The Outreach Question — Comments
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- emilygiven: I. Introduction The Preamble to the Rome Statute provides that the aims of the International Criminal Court (ICC) are “to punish the most serious crimes of concern to the international community,” and “contribute to the prevention of such crimes.”1 Other goals of the Court presumably include creating a historical record of these crimes, expressing moral condemnation of them... (more)
- Jenevieve Discar: Assessment of Outreach Programs Executed by the ICTY, ICTR and ECCC I. Introduction This paper will examine the outreach programs executed by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Extraordinary Chambers in the Courts of Cambodia (ECCC) in an effort to guide International Criminal... (more)
- John Litwin: Reaching the Masses: Social Media and the International Criminal Court I. Introduction As a controversial international tribunal, the International Criminal Court (ICC, or “the Court”) relies on public approval for its legitimacy. As the court has observed, “justice must be both done and seen to be done.”1 Therefore, a comprehensive outreach campaign is a crucial component of the court’s goal to... (more)
- karen.kwok: The Importance of Timing in ICC Outreach Strategies I. Introduction Outreach plays an important role in the success of the International Criminal Court. Unlike domestic courts that have been developed for years, international tribunals is still a relatively new concept that requires substantial outreach “to cultivate a level of awareness and understanding of the Court’s mandate and mode of... (more)
- Taku: I find the contributions refreshing and interesting. However, there appears to be a presumption that the Outreach policy and the program overseeing its implementation is properly constituted and efficient. This may not be the case after all. A cursory observation of the ICC institutional framework reveals that the Outreach Program as presently constituted needs to be re-examined and re-organized. There is a need to seriously reconsider the constitution of the program, its mission and functions... (more)
- McElroy: Outreach at the ICC: Implications for Funding Constraints I. Introduction Although the International Criminal Court was established over a decade ago, the Court’s present ability to provide effective outreach faces certain challenges. With regard to outreach objectives, the Court aims to provide accurate and comprehensive information to affected communities with respect to the Court’s role and activities... (more)
- ecalmeyer: Outreach and the ICC: A Losing Battle I. Introduction The International Criminal Court is not currently the proper entity to lead comprehensive outreach on international criminal law and the Court’s international justice efforts. On one hand, outreach and education are indeed crucial to promote an understanding of the International Criminal Court (“ICC”). In order for the... (more)
Comment on the Outreach Question: “How can the ICC and its stakeholders more fully address challenges to outreach and public information, better utilize technology and other methods to enhance understanding of the Court’s mandate and activities, and promote support for its work?”
Outreach and the ICC: A Losing Battle
The International Criminal Court is not currently the proper entity to lead comprehensive outreach on international criminal law and the Court’s international justice efforts. On one hand, outreach and education are indeed crucial to promote an understanding of the International Criminal Court (“ICC”).
Global support ensures the ICC’s longevity and legitimacy, as well as its ability to prosecute war criminals and aid victims. However, the ICC’s attempts to engage in extensive outreach may be detrimental to the Court’s goal of ending impunity for perpetrators of war crimes.
Placing the onus on the ICC to perform the outreach required to educate the world’s population about international criminal law, the interworking of the Court, and the Court’s progress poses great problems. Outreach efforts must be increasingly local in nature to respond to the needs of diverse communities around the world.2 This article, however, is not about who can best perform outreach, but instead argues that the ICC should not be the main mechanism to lead international criminal justice outreach efforts. Efforts should not be made to increase the ICC’s outreach, as this will merely be a continuously losing battle for the Court.
Part II of this article argues that current outreach efforts by the Court threaten the ICC’s legitimacy and longevity. In Part III, I argue that the ICC’s major organs and current organizational structure are not suited for the function of outreach. Part IV demonstrates that the ICC’s engagement in outreach efforts run counter to international norms of jurisprudence and legal ethics, which dictate independence and neutrality of Court actors. In concluding, I note that outreach is best handled through relationships with key partners that are familiar with the diverse needs of local communities. Existing resources should support these efforts and should focus on establishing national judicial systems first and foremost.
II. Legitimacy of the Court
Current ICC outreach efforts threaten the Court’s longevity and legitimacy. Legitimacy is central to the Court’s efficacy.
Outreach delegitimizes the ICC because it threatens the view of the Court as neutral and non-political, it sets up incomplete systems across nations, and creates unsustainable expectations that do not demand national-level leadership.
Court leaders often tout the neutral, non-political role of the ICC in promoting international justice. But outreach can easily be seen as promoting or favoring one group over another, which undermines the view of an impartial, fact-seeking court. Outreach across diverse nations and States Parties requires international diplomacy and engagement in extensive political relations. Effective outreach requires a high degree of political glad-handing, networking, and convincing governments and societies to support the Court, which is not the fundamental role of the ICC or any court of justice.
The countries where outreach is most needed often have the most complicated political situations, lacking infrastructure and facing rampant violence or war. Outreach to these areas becomes even more sensitive, requiring the Court to engage in complicated economic and political negotiations, which is counter to its Rome Statute mandate. These actions ultimately undermine the necessary view of the Court as a legitimate and non-western imperialist entity.
Continued or increased reliance on the Court for outreach means that States Parties are not forced to take active roles in outreach, creating impractical and unsustainable precedents which damage the Court’s reputation. When the ICC primarily performs outreach, nations and local groups are not forced to carry the responsibility of helping their citizens understand the Court’s role. Instead, a reliance and expectation may develop that this function belongs to the ICC alone, regardless of whether the Court can realistically sustain the outreach given its current resources. By focusing on and requiring successful outreach, which is impossible to comprehensively undertake everywhere needed, the goal of ending impunity for war criminals becomes intrinsically and unfortunately tied to the success of the outreach. Thus the Court’s responsibility for outreach sets up the institution for failure, delegitimizing the Court.
If the ICC is the leader of outreach, inappropriate and unrealistic expectations are also set in countries where the Court serves as a model for future national judicial institutions. In many situation countries where outreach is performed there is a lack of any cohesive court system. The ICC is the very first Court that a society encounters and may serve as a model for future efforts toward complementarity. ICC outreach sets a disconcerting precedent and unrealistic expectations in countries where the Court serves as a model for future national institutions. ICC outreach leaves critical holes in efforts to legitimize the Court. No matter how much outreach the Court attempts, there are always gaps in information that threaten to delegitimize the Court. For places under initial investigation, such as Colombia or Côte d’Ivoire, the Court does not even have the ability to engage in active outreach.
Outreach corrupts the ICC’s mission and message. The Preamble of the Rome Statute states that:
Spending significant and ever-expanding time on outreach and teaching basic jurisprudence to rural populations undercuts the ICC’s international justice focus of ending impunity for war criminals. Outreach is notably both time and resource-heavy. It requires adequate funding and staff support, as well as extensive planning and implementation to address the diverse needs across nations.7
The ICC was “established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.”8 The Assembly of States Parties (“ASP”) and signatories to the Rome Statute did not express an intention that the ICC be responsible for educating millions of people in diverse communities about the foundations of international criminal law. Indeed the Rome Statute contains no provision expressing an outreach role for the Court.9 As the Court prosecutes the most serious crimes against humanity, where local systems of justice cannot or will not prosecute perpetrators, its legitimacy hinges on fulfilling the mandate from the ASP, and not engaging in a global outreach fight. With only two current prosecutions and vast challenges in prosecution, perhaps the Court is better served by focusing resources on its current trials.10
Finally, the media also shapes any outreach of the ICC, so efforts may not even remain impactful. In large part, no matter how many communities understand the Court’s goals, the media will play a significant role in the world’s view of the Court, its efficacy, and thus its future. The media’s role is so pervasive in the way that the Court is viewed, that whatever attempted outreach, local and international media will determine how it is perceived, undercutting the ICC’s efforts.11 In many countries, there are even extensive misinformation campaigns in the face of outreach and even the politicization of the Court’s message. Effective prosecution, not broader outreach, would be most effectual in combatting these media issues.12 Indeed, some scholars argue that “[d]espite this increased focus on raising public awareness about transitional justice mechanisms, understanding of the role, impact and effectiveness of various outreach strategies remains limited.”13
III. Outreach Amongst the Court’s Organs
There is no appropriate ICC organ to undertake massive outreach efforts. Each organ of the Court has different needs and constraints. “Any attempt by the international justice community to establish parallel efforts would cause confusion, create inefficiencies, and take longer to produce results.”14 There are a wide variety of organizations across countries that are working to support the goals of the court, build judicial infrastructure and promote human rights. These organizations work with diverse populations and effectively address the individual needs of communities. At the ICC, each organ of the Court has different messaging needs and constraints.
The Registry. The Registry is the court organ tasked with the outreach function. The Registry’s responsibilities are vast. It is the “Registry’s responsibility to ensure, inter alia, adequate judicial cooperation with States, protection of victims and witnesses, safety and security of the Court’s operations, detention of suspects and accused individuals, courtroom services, field operations, assistance and support to the Office of the Prosecutor, the defence and to the victims participating in the proceedings and outreach to affected communities”15
Although current efforts fall under the Outreach Unit of the Public Information and Documentation Section of the Registry,16 the Registry should not perform outreach because of its vast responsibilities. The Registry has an oversight role in both assuring suspects have criminal defense through the Office of Public Counsel for Defence, and supporting victims through the Office of Public Counsel for Victims. While these offices are structurally independent, the fact that the Registry has oversight for the office providing defense counsel to suspects, and at the same time is engaging in significant outreach with victims and communities, creates the appearance of bias. The same office that handles defense can be seen in local communities as pushing the prosecutorial aspects forward for victims and working on the “good side.”
The Registry’s work is tied to defense. Depending on the view held, the defense’s role is either a form of zealous advocacy of their client or uncovering the truth through trial process.17
On the other hand, the Registry must also protect victims. Outreach should be a depoliticized relaying of factual information, impartial and separate from the Court’s organs. When outreach occurs under this Registry umbrella, the Court’s neutrality is tainted. The Registry could potentially restructure, with outreach as a completely independent organ, but still, it may appear non-neutral or valuing victims over justice. The other possible organs of the Court that might perform outreach are the Presidency, the Judicial Division, and the Office of the Prosecutor. However, these organs currently do not, and should not, engage in extensive outreach.
The Presidency. The Presidency consists of three judges responsible for the ICC’s overall administration. These judges cannot be responsible for outreach efforts, from a practical resource perspective, as well as a desire for these judges to remain neutral.
Judicial Division. Outreach is inappropriate for Judges to undertake due to bias or the appearance of bias, ethical ramifications, and the importance of a neutral judiciary. Eighteen judges responsible for conducting the proceedings of the Court at different stages cannot appear biased in making their critical decisions during trials, regardless of actual bias.
Outreach to victims and communities would almost certainly create an appearance of bias. Judges are responsible ethically for important trial decisions, including confirming charges, and must be a paragon of independence. Outreach to leaders, governments, and citizens threatens this ethical norm.
Office of the Prosecutor. Outreach is an inappropriate project for the Office of the Prosecutor (“OTP”) whose focus should remain prosecuting suspected war criminals and which must remain independent to pursue this goal. The independence of Prosecutors is critical in order to pursue and achieve this mission.20 Outreach efforts mean that the OTP would be required to form relationships in various countries that defeat the independence of the OTP.
The OTP’s needs and messages related to prosecuting suspects are very distinct from the needs and messages required for outreach efforts.
IV. International Law and Legal Norms
Outreach by the Court is counter to international ethical norms and the development of international jurisprudence. “International criminal justice’s modern origins are usually traced to the military tribunals set up by the victorious allies after World War II.”23 The Rome Statute’s ratification has moved the concept and formation of international criminal law toward a more concrete, yet evolving, body of law.24 Article 21 of the Rome Statute lays out the applicable sources of law in a hierarchal order. The Rome Statute itself and applicable elements of crime and rules of evidence and procedure govern first. Then treaties and principles of international law come into play, followed by general principles of law derived from national legal systems. Separate from the Rome Statute, the sources of international law are generally defined in Article 38 of the Statute of the International Court of Justice. Article 38 identifies four sources, including international conventions, international custom, general principles of law recognized by civilized nations, and the judicial decisions and teachings of highly qualified publicists.25 Generally, these sources are not hierarchal, but international conventions (i.e. treaties) and customs typically carry the most weight. In the instance of international ethical legal norms, there are not any wholly overarching international treaties or conventions that apply. However, international efforts can look to the general principles and norms arising out of national legal systems, even with significant differences between systems, such as civil versus common law ones. “International legal norms are applied and interpreted within a multicultural diaspora.”26 Laurel Baig argues that international legal ethics must be of its own creation, in order to address the particularities of international law.
Likewise, international criminal law is not bound by one single legal source or overarching code, particularly when it comes to norms of behavior and ethics.28 Baig continues:
The ICC is governed by a code of conduct that includes notions of independence and impartiality, which may be defeated by ICC-led outreach.
When examining potential sources of international legal ethics, as well as various national norms, independence and neutrality are key concepts.
Outreach however, may lead to bias, the appearance of bias, and engaging in complicated political situations, which runs against these international norms.
