In December 2019, the Assembly of States Parties to the International Criminal Court (ICC) established a comprehensive ICC review process and invited various stakeholders to make submissions on issues under the mandate of the review. This blog is part of a series highlighting recommendations the Open Society Justice Initiative is making to the Group of Independent Experts, Assembly of States Parties, and ICC as the review process continues throughout 2020 and beyond.
Civil society organizations (CSOs) and affected communities are often frustrated by communication, outreach, and engagement from the International Criminal Court (ICC), including the Office of the Prosecutor (OTP). If not improved, civil society groups say, the court risks its legitimacy and efficacy, and misses an opportunity to receive much-needed support for its work prosecuting Rome Statute crimes.
As actors on the ground, CSOs are uniquely placed to assess how the court is perceived locally and to identify needs for improvement. In December 2019, the Open Society Justice Initiative and Open Society Foundations’ Africa Regional Office convened a meeting of CSOs from ICC situation countries and situations under preliminary examination to hear their views. As part of their work supporting the Independent Expert Review (IER) and the ICC generally, the Justice Initiative submitted a report of that meeting to the IER. One of the core concerns expressed at the meeting—and one that is shared by the Justice Initiative—is the variable quality of ICC communications, outreach, and engagement. These matters did not initially appear to be part of the IER mandate. However, a recent IER interim report lists a new item for review: “Relationship between the OTP and international organizations and civil society organizations.” That topic may capture some outreach and engagement matters, but does not address broader structural outreach and communications issues across all organs, external counsel and other entities such as the Trust Fund for Victims.
Lack of head-on consideration for the important questions of communications, outreach, and engagement is surprising and disappointing. These same issues have been raised time and again, and progress from the court has been inconsistent. For example, despite early poor performance in Uganda, the Registry has adopted innovating methods to improve its outreach there. In other situations, such as Georgia, outreach has been persistently poor.
The effectiveness of outreach activities is complicated by the fact that both the Registry and the OTP, and sometimes the defense or victims’ legal representatives, conduct outreach activities. Each has specific intentions, interests, and constraints in outreach and engagement. Furthermore, each situation is unique and presents different challenges. Outreach has also traditionally been an underfunded area.
Nevertheless, there are a number of conceptual changes that the court could make to ensure outreach and engagement are consistently better. Improvements in this area need neither be costly nor especially burdensome. They do, however, require a change in mindset and approach. This blog sets out some of the concerns expressed by CSOs during the December meeting and in the course of the Justice Initiative’s work with local stakeholders.
Victim-centered Communication Strategy
It is imperative that the OTP, and the court as a whole, commit to a victim-centered communications and outreach practice. It should be led by people who understand the given context, and the OTP and Registry should collaborate with victims’ legal representatives whenever possible. Communications from and about the court need to be rooted in the specific environment and experience of a particular situation for it to be meaningful in communities affected by crimes.
The OTP needs to take special consideration of the impact their messaging—or lack thereof—has in local contexts, in particular on victim communities. A failure to provide updates on trials can make witnesses or potential witnesses disenchanted with the process and hesitant to cooperate with the OTP. OTP communications also set expectations of victim communities. If those expectations are not met, some communities might disengage from the justice process. Further, after cases have been selected, the court should strive to provide outreach and engagement opportunities more broadly and not limit its efforts solely to localities where cases are being pursued.
The ICC as One of Various Options for Justice
In the course of its outreach and engagement efforts, the court should position itself as one part of an ecosystem of options for justice and understand its limitations in that context. The ICC should not be portrayed in isolation, and outreach should go beyond specific cases and investigations. It should address the larger role of the court in the international justice field as well as the ultimate goal of ending impunity for and preventing the commission of grave crimes. At the same time, the ICC needs to communicate a balanced and realistic sense of its capabilities to affected communities. The court should be realistic about what it can accomplish and not over-sell its role.
A deeper understanding of the court’s cases, its mandate, and its limitations will help to manage expectations appropriately, build trust, and deepen the court’s impact while supporting local justice processes. Members of affected communities would also benefit from a deeper understanding of the domestic criminal justice systems and the mandates of others working on similar cases of transitional justice issues more broadly. In this regard, the court could consult with other local or international justice institutions to ensure coordinated and comprehensive messaging.
