Christopher “Kip” Hale joins JiC for this guest-post. Kip is an attorney specializing in atrocity crimes investigations and litigation. He has worked with the prosecution, defense, as well as judges at numerous international courts. Kip is currently a legal advisor to atrocity crimes investigations in conflict zones and was previously the Director of the American Bar Association’s (ABA) International Criminal Court Project. 

(Image: GetVoip)

It is a common refrain among International Criminal Court (ICC) observers that the Court always seems to be facing a crisis. Oftentimes, the Court is indeed in some degree of a “crisis”. Perhaps this can be chalked up to the nature of the field. After all, international criminal justice is no proverbial walk in the park, and those who profess to know better have seldom practiced in the field in any meaningful way. Other times, the so-called “crisis” is exaggerated.

Still, it cannot be denied that in 2020 and in the immediate years thereafter, the ICC is and will be in a period of transition. The ongoing Independent Experts Review mandated by the Assembly of States Parties will bring about extensive discussion on the performance of the Rome Statute system. Civil society and other external actors have already begun this discussion in full force. Look no further than the Justice in Conflict’s and Opinio Juris’ Symposium on the election of the next Prosecutor to show the intense interest that these subjects generate.

However, one critical component of evaluation and reasoned debate has been almost completely overlooked: us – ICC observers, commentators, stakeholders, and the larger engaged community outside of the Court. It is about time our community takes a long, hard look in the mirror. The ICC stakeholder community is not beyond reproach. Self-scrutiny among ICC commentators is much needed. Too often, we do more harm than we realize.

It is too unwieldy (and likely of little use) to identify the multiplicity of problematic tendencies that occur in the ICC engaged community. Rather, this article’s goal is to hopefully spur a larger discussion – and maybe even some progress – concerning the lack of self-awareness and self-examination in our community. With that said, my experience investigating and litigating atrocity crimes cases in combination with work in the policymaking and strategic components of international criminal justice has put me face-to-face with both the great forces in this field as well as the deeply troubling ones.

Nevertheless, to help explain why self-scrutiny is so needed, let us begin with the obvious: bad faith actors. To say there are agenda-driven and unprincipled agents engaged in the field of international criminal justice often flabbergasts newcomers to the field. Some of these players have nefarious goals to undermine the Court for whatever reason, and deliberately engage in smear campaigns and creating false narratives. Others have personal ambition above all else. The only human rights they are interested in is their own – to wit, to advance their own ambitions and to be “seen” and heard. Sideline commentators are not immune from this malaise.

Then there are those well-intentioned actors who undoubtedly help the ICC and the field writ large, yet can also inadvertently and ironically frustrate the Court and its work. The road to hell, indeed, is paved with good intentions. We have seen it with our own two eyes. Commentators and entities that are “holier than thou”, make perfect the enemy of the good, and/or give off the air of “if only I [or we] were in charge.” Often, such commentary is devoid of any real insight or practical hands-on experience to constitute helpful criticism.

Let me be abundantly clear. The Court should not be impervious to honest, well-reflected constructive critiques about making improvements when and where necessary. Like any institution of import, the overall health of the Court and its work requires constructive and learned criticism from a range of stakeholders, and the Court should welcome it as it has and will continue by all indications. Without such engagement, the ICC would suffer, if not drift into irrelevance. In this respect, the intensity of interest in the ICC, and the negatives that come with it, are a good problem to have.

However, it is a two-way street. The Court and its crucial mandate also deserve the utmost seriousness from external commentators. While, of course, these people and entities are free to comment as they see fit, their freedom does not diminish the fact that such commentary can unduly undermine the reputation and credibility of the Court and distract from its important mission.

All too often these articles, reports, and tweets tug on the already insufficient resources of the Court and give false impression about what is actually in place or happening at the Court. That, or they deny that genuine efforts to improve the Court are ongoing, among other alarmist portrayals made about the ICC that are often based on impressions or speculation rather than actual facts and understanding.

Inaccurate commentary on the Court, especially from those who ought to know better, creates unhelpful narratives about this critical institution, causes unnecessary distractions for the Court, and can often result in inefficient use of the ICC’s time in having to correct the public record. The latter is all the more consequential when considering that the ICC is arguably the most visible and watched court in the world and its limited staff are already under-resourced to manage such widespread interest.

