A Response to Christian De Vos by Gideon Boas

[Gideon Boas is an Associate Professor in the Monash Law School and a former Senior Legal Officer at the ICTY.]

This article deals carefully with the Lubanga proceedings before the ICC, and in particular the difficulty caused by the Prosecution collecting information through the extensive use of confidentiality agreements under Article 54(3)(e) of the Rome Statute.  One of the great difficulties confronting prosecutors in international war crimes trials is the collection of reliable evidence with which to build their cases and to secure conviction. Such investigations invariably occur in foreign countries, with limited cooperation and potential witnesses who may be either in genuine fear or who may themselves be compromised by their own role in events.

The ICC prosecutors are not alone in managing these difficult issues. At the first of the modern international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia, the obtaining of information on condition of confidentiality so as to generate new evidence that might assist in particular prosecutions caused considerable difficulties. In particular, the use of ‘Rule 70’ material to which often attached national security implications for State providers had the constant potential to conflict with the obligation of the prosecution to disclose all potentially exculpatory material to an accused. While the problem was often avoided, it required prosecutors there to be very careful about the terms upon which they agree to accept information under strict terms of confidentiality. Indeed, some prosecutors steadfastly – and quite rightly – would refuse certain information proffered for just such reasons. It is troubling that the prosecutors in the Lubanga case were unable to secure agreement from information providers even to allow the Chamber to conduct an ex parte review of the material until a stay of proceedings had been ordered. This process raises questions about investigation approaches and the ethics of prosecuting war crimes in such difficult circumstances.

The other — and possibly more troubling — aspect dealt with in this article relates to the use of so-called ‘intermediaries’. The clear problems associated with the reliability of evidence obtained by the prosecutors through intermediaries, and a refusal to comply with orders of the Trial Chamber, led to a stay of proceedings.

I have long been troubled by the use of information collected by persons other than the Office
of the Prosecutor in these trials. Obvious questions about partiality and reliability arise, even in the best of circumstances. In the Milosevic proceedings, for example, a considerable body of information had been collected by NGOs in relation to the Kosovo indictment. In particular, Human Rights Watch
had an operation on the ground collecting confidential witness statements, among other things, that were transferred to the Office of the Prosecutor to assist in its investigation. I became deeply troubled by the prosecutors’ endeavour to have admitted into evidence these statements and even to have the content of that evidence summarised and presented to the Court as quite remote
hearsay evidence about very serious crimes. The relaxed rules of evidence in international criminal courts and tribunals makes more critical sound investigation and evidence collection practices.

The regrettable course of the Lubanga trial highlights the problems associated with prosecuting war crimes trials in international courts and, specifically, investigation and trial preparation practices employed by prosecutors in these difficult conditions. This article highlights well these tensions and makes important recommendations for future proceedings.