Early and Frequent Outreach Efforts
Providing timely, regular, and comprehensive messaging is crucial to making the court’s processes understandable and accessible to victims and affected communities. Outreach activities should start during the preliminary examination phase to maximize the positive impact of the court’s involvement in a given situation.
Due to resource constraints and internal struggles, the court has built a policy of no outreach during preliminary examinations. The court should recognize that such policy is harmful. Silence is a form of communication. A decision not to respond or communicate also conveys a message. When a preliminary examination drags on and there is no or limited communication from any court organ about its progress, this silence can be misinterpreted as reflecting information-gathering problems or political manipulation. This has happened in Georgia, for example. Potential witnesses and collaborators lose patience and motivation for working with the court, possibly costing the OTP valuable information and witnesses.
There is a great need for information among victim communities and the general public regarding the ICC’s role and mandate, responsibilities of its various organs, and the possibility to participate in proceedings. Delayed outreach by the court increases the likelihood that local stakeholders will have pre-formed and potentially misinformed opinions about the court. Starting communications early can counter the development of misperceptions and misinformation.
It is in the interests of the court to engage with victim communities before investigations begin. Waiting until after an investigation has opened misses out on early opportunities to work with existing local networks to lay the groundwork for public information activities and cooperation with the court.
All too often, the court fails to grasp the particularities of the local context, or at the very least to adapt its messaging to the situation at hand. Outreach and communication activities must be adapted to local realities and geared towards specific target groups, which may differ per situation. This includes sending materials in the appropriate language, in the appropriate format, and avoiding the use of legalese.
Communications must be made in local languages—the more locally specific, the better. Communications need to be explicit, clear, and context-specific even when discussing complex legal matters. Materials full of legalese or opaque language are ineffectual for communicating with local groups or anyone who is not a legal expert. This leads to confusion and the spread of misinformation about the court and investigations. Messages must be meaningful and understandable from the perspective of the target audience.
One-size-fits-all type messaging that is developed in the form of standard lines or power point presentations is likely to leave local communities with lots of questions. Communications must be engaging and make the most out of interaction with local groups to ensure communities have a sense that their questions are taken seriously and addressed. It is also important that any court representative can answer any question that members of local communities may have. Some have observed that certain questions on prosecutorial strategy are often unanswered if no OTP representative is present during outreach meetings. Ideally, the OTP would have field staff at outreach events. If that is not possible, local outreach staff must be empowered to address questions and follow up with colleagues to ensure that queries are not left unanswered.
OTP Needs to Conduct Horizontal Engagement and Build Partnerships
Civil society plays a vital role in supporting the work of the OTP, including by providing documentation, sharing knowledge of local contexts and other information, and facilitating connections with witnesses. They have a particular value-add for investigating culturally sensitive crimes, such as finding victims/witnesses of sexual and gender-based violence. Although ICC investigators are often viewed by local communities as outsiders, local civil society groups can call on long-standing trusted networks inside local institutions and communities to support the search for evidence and witnesses. They can advocate for cooperation with and political support for the court. In addition, the more civil society learns about fair trials at the ICC, the more they can engage with domestic justice institutions and demand that such standards be respected locally.
CSOs generally do not consider that the OTP takes them seriously as partners. Although civil society groups often put themselves at risk—including of physical harm—and undertake additional work to support OTP investigations and send documentation and information, they are frustrated by the one-way communication and lack of genuine two-way engagement. While CSOs understand that there is a limit to what the OTP can share because of the confidentiality of investigations, they believe there is a need for at least a basic understanding of the status of the prosecutorial process and information about the direction cases are heading. Otherwise, it is impossible to provide the Prosecutor with information that is meaningful for building the case. As we explained elsewhere, engagement with local communities, along with field-based investigations, can help transform the OTP’s investigation strategy.
The OTP must communicate clearly to victims and affected communities about what is expected from them during each stage of the process. Victims who have shared information with the court are frequently disappointed about delays and lack of fluid communication. Often, there are considerable communication gaps between their first interaction with the OTP and when they receive an update about what has been done with the information they provided. Sometimes victims never hear anything at all.
With these inexpensive but essential shifts in practice in outreach, communication, and engagement, the ICC, and the OTP in particular, can improve the quality of investigations and trials, boost the legitimacy of the court, and support local prosecutions.
Jennifer Easterday is an independent consultant for the Open Society Justice Initiative. She has extensive experience working on issues of international justice, peace-building, and technology and human rights. Follow her on Twitter: @jeasterday.