The International Criminal Court has adopted specialized codes of conduct to govern the behavior of various players within the Court. The Assembly of State Parties adopted the Code of Professional Conduct for Counsel.32 Article 6 states that “Counsel shall act honourably, independently, and freely.” The Code also provides for confidentiality and that counsel may only advertise if information is accurate and “respectful of counsel’s obligation regarding confidentiality and privilege.” Article 16 further requires that counsel make efforts to ensure that no conflict of interest arises. “[T]he ICC Code of Conduct, echoing French ethical rules, requires attorneys to take a “solemn undertaking” that they will perform their duties with “integrity and diligence, honourably, freely, independently, expeditiously, and conscientiously.”33
Likewise, the Court also has a Code of Conduct for the Office of the Prosecutor that dictates independence, confidentiality and in particular impartiality (including “refraining from expressing an opinion that could, objectively, adversely affect the required impartiality”).34
Article 10 of The ICC Code of Judicial Ethics states that:
These individual Court actors represent the Court generally, and the codes that the ASP adopted seem to hold independence and neutrality in high regard as a legal and ethical norm. This suggests that engaging in community and international outreach, regardless of the branch and particularly in situation countries, may easily cause conflicts of interest or the appearance of a non-neutral Court. International norms mandate the independence of court organs, the appearance of which is defeated when any Court actor partakes in outreach efforts.
While there is not a specific international treaty governing all international legal criminal ethics, as previously mentioned, the United Nations, one of the foremost leading international institutions, also provides guidelines that serve as a global norm for the roles of the Judiciary, prosecutors, and lawyers generally. In 1985, the UN endorsed the Basic Principles of the Independence of the Judiciary, finding that:
While judges are afforded freedom of expression, “judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.”37
The UN Basic Principles on the Role of Lawyers allow lawyers more freedoms, stating:
Various non-governmental organizations and inter-governmental organizations have provided legal ethical guidelines for Courts. The International Commission of Jurists,39 the Council of Bars and Law Societies of Europe,40 and the International Bar Association, among others, all have guidelines that dictate the independence for Court actors, and deemphasize outreach.
In international law, often ethical and legal norms vary greatly across nations, with particular differences between civil law and common law jurisdictions. These systems generally arise out different origins; codified civil law, based on “statutes, administrative law, and custom” is easily distinguished from common law, which arises out of “ a mix of judicial systems, customs, and statutes.”41 These systems boast differences in the education and training of attorneys as well, lending to different legal and ethical norms. Common law examples tend toward rules, versus civil law ethics codes that refer more to standards.42 Terms such as professional independence and confidentiality, and even the role of a lawyer vis-à-vis a client, lead some to argue that a global theory of ethics is not realistically achievable.43 Others, such as some of the international organizations above, argue that international standards are critical in international law. In many established countries around the world, domestic courts do not engage in outreach and publicity efforts, in order to ensure the legal legitimacy of judicial systems.
The ICC is not the proper institution to undertake comprehensive outreach to promote the Court. While this article is not intended as an in-depth examination of who should undertake outreach, it is important to examine a few potential key partners of the Court. A “greater network of international organizations, aid agencies, and other donor and implementing bodies offers extensive programs already in place around the world, as well as vast experience and expertise in fostering the rule of law.”44
States Parties, NGO’s, IGO’s, Coalitions, and efforts supporting state-based outreach and national court building are better suited than the organs of the ICC to perform outreach and responding to the ever-increasing, diverse outreach needs.
Supporting and emphasizing local outreach efforts is the only effective way for global citizens to learn about the Court’s work in manners tailored to their needs. Addressing cultural, linguistic, political and societal differences, in order to promote justice, must be a community effort. And building national court systems is critical for worldwide justice efforts.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See Outreach, International Criminal Court, available online (last visited Mar. 15, 2014). ↩
See Patrick Vinck & Phuong N. Pham, Outreach Evaluation: The International Criminal Court in the Central African Republic, IJTJ (Nov. 13, 2010). Oxford Journals paywall, EBSCO Host paywall. ↩
Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 267-68 (2012), available online. ↩
Id. at 276. ↩
See Lecture by Sonia Robla, Chief of ICC’s Public Information and Documentation Section, The role of effective communications in fulfilling the ICC’s mandate: challenges, achievements and the way ahead, (Supranational Criminal Law Lectures, Leiden University, Mar. 17, 2010) at 2, available online. ↩
See Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩
Indeed, the Court should place its limited resources toward the Office of the Prosecutor’s prosecutorial mission, not an outreach mission. The Court recently touted its outreach progress, stating (Robla, supra note 5, at 1):
Our people, working in difficult situations, very often arrive in a village with a generator and a projector to screen images from the courtroom. With a megaphone they answer questions and address concerns of hundreds citizens during town-hall style meetings. Informative sessions are conducted in nearly 10 languages […] Creative tools such as theatre pieces, tailored publications, videos and radio programs have been developed and used. Women, the army, police, victims, displaced population, the legal community, members of Parliaments, NGO representatives, refugees, diasporas, journalists, all have been approached by outreach teams of the Court.
While this work is impressive, it also illustrates the extent to which outreach has become a prominent mission of the Court, threatening the OTP’s prosecutorial mission. Outreach uses the limited resources of the Court, requires a great deal of time and staff investment, and does not necessarily provide a long-lasting or comprehensive legitimization of the Court. ↩
See About the Court, International Criminal Court, available online (last visited Mar. 15, 2014). ↩
See Rome Statute, supra note 6. ↩
See Jenia Iontcheva Turner, Legal Ethics in International Criminal Defense, 10 Chi. J. Int’l L. 685, 691 (Dec. 14, 2009), available online:
From a legalist perspective, the main function of trials is to determine individual culpability and assess appropriate punishment through a fair process. Punishment of the guilty, in turn, serves the goals of retribution, deterrence, and incapacitation. ↩
See Robla, supra note 5. ↩
See Coalition for the International Criminal Court, Budget and Finance Team, Comments on the Proposed Programme Budget for 2014 of the International Criminal Court and other matters (Sep. 5, 2013) at 4, available online:
In addition…despite widespread misinformation and politicization of the discourse on the work of the ICC in Kenya, only limited additional resources appear to have been requested to expand outreach to victims and affected communities. This is all the more important as civil society actors which assist the ICC with outreach or otherwise support the work of the Court in Kenya may see their ability to assist the Court in relation to outreach decrease as a result of ongoing campaigns to discredit them in Kenya and increased tensions on the ground. Outreach in other situations like Libya has also lagged behind. ↩
See Vinck & Pham, supra note 2. ↩
See Eric A. Witte, Open Society Justice Initiative, International Crimes, Local Justice: A Handbook for Rule-of-Law Policymakers, Donors, and Implementers, at 21 (2011), available online. ↩
See Proposed Programme Budget for 2014 of the International Criminal Court, ICC-ASP/12/10 (Jul. 29, 2013), at 71, available online [hereinafter Proposed 2014 Budget]. ↩
See Outreach, supra note 1. ↩
See Iontcheva Turner, supra note 10, at 700-701 (2010):
Zealous advocacy is a central ethical principle for criminal defense attorneys in most adversarial systems.…there is no question that they must pursue their client’s cause with zeal and act as true partisans…Some inquisitorial systems not only do not require aggressive defense, but also tend to expect the defense to cooperate in the administration of justice and the revelation of the truth. ↩
Michael A. Newton, Evolving Equality: The Development of the International Defense Bar, 47 Stan. J. Int’l L. 379, 379 (2011), available online:
Defense counsel in international criminal proceedings face extremely difficult challenges that are intrinsic to the modern systems of internationalized accountability; yet their professionalism and performance represent perhaps the most determinative dimension for evaluating the overall fairness of what is commonly considered “justice” for grievous atrocities. ↩
See Iontcheva Turner, supra note 10, at 704. ↩
Requiring the OTP to pursue any outreach also stretches Prosecutors too thinly, when they already lack resources to comprehensively pursue current and new cases and investigations. Illustrating the extensive responsibilities of the OTP (Proposed 2014 Budget, supra note 15):
The Court anticipates that in 2014 it will be dealing with eighteen cases in eight situations. In nine of the cases judicial activities will be ongoing at the Court at the Pre-Trial, Trial and Appeals stages of the proceedings with the accused either in custody or available upon summons to appear. In addition to its investigations and judicial proceedings […] the Office of the Prosecutor continues to monitor other situations in preliminary examination… ↩
See Iontcheva Turner, supra note 10, at 703. ↩
Proposed 2014 Budget, supra note 15, at 46. ↩
Mirko Bagaric & John Morss, In Search of Coherent Jurisprudence for International Criminal Law: Correlating Universal Human Responsibilities with Universal Human Rights, 29 Suffolk Transnat’l L. Rev. 157 (2006). ↩
Id. at 158-59:
More recently, the move towards a systematic and coherent body of international criminal law gained considerable momentum following the ratification of the Rome Statute, which entrenched a number of substantive offenses, established rules for prosecuting and punishing international crimes, and established the International Criminal Court (ICC). This growing interest in, and acceptance of, international criminal law, belies the fact that it is a body of law that is neither clearly defined nor articulated. ↩
See Statute of the International Court of Justice, Article 38, International Court of Justice, available online; (last visited Mar. 15, 2014). ↩
Alexander Boldizar & Outi Korhonen, Ethics, Morals and International Law, 10 EJIL 279, 281 (1999), available online. ↩
Laurel Baig, International Criminal Law and Legal Ethics: The Need for Shared Expectations, 103 ASIL 256, 258 (2009), available JSTOR paywall. ↩
Id. at 256:
[W]ithin a domestic legal system, all lawyers share a common set of norms, which should provide a common understanding of the basic rules of expected conduct. When one moves to the international arena, this common ground disappears. ↩
Id. at 259. ↩
See Iontcheva Turner, supra note 10, at 743. ↩
Newton, supra note 18, at 382:
The independence, ethical excellence, and fearless representation of the defense lawyers must remain an indispensable element of authentic enforcement efforts. Indeed, the abandonment of appropriate efforts on behalf of defendants facing trials in the international criminal justice system, whether the result of professional fecklessness or personal pressures, would transform those proceedings into an organized sham capable of achieving only a shadow of justice while undermining the core human rights of those who will face charges under its authority. ↩
Code of Professional Conduct for Counsel, International Criminal Court, Resolution ICC-ASP/4/Res.1 (Dec. 3, 2005), available online. ↩
Iontcheva Turner, supra note 10, at 706. ↩
Code of Conduct for the Office of the Prosecutor, International Criminal Court (Sep. 5, 2013), available online. ↩
Code of Judicial Ethics: International Criminal Court, Coalition for the ICC, available online (last visited Mar. 15, 2014). ↩
Basic Principles on the Independence of the Judiciary, United Nations: Office for the High Commissioner of Human Rights, available online (last visited Mar. 10, 2014). ↩
Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Sep. 7, 1990), available online. ↩
International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors, International Commission of Jurists (2007), available online. ↩
Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers, Council of Bars and Law Societies of Europe (2013) available online. ↩
Elayne E. Greenberg, The Ethical Compass: The Globalized Practice of Law: Part Two, 4(3) N.Y. Disp. Resol. Law. 10 (2011), available online. ↩
Id. at 11:
While the ABA Model Rules speak in terms of rules, the civil law ethic codes refer to more general articulated standards and norms. Although both ethic codes appear to articulate similar core values such as professional independence, confidentiality, and conflict-free representation, the actual interpretation of these words and the order in which they are prioritized are different and require a more nuanced understanding of the legal system and broader culture in which they live. ↩
Witte, supra note 14, at 21. ↩
See Vinck & Pham, supra note 2. ↩
Witte, supra note 14, at 17. ↩
In 2014 we launched an international network of Universities and experts that teach the “International Criminal Law” program in the Law Schools of Latin America. We started with UBA in Argentina, Rey Juan Carlo University in Madrid, Catholic University in Ecuador, and this year we incorporated, Catholic University professors of Lima Peru.
We created the network of students, judges, prosecutors, professors, faculty and students and we launched an online platform.
All the coordinators and communicators that work to provide content for the platform work pro bono.
Our main goal is to communicate and inform about the ICC’s work, international crimes, the state of Human Rights around the world and mainly: inform our Spanish Speaking communities how International Criminal Law is taught around the world.
In the platform we post the different Professors and programs syllabus, and the information is open and of free access.
A professor in Lima can see how a professor in Quito or Buenos Aires teaches the syllabus.
We share: contents, books, cases, information, videos, papers.
We share knowledge and we use ICT’s (technology) to foster participation. We use websites, email, and bulletins on a weekly basis to reach the vast community of to-be-lawyers for them to be updated in International Criminal Law.
Education is the key and the use of technology is fundamental for the ICC to continue priming its work.
We are committed to that and doing it in Latin America with much effort.
We strongly believe that our future lawyers, future prosecutors and future Justices need to receive more and more information about the ICC and other international criminal law matters and we are using technology because the new generations thrive on technology.
Outreach at the ICC: Implications for Funding Constraints
Although the International Criminal Court was established over a decade ago, the Court’s present ability to provide effective outreach faces certain challenges. With regard to outreach objectives, the Court aims to provide accurate and comprehensive information to affected communities with respect to the Court’s role and activities, to promote understanding of and support for the Court’s work, and to provide concerned communities with access to judicial proceedings.1 Although the Court established the Outreach Unit within the Public Information and Documentation Section (PIDS) of the Registry, the Court acknowledges that it is “fully aware of the need to enhance its outreach program and to continue to build upon its activities in that area.”2 However, current constraints impede the Court’s ability to adequately disseminate appropriate and necessary outreach, both to concerned communities within ICC situation countries as well as to the public at large.
