ICC Judges Demand More, Earlier from Prosecutor’s Office

The judges at the International Criminal Court recently rejected the prosecution's application for an arrest warrant against Sylvestre Mudacumura, head of the military wing of the FDLR militia group in the Democratic Republic of Congo (“DRC”). In an unprecedented move, the entirety of the arrest application was dismissed on May 31st on the grounds that the prosecutor’s allegations were too vague.

This is the first time the ICC judges have rejected an arrest warrant application, and continues a trend that has seen the ICC judges increasingly critical of the methodologies utilized in the preliminary stages of the legal process. These judicial decisions will require a new approach from the ICC prosecution, placing greater demands at the investigative stage, which the prosecution must manage within the context of budget cuts and limited resources.

The arrest warrant in question accused Sylvestre Mudacumura of ordering attacks against civilians in the Kivu provinces of the DRC during 2009 and 2010. The prosecution cited UN and NGO reports that FDLR troops committed over 600 rapes and destroyed over 7,000 homes, amounting to war crimes and crimes against humanity under the ICC Rome Statue.

The judges however were not able to enter into an assessment of this evidence because the prosecution did not satisfy the procedural requirement to articulate the allegations with the requisite specificity.

The judges concluded that were “no proper counts” and “no detailed and precise indication as to which crimes are alleged in respect of which incident.” As a result, Human Rights Watch has urged the prosecution to re-draft aspects of the arrest warrant application in order to address the judges concerns by providing dates and locations of alleged criminal acts and clarifying which crimes are alleged as a result of specific facts.

This decision of the ICC judges is the latest in a series of cases in which the judges have sought more precision from the prosecution at the early stages of the legal proceedings. Last week the ICC appeals judges affirmed the lower chamber’s decision that there was insufficient evidence to proceed with the case against Callixte Mbarushimana, another DRC militia leader, stating that “the investigation should largely be completed at the stage of the confirmation of charges hearing. Most of the evidence should therefore be available and it is up to the Prosecutor to submit this evidence to the Pre‐Trial Chamber.” In the initial decision rejecting the case, the pre-trial judges limited the circumstances in which the prosecution could rely on secondary sources such as UN, NGO or media reports, thereby implying that the prosecution ought to dedicate increased time and resources to collecting direct witness testimony during pre-trial proceedings. The prosecution has since stated that it is evaluating whether to present new evidence against Callixte Mbarushimana.

These judicial findings strike at the heart of concerns regarding the prosecutions strategy during the investigations phase. On one hand it may be argued that the prosecutor must move swiftly and submit evidence to the judges as soon as each threshold is met at each successive stage in the legal proceedings. Under such an approach, the investigations continue through to the commencement of trial, with the prosecution only required to obtain the de minimus evidence required to prove each standard of proof, namely “reasonable grounds to believe” for an arrest warrant, “substantial grounds to believe” for confirmation of the charges, and “beyond reasonable doubt” for trial.

This approach to evidence collection has had the benefit of saving resources in the face of increased budgetary cuts. Additionally, there is the benefit of not delaying proceedings as a result of matters which can encumber an international court based outside the country where the alleged crimes took place, where violent conflict often continues during investigations. Generally, conducting investigations involves protracted negotiations either to obtain access to territory where the alleged crimes have taken place or to implement the multitude of requests for assistance that the various organs of the Court must make to States and other entities that facilitate the implementation of the ICC’s mandate. The Court has no enforcement mechanism and no police officers to enact its orders. Much of the success of the legal proceedings therefore depends on prompt voluntary cooperation.

But the decisions in the Mudacumura and Mbarushimana cases demonstrate that the ICC judges are demanding greater efforts earlier on in the legal proceedings. As a result, the prosecution must take more time in collecting more evidence and processing this evidence into more specific arrest warrant applications or other legal submissions. This in turn presupposes sufficient funding and resources to conduct these more lengthy processes. It also requires increased timely cooperation with the Court from States and other entities in implementing the various requests for assistance in conducting investigations.

A reconsideration of the prosecution’s approach to investigations is becoming increasingly urgent given the emerging track record from the most recent cases: of the last two confirmation hearings concerning seven accused, evidence against only four of the accused was found to have passed the burden of proof threshold to proceed to trial—a success rate of just over 50 percent.

This matter will no doubt be a key priority for Fatou Bensouda, the new in-coming Prosecutor who begins her nine year term starting next week on June 15, and Tiina Intelmann, the newly elected President of the ICC Assembly of State Parties (the collective of States which have accepted the ICC’s jurisdiction and provide the Court with its budget) who is in the her first year of her term.