Securing Better Cooperation for Sexual and Gender-Based Crimes Begins by Redefining Cooperation
The relationship between the ICC’s OTP and those who serve to connect the Office to victims […] is burdened by a fraught history […] premised on the (at least implicit) notion that first responders and others acting at the national and local level are instruments of the OTP.
The relationship between the ICC’s Office of the Prosecutor (OTP) and those who serve to connect the Office to victims, witnesses, beneficiaries, or affected communities is burdened by a fraught history. While somewhat improved since the ICC adopted its 2014 Guidelines Governing the Relations between the Court and Intermediaries, this relationship is particularly challenging in sexual and gender-based crime (SGBC) cases because it is premised on the (at least implicit) notion that first responders and others acting at the national and local level are instruments of the OTP. This power imbalance risks re-inscribing the very same dynamic giving rise to and enabling sexual and gender-based crimes. In order to achieve meaningful accountability for SGBC, the OTP must shift its conception of its relation to first responders and intermediaries from an instrumentalist notion to one of substantive equality.
The investigation and prosecution of sexual and gender-based crimes is one of the International Criminal Court’s most important tasks. Its founding document, the Rome Statute, enumerates a broad range of SGBC as war crimes and crimes against humanity, and contains specific provisions that reflect the drafters’ intention to give special attention to their prosecution.1 The Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, released in June 2014, further affirms that, “[it] pays particular attention to the commission of sexual and gender-based crimes,” and seeks to “enhance the integration of a gender perspective and analysis in all stages of its work.”2 Moreover, as a court that is meant to serve as a complement to—and an example for—national jurisdictions, attention to SGBC forms an important part of the ICC’s purported “demonstration effect.”3 In the long shadow cast by years of neglect at the global level to rape and other forms of sexual violence, the ICC was meant to signal a change in the policy and practice of international criminal tribunals.
Yet nearly fifteen years on, the ICC’s record of successful prosecution of SGBC remains decidedly mixed. Despite the historic conviction of former Congolese vice-president Jean-Pierre Bemba Gombo—the ICC’s first for crimes of sexual violence—and the successful confirmation of SGBC charges in two recent confirmation decisions (Laurent Gbagbo and Bosco Ntaganda), the Women’s Initiatives for Gender Justice has noted that, historically, SGBC crimes have been the “most vulnerable category” to failing judicial scrutiny, with more than 50 per cent of such charges dismissed before trial.4 It has also become increasingly clear that the OTP has an evidence problem not limited to SGBC alone. To date, nearly one-third of those individuals who have undergone the confirmation of charges process before the ICC have had the charges against them dismissed or withdrawn in their entirety.5 One report notes that this is “a substantially higher rate of dismissal than the acquittal rate seen at other international criminal bodies following a full trial, even though the standard at trial—beyond a reasonable doubt—is higher than the burden at the confirmation stage.” Judges have also raised pointed criticisms, noting “grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff.”6
In light of these challenges, this question invites us to consider how the ICC OTP can “secure better cooperation” from first responders and those individuals and organizations working on the ground who are often closest to the site where grave crimes are committed, to assist in the investigation and prosecution of SGBC. The Oxford English Dictionary defines “cooperation” as “1) the process of working together to the same end, and 2) assistance, especially by ready compliance with requests.”7 Unfortunately, the history of the relationship between the OTP and those working on the ground—or at least one compelling version of it—suggests that the Office has too often adopted the latter definition at the expense of the former. Indeed, the very framing of this online Forum is telling insofar as it rests upon a problematic dynamic between the Court as an institution and the individuals with whom it necessarily engages to fulfill its mandate. Put differently: who should be “securing” whom, and to what end?
This dynamic is particularly troubling in the context of SGBC cases, which are characterized by—and indeed result from—inequalities of power as between perpetrator and victim. It is well settled that SGBC, whose primary (although not exclusive) targets are women and girls, emanates from, and is enabled by, unequal power relationships.8 These inequalities exacerbate the already monumental impact of the violence itself, rendering SGBC victims and survivors with “fewer options and less resources at their disposal to avoid or escape abusive situations and to seek justice.”9 Because SGBC is fundamentally premised on the relative imbalance of power between perpetrator and victim, any efforts to promote justice and accountability for it must be constructed upon the opposite: a clear and unequivocal equality of power. While the ICC’s ultimate goal of investigating and prosecuting SGBC is crucial, it must do so without re-inscribing those power asymmetries that enabled the crimes in the first place. This requires a delicate balancing act on the part of the OTP: it must both ensure the credibility and reliability of the information and evidence gained as a result of the relationship between the Office and first responders, but it must refrain from treating those who connect it to victims, witnesses, and beneficiaries as mere instruments.
