Carrie McDougall joins JiC for this piece on our continuing conversation regarding the publication and dissemination of photos of the Prosecutor of the ICC and state leaders Dr. McDougall is a Senior Lecturer at Melbourne Law School and was formerly a legal specialist at the Australian Department of Foreign Affairs and Trade, in which capacity she led on Australia’s engagement with the ICC.
In a thought-provoking post last week, Patryk Labudatook exception to a photo published by the International Criminal Court (ICC) on social media of ProsecutorFatou Bensouda with the President of Rwanda, Paul Kagame. Patryk suggested that the ICC needs a policy on non-essential contacts with what he termed ‘unsavoury personalities’, and any publicity given to such meetings.
Mark Kerstenpublished a reply in which he argued that there were probably good reasons for the meeting and that not publishing the photo would have been to the detriment of the Court. At the same time, he argued that the ICC needs to do more to manage perceptions, suggesting that the best way of doing this would be to publish meeting read outs.
While I agree with much of what Mark wrote, in my view, there is still more to be said on the matter.
The ICC must meet with its critics
Both Partyk and Mark acknowledged that the ICC must meet with State representatives in order to bolster cooperation. In passing, Patryk also suggested that the opportunity might be used to encourage accession to the Rome Statute. As important as they are, I suspect that neither cooperation nor accession were the main items on the agenda in the meeting with Kagame.
In the course of his post, Mark noted that the meeting might have been aimed at countering criticisms that the ICC is targeting Africa, which he kindly noted is something that I raised on Twitter in response to Patryk’s original post. This is a point that I believe deserves some elaboration.
Rwanda has been one of the ICC’s most vocal critics, and has been thedriving force behind the African Union’s hostile stance towards the Court. In this context, I suspect that the primary motivation for the meeting was to try to build a more constructive relationship. The Prosecutor has made good use of her status as a Gambian to engage in outreach on the continent, attempting to address misperceptions and encourage African leaders to give more thought to African victims, rather than focusing on alleged African perpetrators. This is something we should commend. While others also have a role to play, the plain fact is that relations are unlikely to improve without a proactive effort on the Court’s part, regardless of the fact that, at least in my view, it is not to blame for the ire directed at it by detractors like Rwanda.
It is important to note that in engaging in such dialogue, the ICC is not off on a frolic of its own. The annual omnibus resolutionof the Assembly of States Parties (ASP) “emphasizes the need to pursue efforts aimed at intensifying dialogue with the African Union… and calls upon all relevant stakeholders to support strengthening the relationship between the Court and the African Union.” As someone involved in the negotiation of this text, I say with some confidence that the reference to “the African Union” was not intended to be interpreted narrowly, but to encompass key members of the Union whose views impact on its relationship with the Court. In other words, the Prosecutor did exactly what States Parties asked her to do.
I would in fact argue that such outreach should not be limited to African interlocutors. Bearing in mind the fundamental principles of both cooperation and complementarity that underpin the Rome Statute, I would argue that the ICC should aim to meet with the Heads of State and Government and relevant ministers of all States in order to promote accountability and discuss the role that the ICC can play – unless a specific individual is wanted by the Court, for reasons outlined below.
According to Patryk, meeting State officials with questionable reputations is one thing – publishing photos of such meetings is another. Mark has identified a range of reasons as to why the ICC might need to get ahead of Rwanda in publishing the photo. In making his arguments, Mark largely attributes defensive motives to the Court. I would go further and argue that it is in fact important for the ICC to document this type of outreach. A detailed examination of international diplomacy is beyond the scope of this post, but it can briefly be noted that the public demonstration of bridge-building efforts is a standard tool in the soothing of strained relations.
Where would you draw the line?
Aside from the fact that I think that the Prosecutor’s meeting with Kagame was actually a good thing, I have two concerns with Patryk’s suggestion that the ICC needs a policy on non-essential contact with state representatives who are not wanted by the Court.