While there may exist certain political and institutional constraints to the Court’s outreach capabilities,3 the most blatant impediment to the ICC’s ability to effectuate competent outreach is monetary in nature. This paper will discuss two monetary issues as they relate to the Court’s ability to more adequately provide outreach. On the first hand, capacity of the Court to harness funding in general remains a complicated and unstructured process that is limited by and dependent on the funding procedures of a separate international organization. This lack of structure and independence afforded to the ICC directly limits the capacity of the Court to raise funds, and therefore consequently contributes to suppressed outreach objectives. Additionally, past and present budgetary policy at the ICC reflects a consistently low prioritization for outreach objectives when compared to other functions or responsibilities of the Court. Consistently low priority for outreach is compounded by the fact that outreach responsibilities tend to overlap amongst the several organs of the Court, which would serve to make funding for “outreach”, as opposed to funding for the “Office of the Prosecutor”, a more complicated and nuanced process. Ultimately, an evaluation of these two monetary issues finds that procedural limitations to fundraising and failure to designate outreach as a legitimate priority both serve to hamstring the Court from utilizing financial resources that would be optimal for its outreach objectives.
II. Monetary Issues: Ability of the Court to Obtain Access to Finances Through Funding in General
Limitations to the Court’s ability to obtain funding in general has obvious ramifications for available financial resources that would be integral to the Court’s outreach program. This segment will discuss the processes through which the Court receives its funding and the current limitations the Court endures as a result of those processes.
Article 113 of the Rome Statute dictates: “Except as otherwise specifically provided, all financial matters related to the Court… shall be governed by this statute and the Financial Regulations and Rules adopted by the Assembly of States Parties.”4 Both the Court and the Assembly are financed from assessed contributions of State Parties, which, as stipulated by the Rome Statute, are predicated on the scale adopted by the United Nations for its regular budget.5 The fact that the ICC’s ability to acquire contributions from its members is directly tied to the process of a disparate organization creates certain difficulty for the Court, which is further discussed later within this comment. The Rome Statute permits the ICC to secure additional funding from the United Nations itself, but that process entails additional limitations: funds to the ICC are only approved by the General Assembly of the UN, in particular to relation to the expenses occurred due to referrals by the Security Council.6, 7 This language creates an unclear understanding as to the availability of UN funding to the ICC. Should the statute be construed to permit funding only as it pertains to UN Security Council referrals, the margin for additional UN funding would consequently be a thin one. Thus far, the UN Security Council has made only two referrals of cases to the ICC. This paints a somewhat bleak picture with regard to capacity of the Court to secure additional funding through contributions from the UN. Additionally, voluntary contributions to the Court are permitted, in accordance with the relevant criteria adopted by the Assembly of States Parties.8 Not only are voluntary contributions subject to limiting criteria, but they have also not cumulated to much since the creation of the Court. Thus, ultimately, the Court’s ability to secure funding is seriously limited to the funding procedures the General Assembly at the UN decides to adopt.
Given that the Rome Statute hinges the Court’s ability to raise funds on the current UN Assessed Contribution Scale, an evaluation of the UN’s procedure for securing funding through the General Assembly is called for. The ICC is distinct from other international organizations in that its governing statute does not mandate a pre-defined scale of assessment in its document. Rather, it affords flexibility based on a more general model that the United Nations adopts: “The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based.”9
The assessment scale for the United Nations is predicated on a “Capacity to Pay” concept. Capacity to pay is often determined by gross national product, adjusted by external debt and population, which is then converted to US dollars, adjusted and expressed as a proportionate share of the total income of UN members. However, it is important to consider differences in membership between the UN General Assembly and the States Parties to the Rome Statute with regard to availability of funds to contribute. Forty-one members of the United Nations are not parties to the ICC, including several of the wealthiest countries in the world. The ICC’s ability to raise funds is therefore obviously hindered by the noted absence of the United States, China, and Israel as signatories to the Rome Statute.
Furthermore, there are important structural concerns and enforcement challenges that challenge the Court’s ability to secure funds that could be utilized for outreach purposes. The fact that ICC state contribution assessments are by stipulation pegged to current UN contribution statistics prevents the Court from utilizing an independent, non-fluctuating mode of securing contributions from States Parties. Given that the ICC assessment scale is based on an inherently political organization, aspects of the UN scale will without doubt be subject to political compromise and contexts as they relate to the General Assembly at the UN. For example, the General Assembly determines arbitrary maximum and minimum contributory levels for member states. Consequently, States Parties to the ICC are subject to those same limitations. With particular regard to limitations placed on maximum contribution amounts, the ICC’s ability to secure funding from its members is fixed; the Rome Statute does not provide language that would authorize the Assembly of States Parties at the ICC to increase maximum contribution levels if they conflicted with the assessment scale adopted by the UN.
An additional hurdle to the ICC’s general acquisition of funds entails a relatively lenient enforcement mechanism with regard to State Party contributions. Issues with lack of enforcement of State Party contributions are reflected in challenges that faced the United Nations and other International Tribunals: by April 1999, unpaid assessments to the ICTY and ICTR totaled over $73.2 million dollars, with only 24 out of the 188 UN members contributing their required assessment.10 This huge lack of payment does not bode well for the ICC, especially with regard to the Rome Statute’s provision that addresses defaulting on payments: “A State Party which is in arrears in the payment if its financial contributions towards the costs of the Court shall have no vote in the Assembly… if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years… The Assembly may, nevertheless, permit such a party to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the State Party.”11 This statute creates substantially flexible room for States Parties to default on their payments, with a soft, if any, punishment regime for failure to comply with the obligatory contributions. If the ICC’s funding mechanism was not dependent on the UN’s assessment procedure and policy towards default (Article 19 of the UN Charter), the ICC would be able to implement more stringent mechanisms that would ensure greater acquisition of funding by members, and by extension, greater funding that could be directed towards meeting outreach objectives.
Ultimately, both the ICC’s dependency on the UN General Assembly’s assessment scale and the limitations the ICC faces in enforcing a more stringent policy toward payment default create a complicated and unstructured process through which the Court relies on to harness funding. This lack of independence and dependency on the policy of a separate international organization directly serves to limit the acquisition of funds that could be directed towards critical outreach objectives.
III. Outreach as a Budget Priority
While the Court’s limited capacity to secure general funding creates an initial challenge to establishing an effective outreach regime, the ICC’s consistently low prioritization of outreach as an objective within budgetary policy further serves to limit access to funds that would be specifically tailored towards imperative outreach objectives. The Coalition for the International Criminal Court authored a report on the ICC’s Proposed Budget for 2014, which highlighted that as far as the budget is concerned, outreach is seen as less a pressing objective than other functions of the Court.12
The ICC’s proposed budget for 2014 requests 126.07 million Euros, with the majority of the increases directed towards the OTP. The budget allocates “significant resources allocated to ensure that the OTP is able to proceed promptly with cases when suspects are surrendered to the ICC.”13 The fact that the OTP decided to change two of its active investigations into residual investigations (which entail only the preservation of evidence as opposed to further pursuing an investigation) underscores the clear need for additional resources. Specifically, those resources are needed for additional resources to pursue investigations and prosecutions, which are both perceived as a crucial and integral function of the Court. So long as funding continues to be limited, this dynamic will not serve to further improve outreach. So long as functions within the Office of the Prosecutor remain a top priority, which is certainly a legitimate argument, specific outreach objectives will be neglected. One example in particular highlights the dynamic that the Office of the Prosecutor and its responsibilities remains a top priority for funding allocation.
The 2014 proposed budget indicates a 35% increase in the Victims and Witnesses Unit within the OTP, which reflects the huge expansion of new witnesses as more cases are investigated and opened.14 As the OTP continues to launch new investigations, the amount of evidence gathering and witness interviewing will continue to grow at an even quicker pace. This rapid growth as the OTP’s caseload increases will without doubt require substantial funding. Ultimately, the ICC as an institution in general is largely associated with bringing justice towards international criminals. In order to accomplish such an objective, the Court’s Office of the Prosecutor needs resources to do so. Although an effective outreach regime serves a very important purpose and would over time greatly increase the efficiency of the Court, so long as it remains to be considered a secondary, as opposed to primary focus of the ICC, the majority of funding will be dedicated towards the OTP.
The establishment of field offices in situation countries serves as a critical mechanism for the Court to implement and facilitate outreach with local communities. However, the 2014 budget proposal does not indicate that the maintenance and establishment of field offices possess the most pressing need for funding. No funds are currently proposed to be directed towards the establishment of a field office in Mali, in spite of the fact that this will create an enormous gap in distance between the field office and more remote areas that correspond to reports of crimes.15 Lack of a field office and outreach in concerned communities in situation countries thus directly affects the efficiency and efficacy of the OTP’s ability to pursue justice. While outreach objectives clearly have tangible ramifications for the Court to function properly, these objectives are still seen as secondary in nature when compared to the more immediate nature of tasks typically associated within the Office of the Prosecutor.
While the budget report does reflect an “initiative” on behalf of the Public Information Dissemination Unit, more financial assistance is directed towards the Office of the Prosecutor, with particular regard to investigative support and augmenting the participation of victims and witnesses. Only until outreach is considered an immediate and tangible objective on par with investigatory and prosecutorial functions of the Court, other organs of the Court will remain the primary beneficiaries of the limited funding available to the Court.16
IV. Concluding Remarks
The fact that the Outreach Unit was not even established until 5 years after the Court was established reflects the relatively lower priority designated to establishing an effective outreach regime at the ICC through increased funding. Furthermore, the fact that outreach efforts are considered to have a less tangible effect than more efficient results with regard to investigative and evidentiary funding hinders consideration of outreach as a necessary function of the Court. Outreach remains without doubt a crucial objective of the ICC and dedicating more funds to it now may well serve to cut more expensive costs in the future through improvements in efficiency and effectiveness of investigations. Additionally, any misinformation that is instigated against the Court will require a well-managed outreach regime to be solved. Clearly, issues that are inevitable due to lack of outreach will serve to be costly to the Court in the long run if funding is not dedicated towards tackling those issues now. Ultimately, so long as outreach remains a low budgetary priority and the ICC’s funding system at large remains complicated and potentially unenforceable, the Court’s ability to refine and effectively implement outreach will be curtailed.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
International Criminal Court, Assembly of State Parties, Strategic Plan for Outreach of the International Criminal Court, ICC-ASP/5/12 (Sep. 29, 2006), available online. ↩
Id. at 3. See also International Bar Association, Beyond the Hague: Forging linkages between the International Criminal Court and Key Jurisdictions (Sep. 2008) at 16, available online (addresses numerous outreach issues at the ICC):
[F]eedback from the field highlights that misperceptions and misinformation on the Court’s work are persistent in Uganda, DRC and Chad. ↩
There tends to be overlap in outreach function between the Office of the Prosecutor (OTP), the Public Information and Documentation Section (PIDS), as well as the Victim’s Participation and Reparation Section (VPRS). In his article on the construction of the ICC, Schiff discusses the “fractious nature of the Court’s Structure,” such that the fragmentation between the organs of the Court with regard to outreach becomes akin to “battling a split personality.” See Benjamin N. Schiff, Building the International Criminal Court (Cambridge University Press, 2008). ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute] at Art. 113. ↩
Rome Statute, supra note 4, at Art. 115. ↩
An informative report from the Project on International Courts and Tribunals explains that this policy was the result of a compromise in Rome; Although many signatories to the Rome Statute wanted security of funding directly from the United Nations, other signatories vouched for the independence of the Court, and that “exclusive or primary funding by the UN, could raise serious issues of state and sovereignty and equity, as a potentially large number of UN members would be funding an organization to which they did not belong.” See Cesare Romano & Thordis Ingadottir, The Financing of the International Criminal Court, Project on International Courts and Tribunals (2000), available online. ↩
Rome Statute, supra note 4, at Arts. 116, 117. ↩
Rome Statute, supra note 4, at Art. 17. ↩
Romano & Ingadottir, supra note 7. ↩
Rome Statute, supra note 4, at Art. 112(8). ↩
The report “strongly oppose any attempts to offset the proposed increase in funding of OTP’s work by cutting resources required for other areas of its work.” Coalition for the International Criminal Court, Budget and Finance Team, Comments on the Proposed Programme Budget for 2014 of the International Criminal Court and other matters (Sep. 5, 2013) at 2, available online. ↩
Id., at pg. 2. ↩
Id., at pg. 3. ↩
See, e.g., Beyond the Hague, supra note 2, at 16:
[D]ue to budget constraints the audio-visual products are currently available only in French, which impedes the ability of the Court to reach segments of the affected communities in the DRC who speak Lingala, Suali or Sango, but not French. ↩
No state party or government that is not a party to the ICC such as the United States will ever tell a victim or victim population about the ICC or it's work because they don't want to be prosecuted themselves. I know because I had to contact the ICC myself on the crimes of America against a American population and no attorney told me to do so. If the ICC needs outreach, I recommend independent advertising.
I find the contributions refreshing and interesting. However, there appears to be a presumption that the Outreach policy and the program overseeing its implementation is properly constituted and efficient. This may not be the case after all. A cursory observation of the ICC institutional framework reveals that the Outreach Program as presently constituted needs to be re-examined and re-organized. There is a need to seriously reconsider the constitution of the program, its mission and functions. The job description of the staff deployed to this very important function must be well defined. Persons deployed to conduct this function must be selected on the basis of proven professional ability, competence and experience. Diversity must be respected and the variety of institutional and professional resources required attaining defined and assigned goals provided.
