Perceptions of Justice: Does the ICC Need A Policy on Non-Essential Contacts with Government Officials?

Patryk I. Labuda joins JiC for this guest-post on the publication and dissemination of photos of meetings between the Prosecutor of the International Criminal Court and world leaders. Patryk is a Hauser Global Fellow at New York University.

(Photo: ICC Twitter account)

The image is troubling. On 16 February, the International Criminal Court (ICC) tweeted a photo of Prosecutor Fatou Bensouda shaking hands with the President of Rwanda, Paul Kagame. The photo was taken at the Munich Security Conference, an annual gathering whichaims“to build trust and to contribute to the peaceful resolution of conflicts”. Kagame can be seen grinning, while Bensouda sports an awkward half-smile, half-cringe.

As noted by Dov Jacobs, similarly awkward photos exist of the first ICC Prosecutor, Luis Moreno Ocampo, trading laughs with Yoweri Museveni, the President of Uganda. Here is one of the current Prosecutor shaking hands with Museveni a few years ago. And last September, the ICC tweeted a photo of Bensouda meeting with the then ‘President’ of the Democratic Republic of Congo (DRC), Joseph Kabila, at the UN General Assembly.

It is hard not to feel some discomfort looking at these images. To state the obvious: these three men are not known for their human rights credentials. At the same time, it is a fact of life that the ICC relies on states for cooperation. Sois there something inappropriate about these photos? Or is this just (an unpleasant) part of the job? In this post, I argue that the ICC should do a better job of managing public perceptions. It may also want to adopt a policy on non-essential contacts with government officials to avoid public relations mishaps in the future.

Perceptions of (In)-Justice

Why are these photos a problem? When they were announced in 2004, Uganda and Congo’s invitations to the Prosecutor to launch investigations in their territories were quite a surprise. At the time, few expected states would affirmatively encourage ICC scrutiny. Self-referrals, as these invitations came to be known, came under sharp criticism almost immediately, with academics and civil society worrying that the first Prosecutor had cut a deal with the leaders of self-referring countries in exchange for their cooperation.

That criticism has not abated since then. It does not help that fifteen years later the Prosecutor has failed to bring a single case against a sitting government official from any self-referring state (in addition to Uganda and Congo, that includes the Central African Republic (CAR), Mali and Cote d’Ivoire). Not only has there not been a single trial of a sitting government actor – there are no publicly available arrest warrants, which couldmean that the ICC has never even tried toinvestigate government crimes in these contexts.

Whether accusations of backroom deals are true or not, the Prosecutor’s track record in self-referring countries makes photo ops with their leaders troubling. For one, it reinforces the asymmetry between government and rebel actors, and underscores the selectivity of ICC justice. It is difficult to imagine Bensouda attending a meeting with rebel leaders, for example at the recent CAR peace negotiations. More importantly, it sends the wrong message to the many victims of crimes committed by state agents in Africa and beyond, where the ICC is still perceived as the last best hope for justice. It certainly does the Court’s reputation no favors when victims see its chief prosecutor hobnobbing with people who are suspected, rightly or wrongly, of being their tormentors.

This applies to Kagame as well. The Rwandan President is no friend of the ICC, whom it has repeatedly accused of racism, selectivity and deliberately targeting Africa, including as recently as last year. Kagame may well be beyond the ICC’s jurisdiction (at least on Rwandan soil), but that does not mean his questionable human rights record should not matter at a conference on conflict resolution. Few people should know this better than Bensouda, who previously served under Carla del Ponte, the chief Prosecutor of the Rwanda Tribunal, where Kagame’s bad faith obstructionism undermined the pursuit of justice (for details, see Del Ponte memoirs, p. 223-241).

Cooperation

Why is the Prosecutor meeting with people like Kagame, Kabila and Museveni? The simple answer is that the ICC relies on states for cooperation, so the Prosecutor has no choice but to work with official state representatives. Indeed, a range of operational issues, such as facilitating investigations or flying witnesses to and from The Hague, depend on states’ willingness to engage with the Court. Given the importance of ICC-state cooperation, former ICC Prosecutor Luis Moreno-Ocampo even created a specialist unit to handle relations with governments, known as JCCD.