Friendly fire also becomes fodder for anti-ICC voices, skeptical audiences, or those in power looking to box-in the ICC’s important work to serve political interests or are simply uninformed. The recent bipartisan US congressional letters – some signed by self-styled progressives who should be natural allies of the Court – are perfect examples given that these letters leverage critiques from friends of the Court to justify their inaccurate and misleading sentiments. Of course, all unintended consequences cannot be prevented. Further, many will counter this point by accusing it of trying to censor open debate about the ICC, or to tone down criticism to the polite.

Yet, this is not the purpose at all. Rather, it is to say that commentary itself is not free of consequences or free from accountability. Instead of confronting these inconvenient truths, too many critics of the Court or supporters of the international criminal justice movement simply cast aside such criticism, unwilling to contemplate the possibility that their commentary on the ICC may be genuinely unfair, off-base, harmful, and/or that their commentary should be properly tempered by the fact that they do not know all the facts.  Any response from the Court to correct the record is quickly deflected as “defensive” posturing, yet evidently, the external commentariat is itself immune from any accountability or self-assessment. Some perspective, I believe, is desperately in order.

Why do I believe so strongly on this point to pen this piece when I am fully cognizant that it may not sit well with many friends and colleagues? I believe the Court’s mission and mandate are far too important to humanity to be undermined by a general lack of seriousness from a growing class of commentators and “experts” who liberally criticize the Court and its functioning with little or superficial knowledge of the subject matter that preoccupies them or from some personal or professional need to be visible, all at the expense of the Court.

It is an unavoidable truth that many observers have no real sense or insight about how the Court actually operates and/or the rationale behind decisions made. Attending ICC conferences, writing papers, or having ICC contacts does not an expert make or empowers one to advise, if not lecture, on the ICC and its functioning, without restraint and modesty.

How to remedy this problem within the community of engaged ICC observers and stakeholders is likely complex and beyond the remit of this article. Maybe greater self-discipline and authentic reflection, as alluded to elsewhere, is the best route along with better communal understanding of the appropriate limits of commentary vis-a-vis an institution like the ICC that has so many moving pieces and a mandate and mission antithetical to complete transparency. Yet I do not profess to have the answers either and remain cognizant to take my own advice not to act holier than thou; to exercise humility and restraint when pondering and writing about matters that I cannot in good conscience profess to be an expert in any real sense.

Yet, by way of suggestion, a vital step may be humility.

The type of humility that comes from acknowledging that only those within the ICC are fully apprised of all the facts – many of which are strictly confidential or of a sensitive nature – that informs their decisions. In this regard, ICC observers and stakeholders appear to understand confidentiality and the demands of atrocity crimes litigation (or are just paying lip-service), yet do not fully appreciate what that means or demonstrate in their commentary and work a full understanding of these concepts. Said differently, they vocalize the fact that there are limits to transparency that the Rome Statute and other governing authorities have on the Court’s ability to engage with the outside world uninhibited, yet do not truly digest and accept these limitations.

In my experiences on both sides of the divide, it is quite revealing that when outsiders are giving a peak behind the curtain, opinions change and change dramatically.

Let me also add here that the Court is not only one of the most scrutinized international organizations, but also one of the most transparent. By no means perfect, the Court’s active and regular engagement with a broad cross-section of stakeholders – from the Assembly of States Parties and capitols on every continent to universities all over the globe and local non-governmental organizations in affected areas – demonstrate a tendency and leaning towards transparency, not the other way around. This level of transparency is laudatory when understood against the backdrop that the Court is first and foremost bound to serve its mandate and any confidentiality obligations attached to that mandate.

The shear amount of policy papers, strategic plans, annual preliminary examination activities reports, press releases, and statements coming from the Office of the Prosecutor alone, providing insights into the Office’s internal decision-making process and priorities far exceeds what most investigative and prosecutorial bodies produce. Yet, using this issue as an example, the resources poured into these documents and the OTP’s willingness to be open are often taken for granted and/or grounds for further critique. Even here, these passages will be labelled by some as coming from a true-believer or an apologist, never to be genuinely pondered as maybe true.

It is past time to look in the mirror.

As we reflect on the Court at this important juncture, and in our respective roles, hope to contribute to its evolution and mandate of fighting impunity for the world’s gravest crimes, let us be guided by a few simple but fundamental words: “First, do no harm.”