Due to my involvement with some situations at the ICC and my prior experience at the ICTR and the Special Court for Sierra Leone, I can make an informed contribution on this important matter. The ICTR and the Special Court for Sierra Leone had very successful Outreach Programs. A key attribute of success was the professionalism and experience of the staff deployed to the Outreach Program and the material resources placed at their disposal. From an institutional perspective, although these professionals functioned within the Registry, it provided assistance and services to all the independent organs of the court, including the defense. There was never ever any perception of a conflation of the duties or roles to the extent of the Outreach Program officials acting as spokespersons for the Office of the Prosecutor or Judges.
There exists a multiplicity of tools and professional resources available for a successful implementation of an Outreach Program. Some of these may be more formal like in the case of diplomatic engagement, state co-operation. Others may be targeted, like in the case of victims of crimes coming within the jurisdiction of the court or towards potential perpetrators of crimes in conflict situations. The Outreach Program must be sufficiently proactive to educate and persuade State Parties and Non State Parties to the Rome Statute to bring their national laws closer to or in conformity with the Rome Statute. This is not the duty of the Prosecutor. The Outreach Program of the ICC must do more in this and other regards so as to free the Prosecutor to concentrate on functions falling within her mandate.
The ICC Outreach must assert its independence in its relation with international and national NGOs. Many of them may support the same objectives like the ICC but their missions and objectives may be political or even controversial. Where there is a perception that members of some in the NGO community with a hostile political or activist agenda are driving or influencing the policies of the ICC by virtue of their participation in the Outreach Program, this may negatively impact on state co-operation on which the ICC depends to realize its mandate. Only a diverse, professional, experienced and competent team will be able to make this useful distinction.
The Importance of Timing in ICC Outreach Strategies
Outreach plays an important role in the success of the International Criminal Court. Unlike domestic courts that have been developed for years, international tribunals is still a relatively new concept that requires substantial outreach “to cultivate a level of awareness and understanding of the Court’s mandate and mode of operations.”1 Without outreach, civilians may develop unrealistic expectations of the Court and a lack of understanding of judicial process, making the Court lose legitimacy.
Currently, outreach activities at the ICC are conducted during the six phases of judicial proceedings: analysis, investigation, pre-trial, trial, appeal and implementation. Most of the outreach activities conducted by the ICC’s Outreach Unit are conducted during the trial phase.2 The Outreach Unit is operational in: Uganda, the Democratic Republic of the Congo (“DRC”), the Central African Republic (“CAR”), Kenya, surrounding countries of Darfur, Sudan (Eastern Chad, Senegal, Mali, and Nigeria).3 On the field, the Outreach Unit has staff in the DRC, Uganda, CAR and Chad.
Along with strategizing the types of outreach activities and information to disseminate, success of outreach also depends on when outreach is conducted. This paper will outline problems associated with the timing of outreach and recommend when outreach efforts should begin. In Part One, I will argue that the focus of outreach on the trial phase is misplaced. Focusing the outreach on such a late phase allows misconceptions about the court to form and grow. As a result, unnecessary resources and time have been diverted to correcting these misconceptions before the ICC can undertake other outreach efforts. Part Two of the paper describes the problems associated with timing generally and the experiences of other international tribunals. Then, Part Three applies the problems described in Part Two to the ICC, followed by the Conclusion and recommendations for more efficient outreach strategies.
II. Problems Associated with Timing
Generally, experts have criticized delayed outreach efforts as being “too late to prevent harmful public misperceptions.”4 At both the International Criminal Tribunal for Yugoslavia (“ICTY”) and International Criminal Tribunal for Rwanda (“ICTR”), the international tribunals faced public perception problems, because they failed to prioritize their outreach activities.5
Harmful public misperceptions include unrealistic expectations of the Court and misunderstanding of the Court’s mandate. For instance, stakeholders may expect more victim reparation than possible, or that the judicial process is less time-consuming than it is in reality.
Because outreach efforts are conducted later, people are able to gain a negative perception. Thus, by the time the Court begins its outreach efforts, the time and resources will be focused on correcting the pre-established negative perceptions rather than on the judicial proceedings and more sophisticated details of the cases of interest. For example, currently at the ICC, outreach is emphasized after a suspect is charged. Rather than focusing outreach on informing people about more complex issues like court procedure and judicial reasoning for the charge, the ICC’s outreach efforts are focused on simple questions like what is the ICC and what are the aims of the institution.
Specifically, from the ICTY, we learned that establishing an outreach program six years after the establishment of the tribunal was “too late to have any real effect.”6 In the ICTY, the tribunal went six years without an outreach program. In 1999, the US Judge Gabrielle Kirk McDonald saw the importance of communicating with people in the former Yugoslavia about the ICTY and its mission. During this time, the Tribunal also didn’t have a very good reputation in the former Yugoslavia. The media was able to feed the public with biased information. Thus, Judge McDonald initiated an Outreach Program to meet those needs and to address the concern of the adversely affected reputation of the tribunal.7 However, because the court had already been running for six years, it was very difficult to correct the public “misconceptions and disinformation about the ICTY [that] were widespread in the former Yugoslavia.”8 This significantly undermined the Tribunal’s credibility in the area, which still remains a problem today.
We learned similar lessons from the Special Tribunal for Lebanon (“STL”). From the STL, we learned the importance of conducting outreach early. In particular, we learned that early outreach should be focused on explaining the mandate and the role of the Court.9 Explaining the mandate and the role of the court requires more than just simple reiteration of the court’s mission. The court must also explain in detail what they can and cannot do, the limitations of the court and the reasons for them, and what stakeholders should expect to see as a result.
The Special Tribunal for Sierre Leone was seemingly aware of the ICTY and ICTR’s shortcomings due to their delay in their outreach efforts. Hence, they began their outreach efforts prior to the establishment of the Special Court in early 2001. Uniquely, these efforts were initiated by No Peace Without Justice (“NPWJ”), a non-profit organization who hosted a conference in 2001.10 At the conference, legal professional and civil society members developed “a series of recommendations for the implementation of an outreach program in Sierre Leone.”11 The series of recommendations was supported by training seminars conducted by the NPWJ and the creation of a working group that led and carried out outreach efforts. In addition to the outreach efforts supported by NPWJ, the Special Tribunal itself began outreach activities shortly after the tribunal’s establishment through visits to every region in Sierre Leone. “As noted by No Peace Without Justice, ‘the situation of Sierra Leone demonstrates very clearly that outreach efforts can never begin too soon.’ ”12 Even though the Special Tribunal of Sierre Leone began its outreach efforts significantly earlier than the other tribunals, it was still critiqued for not having “begun [their outreach program] the moment the Court became operational in Sierre Leone.”13 Critics highlighted that success in outreach relies heavily on having strong working relationships with networks of involved individuals and civil society who can help ensure that accurate information about the Court is communicated throughout Sierre Leone.14 Thus, the earlier this relationship is built, the better.
From the lessons learned from the different tribunals, there’s a strong sense that outreach should be done earlier. However, there isn’t a consensus as to the exact stage when outreach activities should begin. In the following section, I will apply the lessons learned from the other tribunals and explore exactly when outreach should be initiated at the International Criminal Court (“ICC”).
III. Application—ICC Outreach
According to the ICC’s mandate for the outreach program, there are three main goals to outreach:
In order to meet the above goals, the first and third goals require outreach efforts to being at least prior to phases of judicial proceedings. Without having a general understanding of the ICC’s mandate and expectations about the Court’s work before the judicial proceedings phase, stakeholders will not have the foundation necessary to understand how judicial proceedings work. We can’t expect people to understand the detail of the judicial proceedings when people may not even know the court exists or the aims and purpose of the institution. Thus, outreach efforts need to be conducted before judicial proceedings so people have a basic knowledge of the court that they can build on.
Additionally, it is important to begin outreach efforts prior to the investigative phase of judicial proceedings to prevent pre-conceived ideas and misinformation about the ICC to form. For example, in Uganda, early in the investigative phase of judicial proceedings, the Court was already faced with difficult contextual questions on the ICC. Within the country, there was “negative perception and publicity around the ICC.”16 Despite the focused outreach conducted during this time, the energy and efforts were focused on overcoming these preconceived ideas about the court, rather than starting from a blank slate.
Thus, rather than three distinct outreach goals, the three above goals should be seen as three phases of outreach.
Phase 1: To cultivate basic awareness and understanding of the ICC’s mandate and mode of operations;
Phase 2: To establish realistic expectations about the Court’s work; and
Phase 3: To promote access to and understanding of each stage of judicial proceedings.
So when should Phase 1 begin to be most effective? The literature seems to suggest that the earlier the better. At a minimum, once the Court identifies the area as a potential situation to investigate, outreach should begin. The key reason to begin outreach earlier, as clearly delineated by the literature, is to prevent public misconceptions to form.
Specifically, Phase 1 of outreach activities should begin at the analysis phase, the first stage of judicial proceedings where the pre-trial division of the ICC analyzes information on potential crimes and decides whether a trial should be brought. During this stage, ICC stakeholders may not need to have a sophisticated understanding of court procedure and reasoning for bringing a trial. However, to prevent misconceptions from developing, while the pre-trial division is deciding whether or not to bring an individual involved to trial, the outreach division should also begin to cultivate basic awareness and understanding of the ICC’s mandate and mode of operations, if such awareness hasn’t reached the situation area yet. At this time, the outreach division should ensure that accurate information about the ICC is disseminated. Activities should be focused on explaining what the ICC is, its mandate and structure, and the different phases and expected timing of each phase.
Once this basic awareness and accurate understanding of the ICC has been established, outreach efforts can be focused on explaining in detail what the Court can and cannot do, the limitations of the Court and the reasons for them, and what stakeholders should expect to see as a result. This Phase 2 of outreach efforts should begin during the investigative phase of judicial proceedings, after the analysis phase.
Finally, once there is a basic awareness and understanding of the ICC and realistic expectation of the Court’s work, outreach efforts can focus on promoting access to and understanding of judicial proceedings. These efforts are best suited for the pre-trial phase when stakeholders may begin to have more sophisticated and tailored questions toward their interested situation and cases. At any point, efforts must be made to mend any misconceptions that may form during the process, as soon as misconception and inaccuracies have been pinpointed.
Conclusion & Recommendations
First, I suggest that transparent and proactive information should be provided from the outset during the first phase of judicial proceedings undertaken by the ICC: the analysis phase. Engaging with the local population before the start of proceedings is the best way to prevent public misconceptions to form before the court’s image becomes tainted by negative media portrayal. If an accurate portrayal of the ICC is given at the outset, outreach efforts from that point can be streamlined and more efficient. No excessive resources will be needed to fight against negative misconceptions.
Second, an outreach coordinator needs to be hired during the early stages when the prosecutor decides whether or not to open investigation in a new situation country. During that decision making process, hiring an outreach coordinator needs to be a part of that discussion. This will ensure that outreach efforts can be tailored to the situation country and that at least one point-person is dedicated to leading and monitoring the accurate dissemination of information.
Finally, the budget is an obvious constraint that institutions of all levels have to deal with. By beginning outreach efforts earlier, less resource will be required to correct misconceptions about the court. This allows for a more efficient and streamlined outreach program. This may not save the Court money, but it could ensure that money is used more efficiently.
Beginning outreach efforts during the analysis stage will ensure that accurate information about the ICC is broadly and accurately disseminated to ICC stakeholders. This is essential to the transparency and credibility of the ICC and consequentially its effectiveness.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
International Criminal Court, Outreach Report 2010 (Nov. 26, 2010) at 1, available online [hereinafter Outreach Report 2010] ↩
Strategic Plan for Outreach of the International Criminal Court, ICC-ASP/5/12 (Sep. 29, 2006), available online. See also International Bar Association, ICC Monitoring and Outreach Programme: Second Outreach Report at 10 (May 2007), available online. ↩
Outreach Report 2010, supra note 1, at 1. ↩
Norman Henry Pentelovitch, Seeing Justice Done: The Importance of Prioritizing: Outreach Efforts at International Criminal Tribunals, 39 Geo. J. Int’l L. 445, 451 (2008), HeinOnline paywall. ↩
Varda Hussain, Sustaining Judicial Rescues: The Role of Outreach and Capacity-Building Efforts In War Crimes Tribunals, 45 Va. J. Int’l L. 547, 563 (2005), Lexis/Nexis paywall. ↩
Janine N. Clark, International War Crimes Tribunals and the Challenge of Outreach, 9(1) Int’l Crim. L. Rev. 99, 101 (Mar. 2009), available Brill paywall. ↩
Pentelovitch, supra note 4, at 451. See also Human Rights Watch, Memorandum to State Members of the Assembly of State Parties at 3 (Nov. 2005), available online:
At the International Criminal Tribunal for the Former Yugoslavia, outreach was an afterthought…[and] was not started until the fall of 1999 when the tribunal realized how poorly it was perceived in former Yugoslavia. [Thus] Regional outreach offices…have had to work hard since then to correct public opinion that had already been adversely affected by a biased media. ↩
Marieke Wierda, Habib Nassarand & Lynn Maalouf, Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon, 5 J. Int’l Crim. Just. (2007) at 1073:
It has been noted, for example, vis-à-vis the Special Tribunal for Lebanon (STL) that, “it will be vital for the tribunal to embark on an early outreach program in Lebanon, not least to explain in more detail what the STL can, and what it cannot, be expected to achieve. ↩
No Peace Without Justice, Outreach and the International Criminal Court at 4 (Sep. 2004) [hereinafter Outreach and ICC] available online, archived online (No Peace Without Justice hosted the “Freetown Conference on Accountability Mechanisms for Violations of International Humanitarian Law in Sierre Leone.”) ↩
Pentelovitch, supra note 4, at 452. ↩
Outreach and ICC, supra note 10, at 5. ↩
Outreach Report 2010, supra note 1, at 1. ↩
IBA Second Outreach Report, supra note 2, at 10. ↩
Reaching the Masses: Social Media and the International Criminal Court
As a controversial international tribunal, the International Criminal Court (ICC, or “the Court”) relies on public approval for its legitimacy. As the court has observed, “justice must be both done and seen to be done.”1 Therefore, a comprehensive outreach campaign is a crucial component of the court’s goal to “contribute to a long-lasting respect for and enforcement of international criminal justice.”2
In its Strategic Plan for Outreach, the ICC outlines three outreach goals. First, the Court seeks to establish “effective system of two-way communication” between the Court and affected communities.3 Second, it aims to “better understand the concerns and expectations of these communities.”4 Finally, the Court desires to “clarify, where necessary, any misconceptions that might exist.”5
In order to achieve these outreach goals, social media stands out a promising opportunity. The use of social media has exploded in recent years, with an estimated 73% of American adults alone using Facebook,6 just one of many social media platforms. The instant nature of social media and its ability to target large groups enables it to address all three of the ICC’s primary outreach goals. Each goal can be achieved through a careful selection of the different social media sites available and particular strategy tailored to the Court’s ultimate goal.
