, it must be managed carefully to avoid negative perceptions about the ICC’s impartiality or independence.112

On this difficult landscape, the prosecutor’s office has made considerable progress in its investigations and prosecutions. To date, the office has initiated investigations in four country situations: the Democratic Republic of Congo, northern Uganda, the Darfur region of Sudan and, most recently, the Central African Republic. In Congo, the court has issued arrest warrants against four senior militia members, three of whom are in custody. There are currently four outstanding arrest warrants against senior leaders of the Lord’s Resistance Army in northern Uganda.113 The court has issued two arrest warrants against suspects in Sudan, a sitting minister and a former militia leader, although no arrests have yet been made. Jean-Pierre Bemba, former vice-president of Congo and leader of the country’s main opposition party, was arrested in Belgium on the basis of the ICC’s arrest warrant against him for crimes allegedly committed in the Central African Republic and transferred to The Hague. In all but two of the above cases, the prosecutor has selected charges that reflect the scope of alleged victimization in the incidents identified. In addition, the prosecutor’s office is conducting preliminary examinations pursuant to article 15(2) in several country situations where serious crimes have been or are being committed, such as Côte d’Ivoire, Kenya, Colombia, and Afghanistan.

3. Advancing key policies: The interplay of peace and justice and state cooperation

Recently, the prosecutor’s office has made a number of strong policy statements in two significant areas that directly affect the execution of its judicial mandate. The first area involves the prosecutor’s interpretation of the “interests of justice” pursuant to article 53 of the Rome Statute. Under this provision, the prosecutor has the discretion not to investigate or prosecute crimes that could otherwise fall under the ICC’s jurisdiction if he decides that investigation or prosecution would not be in the “interests of justice.” This discretion is subject to pre-trial chamber review.114 Human Rights Watch believes that this discretion should be interpreted narrowly to avoid practices that could lead to impunity for some of the worst crimes, under the inappropriate claim of preserving stability, peace, and security.115

Indeed, discussions on the “interests of justice” are intimately connected to the interface between peace processes and justice for the most serious crimes. The Office of the Prosecutor had initially suggested that it might consider peace and stability as one of the factors underlying article 53.116 Early in his investigation in Uganda, international actors, including states parties and representatives of humanitarian organizations, as well as Ugandan members of civil society, argued that the prosecutor should invoke article 53 to renounce the prosecution of Lord’s Resistance Army leaders since such action would not be in the “interests of justice,” conflating justice with concerns of peace and security. By exerting considerable pressure on the prosecutor in this manner, it was hoped that he would cede his role in light of the peace process there.

However, the OTP has since publicly clarified its interpretation of the “interests of justice” in the prosecutor’s exercise of his discretion not to investigate or prosecute. Notably, the OTP has stated that it will not consider the broader concerns of international peace and security in the independent pursuit of the prosecutor’s judicial mandate.117 The Rome Statute vests political actors such as the United Nations Security Council with the authority to address these concerns.118

The prosecutor has additionally made strong statements that there can be no political compromise on legality and accountability in the context of peace negotiations.119 This is a significant development and one that we welcome. Indeed, Human Rights Watch believes that the prosecutor’s public statements affirming the narrow scope of his discretion under article 53 are consistent with the object and purpose of the Rome Statute and with the requirements of international law.120 By affirming his judicial mandate in this manner, the prosecutor has sent a strong message that he will not submit to the pressure of those seeking to circumvent the ICC and justice more generally in the face of other competing concerns. Importantly, the prosecutor has stressed publicly the strong conviction underpinning the creation of the ICC: justice for the most serious crimes is a fundamental component of durable peace.121

The prosecutor has also made important statements regarding another factor central to the successful execution of his mandate: state cooperation. As noted above, the ICC lacks a police force and, therefore, relies heavily on state cooperation to enforce its orders, including the execution of arrest warrants. The ICC’s lack of enforcement capacity underscores how important it is for the prosecutor to press states to fill this crucial function. At the same time, states may not always be immediately willing to provide necessary cooperation for various reasons, including political considerations. This reality means that the ICC—including the prosecutor—must consistently urge states to cooperate with the court to execute its mandate. Indeed, the ICC’s decisions and orders are only as effective as their enforcement.

In this regard, the prosecutor has recently taken a more active role in lobbying states and intergovernmental organizations to cooperate with the ICC.122 For example, the prosecutor has urged states in the UN Security Council to pressure Sudan to arrest the two Sudanese suspects wanted by the ICC.123 The prosecutor has held meetings with numerous representatives of governments and intergovernmental organizations in New York and has traveled to capitals in Europe and the Middle East to enlist political support and assistance in the execution of the warrants. The ICC prosecutor has also given notice of Sudan’s non-cooperation to Pre-Trial Chamber I,124 which could then submit a request for cooperation to the UN Security Council for enforcement.125 Raising the profile of cooperation on the international stage helps to engender a sense of urgency—and responsibility—among states, including those that may have suspects in their jurisdiction, to execute the court’s orders and decisions.

4. The importance of outreach and communications: An overview

Despite the considerable progress made to date, Human Rights Watch has identified several policy areas of the Office of the Prosecutor’s work that raise concerns because of their negative impact on perceptions of the ICC as an independent and impartial institution. As discussed below, while some of these policies may need to be adjusted, in addition, a consistent feature of many of our recommendations is the importance of developing and maintaining an effective outreach and communications strategy in the communities most affected.126 The prosecutor’s selection of cases offers victims their first “benchmark” to assess the ICC’s relevance in addressing their experiences. At the same time, for those opposing the court’s work, including alleged perpetrators, there is incentive to spread or exploit negative rumors about the work of the prosecutor’s office and the court in order to diminish the ICC’s impact in affected communities.

Of course, the nature of the court’s work, its operation in conflict-ridden or otherwise unstable country situations, and reliance on state cooperation means that to a certain extent, misperceptions and dissatisfaction about the prosecutor’s strategy and the court’s work are unavoidable. Nonetheless, some of these misunderstandings can be addressed with a robust outreach and communications strategy in the field. Effectively conveying important information about the OTP’s work to affected communities, including non-confidential developments in investigations and prosecutions, can help address expectations of what can be achieved and combat misinformation. Ultimately, this will maximize the ICC’s credibility among these communities.

B. The Office of the Prosecutor’s selection of situations

1. Situation selection: Legal requirements

The ICC’s jurisdiction is triggered in one of three ways. First, a state party can refer a “situation”—meaning a specific set of events—to the court where it appears that crimes within the jurisdiction of the court have been committed.127 The crimes alleged may have been committed on the territory of the government referring the situation to the ICC. The ICC opened investigations in the DRC, Uganda, and the CAR following such “voluntary referrals.” A state party can also refer a situation to the ICC involving another state, provided the crimes alleged somehow implicate a state party to the Rome Statute: either the alleged crime took place on the territory of, or the suspected perpetrator is a national of, a state party.128

Second, the Security Council can refer to the ICC a situation that it determines presents a “threat to international peace and security” under its Chapter VII mandate of the UN Charter. The authority of the Security Council to do so extends to non-states parties and was used to refer the situation in Darfur, Sudan to the ICC.129

Third, the prosecutor can initiate a preliminary examination proprio motu on the territory of a state party on the basis of information about crimes within the ICC’s jurisdiction and, if a pre-trial chamber agrees, the prosecutor can open a formal investigation.130

Not all situations brought to the prosecutor’s attention will be selected for formal investigation, however. Once identified, the OTP must analyze the set of events in question to determine whether they meet the legal requirements under the Rome Statute to proceed.131 First, there must be a reasonable basis to believe that a crime within the jurisdiction of the court has been or is being committed. Even where an ICC crime or crimes have been committed, the OTP must determine whether they would be admissible. There are two components of admissibility: gravity and complementarity.

The prosecutor has indicated that in selecting situations, his office is guided by the standard of gravity. To assess gravity, his office considers the scale, nature, manner of commission, and impact of the crimes. These criteria are considered jointly, and a gravity determination will be reached on the facts and circumstances of each situation.132

The complementarity component involves assessing the national authorities’ willingness and ability to investigate the abuses in question for the purposes of prosecution.133

From July 2002 until February 2006, the Office of the Prosecutor received 1,732 communications from individuals or groups in at least 103 different countries. Eighty percent of these communications were found to be outside of the court’s jurisdiction. The OTP moves potential situations to a phase of “active monitoring” (the “analysis” phase) on the basis of 1) communications that pass through this initial review; 2) referrals; and 3) media and open-source reports.134 The JCCD plays a central role in analyzing whether a situation meets the admissibility requirements for selection and provides input to the Ex-Comm. The Ex-Comm then makes recommendations to the prosecutor on the selection of situations.

Finally, even if the situation is considered admissible, the prosecutor must still assess whether there are substantial reasons to believe that an investigation would not serve the interests of justice.135 As discussed earlier, the prosecutor’s recent strong policy statements on the interests of justice make clear that considerations of political stability will not interfere with his office’s judicial mandate of holding perpetrators of war crimes, crimes against humanity, and genocide to account. We welcome this development.

2. Managing perceptions in the selection process

In analyzing the information gathered, the prosecutor has outlined the four principles that guide his office in the selection process: independence, impartiality, objectivity, and non-discrimination.136 The prosecutor has stated that independence means ensuring that this process “is not influenced by the presumed wishes of any external source, nor the importance of the cooperation of any particular party, nor the quality of cooperation provided.”137 These principles deserve emphasis because the OTP and court’s credibility—and the ICC’s impact—hinge on their actual and perceived implementation of them.

Explaining the application of these principles requires concerted efforts by the OTP to address deliberately negative distortions. The decision to open an investigation may be subject to questions about the prosecutor’s independence and impartiality by those seeking to undermine the court’s work. Establishing and consistently applying objective criteria to guide the office’s selection process can provide a measure of transparency in this process and can clarify misunderstandings that may otherwise arise. This can help those affected by the OTP’s work better understand the office’s decisions.

