Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal Court

Abstract

This chapter analyses the investigative and prosecutorial strategy of the ICC over its first decade of operations, with a specific focus on the investigation and prosecution of sexual and gender-based violence. The prosecution of Thomas Lubanga Dyilo is used as a case study to highlight the numerous strategic failures made, at both the investigation and trial phase, by the ICC's first Prosecutor, Luis-Moreno Ocampo, including the over-reliance on evidence obtained pursuant to confidentiality agreements under Article 54(3)(e), the failure to properly supervise the use of intermediaries, inadequate field investigations, the entire absence of charges for gender-based crimes, and the inability or unwillingness to obey direct orders from the Trial Chamber that resulted in the unprecedented imposition of two stays of proceedings in the case. In light of the verdict in the Lubanga trial, the chapter argues that the serious systemic flaws and strategic errors that were exemplified in that case have spread to other Situations and cases, which, unless they are urgently addressed by the new Prosecutor, will continue to give rise to unreliable or insufficient evidence and continue to undermine efforts to pursue comprehensive and professional international criminal prosecutions. The chapter goes on to examine some of the practical consequences of the investigative and prosecutorial strategy pursued by Chief Prosecutor Ocampo, including the failure of over half of all charges relating to sexual and gender-based violence to be confirmed for trial, the over-reliance on indirect or open-source evidence in the absence of sufficient field investigations, the judicial criticisms of the Prosecutor's understanding of his requirements under Article 54(1)(a) and the repeated findings that specific charges or legal characterisations of fact are unsupported by sufficient prosecution evidence. The valuable strategic lessons which can be drawn from an examination of an international criminal tribunal's record in relation to sexual and gender-based crimes are both emblematic of and directly applicable to the investigation and prosecution of other crimes within the Court's jurisdiction.

Keywords: International Criminal Court, international criminal law, rape, sexual violence, gender-based violence, prosecutorial strategy, Prosecutor, Ocampo, investigations, intermediaries, confidentiality agreements, confirmation of charges, Lubanga, evidence, verdict, judicial interpretation