This is not to suggest that social media is a cure-all for the challenges of outreach, and the Court must also be mindful of the specific limitations of social media. These include incomplete global internet coverage, the limited longevity of public interest, and significant simplification of complex issues often inherent in using social media for political ends. However, by being mindful of these limitations and through a careful selection of tools and strategies, the International Criminal Court can harness these emerging technologies to broadcast its outreach messages to a vast audience in real time, greatly furthering its outreach goals.
II. The Use of Social Media
In order to discuss the various uses and applications of social media, one must first define what the term encompasses. However, the numerous different social network providers, as well as the different uses to which they could be put make a single all-encompassing definition difficult to formulate. In a general sense, social media can be described as “a general set of tools that use the internet to highlight collaboration to make and distribute content.”7 This definition highlights the two most important features of social media, its existence on the internet and its collaborative aspect. However, this definition leaves out one crucial aspect social media of special importance to the ICC, which is the way it allows each user to become an independent publisher of content. Therefore, a more appropriate definition of social media is the “set of web-based broadcast technologies that enable the democratization of content, giving people the ability to emerge from consumers of content to publishers.”8 This definition encompasses the most popular social media sites, including Facebook, Google+, Twitter, and YouTube9 and is necessary to explain the many uses to which these sites can be put by the ICC.
The democratic and online nature of social media make it unique in comparison to traditional media sources. First, social media changes the traditional mode of one-to-many communication that has typified news reporting. As opposed to one news agency reporting a group of consumers, social networks such as Twitter and Facebook have allowed the masses to communicate with the publisher, the masses to communicate with each other, and news organizations to target and respond to specific individual consumers.
Perhaps more importantly, it allows individuals to become content publishers by removing the gatekeeping function of traditional media sources. When an event or crisis takes place, individuals will engage in information gathering.10 Traditionally, major news providers have been the primary source of this information that individuals have relied on. This has largely been the result of technological limitations. Because of the expense, danger, and time necessary report on these events, traditional news sources offered the most timely information, in addition to being perceived as trustworthy.11
Because of this relative monopoly, traditional news providers have served a gatekeeping function. By determining which events and stories would be reported on, these agencies thus determined what information consumers would have access to.12 The technological advances that have manifested themselves as social media have changed this dynamic. Individuals on the ground are now able to upload information to the internet as it occurs in real time. This has resulted in individuals as well as news reporting agencies often relying on the same information about a given situation. The Syrian Civil War exemplifies this, as “user-generated content produced by Syrians and disseminated on social networking sites such as Facebook and content-sharing platforms such as YouTube have been major sources for international media outlets reporting on Syria.”13
Due to these factors, traditional media is no longer the most timely source of information. Traditional providers and the general public alike have come to rely on social media for information. Thus if the ICC wishes to remain visible in the international community and to reach the public, social media is an invaluable and necessary tool.
III. Achieving the ICC’s Outreach Goals Through Social Media
A. Establish an Effective System of Two-Way Communication between the Court and the Public
The court’s first stated outreach goal is to establish an effective system of two-way communication between the court and the public. This goal is paramount for the the success of any outreach campaign. Crucially, it is by definition necessary for achieving any of the other outreach goals of the court. Without a two-way communication system, the court will have no way of addressing the public and communicating its message. It will also be unable to gauge public opinion, and therefore address the most pressing concerns or to determine any generally held misconceptions. As the court itself observes:
Therefore, not only is a system of two-way communication necessary to achieve the court’s outreach goals, it is also central to its overall goals under the Rome Statute.
As a defining feature of social media is two-way communication among potentially large groups, it is ideally-suited for helping the court to achieve this goal. A social media platform like Twitter or Facebook is particularly well-suited. Both of these networking sites allow for broad messages to be posted for each all associated users, while allow allowing the organization to access statements by users. Thus, Facebook and Twitter foster a two-way dialogue.These platforms allow for organizations to communicate directly with users, while instantly reaching a large audience with any messages they put. It’s utility for reaching a large number of individuals and allowing for a dialogue is evidenced by the fact that fully 86% of United States marketing specialists indicate that social media is a crucial tool for reaching consumers and spreading a business’ message.15 Therefore, these platforms could be invaluable resources for the Court.
The Court has already made tentative steps towards using social media sites to foster a dialogue. The Court has a Twitter handle (@IntCrimCourt) which it uses primarily to post updates on its current cases.16 However, it apparently does not allow for other users to post to its feed, or use the forum to explain its policy undertakings. Therefore, by expanding its use of Twitter and by expanding to other social media forums the Court could achieve the two-way dialogue it seeks on a large scale.
B. Respond Effectively to the Public’s Concerns and Expectations about the Court
The Court’s second stated outreach goal to effectively respond to the public’s concerns and expectations about the work of the Court. Addressing these concerns in crucial for the existence of the Court, as it relies on public approval and perceived legitimacy to validate its existence. As the recent threat by the African Union to withdraw from the Rome Statute17 makes clear, without a certain level of public approval, the International Criminal Court could quickly transform from a respected institution to a failed experiment in international justice. As previously observed, “justice must be both done and seen to be done.”18
Social media can be an effective tool in this pursuit, as well. The most important step to accomplish this is to maintain the type of two-way dialogue in the manner discussed above. This will allow the Court to determine the areas of greatest concern to the public and address them accordingly.
Once these issues have been identified, the next step would be for the Court to thoroughly address these issues. This is where the International Criminal Court Forum (upon which this piece is posted) could be particularly useful to the Office of the Prosecutor. The present forum allows for both detailed pieces and responses. thus it would allow the Court to both discuss its policy decisions to the public, while simultaneously fielding comments that would illuminate the public’s expectations and concerns. While the Court has had some involvement in the selection of issues of the present forum, its direct involvement has been minimal. By increasing its participation it could thus achieve its second outreach goal.
C. Clarify Any Misconceptions About the Court and it’s Work
Finally, social media can be extremely useful in achieving the court’s final outreach goal, clarifying any misconceptions about the court and its work. Misconceptions and misinformation are constant challenges the International Criminal Court must battle. As the ICC often targets political leaders, it must often grapple a deliberate campaign of misinformation. As Human Rights Watch observes, “With the Court operating in polarized communities that are in or recovering from conflict, those who are threatened by the Court can be expected to do their utmost to tarnish it.”19 Additionally, the work of the Court is complex and can be confusing, even to those savvy in the field of international law, let alone the general population.20 Therefore, an effective and far-reaching campaign to clarify these misconceptions is necessary to ensure understanding of the work of the Court, and to prevent a loss of legitimacy due to the misinformation campaigns of current or potential indictees.
The instant nature of social media makes it ideally suited for combating misinformation. This is important due to the fact that generally the sooner a misconception is challenged, the easier it is to dispel. This is evidenced by the controversy surrounding Lubanga’s arrest in the Democratic Republic of the Congo:
Thus social media platforms such as Twitter or Facebook, with its ability to instantly broadcast a message to large groups could be ideal for maintaining a sustained campaign of corrective information. By making policies accessible and well known beforehand will also make these policies more difficult to distort. In addition to Twitter and Facebook, the Court should also continue to stream its proceedings online, making it more difficult to challenge the legitimacy of trials. By taking these steps, the ICC can utilize social media to impair efforts to misconstrue their actions and clarify its mission.
IV. The Limitations of Social Media
All of this is not to say, however, that social media does not have significant limitations in the context of the work of the International Criminal Court. While the internet is an ubiquitous facet of life in the developed world (a 78.6% penetration rate),22 up to this point all of the cases of the ICC have involved situations in Africa, which has a mere 15.6% internet penetration rate.23 In the Democratic Republic of the Congo, the source of more ICC investigations than any other country, it is as low as 1.2%.24 Therefore, while social media can be useful in building international support, and perhaps even in encouraging more widespread ratification of the Rome Statute, its ability to affect the populations of situations countries, at least presently, is severely limited. Thus the Court must be strategic in the way it deploys its social media campaign, targeting those affected populations with access to the internet, while also targeting its message to an international audience.
Additionally, the ICC must acknowledge the fact that public attention is often fleeting. While social media campaigns are often successful in capturing widespread attention in the short term, the claim that this results in any form of sustained interest or social activism is more dubious. This is evidenced by the general response to Kony 2012. While Google searches for the term “Joseph Kony” did spike in the period immediately following the release of the film, within a month they had returned to essentially the same level as before.25 Therefore, the Court should sustain its social media outreach efforts, and attempt to cultivate a base of dedicated followers who will remain engaged in the workings of the court. Creating mailing lists or a Facebook group are ways businesses have approached this problem,26 and the court could emulate these strategies to remain in the public consciousness.
More problematic for the purposes of the ICC is the fact that social media often entails a certain amount of simplification, especially when it attempts to capture the attention of large amounts of people. This is not a recent phenomenon, but has long been understood to be required in some measure to create political engagement.27 The field of international criminal law is a dynamic and developing area of law, and does not easily lend itself to quick summarizations of complex issues. This contrasts with the 140-character limit of any Twitter post, which inhibits an in-depth discussion of an issue. Even longer formats can involve a problematic amount of simplification, however. The prime example of this, again, is Invisible Children’s Kony 2012 short film and accompanying social media campaign. While the film has been phenomenally successful, gaining nearly 100,000,000 YouTube views,28 this has come at the cost of what some have characterized as dangerous oversimplifications of the complexities of the conflict.29 Thus, a reckless social media campaign could have the effect of compounding the very misconceptions the correction of which is one of the Court’s primary outreach goals, as well as empowering those who would seek to further discredit the ICC through misinformation.
This problem is especially difficult to combat, as it is often difficult to capture public attention without some amount of simplification. For example, a more balanced, nuanced film produced by Invisible Children in the wake of the criticism of Kony 2012 has not been nearly as successful, capturing barely 3% of the amount of views of the former production.30 This may indicate that a certain amount of simplicity is necessary to capture the attention of the general population of social media users.
Thus the International Criminal Court will have to strike a balance between making its social media activity accessible to a broader population, while also communicating the messages it wishes to convey fully and in a balanced manner. A possible solution is to use its Twitter account to link to full reports, or publish official summaries of proceedings on its YouTube channel. This would make the information condensed and digestible to a general audience, while making the more complex aspects of the issues and proceedings open and accessible to all who wish to engage them. In this way the court can engage the general population of social media users whiteout compromising its outreach goals.
Social media is by no means the ultimate solution to the vast challenge of outreach by the International Criminal Court. The limitations inherent in the medium, including general public apathy, a limited global reach, and a certain degree of necessary simplification, all curtail the extent to which it can be used. However, it nevertheless remains a valuable potential tool for the ICC if careful strategy is used in the selection of platforms and techniques.
