It was once said “What kills a skunk is the publicity it gives itself.” As a communications adviser who has worked alongside some of the world’s leading lawyers on cases before bodies from the International Criminal Court to the Special Tribunal for Lebanon, I can think of no better description of the injudicious approach many international courts – and the ICC in particular – take to managing their own reputations.
No large organization can prosper without publicity and the careful regard to its public image, and international courts are no exception. They need to secure funding and political support from governments across the world, just as companies use it to seek customers, or politicians’ voters; positive media coverage can help to communicate to donors how their dollars are being well spent.
It is also possible to identify announcements that appear intended to influence decisions of ICC’s Assembly of States Parties – the 123-nation body that governs the Court - that might adversely affect the ability of the Office of the Prosecutor to continue with ongoing trials.
One example of such tactics is identifiable when in July 2008 former Chief Prosecutor Luis Moreno-Ocampo called for the arrest of Omar al-Bashir, the president of Sudan. As the call for the arrest – and the subsequent warrant issued for it - was made in public and therefore not concealed from Bashir, it made the likelihood he will ever be detained remote. It must therefore be assumed the intention was never to take this case to trial, but instead to produce as much noise as possible - which is exactly what the first demand to arrest a sitting head of state in the history of international justice achieved.
It may be entirely coincidental that at the precise time the Sudan announcement was made accusations that Ocampo had been involved in sexual misconduct were surfacing. It must be stressed he fully denied the allegations; indeed, there is no proof any such misconduct took place. Although reported, the media coverage was minimal when set against the global publicity generated by the Sudan proclamation, succeeding as it did to push the ICC further into the public consciousness than it had ever been before.
The apparent use of major announcements to deflect other “problems at Court” appears to have continued under Ocampo’s successor, Fatou Bensouda. One can be identified in the ICC’s ongoing case against the Deputy President of Kenya, William Ruto. Here an announcement seems to have been timed specifically to both deflect from events in the courtroom - where many believe the prosecution is faltering - and to influence a decision on the admissibility of recanted testimony by the Assembly of States Parties that might save the case from collapse.
After key prosecution witnesses in Ruto case recanted their statements, refused to testify or refused to appear in court, Bensouda applied to ICC judges for the power to use their original testimony. Lobbying by the Kenyan Government on Ruto’s behalf saw Assembly members confirm on Nov. 27, 2015 that such methods should not be used in current cases. But that was not without - it seems - the Office of the Prosecutor attempting to influence their decision through a major, related, announcement.
One week before Assembly members debated the admissibility of recanted evidence Bensouda issued new arrest warrants for Kenyans accused of witness tampering in the Ruto case. There seems no reason why this declaration could not have been made weeks before, or indeed even much later: but it was not. Rather it appears specifically timed to maximize publicity about allegations of tampering and so sway Assembly members to vote a week later in favor of the prosecutor using recanted testimony.
Of course it is possible the contents and timing of these announcements are purely coincidental. But, given there are other such examples – which space prohibits listing here – the weight of evidence suggests they are not.
If indeed intentional, then considered dispassionately as case studies in how media announcements can be used to shrewdly deflect criticism or lobby decision-making bodies, the ICC must be commended. Such methods are used regularly in political campaigns or by governments: however they are highly unusual for a justice institution. It must therefore be considered questionable to deploy them when matters of guilt or innocence and justice for victims of very serious crimes are at stake.
The ICC was founded to dispense such justice for victims without a voice, and to bring prosecutions against those who would never be held to account in their country of origin. Because in such places few ever expect justice or redress, when an ICC case is brought people’s expectations are understandably raised – perhaps sometimes too high.
In the best interests of victims - as well as for the accused, who deserve the right to a fair trial in court, not trial by media – it must ultimately be counterproductive for the ICC to maintain prosecutions that might otherwise crumble through publicity alone. Similarly, it seems disrespectful to victims for the Office of the Prosecutor to raise hopes of a major prosecution when the approach taken to an arrest makes its likelihood highly improbable.
Although communications is my profession, were I to offer the ICC some advice, it would be to devote less time to media management. Instead they should focus more effort on ensuring those accused of the worst crimes are brought to justice and that robust trials take place when they are. Otherwise – like a skunk – more people may start to smell the reek of PR. And that is when publicity becomes self-defeating.
Pursey is managing partner of BTP Advisers, a public relations company with teams in London, Washington, Paris and Nairobi.