Suddenly the International Criminal Court is awash with allegations that witnesses have been corruptly influenced to change their testimony. The issue has been bubbling along on the back burner ever since allegations started to surface during the first trial of Congolese Thomas Lubanga. Now, as Kevin Jon Heller says, the numbers are growing.
Given recent events, seems likely the #ICC will convict more people of interfering with justice than for committing international crimes.
— Kevin Jon Heller (@kevinjonheller) September 17, 2015
Q: Why is it so prominent in the Court’s work now?
It’s during the last two weeks that things seem to have escalated, at least publicly. Two Kenyans have been arrested at the request of the ICC and stand accused of running “a criminal scheme designed to systematically approach and corruptly influence witnesses of the Prosecutor through bribery and other methods of inducements in exchange for their withdrawal as prosecution witnesses and/or recantation of their prior statements to the Prosecutor”.
That’s not surprising says Sergey Vasiliev of the Vrije University in Amsterdam. “In a sense, it is a question of honour for the Office of the Prosecutor”, he says. “The Kenyatta outcome has in various quarters been perceived as the defeat of the Office, and the Prosecutor even referred to the withdrawal of Kenyatta’s charges as ‘a dark day for international criminal justice’. Under the circumstances, it only reasonable to expect that the OTP will press for a full inquiry into the instances of interference with ICC justice.”
Related article: Background on the two Kenyans accused of corruptly influencing witnesses.
In Court this week, judges also heard the prosecution allege that defence counsel for alleged war criminal Bosco Ntaganda met prosecution witnesses and “passed on a message” from their client, which made the witness “uncomfortable”.
And later this month, the trial of four individuals accused of “corruptly influencing” witnesses in the case against Jean Pierre Bemba is due to start.
But Vasiliev says that in fact “there have been actually relatively few (publicly known) Article 70 cases at the ICC. Some might say too few considering the ICC’s problems with evidence, including witnesses recanting testimony, victim status being withdrawn from victim participants in view of concerns about the accuracy and reliability of their evidence (Katanga and Ngudjolo), and the problematic role of intermediaries that gave rise to much controversy in Lubanga”.
So what are the rules about interfering with witnesses?
To start with these issues are regulated by Article 70 – the part of the Rome Statute that deals with any interference in the Court’s work.
Dan Saxon from Leiden University explains: “regulations like Article 70 help to ensure that persons do not try to undermine or obstruct the ‘administration of justice’, i.e. the ability of judicial systems to carry out their tasks fairly and effectively”.
He says such regulations are both to punish and to deter “by holding accountable persons who try to subvert the justice process. Hopefully, such regulations deter persons from trying to perform similar conduct. By sanctioning such conduct and deterring similar future conduct, these provisions help to ensure the fairness of court proceedings.”
One of the curious things about Article 70 works is that it is the Office of the Prosecutor alone who decides whether or not to pursue the cases.
Sergey Vasiliev says it makes sense to have the prosecutor decide because “the resources of the OTP and the Court generally are finite, and it may be unnecessary or inappropriate to pursue investigations and prosecutions in every potential Article 70 case, even where there is a possibility to request the relevant State Party to deal with the case”.
Is it this really the best way for the prosecutor and the Court to spend their time?
Sergey Vasiliev agrees that “Its principal business is and should be the core crimes”. And therefore states parties should themselves deal with the cases.
But he says “there may also be other legal and practical (case-specific) considerations against requesting a relevant state party to do so. Some of these include, among others, the availability and likelihood of (effective) domestic investigation and prosecution, any links with ongoing cases at the ICC, evidentiary needs and challenges, etc.”
And he points to the case against Walter Barasa, a Kenyan journalist, in which the judge referred to “to the unlikelihood of effective and prompt prosecution by the Kenyan authorities, the seriousness of the OTP allegations and the importance of proceeding with the case in light of the ongoing investigation in Kenya”.
So just how serious must a case be to get to the Court? If you write something critical about the Court on Facebook should you be worried that you could be charged under Article 70?
Dan Saxon is reassuring: “if you – as a private citizen and someone not participating in a case at the ICC – write something merely “critical” about a court on social media, normally you would not expect to be charged with contempt of court, obstruction of justice, etc. “
But he goes on: “if your comments on social media go further, and you do something that undermines the ability of a court to carry out its work, then you may have a problem, for example, if you threaten a prosecution or defence witness on social media, that their testimony will result in harm to the witness or their family. Or if you publish the names of confidential witnesses on social media, in violation of a court order to maintain the confidentiality of these names, then you may be in violation of the rule.”
So, watch out. The ICC is no longer taking witness interference lying down.
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