Nigerian President Muhammadu Buhari (middle) with the ICC Registrar, President of the Assembly of States Parties, President of the Court, and the chief Prosecutor)

Yesterday, my good friend and colleague Patryk Labuda wrote an important piece on a salient subject: the publication and dissemination of photographs of the Prosecutor of the International Criminal Court (ICC) with figures known to be less than favourable to human rights and the international justice project. In his post, Patryk responded with frustration to a photograph published by the ICC of Prosecutor Fatou Bensouda meeting with Rwandan President Paul Kagame. Patryk describes Kagame as “no friend of the ICC… with a questionable human rights record.” In this post, I want to address some of Patryk’s concerns and hopefully add some nuance to the difficult position that ICC staff sometimes find themselves in – especially when dealing with undemocratic states.

Photos O(o)ps

Photographs of the ICC Prosecutor with “unsavoury” figures are nothing new. Most notoriously, former chief Prosecutor Luis Moreno-Ocampo was caught on camera laughing it up with Yoweri Museveni prior to Uganda’s referral of the Lord’s Resistance Army (later the “situation in northern Uganda”) to the ICC. That show of bias still haunts the Court in northern Uganda and unsurprisingly so. That photograph was an unambiguously bad idea.

Moreno-Ocampo was also caught on camera cozying up on a couch with Ivorian President Alassane Ouattara in Paris, in 2011, just a few days before Ouattara shipped out his rival, Laurent Gbagbo, to The Hague. Current ICC Prosecutor Fatou Bensouda has also appeared with Museveni (despite his rather vicious attacks on the ICC) as well as DRC President Joseph Kabila.

According to Patryk, these photo ops hurt the perceived legitimacy of the ICC in the eyes of the victims of these leaders. One might also add that it is confusing to see the chief Prosecutor pose happily with some of the harshest critics of the Court. Less than a year ago, Kagame stated that “[f]rom the time of its inception, I said there was a fraud basis on which it was set up and how it was going to be used. I told people that this would be a court to try Africans, not people from across the world. And I don’t believe I have been proven wrong.” At his swearing-in in 2016, Museveni famously called the ICC “a bunch of useless people.”

So why meet and pose for photos with such figures?

The Prosecutor and her team surely make some form of cost-benefit analysis prior to accepting or convening these meetings. What costs and benefits they measure is not clear, and more openness or a policy paper on the subject would be useful. They are, however, certainyl aware of the allegations facing these leaders and what they’ve said about the ICC. The Prosecutor’s team therefore clearly views meeting these figures as beneficial to the mandate of the Court. It could be, as pointed outastutely by Carrie McDougall, that “such photo ops help counter criticisms that the ICC is targeting Africa”. Among audiences who are exposed to photos of Kagame or Museveni engaging with the ICC Prosecutor, it becomes less tenable to believe their anti-ICC antics.

In general, such meetings will almost certainly boil down to an attempt by the Prosecutor to bolster state cooperation with the Court. As Patryk writes, “the ICC relies on states for cooperation, so the Prosecutor has no choice but to work with official state representatives… This will inevitably include unsavory personalities.” This could include cooperation in investigations, but it could also mean cooperation in witness protection programming.

The ICC has and always will meet with leaders that proponents of international justice – and the ICC itself – will not like. The decision to do so should be judged on how different groups – including victim communities – respond to meeting as well as on whether these meetings ultimately further justice and accountability. In other words, whether they are the ‘right’ thing to do will be determined by whether the purported benefits of such meetings ultimately outweigh the costs – something that is very hard to ascertain in the short term and without knowing what advantages the ICC sees in such meetings.

But why publish photographs of those meetings?

What truly irks Patryk, however, is not the meetings themselves but the photo ops. He insiststhat “you draw the line at publication” because it “is just ‘wrong’… Too bad if [the] other side is upset [that] they don’t get [a] fancy photo.” This is understandable. But in meetings between the ICC Prosecutor and heads of state, the power dynamic resides emphatically with the latter. In other words, if a photo is requested by the government delegation (at any point prior or during the meeting), it’s unlikely that the Prosecutor can say no. To do so would be a significant diplomatic gaffe. Sometimes (like with Museveni) that would be worth it. But in other cases, it’s not. It would risk scuppering any meeting, worsen already fragile relations, and dent any goodwill that may have been built by meeting in the first place. In other words, it could obviate the very purpose and goals of the meetings themselves.

A second point to raise here relates to transparency. Assuming that the ICC Prosecutor should meet with such figures in order to encourage greater state cooperation with the Court (even if we don’t ‘like’ it), would it truly be better if there was no photographic evidence? I’m not convinced.

Having meetings with the likes of Museveni, Kagame, Kabila, and Ouattara and not publishing any photos could create the impression that the Prosecutor has something to hide. Another risk is that the governments of these states – rather than the ICC’s staff – release a photo, playing into perceptions that states are manipulating the Court. Even worse would be a scenario where a photo is taken but not published, only to be leaked at a later date. That would do significant damage to the real and perceived credibility of the ICC. In the end then, publishing photos of these meetings may not be a good idea, but it may be the least bad option.

Managing Perceptions

Where Patryk is absolutely correct is that the ICC can do a better job in managing the perceptions of its work. I have long advocated that the Court invest more time, energy and creativity into addressing the perceptions of its work and impact. I would be remiss if I didn’t observe that it has gotten significantly better in recent years. But there is always more that can be done.

In the case of meeting with foreign leaders with questionable human rights records, rather than avoiding or supressing the publication of photos, the Court should be even more transparent. In particular, read-outs or minutes from the meetings should be published, redacting any sensitive issues relating to the Prosecutor’s work. Such minutes are regularly negotiated between states when their representatives meet for diplomatic tête-à-têtes. Nothing precludes the ICC from doing the same. In such read-outs, the Prosecutor could even take the opportunity to state that she is concerned with ongoing violations in the relevant state or with the attacks on the Court emanating from the relevant government she is meeting. That would signal to relevant victims and survivors that the Court is standing up for them even while doing the necessary work of meeting with such leaders. States will understand the ICC’s need to do so; they might even respect it. After all, they are masters of acting in ‘self-interest’ – and expect others to act in theirs.

It is hard these days to write about the ICC and not end up citing Darryl Robinson’s proverbial mic-drop of an article, Inescapable Dyads, in which he postulates that the ICC is always stuck between doing too much and doing too little. There is no ‘just right’. And so it is with the ICC’s relations with states: for some it’s too close and for others it’s too distant. But much more can be done to manage perceptions. That would not only be in the Court’s interest but the interests of those who believe in its promise too.