An added challenge is that the label of “first responder” summons another critical actor in ICC interventions: the “intermediary.” While the role of intermediaries was not “explicitly envisaged” in the Rome Statute, the Court has defined an intermediary as:
[S]omeone who comes between one person and another; who facilitates contact or provides a link between one of the organs or units of the Court or Counsel on the one hand, and victims, witnesses, beneficiaries of reparations and/or affected communities more broadly on the other.10
As summarized by the Trial Chamber in Lubanga:
[Intermediaries] undertake tasks in the field that staff members cannot fulfil without creating suspicion; they know members of the community, and they have access to information and places that are otherwise unavailable to the prosecution.11
In short, like first responders, intermediaries are locally based actors who, “[b]ecause of their long-term presence,” can carry out important functions that assist the Court.12 Although not all first responders are intermediaries, if a responder’s cooperation is enlisted in order to assist the OTP with SGBC investigations, then arguably they too would occupy this role. Indeed, according to the OTP, obligations toward a designated “intermediary” are triggered “as soon as they engage with that entity.” This can take place either “when the OTP reaches out to a first responder,” or when the Office “decides to use information provided by a first responder.”13
But what exactly is the relationship of these individuals (or institutions) to the OTP?
This question goes to the heart of a long-running debate before the Court, one that played out painfully and near disastrously in the first trial of Thomas Lubanga, and has emerged in other proceedings as well. While the issue in Lubanga concerned the OTP inappropriately “delegating” its investigative responsibilities to intermediaries—relying on them, in some cases, not only to contact but also to propose potential witnesses14—those proceedings should not overlook a broader concern about the power dynamics that inform the Court’s relationships with local actors, and how “cooperation” can obscure their coercive effects. As Déirdre Clancy, who worked with ICC intermediaries for a number of years, has noted:
[T]here is often a tension in the intermediary relationship between the Court’s desire to benefit from local perspectives, access and expertise and its concerns that local interests, whether political, financial, security-related or opportunistic, will tarnish the products of that relationship. The idea that local interlocutors should function as mere volunteers of the Court divested of their own politics or interests is prevalent.15
In the context of SGBC cases, this tension is particularly significant—and particularly challenging to navigate—because local interlocutors may encompass an even broader category of actors than usually serve as intermediaries. Victims and survivors of SGBC during Kenya’s post-election violence in 2007/2008, for instance, were often unwilling or unable to report crimes to the police or other authorities due to shame, stigma, fear of reprisals, inaccessibility, or other factors. Consequently, for some SGBC victims, the first point of contact was local chiefs,16 community elders,17 community health workers,18 and victims’ services NGOs.19
In interrogating the prospects for bridging the gap between the two distinct notions of cooperation identified above—a process of working together, or of compliance with requests—an examination of the OTP’s practices thus far is not particularly encouraging. First, the Office’s field presence in many situation countries has been minimal, with the composition of its staff predominantly (if not exclusively) international.20 Second, even as they have “shouldered the greatest burdens,”21 responders and intermediaries have largely remained at the margins of the OTP’s decision-making process. As it was explained to the Court in Lubanga, intermediaries “were not supposed to know the objectives of the investigation team,” and their role was apparently “limited, in the sense that [they] were excluded from the decision-making process.”22 Pascal Kambale, a Congolese human rights lawyer, notes that local NGOs and activists “had more raw intelligence on the crimes than any other entity, [but] were deliberately sidelined and their invaluable expertise not fully integrated into the investigative process.”23 In a similar vein, Phil Clark has argued that, “Evidence from the ground … suggests that the ICC has … often perceived itself as the lead organisation to which all others are answerable.”24
Some strides have been made on these issues, but more must be done. Draft Guidelines Governing the Relations Between the Court and Intermediaries—described as an attempt to “provide a framework with common standards and procedures in areas where it is possible to standardize the Court’s relationship with intermediaries”25—were first circulated in 2010 and later revised substantially; they came into effect in April 2014. Importantly, the Guidelines clarify the existing legal and policy framework governing the ICC’s relationship with intermediaries and other responders that may seek to engage with the Court, providing greater clarity as to what they may expect from the ICC, including payment (where appropriate) of their expenses and their protection when placed at risk. Clancy notes that, “While a fiscally sensitive ASP was clearly wary of institutionalising the intermediary role, reports by the Court to the ASP at the same time indicated that use of intermediaries was ‘ultimately cost effective.’”26
However, although now formally in effect, the text accompanying the Guidelines (including a Model Contract and the Code of Conduct) on the ICC’s website notably describes them only as “standards” to which the organs of the Court will “aspire.”27 Moreover, it is not clear that the broader concern here has been remedied. The Guidelines warn, for instance, that an intermediary’s failure to “observe and comply with best/good practices while engaged with the Court” will lead to their forfeiture from the agreed framework of security. Equally, the Contract states explicitly that nothing “shall be construed as establishing … a partnership.”
