Academic journal article Vanderbilt Journal of Transnational Law

From Nuremberg to Kenya: Compiling the Evidence for International Criminal Prosecutions

Academic journal article Vanderbilt Journal of Transnational Law

From Nuremberg to Kenya: Compiling the Evidence for International Criminal Prosecutions

Article excerpt

ABSTRACT

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to carry out her mandate and achieve justice for victims. The solution is to add an article to the Rome Statute that includes several procedural requirements governing the use of third-party evidence. This structural addition will properly strike the balance between the Prosecutor's need to rely on third-party evidence and defendants' rights.

TABLE OF CONTENTS

I.    INTRODUCTION
II.   THE ROME STATUTE FRAMEWORK FOR
      INVESTIGATIONS
      A.  The Office of the Prosecutor
      B.  Articles 12 and 13: Exercising
          Jurisdiction
      C.  Article 53: Initiation of an Investigation
      D.  Article 54: Duties and Powers of the
          Prosecutor with Respect to Investigations
      E.  Article 55: Rights of Persons During an
          Investigation
      F.  Articles 56, 61, and 64-67: The Rights of
          the Accused
      G.  Articles 69 and 73: Evidence
III.  EVIDENTIARY ISSUES IN ICC INVESTIGATIONS
      A.  The Lubanga Case
      B.  The Kenya Investigations
      C.  Evaluating Reliance on Third-Party
          Evidence
          1.  Lubanga and the Rome Statute
          2.  Kenya and the Rome Statute
IV.   PROPOSED SOLUTION: ARTICLE 72 BIS
V.    CONCLUSION

I. INTRODUCTION

On December 5, 2014, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a notice of withdrawal of charges against accused Uhuru Muigai Kenyatta of Kenya, (1) who had been charged with the crimes against humanity of murder, deportation or forcible transfer of population, rape, persecution, and other inhumane acts. (2) The Prosecutor gave insufficient evidence as the reason for withdrawing the charges, citing the Trial Chamber's December 3, 2014 ruling. (3) In that ruling, the Trial Chamber declined, after three years of proceedings and one six-month adjournment, to postpone trial proceedings further. (4) The Chamber reasoned that despite five years of investigations into the Kenya situation, the prosecution had not demonstrated a "concrete prospect" that it would collect sufficient evidence to prove the charges beyond a reasonable doubt. (5)

The decision by the Prosecutor to withdraw the charges against Mr. Kenyatta was the culmination of several years of evidentiary wrangling with the Kenyan government. In March 2011, the Kenyan government filed an application challenging the admissibility of the Kenyan cases in the ICC. (6) The court rejected this application, (7) and the ensuing exchanges between the Kenyan government and the OTP grew increasingly hostile. (8) In May 2013, a responsive filing by the OTP alleged that "the Office of the Prosecutor ... has encountered serious difficulties in securing full and timely cooperation from the Government of Kenya ...," (9) The response went on to note that certain evidence key to the Prosecutor's investigation of the Kenya situation was available only through the Kenyan government. (10) Additionally, the OTP response stated that though the government had cooperated with certain OTP requests, it had refused to grant others, severely undermining the investigation. (11) The document proclaimed that "the [Government of Kenya] has constructed an outward appearance of cooperation, while failing to execute fully the OTP's most important requests. …

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