{"id":19843,"date":"2023-04-24T08:00:10","date_gmt":"2023-04-24T06:00:10","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=19843"},"modified":"2023-04-24T09:35:55","modified_gmt":"2023-04-24T07:35:55","slug":"the-iccs-channels-of-communication","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-iccs-channels-of-communication\/","title":{"rendered":"The ICC\u2019s Channels of Communication"},"content":{"rendered":"

In May 2022, the International Criminal Court\u2019s (ICC) Outreach Unit conducted an outreach mission in Timbuktu, Mali, as part of the The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud<\/em> case (the Al Hassan<\/em> case<\/a>). According to the Defence in their Request (the Request<\/a>), the mission was undertaken without their knowledge, and the language utilised by the Registry (i.e. the Court organ responsible for the Outreach Unit) in documents disseminated to the communities in Timbuktu and articles published on the ICC\u2019s media platforms, (a) undermined Mr. Al Hassan\u2019s right to be presumed innocent and (b) impacted the perception of the trial being fair.<\/p>\n

On 22 March 2023, the Trial Chamber X (the Chamber) released its Decision (the Decision<\/a>) rejecting the Request. It comes at a timely moment following the most recent debates<\/a> on the treatment and working conditions of ICC Defence staff and their implications on fair trials. At the same time, the Office of the Prosecutor has completed its \u201c(Draft) Strategic Plan for 2023-2025<\/a>\u201d with a strategic goal to enhance outreach with affected communities. As such, these proceedings bring us closer to understanding the Court\u2019s vision<\/a> of including outreach missions to fulfill its mandate and how these missions fit as part of a fair trial.<\/p>\n

Actions Speak Louder than Words<\/strong><\/p>\n

In the Request, a core argument of the Defence was that the Outreach Unit is a neutral organ of the Court. Thus, the information it disseminates should utilise language that does not express any preconceived assessments of Mr. Al Hassan\u2019s criminal responsibility (paras. 34 and 37). This view was also stressed by the Chamber, describing outreach activities as an \u201cessential tool\u201d to simply inform the affected communities on the functioning of the Court and the development of the proceedings at hand. That way, the public and those affected by the alleged crimes can follow along (the Decision, para. 8).<\/p>\n

Indeed, Rule 13(1) (Functions of the Registrar) of the Rules of Procedure and Evidence<\/a> (RPE), as referred to under Regulation 5bis<\/em> (Public information and outreach) of the Regulations of the Registry<\/a> (RR), describes outreach programmes as one of the Registrar\u2019s core functions, namely to:<\/p>\n

\u201c[w]ithout prejudice to the authority of the Office of the Prosecutor (\u2026) receive, obtain and provide information and to establish channels of communication for this purpose, (\u2026) [and] serve as the channel of communication of the Court.\u201d<\/p><\/blockquote>\n

In its response, the Prosecution<\/a> made sure to insist – in bold – that the terms \u201callegedly\u201d \/ \u201calleged\u201d were explicitly stated in the relevant documents which would, indeed otherwise, conflate the accused\u2019s criminal responsibility (para. 12). The Chamber added that the use of the conditional form to describe Mr. Al Hassan\u2019s work position has the same effect [e.g., Mr. Al Hassan \u201caurait \u00e9t\u00e9<\/em> commissaire de facto de la Police Islamique\u201d (the Decision, para. 9)].<\/p>\n

On paper and from a legal perspective, using this terminology makes sense. Yet, the Defence\u2019s lack of trust seems to have escalated overtime and to have been based on an accumulation of events leading up the mission. Indeed, the Registry did not communicate to the Defence future missions, and even restricted the Defence\u2019s travel to interview a crucial witness. Conversely, the Prosecution attended upon invitation by the Registry previous missions in Mali (the Request, paras. 7 and 31). Regarding this final point, the Chamber explained that it was neither appropriate nor necessary to assess whether the Outreach Unit should have invited the Defence to the missions (the Decision, p. 8, footnote n. 27). The Defence is simply required to exercise due diligence in knowing when these missions are going ahead, and the documents published thereon (para. 7).<\/p>\n