Aside from cooperation, however, there is much else to discuss with the regimes in Kinshasa and Kampala. This includes credible allegations of crimes against humanity committed in the DRC in the last few years. There are also issues within the ICC’s mandate regarding a non-state party like Rwanda, for instance breathing life into complementarity through a domestic trial of Sylvestre Muducumura, or maybe even a future trial of Kagame for alleged complicity in war crimes in eastern Congo?

It is hard to imagine the Prosecutor actually confronting Kagame over his role in fomenting conflict in Congo, but no one seriously disputes the basic premise that ICC organs must interact with state representatives. This will inevitably include unsavory personalities. The real question is why this is sometimes done in full view of the cameras. What good does it do to tweet photos of the Prosecutor or President, the two public faces of the ICC, glad-handing dictators or people with dubious human rights credentials? Using social media is a choice – not a cooperation requirement – so what message is the ICC trying to convey?

A Non-Essential Contacts Policy

It is hard to know what the ICC or its staff think about this (there seems to be no official Twitter or Instagram policy, at least not on the Court’s website). However, one way to manage perceptions would be a formal policy on non-essential or sensitive contacts with government officials.

As is well known, the UN has guidelines for managing contacts with people subject to ICC arrest warrants and summonses to appear. The ICC Assembly of States Parties has taken a position on this as well. And while the EU does not seem to have an official policy, it too manages public perceptions by not openly meeting with ICC fugitives, most notably President Omar Al-Bashir, whose attendance at the upcoming EU-Arab League summitcreated a diplomatic kerfuffle just recently.

Of course, the problem is rather different with Museveni, Kabila or Kagame. Barring the remote possibility of sealed arrest warrants, these men have not been charged with any ICC crimes. The Prosecutor already seems to have internal rules on eliminating ‘non-essential contacts with individuals subject to an [ICC] arrest warrant’ (for instance, Prosecutorial Strategy, 2009-2012, para. 48).

What makes certain state representatives unlikely candidates for photo ops with ICC staff is their questionable human rights record. Indeed, it is the strange optics of Bensouda-Kagame photo-ops that force us to ask why the ICC is holding such meetings and why photos of this would be advertised. A policy on non-essential or sensitive contacts with state representatives could establish criteria for such meetings, including noble and uncontroversial goals such as securing cooperation in the execution of arrest warrants or encouraging accession to the Rome Statute. It could also say something about the use of social media in such instances. To be sure, such a policy would probably not eliminate the awkwardness of ICC diplomacy altogether, but it would at least provide some justification for contacts with controversial figures like Kagame.

Conclusion

A picture is worth a thousand words, or so the cliché goes. Surprisingly, it seems the ICC has not gotten this message. Ten years after the ICC’s reputational problems in Africa began, managing public perceptions remains the Court’s Achilles heel. There may well have been valid reasons for Bensouda’s meeting with Kagame in Munich, but it is not clear how tweeting about it does the ICC any good, or how any long-term benefit outweighs the immediate reputational damage the Court suffers among victims and affected populations. At the very least, the ICC should try to explain such choices to its supporters. Managing the ICC’s reputation through a non-essential contacts policy may be difficult, but the moral of this story is that ICC staff should give more thought to how social media shapes perceptions about the Court in Africa and beyond.

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About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Research at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Guest Posts, International Criminal Court (ICC), Rwanda and tagged . Bookmark the permalink.

7 Responses to Perceptions of Justice: Does the ICC Need A Policy on Non-Essential Contacts with Government Officials?

  1. Pingback: Perceptions of Justice: Does the ICC Need A Policy on Non-Essential Contacts with Government Officials? – Jehtro Lewis – Blog

  2. Pingback: Perceptions of Justice: When and How the ICC Should Meet with ‘Bad’ Leaders – Ben Lee

  3. Pingback: Perceptions of Justice: When and How the ICC Should Meet with ‘Bad’ Leaders – Jehtro Lewis – Blog

  4. Pingback: Perceptions of Justice: The ICC Shouldn’t have to Justify meetings with Government Officials Not Wanted by the Court – Ben Lee

  5. Pingback: Perceptions of Justice: The ICC Shouldn’t have to Justify meetings with Government Officials Not Wanted by the Court – Jehtro Lewis – Blog

  6. Pingback: Perceptions of Justice: Continuing the Conversation on Managing Perceptions at the ICC – Ben Lee

  7. Pingback: Perceptions of Justice: Continuing the Conversation on Managing Perceptions at the ICC – Jehtro Lewis – Blog

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