First, the Court should increase its Twitter presence and expand the ability of individuals to address the Court through this channel directly, thus creating the desired avenue of two-way communication. Secondly, the Court should expand its use of its YouTube channel and more directly engage with the International Criminal Court Forum website, allowing for a broader discussion of its policies and enabling it to both field comments on what areas of its work the public is the most interested and concerned with, and granting a forum to respond to these concerns. Finally, the ICC should be proactive on all of these platforms in addressing misconceptions and combating willful misinformation, as the instant nature of social media enables the court to head off these problems before even greater confusion ensues. By pursuing these strategies while keeping in mind the particular limitations of the medium, social media has the potential to significantly further the outreach goals of the International Criminal Court.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
International Criminal Court, Assembly of State Parties, Strategic Plan for Outreach of the International Criminal Court, ICC-ICC/5/12, Part I.1.2, at 3 (Sep. 29, 2006), [hereinafter Strategic Plan], available online. ↩
Id., pt. I.1.1 at 3. ↩
Id., pt. I.1.3 at 3. ↩
Aaron Smith, 6 New Facts About Facebook, Pew Research Center (Feb. 3, 2014), available online. ↩
David Westerman, Patric R. Spence, & Brandon Van Der Heide, Social Media as Information Source: Recency of Updates and Credibility of Information, 19 Jour. Computer-Mediated Comm., 171, 173 (2014), available online. J. Computer-Mediated Comm. ↩
Peter R. Scott & J. Mike Jacka, Auditing Social Media: a Governance and Risk Guide at 5 (Wiley 2011). ↩
Steven J. Vaughan-Nichols, Facebook Remains top Social Network, Google+, YouTube Battle for Second, ZDnet (May 14, 2013), available online. ↩
Westerman, et al., supra note 7 at 172. ↩
Juliette Harkin, Is It Possible to Understand the Syrian Revolution Through the Prism of Social Media?, 9 WPCC, 93, 95 (Apr. 2013), available online. ↩
Strategic Plan, supra note 1. ↩
Michael A. Stelzner, 2013 Social Media Marketing Industry Report: How Marketers are Using Social Media to Grow Their Businesses at 5, Social Media Examiner (May 2013), available online. ↩
See generally ICC on Twitter, available online. ↩
Faith Karimi, African Union Accuses ICC of Bias, Seeks Delay of Cases Against Sitting Leaders, CNN, Oct. 12, 2013, available online. ↩
Strategic Plan, supra note 1. ↩
Human Rights Watch, Courting History: the Landmark International Criminal Court’s First Years at 99-100, (Jul. 2008) [hereinafter Courting History] available online. ↩
Charli Carpenter, Kony 2012: Seven Questions about Social Media Campaigns and International Law, Opinio Juris (Apr. 18, 2012), available online. ↩
Courting History, supra note 19 at 127. ↩
North America, Internet World Stats, available online (last visited Apr. 5, 2014). ↩
Africa, Internet World Stats, available online (last visited Apr. 5, 2014). ↩
Joseph Kony, Google Trends, available online (last visited Apr. 5, 2014). ↩
Melanie Mathos & Chad Norman, 101 Social Media Tactics for Nonprofits: a Field Guide at 94 (Wiley Feb. 7, 2012). ↩
See generally Margaret E. Keck & Kathryn Sikkink, Activism Beyond Borders: Advocacy Networks in International Politics (Cornell University Press Mar. 4, 1998). ↩
Invisible Children, Kony 2012, YouTube (Mar. 5, 2012), available online. ↩
Adam Branch, Dangerous Ignorance: the Hysteria of Kony 2012, Al Jazeera, Mar. 12, 2012, available online. ↩
Invisible Children, Kony 2012 Part II: Beyond Famous, YouTube (Apr. 5, 2012), available online. ↩
Assessment of Outreach Programs Executed by the ICTY, ICTR and ECCC
This paper will examine the outreach programs executed by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Extraordinary Chambers in the Courts of Cambodia (ECCC) in an effort to guide International Criminal Court (ICC) outreach programs. Although the ICC faces particularly difficult challenges in that, unlike the tribunals that will be assessed in this paper, its outreach must span different regions with populations of different socioeconomic statuses, different languages, and different technological capacities, the ICC may draw upon lessons learned from the ICTY, ICTR and ECCC to guide its own initiatives specific to each region of the world. This paper assumes that each individual tribunal is currently doing, or striving to do, what is best for its particular audience.
The three tribunals assessed in this paper were selected because each allows for an examination of tribunal outreach in vastly different communities with different cultures and needs. The ICTY, a pioneer in terms of outreach programs, provides insight into outreach programs that are executed in Europe in more developed communities with higher technological capabilities. The ICTR allows examination of the potential for outreach in Africa, with a population that has less access to technology. The ECCC implemented an outreach program modeled after that of the ICTY, but tailored to meet the specific needs of its own populace in Southeast Asia, and thus provides insight into outreach programs targeted towards that population.
II. ICTY: Outreach Programs in Europe
Of the tribunals analyzed, the ICTY has the widest breadth of programs available. The ICTY’s programs are also the most technologically advanced of all the tribunals analyzed. The ICTY’s outreach program was first initiated in the fall of 1999, five years after investigations for the Tribunal had begun. The outreach program was developed because ICTY representatives believed that, due in large part to negative media coverage, the Tribunal was poorly perceived by the population, and that the negative perception impacted the Tribunal’s ability to work effectively. The regional outreach offices that were established in 2000 and 2001 have struggled to correct public opinion adversely affected by the media.1
Current ICTY outreach programs include the following:2
The ICTY is currently engaged in youth outreach that includes high school and middle school presentations, study visits, and internship projects. Beginning in 2011, the ICTY has run a series of presentations in high schools in Bosnia and Herzegovina to explain the ICTY’s work and how it has helped to bring about justice for victims of atrocities that occurred during the conflicts. In 2012, this program was expanded to include presentations to high schools in Croatia, Serbia, and Kosovo. The ICTY also reaches out to university students studying the fields of law, politics, and humanities. ICTY experts and practitioners have traveled to Bosnia and Herzegovina, Serbia, Croatia, Kosovo, Montenegro, and the former Yugoslav Republic of Macedonia to give academic lectures to interested students and increase awareness of international criminal law and the ICTY.
The ICTY has also opened its doors to student visitors, enabling international students and young people from the former Yugoslavia to learn about the work of the ICTY onsite. Students are able to follow live trial proceedings and pose questions to ICTY representatives.
Finally, for the past four years, the Office of the Prosecutor (OTP) has offered internships to young legal professionals from the former Yugoslavia. The interns who are selected are able to assist OTP trial teams directly and also gain experience in international humanitarian law and criminal cases. Past interns have also had the opportunity to assist in the ICTY’s outreach program by sharing their experiences with law students in the former Yugoslavia.3
The ICTY offers a wide range of media outreach programs. The ICTY has made efforts to work directly with the media to ensure that journalists have been able to report accurate and up-to-date information on ongoing trials. The ICTY has also provided media contacts with audio-visual materials for use in reports. ICTY outreach personnel have appeared on local television and radio stations, and have given interviews to print publications. Both ICTY President Theodor Meron and Prosecutor Serge Brammertz have appeared for a number of interviews with journalists.
The ICTY is also active on social media, and manages a Facebook page, a Twitter account and a YouTube channel. Through these different social media outlets, the ICTY is able to spread awareness of its work and effectively communicate its messages. The ICTY’s Facebook page has received over one thousand “likes” and, on average, the page is accessed by 700 people every month. Witness statements that may otherwise be difficult to find are easily accessible through direct links on the ICTY Facebook page, which is accompanied by information on each witness and the purpose of the testimony. The ICTY also disseminates important information on judgments, Tribunal events, outreach projects, articles, and UN news regarding the former Yugoslavia through its Facebook page.
The ICTY’s Twitter page has also been increasingly successful, gaining an average of approximately 100 additional followers each month. The ICTY’s YouTube channel garnered over 400,000 views in 2012. The “Voice of the Victims” videos, which feature witnesses who have come to testify at the ICTY, have been particularly popular, along with videos of the start of Ratko Mladić’s trial and the court judgment against Shefqet Kabashi.
Finally, the ICTY’s official, regularly updated website recorded over 4.2 million page views last year, an increase of 14 per cent from the year before. The website has recently been updated to include an improved interactive map, one of the best sources of information for crimes investigated and adjudicated at the ICTY, which displays many of the geographical regions that suffered during the conflicts and provides a corresponding overview of ICTY case-related information, and video-streaming of trials.4
The ICTY’s community outreach program includes documentary screenings and interaction with local communities, including meetings with victims’ associations. The ICTY’s feature-length documentary, entitled “Sexual Violence and the Triumph of Justice,” shows the ICTY’s role in the prosecution and adjudication of wartime sexual violence. The documentary features interviews with ICTY staff members and testimonies of some of the sexual violence survivors who provided evidence for the ICTY. Over 100 people attended the film’s premiere, which took place in January 2012 at The Hague. The audience included ICTY principals, members of the diplomatic corps, international court representatives, NGO staff, journalists, and students.
After the film’s premiere, the ICTY held a roundtable in which senior ICTY officials and senior ICC officials discussed the challenges of prosecuting crimes of sexual violence and challenges associated with the work of the ICTY and the ICC. Following the premiere, the ICTY held screenings of the documentary in the countries of the former Yugoslavia, complemented by roundtable discussions and seminars, and distributed copies of the DVD to over 400 international experts in relevant fields. The documentary is also available on the ICTY website and YouTube.
The OTP has also initiated programs allowing for direct interaction with victims. The Prosecutor has personally met with victims’ associations, journalists, and NGO representatives to answer questions and provide insight on the work of the OTP, information on ongoing trials and appeals and issues regarding national prosecutions.5
ICTY Capacity Building
The ICTY has engaged in programs to train judges and prosecutors, in coordination with Europeans and Americans. The Registry’s Court Management and Support Services Section and the Office of the Prosecutor are also engaged in assisting the judiciaries of the former Yugoslavia in processing war crime cases. The OTP is working on transferring its expertise regarding war crimes prosecutions to regional authorities, in order to ensure that regional war crimes prosecutions continue after the ICTY completes its mandate.6
“Bridging the Gap” Series
The “Bridging the Gap” series consisted of five conferences that were held between May 2004 and June 2005 throughout Bosnia, in areas where a significant number of crimes were committed during the 1992-1995 war in Bosnia, and where the ICTY conducted and completed a substantial number of trials. The main purpose of the “Bridging the Gap” series was to inform the local populace of the ICTY’s work, beginning with the investigations stage, to the issuing of indictments, to the trials conducted, and culminating with an explanation of the judgments. Through this series of conferences, the ICTY attempted to allow local people to follow a case from start to finish. During the series, the audience was able to interact with the Outreach team and with senior ICTY officials, including senior investigators and trial attorneys, who were involved in prosecuting the cases.7
The ICTY offers an online evidence/remembrance museum. The reason for this distinction from the ICTR’s evidence/remembrance museum (located in Kigali and further discussed in the next segment) is the security concerns over creating a remembrance museum in the Balkans and the possibility of issues with the Serbs. Whereas the ICTR was able to make this a physical remembrance museum due to access to a safe security environment, the ICTY digitized the museum and put it online to avoid potential problems.
III. ICTR: Outreach Programs in Africa
The ICTR did not begin an active outreach program until 1998, following the conclusion of the first trial and three years after investigations had begun in Rwanda.8 The ICTR’s outreach program is relatively small, comprised of only three major initiatives.
The current ICTR outreach programs include:9
Umusanzu mu Bwiyunge Information and Documentation Centre in Kigali
The Umusanzu mu Bwiyunge Information and Documentation Centre in Kigali provides a range of opportunities to increase public understanding of the Tribunal’s work through books, journals, newspapers, legal documents, audio-visual materials and information briefings.
The Tribunal is cooperating with the Government of Rwanda to establish ten similar information and documentation centers in locations across the country to improve public access to documents and other information about the work and accomplishments of the ICTR.10
In the past, the Outreach Program provided financial support to allow journalists from the Office Rwandais de l’Information (ORINFOR) and the Ministry of Justice to report from Arusha.
As part of the current Outreach Program, the ICTR regularly brings groups of up to six Rwandan journalists to Arusha to gain information on the ICTR first-hand, which will enable them to accurately report on significant ICTR events, including the delivery of judgments, Appeals Chamber sittings, and the opening of new trials. The ICTR outreach staff provides these journalists with audio or videocassettes of the ICTR hearings, which they can broadcast via government and private stations in Rwanda. The ICTR also provides a satellite feed of each judgment that can be broadcast live in Rwanda.
The Tribunal is currently working on launching a new weekly radio program geared specifically for the Rwandan audience. The ICTR also produces brochures and other printed information, as well as documentaries about some of the completed cases.11
Visits and Seminars
The ICTR’s Outreach Program organizes regular visits of journalists, lawyers, human rights advocates and civil society representatives to the ICTR in Arusha, where they are able to attend and observe trials in progress and take part in briefings on various aspects of the ICTR’s work. Clergy from various religious denominations and members of the Rwandan judiciary also attend these visits and seminars.12
A major focus of the ICTR’s Outreach Program is to allow law students from Rwandan public and private universities to visit the ICTR, where they can gain first-hand knowledge of the ICTR’s work and current challenges facing international criminal courts.
IV. ECCC: Outreach Programs in Southeast Asia
The ECCC modeled its outreach program after that of the ICTY, but modified it to serve its distinct audience and capabilities.
Current ECCC outreach programs include:13
Publications, radio and television programs, the ECCC official website, and forums around the country that take information about the Court to the heart of the community.
Cooperation efforts with Cambodian and international NGOs as well as national, provincial and local structures of government, particularly in disseminating a wide range of materials including charts, posters, other reading material and videos, and in radio and television programs.
Educational initiatives, including dissemination of audio and visual feeds of court proceedings and edited video and audio summaries of the court proceedings and other activities of ECCC organs.
V. Comparative Analysis of Outreach Programs
Online/Social Media: Most Heavily Utilized by the ICTY
Each of the tribunals assessed maintains its own website to communicate its messages and keep the online community up to date on important developments related to the Tribunal’s work. The ICTY, however, is the only tribunal currently making use of social media (namely, Facebook, Twitter and YouTube). Based on this, the implication is that the ICC’s outreach program should include online and social media targeted to the more developed countries in order to reach technologically advanced societies.
Radio: Outreach Medium of Choice for the ICTR and ECCC
Both the ICTR and the ECCC make effective use of radio programs to convey the Tribunal’s respective messages. This indicates that the ICC could make use of radio to reach out to populations where that is the only communication tool available. This is unnecessary as a tool in developed Europe, where the majority of the populace has access to other communication mechanisms. In order to reach less technologically advances societies, the ICC should make effective use of radio programs targeted to the less developed areas.