However, while a welcome development, such criteria alone are not sufficient to effectively address criticisms that the ICC is biased. We have identified below examples of the challenges that the ICC prosecutor faces in selecting situations that may have implications for the perceptions of his independence and impartiality.

a. Minimizing the pitfalls of voluntary referrals

The ICC has been seized of the situations in northern Uganda, the DRC, and the CAR on the basis of voluntary referrals.138 The prosecutor opened an investigation in northern Uganda in July 2004 following the Ugandan government’s referral to the ICC in December 2003. The Congolese government referred the alleged ICC crimes committed there in April 2004, and the prosecutor opened an investigation in June 2004. In the CAR, the government referred the crimes committed during the 2002-2003 rebellion in December 2004. In April 2006 the CAR’s highest court confirmed that the national justice system was unable to pursue the alleged crimes. The prosecutor opened an investigation there in May 2007.139

In selecting situations, the prosecutor has stated his policy of inviting voluntary referrals because it promotes “the likelihood of important cooperation on the ground.”140 Consistent with that policy, the Office of the Prosecutor actively sought the referrals in the DRC and Uganda. Human Rights Watch recognizes that there may be practical advantages to conducting investigations in situations that have been voluntarily referred. These include securing state cooperation and support in gathering evidence in the course of an investigation, as well as in executing arrest warrants. We, therefore, do not oppose their selection or the practice of inviting them where the other criteria under the Rome Statute have been satisfied. However, to ensure compatibility between the prosecutor’s independence and his policy of inviting self-referrals, the prosecutor should clearly state “that the possibility of voluntary referral will not be given preference in determining which situations should be selected for investigation.”141

Selecting situations that have been voluntarily referred may have negative implications for perceptions of the prosecutor’s independence and impartiality in affected communities. This likelihood is increased in those country situations where the alleged ICC crimes have been committed along ethnic or political lines and implicate actors in the referring government (voluntary referral should not deflect attention from alleged government crimes, for example). There is a substantial risk that any collaboration between the referring government and the ICC in these polarized country situations will be perceived negatively by those affected by the crimes. The court must be sensitive to this reality and should actively seek to address the negative misperceptions that may follow a decision to open an investigation. Ultimately, the OTP should ensure investigation of state actors in the context of voluntary referrals to determine if there is sufficient evidence to do prosecute and the other requirements are satisfied. We note that the only arrest warrants issued to date in voluntary referral situations are for rebel leaders.

Our field research in Uganda illustrates the dangers of failing to anticipate and adequately address such misperceptions. The Ugandan government voluntarily referred the situation in northern Uganda to the ICC for the purpose of investigating abuses committed by the LRA, an insurgent group at war with the government. The prosecutor announced the government’s referral to the ICC at a joint press conference with President Yoweri Museveni. This public appearance fed perceptions of the ICC as a “tool” being manipulated by Museveni to serve his political interests.

Since the referral, we note that the prosecutor has made some efforts to combat these damaging perceptions. For example, the prosecutor’s decision to open an investigation references the “situation in [n]orthern Uganda,” thus clarifying that the scope of the ICC’s investigation is not limited to alleged perpetrators from one group.142 He has also stressed the impartiality of his investigation and has made an effort to contextualize the decision to issue arrest warrants against LRA leaders.143 In more recent statements, the prosecutor has emphasized that his office continues to seek information about crimes allegedly committed by the government army, the Uganda Peoples’ Defence Force (UPDF).144 We welcome such efforts.

However, we wish to underscore the importance of adequately conveying these messages to the communities most affected by the crimes in the conflict. Our research reveals shortcomings in this regard. Representatives of civil society and community-based organizations that we interviewed in Kampala and northern Uganda in March 2007 consistently criticized the ICC’s failure to either investigate and prosecute UPDF abuses or to explain why this was not being done.145 As a result, the prosecutor’s work in Uganda is perceived by many of those in affected communities as one-sided and biased. Sources point out that despite additional outreach efforts to affected communities in northern Uganda overall, more could be done to clarify and better convey the key messages about the ICC’s approach to alleged crimes by Ugandan army personnel.146

Of course, no amount of explanation will eliminate all of the criticism from those in polarized societies. Also, we can appreciate that the focus and substance of investigations are confidential and cannot be shared with the public. Nonetheless, there are a number of objective factors that the prosecutor’s office could better and more frequently explain to local communities. For instance, the prosecutor’s office could improve efforts to explain its policy regarding the gravity threshold in selecting cases, as well as the limits imposed by its temporal jurisdiction in pursuing cases against alleged UPDF perpetrators. This is significant as it is believed that some of the most serious abuses allegedly implicating Ugandan forces were committed prior to 2002. Providing clear explanations would go a long way to better inform affected communities.

b. Affirming prosecutorial independence: The proprio motu authority

The significant disadvantages associated with pursuing situations that have been voluntarily referred provide a good illustration of the kinds of challenges to the prosecutor’s independence that can arise. These challenges also highlight the benefits of the prosecutor’s use of other avenues in the selection of situations, such as his proprio motu power, when possible. Under this authority, the prosecutor can actively monitor a country situation on his own initiative to gather information in order to determine whether to pursue an investigation there.147 With the authorization of a pre-trial chamber, this information can lead to the opening of an investigation.148The exercise of the proprio motu authority—literally “on his own initiative”—is a vital route for the prosecutor to exercise his independence.

To date, this prosecutor has not used this authority in the selection process. The prosecutor made reference to its use in selecting the situation in the DRC at the second session of the Assembly of States Parties in 2003, but instead decided to encourage the Congolese authorities to refer the situation there voluntarily.149 He has recently started acknowledging that this authority is a “critical aspect of his office’s independence.”150 More recently, he emphasized his proprio motu powers under the Rome Statute as conferring on him the status of a “new autonomous actor on the international scene.”151 We urge the prosecutor to use this authority where appropriate.

We note that in the decision to open an investigation in the CAR, the prosecutor stated that his office continues to monitor violence and crimes being committed in the northern areas of the country bordering Chad and Sudan. Human Rights Watch’s recent research there indicates that government troops—particularly those in the presidential guard—have carried out hundreds of unlawful killings and have burned thousands of homes during the counterinsurgency campaign there. This campaign has forced tens of thousands to flee their villages.152 The office’s analysis of the crimes allegedly committed by the referring government will likely be closely scrutinized by affected communities and others to ensure the consistent application of the prosecutor’s own gravity criteria.

It is unclear whether the terms of the initial referral, which relates to crimes committed during the 2002-2003 rebellion, would encompass these newer alleged crimes. If not and if the more recent crimes are considered admissible, we urge the prosecutor to consider using his proprio motu power to open an investigation. The majority of these crimes were allegedly committed by forces affiliated with the government that voluntarily referred crimes to the ICC.

c. Addressing the criticism that the ICC is a “court for Africa”

As noted above, the prosecutor is currently investigating crimes in four situations in Africa. The gravity of the crimes in each of these situations cannot be disputed. Nevertheless, the court’s exclusive focus on Africa at present has led to criticism among some African states and ICC observers that the continent is the court’s main target,153 with the prosecution strategy being intentionally geographically-based. Underlying this criticism is the perception that the ICC is a European court designed to try African perpetrators because they are believed to be politically and economically “weak.” Among these critics, the ICC is perceived as a biased institution.

Assessing the validity of these criticisms requires examining whether the facts support them. The ICC can only investigate crimes that implicate a state party to the Rome Statute unless there is a referral by the Security Council or a non-state party submits itself to the ICC’s jurisdiction. This reality is reflected in the current situations under investigation: three of the four ICC country situations were voluntarily referred, while the fourth situation, Darfur, was referred to the court by the UN Security Council. In addition, the ICC’s temporal jurisdiction restricts the Office of the Prosecutor from investigating crimes that occurred before July 1, 2002. This has the effect of excluding many situations from the court’s jurisdiction. Even where it has temporal jurisdiction, the crimes at issue must still meet the admissibility requirements—gravity and complementarity—under the Rome Statute.

The Office of the Prosecutor has appropriately stressed that regional balance is not a criterion for situation selection.154 In addition, we note that the OTP has recently made more efforts to draw attention to those non-African situations under analysis, notably Colombia and Afghanistan.155 We welcome these efforts and urge the office to increase its public communications in this regard. We also encourage the office to better and more consistently explain the court’s jurisdictional requirements overall.

C. OTP investigations and the selection of cases for trial

1. Investigations

a. Strong investigations: The building block for solid cases

Effective prosecutions depend on competent investigations during all stages of case preparation and proceedings. Investigators can assist prosecutors in refining suspect lists, pursuing leads, interviewing potential witnesses, and establishing the context in which the crimes were committed. The need for effective investigations is heightened in cases involving war crimes, crimes against humanity, and genocide brought against those in leadership positions: in addition to proving the elements of these crimes, investigators must gather evidence about the chain of command to build cases against senior officials. The practical difficulties of conducting these investigations are significant and have been outlined above.

The importance of ensuring solid investigations cannot be understated. Indeed, Trial Chamber I’s June 2008 decision to issue a stay of the proceedings against Thomas Lubanga (thus suspending, in all respects, the court’s first-ever trial) emphasizes this point. In the decision, the judges strongly criticized the OTP’s “excessive” use of article 54(3)(e) of the Rome Statute—which allows the prosecution to keep confidential information or documents that it receives from a source “solely for the purpose of generating new evidence” unless the provider consents—in its investigations.156 Requiring consent helps to ensure, for example, that these sources are not unknowingly or unwillingly exposed to security risks because of their cooperation with the ICC. This is particularly relevant for sources that live or work in situations where the ICC is carrying out investigations. At the same time, the OTP is under an obligation to investigate circumstances that might exonerate the defendant and disclose all exculpatory information in its possession, even that which is collected confidentially.157

Because of the prosecution’s over reliance on article 54(3)(e) in its investigations, it had in its possession over 200 documents containing potentially exculpatory material that could not be turned over to the court or the defense because the information providers did not consent. The Trial Chamber felt that the OTP’s inability to disclose this information may have compromised Lubanga’s right to a fair trial, which is why it stayed the proceedings.158

We recognize that information provided under article 54(3)(e) provides the OTP with valuable leads to start its investigations, which is especially important since the office must often conduct its investigations under difficult circumstances of ongoing conflict or instability. However, the Trial Chamber’s decision underscores that article 54(3)(e) should be used cautiously—by both the prosecution and information providers—so that similar fair trial concerns do not arise in the future. Overall, in building its cases for trial, the OTP must have sufficient investigative capacity to adequately follow up on the leads generated by information gathered under this provision. Our recommendations to improve the office’s investigative capacity are outlined in more detail below.

i. Selecting incidents: The central role of investigators

To best utilize its limited resources, the OTP has adopted a policy of conducting “focused” investigations. Accordingly, the Office of the Prosecutor pursues a comparatively small number of incidents for trial. In selecting incidents, the goal is to provide a sample that reflects the gravest incidents and the main types of victimization, provided there is sufficient evidence.159 Indeed, our research into the “lessons learned” from the Milosevic case at the International Criminal Tribunal for the former Yugoslavia highlighted the importance of pursuing such an approach to ensure that trials are both meaningful and manageable.160

The first step in the process of selecting incidents for formal investigation involves a preliminary analysis by the JCCD and the Analysis Unit in the Investigation Division of the public information available—including open sources and UN reports—in order to map patterns of criminality in a given situation. The Analysis Unit uses this assessment to make an initial selection of the gravest and more relevant incidents for investigators. According to the formal procedure in the office, Ex-Comm approves the selection of incidents and the investigation plan.161 Investigators then use this “roadmap” to conduct their preliminary investigations in the field. According to the Office of the Prosecutor, focusing the work of investigators in this manner means that it can use smaller investigative teams in the field.

