The ICC’s Channels of Communication
ICC Defence Perspectives on Outreach Missions and the Right to Fair Trial
In May 2022, the International Criminal Court’s (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 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’s media platforms, (a) undermined Mr. Al Hassan’s right to be presumed innocent and (b) impacted the perception of the trial being fair.
On 22 March 2023, the Trial Chamber X (the Chamber) released its Decision (the Decision) rejecting the Request. It comes at a timely moment following the most recent debates 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 “(Draft) Strategic Plan for 2023-2025” with a strategic goal to enhance outreach with affected communities. As such, these proceedings bring us closer to understanding the Court’s vision of including outreach missions to fulfill its mandate and how these missions fit as part of a fair trial.
Actions Speak Louder than Words
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’s criminal responsibility (paras. 34 and 37). This view was also stressed by the Chamber, describing outreach activities as an “essential tool” 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).
Indeed, Rule 13(1) (Functions of the Registrar) of the Rules of Procedure and Evidence (RPE), as referred to under Regulation 5bis (Public information and outreach) of the Regulations of the Registry (RR), describes outreach programmes as one of the Registrar’s core functions, namely to:
“[w]ithout prejudice to the authority of the Office of the Prosecutor (…) receive, obtain and provide information and to establish channels of communication for this purpose, (…) [and] serve as the channel of communication of the Court.”
In its response, the Prosecution made sure to insist – in bold – that the terms “allegedly” / “alleged” were explicitly stated in the relevant documents which would, indeed otherwise, conflate the accused’s criminal responsibility (para. 12). The Chamber added that the use of the conditional form to describe Mr. Al Hassan’s work position has the same effect [e.g., Mr. Al Hassan “aurait été commissaire de facto de la Police Islamique” (the Decision, para. 9)].
On paper and from a legal perspective, using this terminology makes sense. Yet, the Defence’s 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’s 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).
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 (paras. 33 and 35) and here (paras. 52-53)], prejudge the outcome of criminal proceedings (the Request, para. 36).
But could this all just be in the Defence’s head?
Communication Flows Both Ways
Another objective of engaging with affected communities through outreach is to “foster public understanding and support the work of the Court” [Regulations of the Registry, Regulation 5bis (2), emphasis added]. The Court’s website notes that “[o]utreach listens” 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 for the Court, including for the Prosecution. As a way to improve this, the Prosecution has extended the responsibility of managing participants’ expectations to civil society in the Guidelines (p. 8) it published last year.
In its Request, the Defence recalls that some outreach participants commented – in one of the Outreach Unit’s articles – that they were “shocked” by the “good [detention] conditions” in which Mr. Al Hassan is being held in The Hague (para. 34). To the Defence, this suggested that “in the eyes of (…) Mr Al Hassan’s own community” he is “deserving of punishment of these crimes” (paras. 34 and 37). This was part of the Defence’s overarching argument that any prejudicial information would effectively “contaminate” potential witnesses’ recollection of events with respect to the accused (the Decision, para. 9).
These views of Mr Al Hassan suggest that the Outreach Unit was unable to fully inform and foster the participants’ 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’ comment could have been directed to the “general condition of [all] accused persons before the Chamber” (the Decision, para. 13). In effect, the Outreach Unit’s 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’s decision, these failures perhaps mean very little consequences for the Outreach Unit, the failures of which are justified and not criticised by the Court.
The Prosecution and Chamber’s 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’s information provided during the missions. But are the Prosecution and Chamber’s views here really justified? By focusing on the Defence’s 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’ expectations.