War crimes court frustrated by reliance on witnesses

Reuters News
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Posted: Sep 20, 2013 10:15 AM

By Thomas Escritt

THE HAGUE (Reuters) - After the collapse of half a dozen cases over atrocities, International Criminal Court prosecutors are seeking to hire forensic experts to reduce their reliance on witness testimony.

Although not the only factor in the court's failure to secure more than one conviction in a decade, the disappearance of witnesses, doubts over their accounts and withdrawals of their statements have undermined prosecutions over suspected crimes against humanity in Kenya, Sudan, Congo and elsewhere.

That has stymied a court designed to dispense international justice and discourage war crimes. This week, the ICC began hearing testimony in a trial over Kenya's 2008 bloodshed.

Court officials said they had asked donors for a 10 percent increase in next year's budget from the 115 million euros ($155 million) in 2013. Much of the additional money would pay for expert investigators.

Some past cases relied too much on witness testimony and had gone to trial with too little evidence, said Phakiso Mochochoko, a senior official in the court's Office of the Prosecutor.

"We are looking at possibilities for cyber investigations and other forensic evidence we could collect," said Mochochoko.

The planned overhaul in investigations follows the replacement of high-profile chief prosecutor Luis Moreno Ocampo by Gambian lawyer Fatou Bensouda last year.

When it comes to relying on witnesses, the Kenyan cases show how things can go wrong.

Kenyan President Uhuru Kenyatta and his deputy, William Ruto, face separate charges of orchestrating post-election clashes in 2008 which left about 1,200 people dead.

INTIMIDATION ALLEGED

But several witnesses have withdrawn, with prosecutors alleging intimidation and defense lawyers denying it.

The loss of a key witness led to the collapse of the case against Kenyatta's co-accused - civil servant Francis Muthaura - in March.

This week, judges ordered hearings to be held in closed session after Kenyan bloggers posted information purporting to reveal the identity of the first witness.

Since the ICC was set up in 2002, judges have acquitted or thrown out cases against six suspects, saying the evidence against them was not strong enough.

Even the case against Congolese warlord Thomas Lubanga, the only person convicted to date, was hampered by a lack of evidence beyond witness accounts.

Defense lawyers brandished school records to point out that none of the supposed former child soldiers presented in court had been underage when they had been fighting. Other evidence still led to Lubanga's conviction for using child soldiers.

Prosecutors know their investigative model "has been exhausted", said Liz Evenson, an international justice specialist at pressure group Human Rights Watch.

Until now, the court has had just one forensic expert, who gave some work to outside contractors.

New evidence gathering techniques could include the excavation of graves to help establish how victims died. They could also help prove the linkage between the crimes committed by individuals on the ground and the ICC's targets: those who give the orders.

"It could include things like cracking open computer hard disks," said Nick Kaufman, a former prosecutor who now works as a defense lawyer before the court.

Keen to build cases quickly in dangerous environments, prosecutors had relied too much on reports from human rights organizations, whose evidence did not stand up in court, he said.

Meanwhile, witnesses had sometimes been recruited by intermediaries who, on occasion, used the opportunity "as a money making exercise or told witnesses to lie," Kaufman said.

The court has asked for money from the countries that fund it - led by Japan and the European Union. A diplomat familiar with the negotiations said the increase was likely to fall some 5 million euros short of the court's request. A decision is expected at the member states' annual meeting in November.

Even with the extra money they are asking for, Mochochoko said, prosecutors would still only have three to five investigators per case - compared to as many as 15 at the tribunal that tried accused war criminals from the Yugoslav wars. ($1 = 0.7384 euros)

(Editing by Matthew Tostevin)