Having a preliminary “roadmap” for investigators in the field can be beneficial, at least initially. However, the assessment of what should be considered the gravest incidents and the main type of victimization may change based on information collected on the ground. This underscores why it is essential to prioritize the input of investigators in deciding which incidents are selected for further investigation and, ultimately, prosecution. Investigators’ ability to contextualize the crimes based on their experience in the field means that they can offer important insights in devising the Office of the Prosecutor’s investigative and trial strategy. In this way, the input of investigators can contribute to ensuring that the Office of the Prosecutor’s “focused” strategy for incident selection is appropriately implemented. To make the most of this valuable input, it may be necessary to deploy more investigators at the outset to ensure that investigations are sufficiently comprehensive.

In addition to using more investigators, it is essential that the teams include enough experienced investigators to guide investigations in the field. By “experienced” investigator, we mean an individual who not only has knowledge of the country situation under investigation but who also has a background in conducting investigations in different contexts (such as working in a national police force). Experienced investigators generally have better developed instincts, which can improve both the quality and efficiency of investigations overall. For instance, experienced investigators can more quickly identify and pursue leads linking crimes committed on the ground to senior officials who ordered them. Further, experienced investigators can help to mentor junior investigations staff, which can help strengthen the office’s investigations over the longer term.

Unfortunately, many of the experienced investigators have left the OTP since 2005. One reason commonly provided for these departures is that many investigators experienced “burn out” because there were simply not enough of them to handle the rigorous demands for conducting investigations. Another reason commonly provided is the perception that the input of investigators is not sufficiently valued within the OTP, which led to dissatisfaction. The departure of senior staff—and the loss of their experience, knowledge of the country situation under investigation, and overall institutional memory—has a direct impact on the efficiency of investigations. We urge the prosecutor to recruit additional experienced investigators as soon as possible and, once recruited, to prioritize their input in planning and executing the office’s prosecutorial strategy.

In addition, we refer to the prosecutor’s decision early in his mandate to create the position of deputy prosecutor for investigations, who was elected by the ASP. Although not required by the Rome Statute, appointing an experienced deputy prosecutor for investigations can yield a number of important benefits for the office. For instance, the deputy prosecutor for investigations’ institutional memory can promote a sense of continuity in investigations and help counteract at least some of the negative consequences of staff turnover. More importantly, he or she can play a central role in conceptualizing and taking responsibility for the implementation of the OTP’s investigative strategy. Indeed, Human Rights Watch believes that having a deputy prosecutor for investigations elected by the Assembly of States Parties is the best way to bring the views, needs, and assessments of investigators into discussions at the highest levels within the OTP. This would in turn help ensure that the valuable input of investigators is appropriately reflected in the office’s prosecutorial strategy overall.

We note, however, that the position of deputy prosecutor for investigations has been vacant since 2007. The rationale underlying the prosecutor’s sensible decision to create this position appears all the more relevant now in light of the increased number of situations under investigation and corresponding demands on investigators. We, therefore, urge the prosecutor to raise this issue with the Assembly of States Parties for consideration in advance of its next session. To this end, we urge the selection of a candidate for this position with sufficient experience in devising and managing complicated investigations.

ii. Joint teams: A coordinated approach to investigation

Close collaboration between investigators and other staff in the prosecutor’s office can strengthen efforts to address the legal and practical challenges that the OTP faces in conducting investigations. To foster this collaboration, the prosecutor’s office has adopted a policy of using joint teams for each investigation: each investigative team includes members of the JCCD and the Prosecution and Investigation divisions.162

Formalizing collaboration between the three divisions can help the Office of the Prosecutor more efficiently develop a coherent prosecutorial strategy. For instance, trial attorneys can help investigators more closely target their efforts at the outset with the aim of collecting evidence that meets the legal requirements to prove the ICC crimes at issue. By identifying possible admissibility issues, staff in the JCCD can provide valuable guidance to prosecutors and investigators in selecting appropriate incidents for investigation and prosecution. We welcome the OTP’s joint teams approach.

b. Improving the pace of investigations

i. Expanding the approach to sequencing

Investigating allegations of war crimes, crimes against humanity, and genocide is a lengthy process. Compiling evidence to trace the culpability of senior officials in these crimes can be difficult and time-consuming. The often precarious security situation of the territories under investigation means that the Office of the Prosecutor must constantly evaluate risks to witnesses and prosecution staff and must delay investigations if necessary. Under some circumstances, evidence-gathering activities can be suspended entirely. In Congo, for instance, rising tensions surrounding the 2006 elections halted the OTP’s investigations there for several months.163

Moreover, in many country situations, a number of groups may have allegedly participated in committing ICC crimes, but the prosecutor’s limited resources and broad mandate mean that his office cannot pursue allegations against all individuals simultaneously. As a result, the prosecutor may have to “sequence” investigations, meaning his office must investigate cases and groups incrementally, which can cause additional delays. In his 2006 paper on case selection, the prosecutor appears to have opted for a strict application of the sequential approach: after completion of field investigations of a particular group, the office examines whether other groups warrant investigation.164 Groups are selected for investigation based on the gravity of the crimes alleged as well as the potential preventative impact of investigation.165 Cases against individual perpetrators from within these groups are similarly selected according to gravity of the crimes alleged.166 Once the field investigation into one case is completed, the office analyzes the crime situation to determine whether there is another case warranting further investigation in the field.167

According to the Office of the Prosecutor, investigating one group at a time can be advantageous. For example, this approach is viewed as more cost efficient since the limited focus permits the office to conduct investigations using fewer staff and teams (who can then be “rolled over” from one case to the next). Staff in the prosecutor’s office also noted that from the perspective of security, investigating groups simultaneously—and, therefore, alerting individuals from these groups of the prosecutor’s efforts to compile evidence against them—could increase the security risks for staff and witnesses associated with the investigation.168 From this perspective, limiting the scope of the investigation to one group at a time minimizes these risks in the field.

We can appreciate that moving sequentially in country situations is, to an extent, a necessity. It is clear that the OTP does not have the capacity or resources to investigate all groups at the same time. We are concerned, however, that the prosecutor’s strict application of sequencing further delays an already lengthy process.

In addition, these delays can undermine perceptions of his office’s impartiality in affected communities, particularly in societies that are ethnically polarized, and can exacerbate ethnic tensions. Our research in the Ituri district of the DRC suggests that the prosecutor’s use of the sequential approach has already had significant negative implications. The Ituri conflict, the current focus of the ICC’s investigation in the DRC, began in 1999 when a long-standing land dispute between Hema pastoralists and Lendu agriculturalists spiraled out of control, fueled by international and local actors involved in Congo’s larger war.169 In early 2006 the ICC arrested Thomas Lubanga, the head of the Union of Congolese Patriots, a prominent Hema-based militia group. In October 2007, the ICC arrested Germain Katanga, chief of staff of the Ituri Patriotic Resistance Forces (FRPI), an Ngiti-based militia (the Ngiti are closely linked to the Lendu). In February 2008, Mathieu Ngudjolo, former chief of staff of the Nationalist and Integrationist Front (FNI), a Lendu-based militia, was brought into ICC custody.

The arrest of senior officials from both the Hema and Lendu-based militias is an important development. However, field research conducted by Human Rights Watch in the nearly 18-month period following Lubanga’s arrest (but prior to the more recent arrests) consistently showed that the absence of arrest warrants against Ngiti and Lendu militia leaders led to a strong perception within the Hema community that the ICC is carrying out “selective justice.”170 The arrests of Katanga and Ngudjolo may address these perceptions to an extent. Nonetheless, we are concerned that the extensive delay in moving forward may have caused irreparable damage to perceptions about the ICC’s impartiality in the DRC.

In this context, it is not clear how the Office of the Prosecutor’s strategy of pursuing one group at a time unequivocally minimizes risks to witnesses and staff in the field.171 Indeed, perceptions that the ICC is pursuing “selective justice” seem to exacerbate ethnic tensions in Ituri. Inflaming tensions in this way could have the effect of increasing security risks for witnesses and OTP staff in the field rather than easing them. This possibility suggests that in ethnically polarized societies, the OTP must carefully balance the dangers involved with pursuing multiple groups, versus the security risks that can arise by only pursuing one based on considerations of safety of staff and witnesses in the field.

We hope that on the basis of experience to date, the Office of the Prosecutor is moving to expand its application of the sequential approach to investigate more than one group at a time in the field. In addition to using more investigative teams simultaneously, the teams used should be sufficiently staffed so that the investigations are comprehensive in scope.