These provisions are a reminder that the Guidelines speak more in the language of contract than cooperation; indeed, it is unclear that greater formal clarity as to roles and responsibilities will do much to attract greater support from local populations. Instead, we suggest that a more fundamental change in both orientation and practice towards first responders/intermediaries is needed. This orientation should not take as its departure point the “securing” of cooperation by these actors, but rather a concerted effort to understand the nature of their work, the challenges they face on the ground, and the assistance they might seek.
Such an orientation would require, above all, the Office itself developing a more sustained on the ground presence, in order to develop the sort of productive relationships that would support greater cooperation with first responders. This requires a more place-based Court (to date no ICC hearing has ever been held outside of The Hague) but also a more placed-based OTP. Indeed, according to testimony, investigators working in the DRC spent only an average of ten days in the field,28 making it difficult for them to interview witnesses, much less develop the sort of long-term connections that a more sustained field presence would enable. In our view, the most notable aspect of the Office’s approach to preliminary examinations and investigations has been its failure to locate any investigators or analysts in country on a permanent (or semi-permanent) basis, or to engage on a more sustained basis with national-level interlocutors.
Notably, there have been some promising policy changes under Prosecutor Bensouda’s leadership. The Office’s 2012–2015 strategic plan announced a departure from the OTP’s earlier policy of “focused investigations” in favor of a principle of “in-depth, open-ended investigations.”29 In line with this reorientation, the Prosecutor promisingly noted in her inaugural speech to the ASP that the OTP is “sending longer investigative missions with less frequent travel.”30 The Office’s 2016–2018 strategic plan maintains this approach, while also adopting a new strategic goal of developing “with partners a coordinated investigative and prosecutorial strategy to close the impunity gap.”31 With no new trial proceedings having yet been completed under Bensouda’s tenure, however, the extent to which this reorientation has taken shape in practice remains unclear. Moreover, continued pressure from members of the Assembly of States Parties to maintain or even reduce the Court’s budget makes it difficult to contemplate such a significant restructuring of Office practice. To her credit, the Prosecutor has pushed this issue far more than her predecessor; she should continue to do so.
Another key element is review and refinement of the Guidelines, as well as the development of additional legal frameworks that should guide OTP engagement with NGOs. As noted, the Guidelines are a welcome development in that they provide some measure of clarity on the responsibilities of the Office to those on the ground. At the same time, there are risks: as Clancy notes, “there is a danger that the process will impact intermediary independence and freedom to act, as has been experienced by some … operating under contracts to date.”32 A detailed review of the Guidelines is forthcoming, which should provide an important opportunity to reflect on their operation to date, including in the context of SGBC.33
Finally, the OTP might also benefit by examining possible applications of some of its victim and witness protection policies and practices to responders and intermediaries in the SGBC context. A growing body of clinical and legal literature has identified the phenomenon of “vicarious” or “secondary” trauma, which has been described as:
the experience of having exhausted hearts, minds, bodies, and souls from helping survivors through their painful experiences. Over the course of months or years the effects of vicarious trauma can accumulate, and, if left unaddressed, can do serious damage to the mental and emotional wellbeing of providers and other who work to support survivors.34
To the extent SGBC intermediaries also function as service providers to victims of sexual violence, they may experience vicarious trauma and require appropriate care. The ICC’s experience in assessing the need for and providing necessary psycho-social and other measures may be helpful in this regard.35
Ultimately, however, the question should be less what those working on the ground with victims and survivors can do to assist the OTP, but what the OTP can do to construct a relationship premised on the commonly held view that they are “working together to the same end.”36 Such relationship building requires an enhanced understanding of the power dynamic between the OTP and those based in its “situation countries”, as well as a shift from a transactional to substantive relationship of equality and mutual respect. As emphasized by several NGO participants at a workshop on first responders, there is a “need for an ongoing dialogue”: they “should not only hear from the ICC when the ICC needs something from them.”37 We would thus propose a different question as the first step towards redefining cooperation: How can the OTP better orient its practices to meet first responders and those working with victims and survivors on equal terms?
