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:

[1] To cultivate a level of awareness and understanding of the ICC’s mandate and mode of operations,

[2] Promote access to and understanding of judicial proceedings, and

[3] Foster realistic expectations about the Court’s work.15

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).

1. 1.

   International Criminal Court, Outreach Report 2010 (Nov. 26, 2010) at 1, available online [hereinafter Outreach Report 2010] ↩

2. 2.

   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. ↩

3. 3.

   Outreach Report 2010, supra note 1, at 1. ↩

4. 4.

   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. ↩

5. 5.

   Id. ↩

6. 6.

   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. ↩

7. 7.

   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. ↩

8. 8.

   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. ↩

9. 9.

   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. ↩

10. 10.

    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.”) ↩

11. 11.

    Id. ↩

12. 12.

    Pentelovitch, supra note 4, at 452. ↩

13. 13.

    Id. ↩

14. 14.

    Outreach and ICC, supra note 10, at 5. ↩

15. 15.

    Outreach Report 2010, supra note 1, at 1. ↩

16. 16.

    IBA Second Outreach Report, supra note 2, at 10. ↩