We can appreciate that even with a broader application of the sequential approach, some delays in investigations are unavoidable. We urge the Office of the Prosecutor to use its outreach and communications strategy to consistently engage with affected communities and to address the negative perceptions that may arise from these delays. Explaining the delays inherent in the investigations process can help combat some misunderstandings about the OTP’s commitment to bringing justice and may help to preserve the ICC’s credibility in the communities most affected.

ii. Revising estimates of investigations and cases

Our recommendation to the prosecutor’s office to improve the pace of investigations by adjusting its policy of sequencing to investigate more than one group at a time highlights the importance of allocating resources to adequately staff additional teams. Of course, there are limits in this regard because of resource constraints. This reality means that the prosecutor’s office, and the court as a whole, must strategically manage its resources to maximize its impact in all of the country situations under investigation.

To facilitate predictions about what the ICC can achieve with its resources, the court uses a simulation tool called the “Court Capacity Model.” The figures yielded by this tool depend on the starting point for analysis. For example, it can help estimate the number of staff needed to conduct a certain number of investigations or trials. Alternatively, it can be used to identify approximately how many investigations or trials the ICC can conduct with a fixed number of staff. Use of the “Court Capacity Model” is not intended to be rigid.172

To this end, the prosecutor has predicted that within the three-year period beginning July 2006, his office will initiate four to six new investigations of those allegedly “bearing the greatest responsibility” for ICC crimes. These investigations could arise from the current or new situations.173 Consistent with the Court Capacity Model’s underlying philosophy—that the figures that it generates are not supposed to be static—we urge the OTP to review these estimates regularly.

In doing so, we believe that it is essential for the prosecutor’s office to consider, on an ongoing basis, the ethnic and political landscapes in each of the ICC country situations. This will better enable the OTP to gauge how many cases the court should handle. The experience in the DRC reveals that more teams may be necessary to conduct simultaneous investigations, particularly in those polarized societies where there are allegations of ICC crimes against several groups. Ultimately, it may be necessary to seek additional resources from states parties to ensure that the ICC is equipped to tackle the worst crimes based on a case-driven, as opposed to a resource-driven, approach. In those instances, we urge states parties to respond to such requests favorably.

c. Improving field investigations

Since strong prosecutions depend on solid investigations, we believe that it is essential to proactively pursue policies to improve the overall efficiency and quality of investigations in the field. We have outlined below several suggestions in this regard.

Investigators and other members of the joint investigative teams are all based in The Hague. Each team is assigned to a specific country situation, and investigators conduct numerous discrete evidence-gathering missions to the field. During the period July 2004 to June 2006, members of the joint team for the DRC investigation conducted more than 70 missions inside and outside of the DRC.174 During a 10-month period following the opening of the Uganda investigation in July 2004, the joint team completed nearly 50 missions.175 In the Darfur investigation, the team conducted more than 50 missions to 15 countries between June 2005 and June 2006.176 The OTP also has operational staff located in the court’s field offices to help arrange logistics for when investigators are coming on mission.177

i. Positive perceptions of the investigative methods of work

As discussed further in part VI.B.2, below, the OTP’s policy is to approach the role of witnesses sensitively, including minimizing risks to witnesses and others and taking into account the particular vulnerabilities of women and children crime victims.178

Our research in the DRC, Uganda, and Chad revealed that the work of ICC investigators was generally well regarded. Sources that we interviewed in Ituri confirmed that investigators had developed techniques to meet witnesses in neutral and safe places in ways that do not attract attention and were concerned with witness confidentiality and safety. Investigators seemed to have established links with a good range of local interlocutors who were assisting with contacting witnesses. Sources that we consulted who had facilitated ICC investigators’ access to former child soldiers said that the investigators “were very nice, very patient.”

In Uganda, several NGO representatives and government officials told Human Rights Watch researchers that they believed that investigations were conducted in a highly professional manner. Those we consulted who had direct knowledge of investigative activities supported this positive assessment. In Chad, the investigations, though seemingly limited in scope to two camps at the time of our field mission, were done discreetly.

ii. Enhancing the field presence of investigators

Pursuing investigations using staff based in The Hague presents a number of challenges. The opportunities for Hague-based investigators to interact and develop strong contacts with witnesses are limited in number and timeframe. The sometimes precarious security situation in each of the countries under investigation and the resulting restrictions on travel and movement mean that these opportunities may be limited further. Moreover, even when key witnesses agree to a specified time to meet with investigators, circumstances may change, rendering them unavailable by the time that the Hague-based members of the investigative teams travel to the field. Additional field missions may be required, adding to the already-rigorous travel schedule of investigative team members. This can lead to delays in investigations overall.

We, therefore, urge the Office of the Prosecutor to consider basing members of the investigative teams in the field, as we believe that this would have a positive impact on the quality and efficiency of investigations. Investigators based in the field are more familiar with the area under investigation and can develop stronger relationships with key local actors who may be in a position to facilitate the investigation. Field-based investigators can better understand the nuances of the political context that can inform all stages of the investigative strategy. They can also get a better sense of the security situation and, thus, can help make decisions about secure investigation operations. Further, investigators based in the field are in a stronger position to foster trust with victims and witnesses on a consistent basis over the longer term, which can be essential to ensuring adequate protection.179 Investigators based in the field can also respond quickly to developments in ongoing investigations and can preserve evidence in relation to new or previously unexamined crimes in the ICC’s jurisdiction.

Staff whom we interviewed in the Office of the Prosecutor’s Investigation Division expressed concern that basing investigators in the field would make it easier for court opponents in the situations under investigation to identify and monitor them. This would in turn increase risks for witnesses who speak with investigators.180 However, conducting investigations discreetly does not necessarily depend on the anonymity of investigators. The reality of working in close-knit communities—for example, in Ituri—means that it is difficult to hide the identities of ICC staff.

Indeed, many of the sources that we interviewed in Ituri, for example, were aware of the identities of the ICC’s investigators while praising their discretion in conducting investigations.181 Further, we note that staff in ICC field offices in all country situations already provide logistical assistance to investigators.182 This suggests that risks that could be linked to the ongoing presence of investigators in the field are minimal, provided interaction with witnesses is handled sensitively. As part of a recommended court-wide strategy of “field engagement,” discussed in part IV, below, we encourage the Office of the Prosecutor to consider maintaining an ongoing presence in those security situations that permit the functioning of an ICC field office.

iii. Managing cooperation from state authorities in the field sensitively

On the ground, the absence of its own police force means that ICC officials, including investigators, must rely on state officials and other actors like the United Nations operating in the country situation for assistance in conducting investigations. This includes locating potential witnesses and providing security. Although necessary, this reliance carries significant disadvantages for the ICC’s credibility. Most notably, it can undercut perceptions about the ICC’s impartiality, particularly where state actors themselves have allegedly committed abuses. These possibilities are heightened in situations that have been voluntarily referred.

For example, assistance provided by the Ugandan armed forces to the ICC, such as armed escorts for travel in the region, while understandable at times due to security concerns, may exacerbate the existing negative perceptions of the ICC in Uganda discussed earlier. Indeed, representatives of NGOs that we interviewed in Kampala and northern Uganda felt that ICC interaction with the UPDF has compromised perceptions of the court’s independence and impartiality in its work in northern Uganda.183

The OTP has also used the assistance of Ugandan police in conducting its investigations.184 This may be helpful to the extent that the police are perceived as less of an abusive actor in the conflict than the Ugandan military.185 Negative consequences may persist, however. For example, one representative of a community-based organization told us that it was obvious which individuals the ICC was interviewing in the internally displaced person camps because the police were used to locate them; while we were told that police sought to maintain a low-profile, they apparently were identifiable to local residents.186 Further, some felt that a general lack of trust by people in the police makes it a poor choice to provide assistance in investigations.187

As noted above, we can appreciate that to a certain extent, reliance on national police and military forces is inevitable. Indeed, sources that we encountered during our field research in Uganda confirmed that the ICC’s use of the UPDF for security was a reality of work in northern Uganda when the conflict was active. However, the negative perceptions outlined above highlight why it is necessary to manage such interactions very carefully to avoid creating or feeding into misperceptions about the ICC’s independence and impartiality. It also emphasizes why the OTP should consistently engage with affected communities through a robust outreach and communications strategy to better address the reality of operations on the ground and the negative impressions that can result.

2. Selection of cases

a. ICC’s primary targets should be senior officials

The types of cases—meaning specific allegations against individual defendants—that are selected for prosecution will have important implications for the ICC’s impact among the communities most affected and for its overall influence in limiting impunity. As with situation selection, the case must first satisfy the subject matter and temporal jurisdictional requirements of the court as well as the admissibility requirements of complementarity and gravity.188 The JCCD plays an important role in the Office of the Prosecutor’s analysis of these criteria.

As with situation selection, gravity is a central factor in determining which cases are selected for trial before the ICC.189 Of course, not all suspected perpetrators involved in committing grave crimes under the jurisdiction of the ICC can be selected for prosecution. The prosecutor has, therefore, indicated that in addition to the act that constituted the crime, gravity encompasses the degree of participation in its commission.190

The prosecutor’s stated policy in assessing the degree of participation is to target “those bearing the greatest responsibility” for alleged crimes. According to the OTP, pursuing “those bearing the greatest responsibility” may involve commanders and other (political/civilian) superiors if their effective subordinates are involved in the crimes; those playing a major causal role in the crimes; and notorious perpetrators who distinguish themselves by their direct responsibility for particularly serious crimes, or the particular cruelty or zeal that they demonstrated in committing them. This should include pursuing those holding de jure and de facto senior leadership positions, including those who are not necessarily in the formal chain of command but who are influential or powerful beyond their official position.191 The OTP has also indicated that an investigation may be extended to include those below high-ranking officers if required for the whole case.192

To the extent that “those bearing the greatest responsibility” may include those holding government or military positions, the Rome Statute emphasizes the irrelevance of official capacity (which may entail, for example, domestic immunities from prosecution or other ex officio protected status) to its application. Article 27 states that the Rome Statute shall “apply equally to all persons without any distinction based on official capacity;” in particular, a person shall not be exempt from criminal responsibility based on his or her “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official.” Further, this official capacity does not, in and of itself, constitute a ground for the reduction of a sentence.193 Similar provisions are found in the statutes of the Special Court for Sierra Leone, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, as well as the Nuremberg Charter.194

Since senior leaders considered to bear “the greatest responsibility” are often beyond the reach of national judicial authorities because of their official positions, the ICC’s pursuit of them is essential. Effectively targeting those in senior leadership can also expose the structure of criminality that led to the commission of widespread crimes. At the same time, these officials are often not directly involved in committing these crimes—they are not the “trigger pullers”—so building cases to show their responsibility is a complex task. Proving the culpability of these actors, therefore, requires tracing the chain of command to their level of responsibility, often through indirect evidence. While a complex task, it is, nonetheless, one that is central to the successful execution of the ICC’s mandate. In this regard, the Belgian authorities’ recent arrest and transfer to The Hague of Jean-Pierre Bemba, former vice-president of Congo who was in Belgium at the time of his arrest, on the basis of an ICC arrest warrant for crimes allegedly committed in the Central African Republic, is a positive development.