Applying the same policy approach as applied in respect of a person against whom an arrest warrant has been issued risks undermining the existing non-essential contact policy employed by the Court (as well as the UN and many States Parties). On behalf of Australia, I fought hard to secure ASP resolution language on non-essential contact. The intent of the policy is to protect the integrity of arrest warrants. To equate leaders with questionable human rights records with persons subject to an arrest warrant suggests both that the relevant offensive conduct, and the ‘cost’ of such a meeting, are of similar magnitude. In relation to the first, I would argue that the prevailing views of the court of public opinion should not carry the same weight as an evidence-based decision of a Pre-Trial Chamber that there is a reasonable basis to believe that an individual has committed a crime within the jurisdiction of the Court. As to the second, I have trouble accepting that the same legitimacy deficit is created – an arguable public perception problem just cannot be equated to disregard for an outstanding arrest warrant.
Another question raised by Patryk’s proposal is, where would you draw the line? Would a meeting with President Trump, President Putin, President Xi Jinping, or Aung San Suu Kyi trigger the policy’s application? What objective criteria would be applied to distinguish the ‘good’ from the ‘bad’? Most importantly, what would the political fallout be of a leader becoming aware (through confirmation by the Court or speculation based on the existence of a public policy) that they were considered too outré for a meeting with the ICC? In considering this question, it is important to bear in mind the hypersensitivities associated with diplomacy: lengthy negotiations can be conducted in order to avoid international incidents caused by the seating of guests in the incorrect order. Seen in this light, it can be appreciated how a snub from the ICC could be interpreted as the diplomatic equivalent of a slap in the face, which would only set the cause of justice backwards.
Regardless of the merits of the solution he suggested, Patryk’s bottom line is that the Court has made a poor judgement. Mark gives the ICC more credit but suggests the Court should do more to manage public perceptions of its work and to this end should publish read outs or minutes of such meetings. He says that such minutes ‘are regularly negotiated between states when their representatives meet for diplomatic tête-à-têtes.’
It is true that read outs of diplomaticmeetings are sometimes published. But as someone who was a regular note-taker for ministerial meetings while posted to New York, I’d say that, more often than not, this is actually not the case; indeed, such minutes are usually highly classified documents. When there is no ‘announceable’, it is standard practice to refer simply to such meetings as having been ‘productive’ – just as the ICC did in this case. Especially where a fragile relationship is involved, one does not tend to disclose the content of such meetings: in the world of international relations, discretion is often needed to build trust and confidence.
More substantively, underlying both Patryk and Mark’s conclusions seems to be an assumption, or perhaps more accurately an assumption that victims will make an assumption, that the Prosecutor turned a blind eye to Kagame’s human rights record, and that the Court will suffer reputational damage as a result.
While I’m not suggesting that her record is perfect, in my view, in the broad, the current Prosecutor has demonstrated a commitment to her stated intention of following the evidence and speaking truth to power. I accept there will be differing views on this. However, even if one is more critical of Bensouda’s record, what real evidence is there that the public impression (untainted by ‘fake news’ or anti-ICC bias) is that she was ‘hobnobbing’ for the sake of it, or has even conspired with an accused human rights violator?
The Prosecutor has been a vocal and ardent public proponent of accountability and almost always puts victims first in her public messaging. Why would anyone see the photo of her and Kagame and assume that the meeting was about anything other than encouraging Rwanda to support the international criminal justice project in some shape or form?
Quite frankly, if a victim or a member of an affected community is upset by a photo of an ICC official and a State representative, I consider it unlikely that their concerns will be assuaged by a brief comment from the ICC assuring the public that the meeting in question was above board and was used to promote accountability. If members of the public really are reacting this way, it points to a bigger trust deficit problem – one that I agree needs to be addressed.
Misinformation about the ICC is rife and has been deliberately deployed by the Court’s critics. Countering this will require the Court – and its supporters – to continue to deepen and broaden their outreach – and I’d argue that States Parties should properly resource the Court to undertake this work. Perhaps this should include clearer explanation of the diplomatic role required of the Court’s principals. At the same time, some poor judgements made by the Prosecutor’s predecessor still haunt the Court, and the ICC’s reputation has not been helped by either its string of acquittals, or the delay in decisions about particular investigations. There’s no shortcut to fixing the perception problem: it won’t be resolved by either a questionable policy on engagement with state officials or a requirement that the ICC spend precious time and resources defending meetings on a case-by-cases basis. Building confidence in the credibility and legitimacy of the ICC will take results and it will take time.