On the Ground: Major Component of Outreach Used by All Three Tribunals
On the ground strategies are employed by all three Tribunals, with varying levels of direct involvement by higher level Tribunal officials. This suggests that on the ground efforts is the most effective form of outreach across all regions.
An examination of the outreach programs of the various tribunals suggests that the ICC should employ a targeted approach rather than a blanketed approach to outreach. In different regions of the world, it is necessary to use different outreach mechanisms. Assuming that these tribunals have implemented effective outreach programs for their particular audience, then the implication for the ICC is that, where radio is the most effective form of communication in more rural areas, as suggested by the programs implemented by the ICTR and the ECCC, more technologically advanced and creative programs can be used in more developed areas, as suggested by the programs implemented by the ICTY.
The ICC must appeal to the type of audience targeted by the ICTY as well as the type of audience targeted by the ICTR and ECCC—it must have a strategy for outreach that is effective in some of the poorest countries of the world as well as some of the richest. In order to effectively communicate its message globally, the ICC must combine the strategies utilized by the ICTY, ICTR and ECCC.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Sara Darehshori, Lessons for Outreach from the Ad Hoc Tribunals, The Special Court for Sierra Leone, and the International Criminal Court, 14 New Eng. J. Int’l & Comp. L. 299, 301 (Dec. 3, 2008), available online, archived. ↩
International Criminal Tribunal for the Former Yugoslavia, ICTY Annual Outreach Report 2012 (2013), available online. ↩
Kristin Xueqin Wu, Paper, Experiences that Count: A Comparative Study of the ICTY and SCSL in Shaping the Image of Justice, 9 Utrecht L. Rev. 60 (Jan. 2013), available online. ↩
Darehshori, supra note 1, at 300. ↩
Tim Gallimore, Int’l Crim. Trib. for Rwanda, The ICTR Outreach Program: Integrating Justice and Reconciliation (Nov. 8, 2006), available online. ↩
Public Affairs, ECCC, available online (last visited Apr. 6, 2014). ↩
The Preamble to the Rome Statute provides that the aims of the International Criminal Court (ICC) are “to punish the most serious crimes of concern to the international community,” and “contribute to the prevention of such crimes.”1 Other goals of the Court presumably include creating a historical record of these crimes, expressing moral condemnation of them, promoting the (international) rule of law, and perhaps restoring a dignified relationship between the perpetrators of these crimes and their victims or society at large.
Crucial to the achievement of these aims is the Court’s outreach to various audiences. In order to deter future crimes, for example, potential future criminals must be made aware of the Court’s proceedings. In order to facilitate reconciliation, victims too will need to know about the Court’s ongoing activities. And in order for the Court to communicate moral condemnation of these crimes, it must find a way to make an audience of the world community at large.
Yet effective outreach to these audiences is difficult to conduct: The Court is charged with communicating different messages to different audiences by different means in different languages. Scarce resources are available to be utilized. The Court must contend with existing misinformation, sometimes deliberately spread, and security concerns in some situation countries that can make it difficult to establish the infrastructure required for effective communication.
At present, the Court’s outreach efforts include relatively low-level programming, like radio broadcasts and in-person small group meetings directed at victims, and making available resources on Court proceedings, and international law more generally through the Legal Tools segment of the Court’s website.2 How could the ICC and its stakeholders expand and improve upon these efforts?
This Comment argues that the Court’s commitment to the principle of complementarity—the principle that the Court is a forum of last resort—licenses a form of outreach aimed at building rule of law in domestic legal systems, sometimes called positive complementarity. A key component of the Court’s outreach program, in other words, should be efforts to build up and legitimate systems of law in situation countries—or potential situation countries—that are adequate to prosecute those who commit the crimes over which the Court has jurisdiction.
Part II of this Comment argues that the Court’s statutory commitment to complementarity makes it reasonable for the Court to expend at least some resources on positive complementarity. Part III surveys the efforts of various other organizations to build rule of law in the relevant nations, and argues that in light of the Court’s limited resources, the most prudent course of action—at least in the short term—would be to assist with and supplement those organizations’ efforts rather than building an independent program of the Court’s own. Part IV examines what the Court could do to offer such assistance, and offers some preliminary suggestions as to how the Court might direct its efforts. In particular, this Comment argues that the Court should consider (1) developing and extending its online presence so as to disseminate research and policy papers, and to provide evidence that can be used in domestic prosecutions; and (2) training domestic prosecutors in the nature of prosecutions for those particular crimes that fall under the Court’s jurisdiction. Part V concludes, and suggests that middle-income countries—such as Columbia, for example—would likely offer the best return on the Court’s investment, and thus offer a promising place to direct the Court’s initial energies.
The principle of complementarity is the principle that the ICC is a court of last resort, intended to supplement rather than supplant national courts, and only where they are inadequate to prosecute those crimes under the Court’s jurisdiction—genocide, war crimes, and crimes against humanity. Article 17 of the Rome Statute provides the statutory formulation of the principle:
Conditions (a) and (b) provide the substance of the rule for our purposes—if a State is willing and able to carry out genuine investigations and prosecutions for a given crime and has at least conducted a genuine investigation, then the ICC must hold that the case corresponding to that crime is inadmissible.
Given that the Court is statutorily bound to respect the principle of complementarity, we can look to the principles that underlie this commitment in asking what kind of outreach it might license. The Rome Statute itself doesn’t justify or explain the inclusion of Article 17, but nevertheless, the principles underlying the commitment to complementarity are fairly straightforward to discern. Roughly, the Court’s commitment to complementarity reflects a judgment that if all else is equal, it is better for a criminal to be tried in a domestic court that at the ICC. More specifically, the principle as articulated in Article 17 reflects an (even stronger) judgment that it is better for a criminal to be tried in a domestic court than at the ICC, even if all else is not equal, so long as that domestic court satisfies the basic threshold of being capable and willing of holding genuine prosecutions, even if they are inferior in some respects to those in the Court.
There are various different grounds on which one might base a claim that domestic courts are preferable in this sense. Firstly, the comparative likelihood of success that domestic courts are likely to have, as compared to the ICC, might serve as a basis for this claim: Domestic courts, located where the relevant crimes have taken place, are more likely to have the capacity to collect evidence in the manner required to support a conviction, and to utilize a well-established network of resources in investigating crimes. They are more likely to elicit cooperation and assistance with their endeavors, and thus are more likely to secure an actual conviction for a guilty party.
Indeed, some of the Court’s recent cases seem to illustrate that its difficulties in retrieving evidence after arriving on the scene well after the commission of a crime, and in locales where they inspire little cooperation, have posed significant challenges to its success.4 Thus, where a domestic prosecution is feasible, the Court should encourage the State to be the party to carry it out—by making clear that the Court will take no action so long as the State does, it encourages the State to take whatever actions it sees fit, and thus increases the chances of a conviction by some court or other.
A second basis for the claim that it’s preferable that a domestic court rather than the ICC prosecute criminals whenever feasible is the idea that domestic courts’ authority to do so is somehow better established than the Court’s. This claim is tenuous, at least insofar as the nation in question is a signatory to the Rome Statute. After all, such status entails directly that the Court has the legal authority, delegated to it by that State, to prosecute the relevant crimes. Nevertheless, recent history illustrates that this view is not seen clearly by all parties, and that some are likely to challenge the Court’s standing to prosecute such crimes in a way they would not for a domestic investigator or prosecutor.5
Even if this concern about authority is legally mistaken, the perceived legitimacy of a trial—independent of its actual legitimacy—is worth maximizing. In part, this is because perceived legitimacy likely correlates with a willingness to cooperate with investigators and a willingness to be bound by a court’s dictates. To that extent, this reason reduces to the reasons discussed above. But perceived legitimacy may have some independent worth as well—actual legal authority, one might think, must be founded on at least some degree of perceived legitimacy. In any case, to the extent that the prosecuted criminals and the world at large are more likely to accept the jurisdiction and authority of a domestic court than they are to accept the ICC’s, the Court should encourage States to take care of their own prosecutions—the principle of complementarity provides this encouragement.
A third and final reason one might think that it’s preferable for domestic courts to prosecute the relevant crimes whenever possible is that the ICC’s resources are quite limited. Where there are alternative resources available to adequately prosecute a crime, the Court’s resources are thereby better expended elsewhere, namely in cases where such resources are lacking. Thus, the Court should encourage States to prosecute the relevant crimes in order that it can retain sufficient resources for those crimes that States cannot adequately prosecute.
Complementarity, then, reflects a judgment that it is better—in one or several of these respects—for a domestic court to prosecute a criminal than it is for the ICC to do so, as long as that prosecution is genuine. It seems to follow from this commitment that in an ideal world, the ICC would extinguish itself: In a world of unlimited resources and without any practical challenges, the Court would do well to just create legal systems in every nation that are able to investigate and prosecute the crimes in question, and no case would be admissible at the ICC. Of course, though, our world is not one with unlimited resources and without practical challenges, and the ICC is necessary exactly because not all nations have managed to establish such systems of law. Nevertheless, reflecting on the Court’s commitment to complementarity seems to suggest that the Court would be well-justified in expending at least some of its resources in promoting domestic systems of law.
The question of just how much of its resources the Court should devote to building adequate domestic systems of law is a difficult one, and the answer depends on complicated empirical questions about its likelihood of success in such projects and their costs and benefits, and how these figures compare to the values involved with the Court’s alternative courses of action. But at a minimum, if the Court is able to promote domestic rule of law in nations where crimes over which it would have jurisdiction are reasonably likely to occur, and to do so at little cost, then it ought to at least consider so doing. Because the Court’s resources are so limited, it of course needs to be cognizant of maximizing return on its investments, and those investments will necessarily be limited—in what follows, this Comment illustrates that by collaborating with existing organizations, the Court can promote the sort of domestic legal systems that the principle of complementarity renders desirable, and can do so at limited cost. This is so especially if the Court begins by establishing collaborative projects in those nations that have at least some legal infrastructure already established—it is there, after all, where return on investment will likely be maximized.
III. Building Rule of Law
In this Part, I survey the main activities of the American Bar Association’s Rule of Law Initiative (the Initiative), a key organization engaged in rule-of-law promotion. The Initiative exemplifies the kinds of projects that rule-of-law-building institutions are engaged in, and thus illustrates what it is the Court could consider helping with and how it might go about doing so.
A. Complementarity and Rule of Law: Building What?
Before reaching such illustrations, though: What does it mean to build rule of law, and is that really what the principle of complementarity commits the Court to?6 The notion of rule of law has historical roots that go as far back as the ancient Greeks and Romans.7 But despite this long lineage, the concept remains hotly contested. Philosophers and legal scholars have offered various different answers to the question of what exactly it takes for a nation to have rule of law, and there is not one but many concepts employed in current literature.
The Rt. Hon. Lord Bingham offered instructive remarks on the concept before the English House of Lords in 2006, noting that “well-respected authors have thrown doubt on its meaning and value.”8 For example, John Finnis has described the rule of law as “[t]he name commonly given to the state of affairs in which a legal system is legally in good shape”;9 Judith Shklar remarked that the concept “may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians”;10 and Jeremy Waldron, commenting on Bush v. Gore,11 in which the rule of law was invoked on both sides, remarked that utterance of those magic words meant little more than “Hooray for our side!”.12
The conceptual truth perhaps most central to the concept of rule of law is that a system has rule of law only if all citizens, including the lawmakers, are subject to the law.13 Rule of law, in other words, stands in contrast to rule by lawmakers who stand outside the law because, say, they rule in virtue of their divine right to do so. In addition to this basic principle, various others have been proposed in explaining what more is required for rule of law. Current practice is to categorize these proposals into two camps: Formalist, or thin, conceptions conceive of rule of law as requiring only that the law exhibit certain procedural attributes—for example that the law be general, prospective, accessible, reasonably clear, possible to comply with, and fairly stable. Substantive, or thick, conceptions, by contrast, conceive of the rule of law as requiring not only that the law exhibit these procedural attributes, but further that the substance of the rules that those procedures implement respects certain individual (human) rights.
Lord Bingham presented a list of eight potential necessary and sufficient conditions, for example, for a system that possesses rule of law:14
The laws are accessible and intelligible.
The laws apply universally, in particular including to the lawmakers.
Official discretion in determining the laws is bound by a duty to publically offer reasoned justifications; and the laws themselves, rather than official discretion, are what determine the rights and liabilities of the citizens.
Officials exercise their power within limits, in good faith, and for the purposes for which their power was conferred.
Courts are available for resolving civil disputes.
Courts administer the law according to standards of impartiality and procedural fairness.
The law protects fundamental human rights.
These standards apply at the level of a sovereign state considered as a whole, not only at the level of authorities and citizens within that state.
While conditions 1 through 4 retain a procedural cast, and therefore alone would constitute a thin conception of rule of law, conditions 5 through 8 guarantee certain substantive rights, and thus the conception as a whole is a thick one.
Settling the debate between legal theorists as to whether a thick or a thin conception of rule of law is the appropriate one is not only beyond the scope of this Comment, but also unnecessary for its purposes. The central point of introducing these theories is to illustrate just how unclear the ICC’s commitment to complementarity ultimately is. When Article 17 announces that the Court will find inadmissible any case where the relevant domestic legal system is “genuinely willing and able to conduct investigations and prosecutions,” what exactly does it thereby require? Can a legal system conduct genuine investigations and prosecutions without respecting certain substantive rights? Is it enough that the system have formal properties such as (1) through (4) above, or is something more required? If something more is required, is it (5) through (8) above that are required or is it something else altogether?