In Congo, as discussed above, the Office of the Prosecutor has so far pursued senior members of rival ethnic militias in Ituri. While we welcome the arrests of Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo by the ICC, these warlords did not act alone in terrorizing civilians. Indeed, many of those whom we interviewed in Ituri said that in order for justice to be achieved, the court must pursue accountability for those who supported militia groups in Ituri.195

Our research in Congo, covering the period from 1998 to this writing, suggests that key political and military figures in Kinshasa, as well as in Uganda and Rwanda, also played a prominent role in creating, supporting, and arming Lubanga’s Union of Congolese Patriots, Katanga’s Nationalist and Integrationist Front, and Ngudjolo’s Ituri Patriotic Resistance Forces. The availability of political and military support from these external actors encouraged local leaders in Ituri to form more structured movements and significantly increased their military strength. We, therefore, urge the prosecutor to investigate senior officials in Kinshasa,196 Kampala, and Kigali and, evidence permitting, to bring cases against them.

In relation to the ICC’s investigation in Darfur, the arrest warrants against Ahmad Harun, current minister of humanitarian affairs and state minister of interior at the time of the alleged crimes, and Ali Kushayb, a senior militia (“Janjaweed”) leader, are important developments in limiting impunity there. These warrants charge Ali Kushayb with having “implemented” the counterinsurgency strategy and allege that Ahmad Harun is responsible for “coordinating” the different bodies of the government in the counterinsurgency strategy of the Sudanese government.197 As such, while these officials played an important role, the OTP’s own arrest warrants illustrate that they were not its architects. We urge the prosecutor to ensure his investigations include others in senior leadership positions in the Sudanese government with the aim of ultimately bringing to justice those most responsible for devising a counterinsurgency campaign involving widespread attacks on civilians. To this end, we welcome the prosecutor’s announcement that he will present an application to the chamber in relation to a new case in which senior government officials may be implicated for their role in the organized campaign to attack civilians in Darfur.198

b. Focused arrest warrants

i. Pursuing representative charges

The OTP’s arrest warrants, once public, can offer victims a key opportunity to assess the relevance of the ICC in addressing the experiences that they have endured. The office’s selection of alleged perpetrators will of course be important to this end. However, its selection of incidents and charges against these alleged perpetrators can be just as important to affected communities in measuring the ICC’s ability to bring justice. As discussed earlier, as part of its focused approach to investigations and prosecutions, the OTP places an emphasis on selecting a small number of events that reflect the gravest incidents and the main type of victimization, evidence permitting.199 In selecting charges for prosecution, the Office of the Prosecutor’s policy is to gather evidence to bring limited counts and focused charges relating to the most serious crimes.200 In making this determination, the office considers the most serious crimes, major crime patterns, impact, and the need for focused and expeditious trials.201

In addition to selecting representative incidents, we believe that it is essential to gather sufficient evidence to charge alleged perpetrators with the gravest crimes that are most representative of the victimization. This is crucial in reinforcing the ICC’s capacity to adequately address the suffering experienced in the communities most affected. Indeed, the prosecutor’s office appears to have implemented this policy in its arrest warrants against senior members of the LRA in northern Uganda, in its warrants against Ahmad Harun and Ali Kushayb in relation to the Darfur situation, in relation to the case against Germain Katanga and Mathieu Ngudjolo in Congo, and in its case against Jean-Pierre Bemba in the CAR situation. In two of its cases, however, this policy was not followed: Thomas Lubanga and Bosco Ntaganda in Congo. Our research in affected communities provides a useful illustration of the dangers of pursuing an unduly narrow set of charges, which we have set out below.

ii. Limited charges against Hema militia leaders: Undermining the ICC’s credibility

Despite numerous allegations documented by Human Rights Watch and others that Lubanga’s UPC militia committed a range of horrific crimes, including murder, torture, and rape, 202 the ICC has only charged him with the war crimes of enlisting and conscripting children under the age of 15 years as soldiers and of using them to actively participate in hostilities in 2002-2003.203 More recently, the court unsealed the OTP’s arrest warrant against Bosco Ntaganda, the former chief of military operations for the UPC, for his alleged role in the same limited set of crimes (he is still at liberty in the DRC).204 We have previously expressed concern to the Office of the Prosecutor regarding the potentially negative perceptions arising from the limited charges in the Lubanga case, which are only reinforced in light of the ICC’s pursuit of the same limited charges against Ntaganda.205 In the course of our field research in Ituri, civil society representatives, community leaders, and foreign observers there expressed to us disappointment and disbelief that the prosecutor had at that time only brought charges in relation to the enlistment, recruitment, and use of child soldiers against Lubanga. Our research in Kinshasa revealed a general consensus that the charges against Lubanga (and now Ntaganda) are too limited and do not reflect the gravity of the crimes that the UPC allegedly committed in Ituri.

According to the Office of the Prosecutor, the decision to focus on these crimes was triggered by Lubanga’s possible imminent release from Congolese custody after approximately one year of detention in relation to other charges. Based on careful consideration of the evidence gathered, the office decided to limit the charges to those mentioned above.206 In addition, nearly two years after opening an investigation in the DRC, the OTP likely felt under pressure to bring forward the ICC’s first-ever case.

We can appreciate that the arrest of ICC suspects cannot always coincide with the timeline envisioned to investigate incidents and to select representative charges. Arresting suspects at an earlier stage of the Office of the Prosecutor’s investigations may influence the selection of charges against ICC suspects, at least initially—the OTP can only put forward charges for which there is sufficient evidence. However, we note that the prosecutor announced the opening of an investigation in Congo in July 2004; Lubanga was arrested in March 2006. After nearly two years of investigation, it is disappointing that there was not enough evidence to include more charges in the initial arrest warrant. Many sources with whom we consulted pointed to the shortage of investigators to gather sufficient evidence of other crimes, among other factors, to explain the limited charges.207

Following the arrest and surrender of Lubanga to the court, the prosecutor indicated on several occasions that he wanted to include additional charges against Lubanga.208 This has not been done, in part because of the shortage of investigators: the OTP decided to use its limited investigations staff to gather evidence of the crimes alleged against members of the FNI. Given the ethnic tensions between the Hema and Lendu in Ituri, it was essential to move toward bringing a case against FNI leaders. Indeed, as discussed earlier, the delays in pursuing those in Lendu-based militias has already caused considerable damage to the ICC’s credibility there. The fact remains, however, that the limited charges in Lubanga are a source of legitimate dissatisfaction among affected communities. There is a sense that the ICC has “broken promises” in Ituri.

Many of those with whom we spoke in Ituri expressed the opinion that the ICC’s charges against Lubanga of enlisting, forcibly recruiting, and using children to actively participate in hostilities are not “serious.”209 While the ICC’s charges against Lubanga have raised the profile of and, therefore, awareness about crimes related to child soldiers, our research suggests that more efforts are needed to contextualize and humanize these crimes to change perceptions about their seriousness over time. To this end, Human Rights Watch believes that increased ICC engagement with local communities through a focused outreach and communications strategy during the Lubanga trial will be essential.210 In the interim, however, doubts expressed to us in Ituri about the “seriousness” of the ICC’s sole charges against Lubanga have raised questions about the ICC’s relevance among communities affected by Lubanga’s other alleged crimes and have contributed to rumors about the court being biased.

As mentioned above, the ICC has pursued a more comprehensive set of charges against Germain Katanga and Mathieu Ngudjolo, the latter a Lendu, the former from the Lendu-affiliated Ngiti. This is a very welcome development and is consistent with the Office of the Prosecutor’s stated policy of pursuing representative charges. However, this approach, when contrasted with the more limited crimes alleged against Lubanga and Ntaganda, both Hema, contributes to existing tensions between the Lendu and Hema communities. Among the Hema, opinion leaders claim that the absence of other charges against Lubanga (and now Ntaganda) shows that the Office of the Prosecutor was not able to find evidence of other crimes, thus implying his innocence.211 The ICC’s more comprehensive charges against Katanga and Ngudjolo feed the perception that the Lendu committed more crimes and, hence, carry a larger burden for the horrific abuses committed during the Ituri conflict, a perception that is false.

This imbalance in charges is particularly problematic in an environment where ethnic hostilities are longstanding. The divisions between Hema and Lendu are partly the result of historic disputes over land and ethnic representation that were accentuated in colonial and post-colonial times when Hema were favored over Lendu, becoming the administrative, landowning, and business elite. Of course, the ICC cannot be expected to address all of the crimes endured by victims in its jurisdiction, nor is it realistic to expect identical charges against representatives of rival groups. Nonetheless, the discrepancy in the range of charges against Lubanga and Ntaganda and those against Ngudjolo and Katanga feeds the historic narrative of Hema superiority by portraying Lendu as more brutal. This could have significant long-term negative consequences. This once again highlights why it is crucial for the OTP to carefully consider the political landscape of the situation under investigation in devising its prosecutorial strategy.

Moreover, the Office of the Prosecutor’s strategy for selecting charges in Ituri means that the ICC has not addressed the suffering of Lendu victims: the primary victims of the ICC’s allegations against Lubanga are Hema children because of the UPC’s practice of enlisting and conscripting children from within the Hema community,212 while the charges lodged against Katanga and Ngudjolo also relate to crimes allegedly committed against Hema victims. Without a link to the ICC crimes alleged, the Lendu victims of the conflict are not eligible to participate in proceedings.213 The complete exclusion of a significant category of victims from the justice process at the ICC is another factor that seriously undermines the ICC’s credibility in Ituri.