It does not help, however, that the Prosecution has a history of making public statements which, as the Appeals Chamber has previously noted [see here<\/a> (paras. 33 and 35) and here<\/a> (paras. 52-53)], prejudge the outcome of criminal proceedings (the Request, para. 36).<\/p>\n

But could this all just be in the Defence\u2019s head?<\/p>\n

Communication Flows Both Ways<\/strong><\/p>\n

Another objective of engaging with affected communities through outreach is to \u201cfoster public understanding and support <\/em>the work of the Court\u201d [Regulations of the Registry, Regulation 5bis<\/em> (2), emphasis added]. The Court\u2019s website<\/a> notes that \u201c[o]utreach listens\u201d to the public by hearing their stories and expectations of justice and addresses their questions. Managing the expectations of victims especially, however, has proved to be a particularly challenging task<\/a> for the Court, including for the Prosecution. As a way to improve this, the Prosecution has extended the responsibility of managing participants\u2019 expectations to civil society in the Guidelines<\/a> (p. 8) it published last year.<\/p>\n

In its Request, the Defence recalls that some outreach participants commented \u2013 in one of the Outreach Unit\u2019s articles – that they were \u201cshocked\u201d by the \u201cgood [detention] conditions\u201d in which Mr. Al Hassan is being held in The Hague (para. 34). To the Defence, this suggested that \u201cin the eyes of (\u2026) Mr Al Hassan\u2019s own community\u201d he is \u201cdeserving of punishment of these crimes\u201d (paras. 34 and 37). This was part of the Defence\u2019s overarching argument that any prejudicial information would effectively \u201ccontaminate\u201d potential witnesses\u2019 recollection of events with respect to the accused (the Decision, para. 9).<\/p>\n

These views of Mr Al Hassan suggest that the Outreach Unit was unable to fully inform and foster the participants\u2019 understanding on, at the very least, basic standards upheld by the Court regarding the treatment of detainees before it. It does not matter that, as suggested by the Chamber, the participants\u2019 comment could have been directed to the \u201cgeneral condition of [all] accused persons before the Chamber\u201d (the Decision, para. 13). In effect, the Outreach Unit\u2019s articles are a reflection of how well it fulfilled its function, and such comments indicate that it failed to properly perform its function in this case. Based on the Chamber\u2019s decision, these failures perhaps mean very little consequences for the Outreach Unit, the failures of which are justified and not criticised by the Court.<\/p>\n

Conclusion<\/strong><\/p>\n

The Prosecution and Chamber\u2019s message to the Defence is simple: trust us. How participants and the wider public understand the Court and the proceedings at hand cannot always align with the Outreach Unit\u2019s information provided during the missions. But are the Prosecution and Chamber\u2019s views here really justified? By focusing on the Defence\u2019s obligation to exercise due diligence, the Chamber in its Decision distracts from the fact that the Prosecution is allowed an unequally greater presence in these missions in comparison to the Defence. In doing so, the Chamber also denies the proceedings a more active representation of the accused and their rights, and thus an additional solution to help manage participants\u2019 expectations.<\/p>\n","protected":false},"excerpt":{"rendered":"

In May 2022, the International Criminal Court\u2019s (ICC) Outreach Unit conducted an outreach mission in Timbuktu, Mali, as part of the The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud case (the Al Hassan case). According to the Defence in their Request (the Request), the mission was undertaken without their knowledge, and […]<\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[4094,7107],"authors":[7240],"article-categories":[6000],"doi":[],"class_list":["post-19843","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-international-criminal-law","tag-international-criminal-tribunals","authors-catherine-gregoire","article-categories-article"],"acf":{"subline":"ICC Defence Perspectives on Outreach Missions and the Right to Fair Trial "},"meta_box":{"doi":"10.17176\/20230424-084359-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/19843","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/15"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=19843"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/19843\/revisions"}],"predecessor-version":[{"id":19847,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/19843\/revisions\/19847"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=19843"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=19843"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=19843"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=19843"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=19843"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=19843"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}