As a preliminary suggestion, then, this Comment claims that it would be useful for the Court to tether the principle of complementarity to these existing notions of rule of law drawn from legal scholarship. Were the Court to establish a framework for what it believes constitutes rule of law, this framework would give it something concrete to evaluate when deciding whether investigation of a particular crime is precluded by its commitment to complementarity, and would give it a more concrete list of things to promote when it turns to positive complementarity. The Court might use Lord Bingham’s list, or the United Nations’, or any number of other conceptions out there, or it might pick and choose elements from those conceptions to create its own.
Also noteworthy is that the World Justice Project has created a Rule of Law Index,15 a systematic attempt to quantify the levels of rule of law exhibited by different nations across the globe. The methodology used in creating this Index of course commits itself to a particular understanding of what rule of law requires—the factors that give a particular nation a higher or lower score on the Index are those that are implicitly taken to constitute (or impede) rule of law.16 If those requirements are not the ones the Court takes to be constitutive of the sort of rule of law that triggers complementarity, then the Index will not be as useful as it might have been. To the extent that the Court’s conception of rule of law differs from the World Justice Project’s, though, it may nevertheless be able to utilize their data in creating an Index of their own, scoring nations on the measures relevant to its conception.
And if the requirements used in creating the Index are those that the Court agrees suffice for rule of law, then the Court would have a useful, objective measure at its fingertips. Not only could the Index serve as a measure of when (negative) complementarity is triggered thereby precluding an ICC prosecution—when, say, the nation in which the crime allegedly occurred has an Index rating above a certain threshold level—but further, the factors measured in the Index could serve as a list of specific things to be promoted when the Court seeks to promote rule of law.
B. Ongoing Existing Efforts
Various organizations—among them national governmental organizations, international organizations and nongovernmental organizations—are currently engaged in projects around the world that are worth calling promotion of the rule of law, whatever that turns out to be. Different projects are aimed at different goals, but as argued by Monika Heupel,17 most use a broad array of different strategies to attempt to effect change. While one might have thought that different organizations would use different strategies depending on their diagnoses of why it is exactly that rule of law is lacking, to the contrary, it seems that international organizations and nongovernmental organizations utilize a number of different means, perhaps reflecting their sense of ignorance as to the causes of rule of law vacuums.
The American Bar Association’s Rule of Law Initiative18 provides a nice example of such an organization. The Initiative has roughly seven hundred employees in the United States and abroad, and engages in two central activities: education and research. As regards the former, the Initiative provides both legal and public education:
Legal Education: The Initiative establishes public defender and legal aid programs, trains legal professionals to seek redress for human rights violations, and assists law schools in introducing new courses and practical training.
Public Education: The Initiative provides public programming, for example on the impact of corruption on a nation’s legal system.
And as regards the latter, the Initiative consults with host countries and assists in producing useful policy ideas and research:
The comprehensiveness of the ABA Rule of Law Initiative’s programming is illustrative of the variety of efforts that are currently ongoing. Other organizations that have rule of law promotion programs include the following: The Asian Development Bank,19 The United Kingdom Department for International Development (DFID),20 The United States Agency for International Development (USAID),21 and International Network to Promote the Rule of Law.22 To varying degrees, these institutions too are engaged in education and in research, usually with an emphasis on the latter.
These two central strategies, education and research, are well-suited to the task of promoting rule of law, regardless of how exactly we understand it. The formal/procedural aspects of rule of law are agreed by (almost) all parties to be a minimum requirement for rule of law—and we can see that these organizations are promoting the development of legal systems that abide by such procedures. The central strategy of institutions like the ABA Rule of Law Initiative and the International Network to Promote Rule of Law seems to be essentially exposure: By making domestic countries aware of the required concepts and the results of implementing such a system, they hope to inspire development of a system that respects the procedural principles in question. To the extent that a lack of understanding explains a given nation’s failure to implement rule of law to date, this strategy should be somewhat successful. Institutions like DFID and USAID, by contrast, seem to employ not only exposure as a strategy, but also conditionality: By conditioning certain desirable goods or outcomes over which these institutions have control on that nations development of rule of law, they incentivize countries in establishing those procedures that (partially) constitute it.
These efforts are costly to establish, but cheap to contribute to. Thus, assuming that these programs satisfy a certain threshold of effectiveness, the ICC—with its limited resources—would be well advised to contribute to rather than compete with these institutions in promoting rule of law. And the Court is well-suited to make valuable contributions to both education and research programming.
IV. How the Court Might Add to These Programs
The Court’s current rule of law building project consists of their Legal Tools site,23 a collection of resources on international law, available to whomever has access to the internet. The site includes the ICC founding instruments, Rules of Procedure and Evidence, and decisions; legal texts, background information, indictments and judgments of other international legal panels and tribunals; and decisions issued by domestic courts and tribunals concerning genocide, crimes against humanity, war crimes and aggression.
These materials go some way toward satisfying some of the Court’s reasonable outreach goals. For example, they provide access to victims—at least those victims who have access to the internet, perhaps an unfortunately small minority—to information about the proceedings at the ICC. Such information constitutes an expression of condemnation in certain instances (for example, in cases of conviction) and may allow for the (re)establishment of a dignified relationship between perpetrators and victims to at least some extent. But these resources do very little to promote rule of law—they neither expose nations to the concepts and facts necessary to encourage them to develop those legal procedures that constitute rule of law, nor do they incentivize their so doing.
A. Developing Online Presence
An initial step the Court could take in promoting rule of law, then, is to build up and extend the Legal Tools they make available through their website. Firstly, the Court could serve as a useful clearing house and repository for the legal research and writing conducted by the bodies discussed above. Such work could be conducted from an office in the Hague, by employees already paid for by the Court’s existing budget. By collecting key research and papers, the Court would encourage domestic countries to follow the prescriptions and policies contained therein, and would do so at little cost to itself. Thus, the Court could choose and promote those papers that they think will have greatest chance of creating rule of law.
Further, the Court has a unique role to play in that it has the capacity to make available direct evidence of certain crimes. Private parties have been known to present the Court with evidence of crimes: Often this is exactly what triggers the Court’s preliminary investigations. And when the Court does engage in preliminary investigation, it often churns up still more evidence, whether or not it goes on to prosecute anyone. And when the Court does choose to prosecute some individuals, it chooses as a matter of policy only those who are most responsible, despite often having evidence of the culpability of others.
Unlike many of the organizations discussed above, the Court has the capacity to share such evidence with those domestic bodies that are able to prosecute the criminals in question. Admittedly, this is useful to such nations only if they are already able to conduct prosecutions at level that satisfies some minimum threshold of competence. But by providing much needed evidence in such cases, the Court could bolster successful domestic systems of law able to convict criminals.
There will, of course, be situations in which provision of evidence to the world at large would be inappropriate. As such, the Court would be well-advised to take a page from the International Criminal Tribunal for the former Yugoslavia (ICTY): The ICTY page does exactly what’s proposed here, namely making crucial evidence available to prosecutors other than its own. But their webpage implements a two-tiered structure. Whereas certain information is available to the public at large, other information—including sensitive evidence—is available only to users who have applied for and been granted special access. By creating a by-application-only portion of its site, the ICC would create a point of contact between itself and domestic nations, and in order to incentivize legal systems’ development in particular directions, the Court could grant this second layer of access only to those nations whose systems meet certain rule-of-law requirements. The Court could thus encourage domestic legal systems to develop in certain directions rather than others.
B. Training on the Crimes Under the Court’s Jurisdiction
A second step the Court could take in promoting rule of law—perhaps in conjunction with the first step just discussed—is to provide training or training materials on how to prosecute the crimes that fall under the Court’s jurisdiction, namely genocide, crimes against humanity, and war crimes. Often, the domestic crimes that correspond to the crimes underlying these charges simply fail to capture their gravity, and at a minimum, have different legal elements that need to be established. Given that domestic prosecutors will necessarily have little experience prosecuting these crimes, a unique contribution the Court could make would be helping to familiarize such prosecutors with the distinctive challenges of such prosecutions.
There are more and less expensive ways the Court could take this project on, ranging from implementing educational programming in domestic law schools and continuing education programs (where they exist) to simply providing documents that explain what elements must be proven to convict an accused party for the crimes under the Court’s jurisdiction. The latter option and those like it, are a low-cost means by which the Court could promote rule of law. Again, these options assume that the domestic nation in question already has some level of rule of law in place—without it, training prosecutors in any particular crimes is likely to be useless. But for those nations with some legal structure already in place, the Court could condition receipt of such training on further developments toward rule of law. To the extent that domestic prosecutors would benefit from and thus desire such training, this would be an effective means for the Court to use is promoting—or enhancing—rule of law.
This Comment has argued that the ICC’s commitment to the principle of complementarity—the principle that it serves as a court of last resort only—licenses it in providing outreach designed to promote domestic rule of law. Complementarity embodies a judgment that domestic prosecutions are in various senses preferable to those the Court can conduct. To the extent, then, that the Court can create the kinds of domestic systems of law that are able to prosecute the crimes under its jurisdiction, and that it can do so at little cost, it ought to at least consider so doing.
Existing organizations are having at least some success in promoting at least some of the elements of rule of law. By providing education and research at the domestic level, these organizations undercut the ignorance that may explain why such nations continue to lack rule-of-law-respecting legal systems. And by conditioning receipt of certain benefits on development of such a system, these organizations offer carrots to nations who might not otherwise be inclined to establish rule of law.
The Court can at little cost to itself supplement these efforts in at least two ways: it can develop its online presence to serve as a clearinghouse and repository for useful legal research, and to make available evidentiary resources lack of which would otherwise hamper domestic prosecutions. And it can provide training, whether in written, verbal, or in-person forms, on how exactly the crimes of genocide, crimes against humanity, and war crimes are distinctive, and thus what’s necessary in prosecuting them.
The best place for the Court to devote such resources is likely in countries with some legal infrastructure already developed—like, for example, Columbia. Such countries are the ones that are likely to be responsive to the efforts described herein, and further, such efforts may be enough to push such nations across the threshold separating those nations with rule of law so inadequate that ICC prosecutions remain the only viable option for a genuine prosecution from those nations with rule of law sufficiently developed to stand on their own.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩
See Legal Tools, Int’l Crim. Ct., available online (last visited Apr. 6, 2014). ↩
Rome Statute, supra note 1, art. 17. ↩
See Statement, Fatou Bensouda, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following an application seeking an adjournment of the provisional trial date, Int'l Crim. Ct. (Dec. 19, 2013) available online. ↩
See, e.g., Walter Menya, AU Summit Considers Draft Resolution on Withdrawal From ICC, All Africa, May 24, 2013, available online. ↩
The following remarks were inspired by Gerald Postema’s 2010 Seminar on Rule of Law at the University of North Carolina School of Law. Any lack of cogency or inaccuracies in these remarks are owed to this Comment’s author alone. ↩
See, e.g., Euripides, The Suppliants, Il. 429-36 (circa 420 BCE) (“When the laws are written down, then he who is weak and he who is rich have equal justice: the weaker ones may speak as ill of the fortunate as they hear of themselves, and a lesser man can overcome a great one, if he has justice on his side”); Plato, Laws (4th century BCE) (“The Gods smile on a city where the law is despot over the rulers and the rulers are slaves of the law”). ↩
Lord Bingham, Sixth Sir David Williams Lecture: The Rule of Law (Nov. 16, 2006), available online. ↩
John Finnis, Natural Law and Natural Rights 270 (OUP 1980). ↩
Judith Shklar, Political Theory and The Rule of Law, in The Rule of Law: Ideal or Ideology 1 (Allan C. Hutchinson & Patrick J. Monahan eds., Carswell, 1987), available online. ↩
Bush v. Gore, 531 US 98 (2000), available online. ↩
Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, in The Rule of Law and the Separation of Powers 119 (Bellamy ed., 2005), available online. ↩
Samuel Rutherford was one of the earliest modern writers on the topic and titled his book Lex, Rex (“The law is king”) in reversal of the then-traditional phrase “Rex, Lex” (“The king is the law”). Samuel Rutherford, Lex, Rex (1644), available online. ↩
Bingham, supra note 8. ↩
WJP Rule of Law Index 2014, World Justice Project available online (last visited Apr. 6, 2014). ↩
See Methodology of Rule of Law Index, World Justice Project, available online (last visited Apr. 6, 2014). ↩
Monika Heupel, Rule of Law Promotion Through International Organizations and NGOs, in Rule of Law Dynamics in an Era of International and Transnational Governance 133 (Zurn, Nollkaemper, & Peerenboom eds., 2012). ↩
See ABA Rule of Law Initiative, ABA, available online (last visited Apr. 6, 2014). ↩
See, e.g., Takehiko Nakao, President, Asian Development Bank, Economic Development in Asia and Rule of Law (Jun. 10, 2013), available online. ↩
Department for International Development, What We Do, Gov.UK, available online (last visited Apr. 6, 2014). ↩
What We Do, USAID, available online (last visited Apr. 6, 2014). ↩
See International Network to Promote the Rule of Law, Best Practices for Building Investigative Capacity in Developing or Post-Conflict Countries, INPROL (Jul. 2012) available online. ↩
See Legal Tools, supra note 2. ↩