Again, we can appreciate that the Office of the Prosecutor can only pursue more representative charges where there is sufficient evidence to do so. The negative consequences flowing from the Lubanga and Ntaganda cases once again underline why it is essential to have investigative teams that are sufficiently staffed with experienced investigators to gather enough evidence to pursue representative charges.

D. The ICC’s impact in the country situations under investigation

The preamble of the Rome Statute represents the vision of the ICC’s founders that, by providing some measure of justice for grave crimes where impunity previously prevailed, the court can contribute to broader accountability for these crimes and, ultimately, their prevention.214 Of course, the court’s impact, and the sustainability of this impact, is affected by numerous factors, some of which are outside of the court’s control. It is still far too early to comprehensively assess the ICC’s impact in the country situations overall. Nonetheless, several anecdotal examples of the ICC’s impact in the country situations under investigation have arisen during the course of our research.

In Uganda, although some suggested that the unsealing of ICC arrest warrants in 2005 was initially linked with LRA attacks on workers of international humanitarian organizations,215 a number of those close to the most recent round of peace talks, which began in July 2006 and took place in Juba, Southern Sudan, cited the ICC warrants against Joseph Kony and other LRA commanders as a contributing factor—among others—in prompting the LRA to the negotiating table.216 Although the negotiations have faltered after Kony failed to appear as anticipated to sign a final peace agreement in April 2008, the peace process also has contributed to increased stability in northern Uganda.217 The ICC arrest warrants in northern Uganda have further contributed to an increased focus on accountability for past atrocities as a central component of the peace negotiations and to recognition of the need to prosecute serious crimes that have been committed.218 This led to discussions and consultations with victims and the population at large about how to address accountability needs. The LRA and the Ugandan government delegation then signed an agreement on this topic that could, if implemented, contribute to strengthening the rule of law in Uganda.219

In the DRC, Human Rights Watch has documented various instances of short-term impact at notable moments in ICC proceedings. When the prosecutor’s office announced the opening of the investigation in Congo in June 2004, with an initial focus on the Ituri district, Human Rights Watch researchers were told that some armed group commanders warned their troops to refrain from attacking civilians or committing human rights violations, perhaps out of fear that they might be investigated by the court.220 In the wake of Lubanga’s transfer to the ICC in March 2006, some individuals allegedly responsible for war crimes expressed fear of arrest. Human Rights Watch researchers, who were investigating serious human rights violations in Katanga province (at the opposite end of the country from Ituri) at the time of the arrest, spoke with Congolese army and Mai Mai rebel commanders who confided that they did not want to “end up like Lubanga” and would, therefore, initiate inquiries into crimes committed by their troops.221

Following the confirmation of charges against Lubanga, it became apparent that there was an increased awareness among the population at large that the enlistment, recruitment and use of child soldiers are in fact crimes. This is particularly important among families who gave their children voluntarily as an act of solidarity to the relevant militia, which they felt represented their own interests. In this regard, child protection agencies admitted that the Lubanga case seems to have reached out to families in the region much more effectively than years of their own campaigning.222

Of less positive effect, at the time of our field mission there, militia leaders in Ituri appeared to be changing their approach to child soldiers because of the charges against Lubanga. Previously, these leaders openly admitted approximate numbers of children in their ranks and handed children over to the United Nations Mission in the Democratic Republic of Congo (MONUC) and the United Nations Children’s Fund (UNICEF) as part of the demobilization process.223 Following the confirmation of charges against Lubanga, however, many denied having any children under their command. They negotiated the provision on child soldiers in the November 2006 peace agreement so that it could not be construed as an admission of this practice.224 Children were hidden or chased from the ranks, and some were abandoned rather than being brought to the demobilization ceremonies, which is concerning.

The children themselves appeared to have been briefed by their commanders to claim to be older than they actually were. One source from a child protection organization whom we interviewed reported that many children refused to admit that they were under age 18, saying “we know that you want to try our commander like you tried Lubanga.”225 Child protection officials working in this area refer to this phenomenon as the “Lubanga syndrome.” There were also threats against child protection workers by armed group leaders following Lubanga’s arrest.

These developments pose significant challenges to agencies working for child welfare in the region. But they are also indicative of the ICC’s potential to change the behavior of alleged perpetrators in relation to crimes in its jurisdiction. At the time of our mission, it was clear that militia leaders in eastern Congo knew that Lubanga was being tried on charges relating to child soldiers and were only too aware of their own vulnerability to prosecution in this regard. It is worth emphasizing that the Office of the Prosecutor could have made this impact more significant had it pursued a more representative set of charges against Lubanga. Indeed, a prosecutor in Bunia told Human Rights Watch researchers that he wished a strong message could have been sent about sexual violence as well, since numerous cases of rape continue to be brought to his attention on a daily basis.226 Unfortunately, the eruption of violence in North Kivu in 2007, which has been marked by grave crimes and the recruitment and use of child soldiers by all parties to the conflict, including by forces affiliated with Bosco Ntaganda, underscores the fragile and limited nature of the court’s impact.227

We believe that the developments discussed above illustrate that the ICC’s potential to make an impact on the struggle against impunity is both real and significant. The Office of the Prosecutor should strive to maximize the impact of its activities and has itself identified this need as a guiding principle of prosecutorial strategy.228 As noted above, the OTP’s selection of cases—including charges—is instrumental to this end. As discussed in part V, below, it is also essential for the OTP and the ICC generally to develop an effective outreach and communications strategy with affected communities in the situations under investigation. This will help to sustain short-lived influence over the longer term. This includes communicating in a robust and decisive manner about ongoing investigations and the prospect of additional arrest warrants, as well as speaking up when crimes are committed to remind parties of the court’s jurisdiction. States parties have also an essential role to play in this regard: they must lend their political weight to support the court’s mandate and to enforce its arrest warrants and other orders.229 This will reinforce the ICC’s role as a credible institution in seeking justice.

In addition, the Office of the Prosecutor and other organs of the ICC should explore ways to maximize the court’s impact by acting as a catalyst for national prosecutions. Indeed, because of its limited resources and mandate, the court will likely try only a relatively small number of those alleged to be most responsible for widespread crimes in each of the situations under investigation. Encouraging national prosecutions will be essential to provide broader accountability, to strengthen the respect for the rule of law, and, thus, to contribute to deterring future crimes.

The ICC’s role in pushing for national prosecutions is central to the notion of “positive complementarity,” which the ICC prosecutor first introduced at a public hearing when he took office in June 2003.230 As explained above, “complementarity” is an objective principle at the heart of the Rome Statute, which provides that the ICC only has jurisdiction when countries are unable or unwilling to act.231 By contrast, “positive complementarity” is a dynamic concept that involves the ICC actively encouraging domestic investigation and prosecution of grave crimes. The prosecutor has stated that positive complementarity is one of the three essential principles guiding his strategy.232 However, the office’s definition of and plans on positive complementarity are unclear.

While a full discussion on positive complementarity is beyond the scope of this report, Human Rights Watch believes that the role of the OTP is particularly important in relation to two scenarios. First, in situations under analysis, the office can engage with national authorities and use public communications to create pressure on states to fulfill their responsibilities to investigate and prosecute crimes. The office has recently modified its policy on situations under analysis in a manner consistent with this recommended approach. For instance, the prosecutor has played a positive role in pressing the authorities in Colombia to improve its investigations into ICC crimes there. Following the recent events in Kenya,233 he has also made public that he is monitoring all alleged ICC crimes, regardless of the group or individual alleged to have committed them.234 There are plans to make similar efforts in relation to the situation in Afghanistan.235 We welcome and support these developments.

Second, in countries currently under ICC investigation, we believe that the office could undertake targeted initiatives to enhance the capacity of national courts in the situation countries to prosecute serious crimes that it will not address itself. Our research shows that, to date, the OTP has not pursued initiatives in this regard in any of the country situations under investigation.236 We recognize that the Office of the Prosecutor has resource constraints, and we can appreciate that it cannot and should not share sensitive information about its investigations or witnesses in the absence of firm guarantees of confidentiality. Nonetheless, there are a number of discrete, non-confidential, and low-cost strategies that the Office of the Prosecutor could explore. For example, during investigative missions in the field, OTP staff could share expertise with their local counterparts on legal issues related to the prosecution of ICC crimes, such as modes of liability, elements of crimes, and defenses. OTP staff could also advise local prosecutors on investigative techniques.237

The principle of positive complementarity extends to other organs of the court as well. In Uganda, for instance, government officials noted the potential value of working with the ICC to develop the domestic witness protection capacity for prosecutions there.238 We urge the OTP, as well as other organs of the ICC, to begin working on a focused common strategy to encourage national prosecutions. This process should be public and engage various stakeholders. It will be important for states parties to support ICC efforts to push for genuine investigation and trials of serious crimes at the national level.



105 The impact of the selection of charges for victims’ participation is discussed in Part VII.B.2 below.

106 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 42(4) (“Rome Statute”).

107 See Part VI.B.1, below.

108 “Regulations of the Office of the Prosecutor,” draft on file with Human Rights Watch, reg. 7 (“OTP Draft Regulations”).

109 Human Rights Watch interview with OTP staff, The Hague, November 7, 2007. See Part II.C.1 of this section for a more comprehensive discussion of ICC investigations.

110 There are currently 106 states parties to the Rome Statute.

111 OTP Draft Regulations, reg. 28.

112 For discussion of the challenges and importance of state cooperation, see Part VIII.C-D, below.

113 The ICC originally issued five arrest warrants against members of the LRA leadership. However, one suspect has been killed. The ICC is in the process of verifying whether a second suspect is deceased. Recent press reports indicated that a third suspect may also have been killed in LRA infighting.

114 Rome Statute, art. 53(3). The pre-trial chamber has acted under article 53 to request information from the prosecutor as to the status of his investigations in the Uganda and CAR situations. See Part I.A above.

115 Human Rights Watch, The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute, June 2007, http://www.hrw.org/campaigns/icc/docs/ij070505.pdf.

