This blog is part of a series on selected aspects of the ICC Independent Expert Review Final Report released on September 30, 2020.
Engaging those most concerned by the justice process is one of the biggest challenges for an international court located thousands of miles away from the communities it seeks to serve. Based on the experience of previous tribunals, the International Criminal Court (ICC) put an outreach program in place early on. According to the court’s website, “people most affected by the crimes have the right to understand, to participate in, and to have a sense of ownership of the justice process.” But the court has encountered multiple challenges to make effective outreach to victims and affected communities a reality, including due to deficient field presence, insufficient appreciation of the local context, and inadequate engagement with local actors.
Civil society organizations and affected communities have long been frustrated by the court’s limited communication, outreach and engagement. While the court has implemented successful programs in some countries, outreach has been far from central to ICC efforts. Outreach to communities is not a luxury, but essential for the court’s success – it has a bearing on the ICC’s legitimacy and effectiveness. Outreach falls within the Registry’s responsibilities, but different parts of the court, including the Office of the Prosecutor (OTP), play a significant role through participation in outreach events and engagement with affected communities in the course of preliminary examinations and investigations. There are several reasons why the court’s outreach efforts have fallen short – those include unjustified delays, a narrow geographical scope, reduced human and financial resources, overreliance on civil society, and limited field engagement.
In their report, the experts express concern about outreach ineffectiveness (para. 392). The report confirms that the lack of or insufficient outreach places an undue burden on civil society to spread information about the court without any guidance or support (para. 395). Among other measures, the report recommends the adoption of an outreach plan for each situation country or region (para. 394), and that the court work together with local civil society and media to enhance outreach efforts (para. 395).
A common criticism of the ICC’s outreach program is that it starts too late, missing an opportunity to prevent the spread of misunderstandings and misconceptions about the ICC before they take shape. There are two reasons for this delay: first, the ICC does not conduct any outreach during preliminary examinations. That is due to a policy decision motivated by lack of sufficient resources and tensions between ICC organs – the OTP has traditionally considered that it has exclusive prerogatives during this phase. Second, once an investigation opens, it normally takes the Registry several months or years to get an outreach program up and running. The IER report addresses these problems directly – it recommends that outreach start from the outset of the court’s involvement in a given country, including during preliminary examinations (para. 394, R164), and that the OTP work along with Registry staff with expertise in outreach to adequately prepare for the opening of an investigation (para. 396).
The report confirms that current resources assigned to outreach “are minuscule,” and recommends allocating more funding through either the court’s regular budget or voluntary contributions (para. 398, R165). The experts note elsewhere in the report that they heard “numerous accounts” of disconnect between field-based staff and staff in headquarters (para. 200). When it comes to outreach, the report wisely recommends making changes in reporting lines, so that local outreach staff report directly to the ICC’s central outreach office (para. 398, R167). Doing so would reverse a structural change put in place following the Registry’s 2014-2015 ReVision, a restructuring project that has been widely criticized for its methodology. In an effort to enhance field offices, the post-ReVision organigram effectively cut the link between outreach staff working in different locations, hindering coordination, information sharing and joint strategizing.
Outreach has been defined as a “two-way interaction” between an international court and the communities affected by the court’s investigations or prosecutions. In order for communication to be meaningful for the affected communities, messages need to be tailored to the environment at hand, which is why an acute understanding of the local context is paramount. But grasping the reality of the communities in which the court operates is not only important to adapt messages – it also serves broader goals for the ICC. Appreciation of the relevant context helps the court navigate local dynamics, gather crucial information to develop cases, benefit from meaningful interaction with local actors, build trust in its work, and boost support for the institution.
The experts received complaints that communications often “fail to sufficiently take into account local conditions, cultural sensitivities, and language” (para. 392). Several other passages in the IER report point to stakeholders’ common observation that the court is detached from the situation countries, and that ICC staff and officials lack sufficient familiarity with those situations (e.g., paras. 557, 782).
The experts propose solutions to the court’s insufficient field engagement and deficient understanding of local context in different parts of the report. For example, they see benefits in increasing the impact of the court’s field presence, and encourage the OTP to make better use of field offices (para. 198, R82). They also strongly recommend a “fundamental review” of the OTP’s remote investigation model, pressing for more investigators to be based locally (para 779-784, R293). Under the current model, investigators travel to situation countries for two to three weeks at a time. This model is not only costly, but it also presents significant shortcomings – it prevents investigators from acquiring knowledge on “complex political, social and cultural matters, but also [on] more basic aspects, such as language.” These limitations have a concrete impact on investigations, as they affect investigators’ capacity to identify and assess lines of inquiry, and reduce the communities’ trust in the court (para. 782).
Field engagement requires recognition of and respectful relationships with local actors, including civil society. Non-governmental organizations have complaint about patronizing and top-down relations in particular with the OTP. It is high time to consider local non-governmental organizations as equal partners (paras. 380-385).
Finally, the report strongly advises that judges undertake site visits and that the court conducts in situ hearings, given the benefits of exposure to local circumstances and the realities of affected communities, including “to interpret and assess the evidence” (paras- 562-563, R205).
In closing, we must recall that the content of the IER recommendations on outreach and field engagement is not new – civil society and other experts had made similar observations in the past. However, the fact that the experts acknowledged the gaps and reiterated important proposals for improvement will hopefully provide impetus for change. There are no more excuses for failure to introduce outreach as early as possible in every country in which the ICC engages, to deepen staff understanding of situation countries, and to consider civil society a strong, independent, and equal partner.