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See, e.g., Rome Statute, Art. 54(1)(b); Art. 42(9), Art. 68(1). Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩
On “demonstration effect,” see , & , Can Might Make Rights? Building the Rule of Law After Military Interventions (Cambridge: Cambridge University Press, 2006). ↩
Legal Eye on the ICC (Mar. 2012), available online. See The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Judgment Pursuant to Article 74 of the Statute (ICC Trial Chamber III, Mar. 21, 2016) [hereinafter Bemba Judgment] available online. (The Bemba Judgment was particularly notable for its affirmation of rape as both a war crime and crime against humanity). ↩,
Investigative Management, Strategies, and Techniques of the International Criminal Court’s Office of the Prosecutor, Am. U. Wash. C. L., WCRO at 9 (Oct. 2012) available online, archived. (The burden of proof during the ICC confirmation of charges stage is “substantial grounds to believe,” Rome Statute, Art. 61(7)). ↩,
The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, Decision on Defence Application Pursuant to Article 64(4) and Related Requests, Concurring Opinion of Judge Christine Van den Wyngaert, ¶¶ 1, 4–5 (ICC Trial Chamber V, Apr. 26, 2013), available online. ↩
The Prosecutor v.Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute, ¶ 167 (ICC Trial Chamber I, Mar. 14, 2010) [hereinafter Lubanga Judgment] available online. ↩
UC Berkeley HRC, First Responders: An International Workshop on Collecting and Analyzing Evidence of International Crimes, at 6 (Sep. 2014) [hereinafter First Responders], available online, archived. See also SGBC Policy Paper, supra note 2, at ¶ 56 (“The Office will identify individuals who may be selected as intermediaries in order to support the conduct of effective investigations.”) ↩, , , & ,
See, e.g., , Outsourcing Investigations, 14 UCLA J. Int’l L. & Foreign Aff. 121 (Sep. 1, 2009) available online; , Delegating Investigations: Lessons to be Learned from the Lubanga Judgment, 11 Nw. J. Int’l Hum. Rts. 30 (2013), available online. ↩
‘They Told Us We Would Be Part of History’: Reflections on the Civil Society Intermediary Experience in the Great Lakes Region, in Contested Justice: The Politics and Practice of International Criminal Court Interventions at 219–248 (Christian De Vos, Sara Kendall & Carsten Stahn, eds., Cambridge University Press 2015), available online. On the “depoliticization” of victims, see also & , Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood, 76 Law & Contemp. Probs. 235 (2013), available online. ↩,
Few to none of the OTP’s investigators to date have been nationals of countries where cases are under investigation. See Investigating From Afar: The ICC’s Evidence Problem, 26(04) Leiden J. Int’l L. 1009 (Dec. 2013). ↩
The ICC and Lubanga: Missed Opportunities, African Futures (SSRC, Mar. 16, 2012), available online. See also & , IRRI & APROVDIVI, Steps Towards Justice, Frustrated Hopes: Some Reflections on the Experience of the International Criminal Court in Ituri (Jan. 2012), available online. ↩,
Notably, while many organizations (for, instance local NGOs) can also serve as intermediaries, the Guidelines only govern the ICC’s relationships with individuals. In addition to the Guidelines, a draft Code of Conduct for Intermediaries, and a Model Contract for Intermediaries have also been created. See ICC adopts Guidelines on Intermediaries, Int’l Crim. Ct., [hereinafter ICC adopts Guidelines] available online, (last visited Apr. 5, 2016). ↩
15, at 245. See , Second Report of the Court on the financial implications of the draft Guidelines governing the relations between the Court and Intermediaries, ICC-ASP/12/53, ¶ 19 (Oct. 30, 2013) available online., supra note
(“[W]hile there are unavoidable costs for the Court in implementing the draft Intermediaries Guidelines … the use of intermediaries is ultimately cost effective for the Court. Intermediaries undertake work that would be extremely costly for the Court to perform[.]”) ↩
See ICC adopts Guidelines, supra note 25. (The ICC’s webpage notes that, “With the exception of the model contract, Intermediaries guidelines are not legally binding, but represent standards for the Organs of the Court to aspire to in their interactions with intermediaries.”) ↩
(Perhaps drawing on the lessons of the Kenyan experience and the criticisms of the Lubanga case, the Office also announced a departure from its previously stated policy of prosecuting only those “most responsible” for crimes in favor of a strategy of “gradually building upwards” wherein it “first investigates and prosecutes a limited number of mid- and high-level perpetrators in order to ultimately have a reasonable prospect of conviction for those most responsible.”) ↩
Inaugural Address to the Assembly of States Parties (Nov. 14, 2012) available online. (In the same speech, however, it was made clear that “there shall be no structural changes in the Office, neither shall there be a departure from established policies and methods of operation”, Id. at ¶¶ 3, 6). ↩, Prosecutor of the ICC,
The Open Society Justice Initiative has been extensively engaged in the creation of and consultations around guidelines for NGOs that conduct documentation of grave abuses of human rights. Over the coming year, the OSJI will work with local partners to generate a series of reading modules addressing these and other areas of concern in the NGO-ICC relationship. ↩