116 OTP, “Second Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno-Ocampo, to the Security Council Pursuant to UNSC 1593 (2005),” December 13, 2005, http://www.icc-cpi.int/library/organs/otp/LMO_UNSC_ReportB_En.pdf (accessed June 10, 2008), p. 6.

117 OTP, “Policy Paper on the Interests of Justice,” September 2007, http://www.icc-cpi.int/library/organs/otp/ICC-OTP-InterestsOfJustice.pdf (accessed June 12, 2008), pp. 1, 8-9.

118 Rome Statute, art. 16.

119 Luis Moreno-Ocampo, ICC prosecutor, address to international conference on “Building a Future on Peace and Justice,” Nuremberg, June 25, 2007, http://www.peace-justice-conference.info/download/speech%20moreno.pdf (accessed June 13, 2008), p. 4 (“Nuremberg address”).

120 Human Rights Watch, The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute, pp. 4-9.

121 Moreno-OcampoNuremberg address, pp. 4-5.

122 Ibid., p. 4.

123 See, for example, OTP, “Seventh Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSC 1593 (2005),” June 5, 2008, http://www.icc-cpi.int/library/organs/otp/UNSC_2008_En.pdf (accessed June 13, 2008), paras. 9-10 (“Seventh Report to the UN Security Council”).

124 Ibid., para. 18.

125 Rome Statute, art. 87(7).

126 We extensively discuss the importance of a court-wide outreach and communications strategy in Part V, below.

127 Rome Statute, art. 14(1).

128 Ibid., art. 12(2).

129 United Nations Security Council, Resolution 1593 (2005), S/RES/1593 (2005), http://daccessdds.un.org/doc/UNDOC/

GEN/N05/292/73/PDF/N0529273.pdf?OpenElement (accessed June 10, 2008).

130 Rome Statute, arts. 15(1), 15(4). In addition to these “triggers,” it may also be possible for a non-state party to accept the exercise of the ICC’s jurisdiction under article 12 of the Rome Statute. In February 2005 the ICC Registrar confirmed Côte d’Ivoire’s acceptance of the ICC’s jurisdiction over crimes committed on its territory since September 19, 2002. See “Registrar Confirms that the Republic of Côte d’Ivoire has Accepted the Jurisdiction of the Court,” ICC press release, February 15, 2005, http://www.icc-cpi.int/press/pressreleases/93.html (accessed June 3, 2008).

131 Rome Statute, art. 53.

132 OTP, “Criteria for Selection of Situations and Cases,” draft policy paper on file with Human Rights Watch, June 2006, p. 5 (“OTP Draft Policy Paper”).

133 In confirming charges against Thomas Lubanga, Pre-Trial Chamber I has offered its interpretation of these admissibility requirements. See Part I.C.1 above.

134 OTP, “Update on communications received by the prosecutor,” February 10, 2006, http://www.icc-cpi.int/library/organs/otp/OTP_Update_on_Communications_10_February_2006.pdf (accessed June 3, 2008), pp. 1-3.

135 Rome Statute, art. 53.

136 OTP Draft Policy Paper, pp. 1-2.

137 Ibid., p. 1.

138 Rome Statute, art. 13.

139 Pre-Trial Chamber III requested an update as to the status of the prosecutor’s analysis in November 2006 when nearly two years had passed without a decision as to whether an investigation would be opened. See above, Part I.C.2.

140 OTP, “Report on the activities performed during the first three years (June 2003 – June 2006),” September 12, 2006, http://www.icc-cpi.int/library/organs/otp/OTP_3-year-report-20060914_English.pdf (accessed October 25, 2007) (“OTP Activities Report”), p. 2.

141 See Human Rights Watch, The Selection of Situations and Cases for Trial before the International Criminal Court: A Human Rights Watch Policy Paper, no. 1, October 2006, http://www.hrw.org/backgrounder/ij/ij1006/index.htm, pp. 2-4 (“Selection of Situations and Cases for Trial Policy Paper”).

142 See “Prosecutor of the International Criminal Court opens an investigation into Northern Uganda,” ICC press release, July 29, 2004, http://www.icc-cpi.int/pressrelease_details&id=33&l=en.html (accessed June 4, 2008).

143 Luis Moreno-Ocampo, ICC prosecutor, “Statement by the Chief Prosecutor on the Uganda Arrest Warrants,” The Hague, October 14, 2005, http://www.icc-cpi.int/library/organs/otp/speeches/LMO_20051014_English.pdf (accessed June 10, 2008).

144 Luis Moreno-Ocampo, ICC prosecutor, “Address to the Assembly of States Parties,” New York, November 30, 2007 http://www.icc-cpi.int/library/asp/Statement_Prosecutor_en_30Nov2007.pdf (accessed June 6, 2008), p. 4. Clarification on this issue was also prompted by the intervention of Pre-Trial Chamber III. See above, Part I.C.2.

145 Human Rights Watch separate interviews with seven representatives of Ugandan civil society, Kampala, February 27 and March 1, Gulu, March 7, and Lira, March 11 and 13, 2007.

146 Human Rights Watch separate interviews with representative of Ugandan civil society and ICC staff, New York, December 4-5, 2007.

147 Rome Statute, art. 15(1).

148 Ibid., art. 15(3).

149 “The Office of the Prosecutor of the International Criminal Court opens its first investigation,” ICC press release, June 23, 2004, http://www.icc-cpi.int/pressrelease_details&id=26&l=en.html (accessed June 4, 2008).

150 OTP Activities Report, p.2.

151 Moreno-Ocampo, Nuremberg address, p. 2.

152 Human Rights Watch, State of Anarchy: Rebellion and Abuses against Civilians, vol. 19, no.14(A), September 2007, http://hrw.org/reports/2007/car0907/.

153 Marlise Simons, “Gambian Defends the International Criminal Court’s Initial Focus on Africans,” New York Times, February 26, 2007, http://www.nytimes.com/2007/02/26/world/africa/26hague.html?_r=1&oref=slogin (accessed June 10, 2008).

154 OTP, “Annex to the Three Year Report and the Report on the Prosecutorial Strategy,” http://www.icc-cpi.int/library/organs/otp/
OTP_Prosecutorial-Strategy-Annex_En.pdf (accessed June 5, 2008).

155 OTP, “Presentation by Mr. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court – NGO Roundtable,” unpublished document on file with Human Rights Watch, March 13, 2008.

156 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008 (Article 54(3)(e) decision), June 13, 2008, para. 32.

157 Rome Statute, arts. 54(1)(a), 67(2).

158 Article 54(3)(e) decision, para. 91. At this writing, the prosecution was seeking leave to appeal this decision. See Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Prosecution’s Application for Leave to Appeal ‘Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008,’ June 23, 2008.

159 OTP Draft Policy Paper, p. 12

160 Human Rights Watch, Weighing the Evidence: Lessons from the Slobodan Milosevic Trial, vol. 18 no. 10(D), December 2006, http://www.hrw.org/reports/2006/milosevic1206/, p. 74.

161 OTP Draft Regulations, regs. 4 and 29.

162 OTP Draft Regulations, reg. 28.

163 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Prosecutor’s Information on Further Investigation (Public Formatted and Redacted Document), June 28, 2006, paras. 7-8. The OTP conducts a security assessment prior to investigative missions. See Part VI.B.2.

164 OTP Draft Policy Paper, pp. 12-13.

165 Ibid.

166 OTP, “Report on Prosecutorial Strategy,” September 14, 2006, http://www.icc-cpi.int/library/organs/otp/

OTP_Prosecutorial-Strategy-20060914_English.pdf (accessed May 30, 2008), p. 5 (“Report on Prosecutorial Strategy”).

167 OTP Draft Policy Paper, p. 10.

168 Human Rights Watch interview with OTP staff, The Hague, November 7, 2007.

169 During the course of the conflict, ethnic groups like the Nande, Bira, and Alur, previously not associated with either of the contenders, were forced to choose sides. Human Rights Watch, Ituri – “Covered in Blood”: Ethnically Targeted Violence in Northeastern DR Congo, vol. 15, no. 11(A), July 2003, http://hrw.org/reports/2003/ituri0703, p. 14 (“Covered in Blood”).

170 Human Rights Watch group interview with Hema community leaders, Bunia, May 2, and separate interviews with Hema community leader, Bunia, May 8, and Hema intellectual, Goma, May 9, 2007.

171 A more detailed discussion of the prosecutor’s efforts to minimize risks to witnesses and victims, including activities of its Gender and Children Unit, is found in Part VI.B.2, below.

172 ASP, “Report on the Court Capacity Model,” ICC-ASP/5/10, August 21, 2006, http://www.icc-cpi.int/library/asp/ICC-ASP-5-10_English__Reissued.pdf (accessed June 2, 2008).

173 Report on Prosecutorial Strategy, p. 3.

174 OTP Activities Report, p. 11.

175 Ibid., p. 15.

176 Ibid., p. 19.

177 These operational staff members belong to the Operational Services Unit within the Investigation Division. For further discussion of the court’s field offices, see Part IV.B, below.

178 Human Rights Watch interview with OTP staff, The Hague, November 7, 2007.

179 See Part VI.C.5, below.

180 Human Rights Watch interview with OTP staff, The Hague, November 7, 2007.

181 Human Rights Watch separate interviews with representatives of local nongovernmental organizations, Bunia, April 30, May 5, and May 7, 2007.

182 See Part IV.B.1, below.

183 Human Rights Watch separate interviews with representatives of Ugandan civil society, Kampala, February 27 and March 2, and Lira, March 11, and group interview with representatives of Ugandan civil society, Gulu, March 8, 2007.

184 Human Rights Watch separate interviews with Ugandan government officials, Kampala, March 2, and Gulu, March 6, 2007.

185 Human Rights Watch separate interviews with two representatives of Ugandan civil society, Gulu, March 7-8, 2007.

186 Human Rights Watch separate interviews with Ugandan government official and representative of Ugandan civil society, Gulu, March 6-7, 2007.

187 Human Rights Watch interview with staff member of international organization, Kampala, March 15, 2007.

188 See discussion of the interpretation of the elements provided by the pre-trial chamber in the Lubanga case in Part I.C.1, above.

189 OTP Draft Policy Paper, pp. 5-6.

190 OTP, “Paper on some policy issues before the Office of the Prosecutor,” September 2003, http://www.icc-cpi.int/library/organs/otp/030905_Policy_Paper.pdf (accessed June 2, 2008), p. 7.

191 See Prosecutor v. Musema, ICTR, Case No. ICTR-96-13-T, Judgment (Trial Chamber), January 27, 2000, para. 880; Prosecutor v. Kayishema, ICTR, Case No. ICTR-95-1, Judgment (Trial Chamber), May 21, 1999, paras. 501-504.

192 OTP Draft Policy Paper, p. 13. We have elsewhere emphasized the importance of maintaining a flexible approach in pursuing those considered “most responsible.” This would include pursuing lower-ranking officials as this could, among other reasons, deter other similarly-situated officials from committing ICC crimes. This could have a bigger and more immediate impact for victims on the ground. See Human Rights Watch, Selection of Situations and Cases for Trial Policy Paper.

193 Rome Statute, art. 27(1).

194 Charter of the International Military Tribunal, art. 7, reprinted in Trial of the Major War Criminals before the International Military Tribunal: Proceedings Volumes (Nuremberg, 1947-49), vol. 1; Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), S.C. Res. 827, U.N. Doc. S/RES/827 (1993), as amended, http://www.un.org/icty/legaldoc-e/basic/statut/statute-feb06-e.pdf (accessed June 3, 2008), art. 7(2); Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), S.C. Res. 955, U.N. Doc. S/RES/955 (1994), as amended, http://69.94.11.53/ENGLISH/basicdocs/statute.html (accessed June 3, 2008), art. 6(2); Statute of the Special Court for Sierra Leone (SCSL Statute), January 16, 2002, http://www.sc-sl.org/Documents/scsl-statute.html (accessed June 3, 2008), art. 6(2).

195 Human Rights Watch separate interviews with representatives of local nongovernmental organizations, international observers, and local journalists, Bunia, May 1-3, 5, and 7, 2007

196 We note the February 2007 public letter by Floribert Njabu, the president of the Lendu-based FNI, where he implicated senior Congolese government officials. Copy on file with Human Rights Watch.

197 Prosecutor v. Harun and Ali Kushayb, ICC, Case No. ICC-02/05-01/07, Warrant of Arrest for Ahmad Harun, April 27, 2007,p. 5; Prosecutor v. Harun and Ali Kushayb, ICC, Case No. ICC-02/05-01/07, Warrant of Arrest for Ali Kushayb, April 27, 2007, p. 5.

198 OTP, Seventh Report to the UN Security Council, paras. 11-15.

199 OTP Draft Policy Paper, p. 12.

200 Report on Prosecutorial Strategy, p. 5; OTP Draft Policy Paper, pp. 10, 13.

201 OTP Draft Policy Paper, p. 13.

202 Human Rights Watch, Covered in Blood; The Curse of Gold: Democratic Republic of Congo (New York: Human Right Watch, 2005), http://www.hrw.org/reports/2005/drc0505/; Letter from the U.N. Secretary General to the President of the Security Council, “Special Report on the Events in Ituri, January 2002-December 2003,” July 16, 2004, http://documents-dds-ny.un.org/doc/UNDOC/GEN/N04/430/63/img/N0443063.pdf?OpenElement (accessed June 2, 2008), paras. 68-70.

203 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Warrant of Arrest, February 10, 2006.

204 Prosecutor v. Ntaganda, ICC, Case No. 01/04-02/06, Warrant of Arrest, August 22, 2006 (“Ntaganda Arrest Warrant”). The arrest warrant was unsealed on April 29, 2008. “DR Congo: Suspected War Criminal Wanted” Human Rights Watch news release, April 29, 2008, http://www.hrw.org/english/docs/2008/04/29/congo18670.htm.

205 Human Rights Watch et. al, Joint Letter to the Chief Prosecutor of the International Criminal Court, July 31, 2006, http://hrw.org/english/docs/2006/08/01/congo13891.htm.

206 OTP Activities Report, p. 8.

207 Human Rights Watch interviews with former OTP staff, January 2, 2006, May 12, 2007, and May 1, 2008.

208 See Katy Glassborow, “NGOs defend ICC role in Lubanga case,” Institute for War and Peace Reporting, December 1, 2006, http://www.iwpr.net/?p=tri&s=f&o=325843&apc_state=henh (accessed June 3, 2008); “International Prosecutor says Congolese warlord may face additional war crimes charges,” Associated Press, August 7, 2006, http://www.firstglobalselect.

com/scripts/cgiip.wsc/globalone/htm/news_article.r?vcnews-id=350883 (accessed June 3, 2008).

209 Human Rights Watch separate interviews with representatives of local nongovernmental organizations, local judicial official, local journalist, radio representative, Lendu community leader, Bunia, April 30, May 1-3 and 5, 2007, and group interviews with Hema community leaders, Bunia, May 2, and with representatives of local nongovernmental organizations, Goma, May 9, 2007.

210 As indicated above, broader discussion of the court’s outreach and communications efforts follows in Part V, below.

211 Human Rights Watch group interview with Hema community leaders, Bunia, May 2, 2007.

212 Human Rights Watch, Covered in Blood, p. 47.

213 Victims’ participation at the ICC is discussed in Part VII, below.

214 “… Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, … Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole …’” Rome Statute, preamble.

215 See, for example, “NGO attacks condemned in Uganda,” BBC News Online, October 27, 2005, http://news.bbc.co.uk/2/hi/africa/4383150.stm (accessed June 11, 2008); “Uganda: Two aid workers killed in north by suspected LRA rebels,” IRINnews, October 27, 2005, http://www.globalsecurity.org/military/library/news/2005/10/mil-051027-irin01.htm (accessed May 30, 2008); Jason Beaubien, “Uganda rebels step up attacks while offering talks,” NPR, January 3, 2006, http://www.npr.org/templates/story/story.php?storyId=5080409 (accessed May 30, 2008).

216 Human Rights Watch interviews with Western diplomats and Ugandan government officials, Kampala, February 26-March 16, 2008; Nick Grono and Adam O’Brien, “Justice in conflict? The ICC and peace processes,” in Nicholas Waddel and Phil Clark, eds., Courting Conflict? Justice, Peace and the ICC in Africa ( London: Royal African Society, 2008) (“Courting Conflict?”).

217 At the same time, however, media articles report a surge of attacks and abductions allegedly carried out by the LRA recently in the CAR, DRC, and southern Sudan, suggesting, not surprisingly, the limits of the arrest warrants in discouraging the LRA from criminal behavior. “Uganda: LRA Regional Atrocities Demand Action,” Human Rights Watch news release, May 19, 2008, http://www.hrw.org/english/docs/2008/05/19/uganda18863.htm. See also “Uganda rebels ‘kidnapping’ in CAR,” BBC News Online, March 28, 2008, http://news.bbc.co.uk/2/hi/africa/7318093.stm; Katy Glassborow et al., “LRA prepares for war not peace,” Institute for War & Peace Reporting, AR no. 168, April 24, 2008, http://www.iwpr.net/?p=acr&apc_state=henh&s=f&o=344252; (all accessed May 30, 2008).

218 Michael Otim and Marieke Wierda, “Justice at Juba: International Obligations and Local Demands in Northern Uganda,” in Waddel and Clark, eds., Courting Conflict?

219 Human Rights Watch, Analysis of the Annex to the June 29 agreement on Accountability and Reconciliation, February 2008, http://hrw.org/backgrounder/ij/uganda0208/.

220Human Rights Watch phone interviews with local officials and civil society members, Ituri, July 2004. The continued abuses, however, suggest that such orders, if given, did not have the effect of ending attacks against civilians.

221 See Anneke van Woudenberg (Human Rights Watch), A new Era for Congo?, October 19, 2006, http://hrw.org/english/docs/2006/10/19/congo14495.htm.

222 Human Rights Watch separate interviews with MONUC, UNICEF, and Save the Children, Bunia, May 2-3, 2007, and MONUC, Goma, May 10, 2007.

223 Human Rights Watch interview with MONUC, Bunia, May 2, 2007.

224 Human Rights Watch separate interviews with Save the Children and OCHA, Bunia, May 3 and 7, 2007. See also “Accord Cadre Pour La Paix en Ituri entre le Gouvernement de la République Démocratique du Congo et les Groups Armes de L’Ituri (MRC, FNI et FRPI)," November 29, 2006, copy on file with Human Rights Watch.

225 Human Rights Watch interview with Save the Children, Bunia, May 3, 2007.

226 Human Rights Watch interview with civilian prosecutor, Bunia, May 7, 2007.

227 Human Rights Watch, Renewed crisis in North Kivu, vol. 19 no. 17(A), October 2007, http://hrw.org/reports/2007/drc1007/.

228 Report on Prosecutorial Strategy, p. 6.

229 See Part VIII.D, below.

230 OTP, “Paper on some policy issues before the Office of the Prosecutor,” September 2003, http://www.icc-cpi.int/library/organs/otp/
030905_Policy_Paper.pdf (accessed May 30, 2008).

231 Rome Statute, art. 17.

232 Report on Prosecutorial Strategy, p. 5.

233 See Human Rights Watch, Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance, vol. 20, no. 1(a), March 2008, http://hrw.org/reports/2008/kenya0308; see also “Kenya: Army and Rebel Militia Commit War Crimes in Mt. Elgon,“ Human Rights Watch news release, April 4, 2008, http://hrw.org/english/docs/2008/04/03/kenya18421.htm.

234 “OTP Statement in relation to events in Kenya,” February 5, 2008, http://www.icc-cpi.int/library/organs/otp/ICC-OTP-ST20080205-ENG.pdf (accessed May 30, 2008).

235 OTP, “Presentation by Mr. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court – NGO Roundtable,” unpublished document on file with Human Rights Watch, March 13, 2008.

236 Géraldine Mattioli and Anneke Van Woudenberg, “Global Catalyst for national prosecutions? The ICC in the Democratic Republic of Congo,” in Waddel and Clark, eds., Courting Conflict? p. 58.

237 Ibid., p. 60.

238 Human Rights Watch interview with Ugandan government official, Kampala, March 2, 2007. The potential impact of court protection programs on local capacity is also discussed in Part VI.C.4, below.


July 2008

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