In a recent article in The Hill entitled, “The skunk-like smell of the International Criminal Court’s communications,” Mark Pursey charges the International Criminal Court (ICC) with attempting to use clever publicity strategies to deflect unflattering news stories about the court and, worse, to influence improperly the court’s 123 States Parties that make up its oversight body, the Assembly of States Parties (ASP).
Before addressing the flaws of his claim, it should be noted that Pursey failed to disclose that his employer, BTP Advisers, is a British public relations firm that represents government leaders being investigated by the ICC prosecutor for commission of mass atrocities. Among those clients are the president and deputy president of Kenya, both of whom the ICC has charged with crimes against humanity committed after the contested 2007 election in Kenya, and whom Pursey discusses in his article.
Putting aside such rank conflict of interest (as Pursey himself has done) we need to evaluate Pursey’s facts and motives. He claims as support for his thesis the “fact” that the ICC announced the arrest of suspected Kenyan government agents for alleged witness tampering right before the 2015 ASP meeting as an attempt to influence the ASP’s later debate on whether prior witness statements could be used in the separate trial against Kenya’s Deputy President William Ruto.
A deeper sniffing for truth, however, reveals the rot in Pursey’s purported logic:
- For years, reputable Kenyan and international human rights organizations and news outlets have raised alarms about and documented a government-run campaign to pay off, intimidate, and kill witnesses who provided or intended to provide evidence against Kenyan government leaders. The U.S. Department of State investigated and reported on this campaign of witness tampering, a campaign that regrettably succeeded in forcing the ICC Prosecutor to withdraw crimes against humanity charges midtrial against Kenya’s President, Uhuru Kenyatta, in December 2014, because the case had been severely undermined by the witness tampering.
- The ICC prosecutor’s crimes against humanity case against Deputy President Ruto continues, however, because ICC rules of procedure and evidence permit the admission of prior statements made by witnesses who subsequently have been tampered with, and this rule permits sufficient evidence to continue his trial (unlike in the Kenyatta case). Undeterred, President Kenyatta’s government sought to eliminate this judicial problem by strong-arming the ASP into passing a resolution that informs the ICC judges that these prior witness statements should not have been admitted, thus potentially scuttling the case against Ruto as well.
- Further, the aforementioned arrests on witness tampering charges were not, as Pursey claims, announced just prior to the start of the 2015 ASP Meeting (November 18, 2015), but more than two months prior, on September 10. The ICC prosecutor had filed the charges and sought the arrests in February 2015. Only after the Kenyan authorities arrested these individuals in late August of that year did ICC judges unseal the charges, making an announcement possible. So, in addition to the fact that the announcement was actually made “weeks before” the ASP, as Pursey suggested it should have been, the timing was a function of ICC procedures and the delayed arrests made by the Kenyan authorities, and not of politics or public relations by the ICC. The politics and public relations evident in the ongoing ICC-Kenya government situation appear to be the politics of the indicted Kenyan government officials and the public relations expertise being provided by Pursey and his firm. It also bears noting that witness tampering charges against another Kenyan government agent were lodged in 2013, and the government has failed to extradite that person.
- Similar to the American model of separation of powers, it is the 123 nations comprising the ASP that enact the laws and rules that govern the ICC, whereas the ICC itself is a court of law that adjudicates those laws, which is the essence of judicial independence. It therefore makes no more sense to argue that the ASP could decide “on the admissibility of recanted testimony” in a particular case, as Pursey contends, than the U.S. Congress could instruct the U.S. Supreme Court to render a particular judgment.
- Finally, the ASP did not “confirm” that recanted testimony “should not be used in current cases,” as Pursey alleges. Instead, the vast majority of the States Parties publicly opposed the position of the Kenyan delegation, stating clearly that as a legislative body the ASP is, by definition, unable to interfere with ongoing ICC cases.
The foregoing facts and realities notwithstanding, Pursey also argues that unsealing atrocity crime charges against Sudanese President Omar al-Bashir shows the ICC prosecutor’s clear intention not to go to trial, because making the charges public can only help Bashir avoid capture. This contention ignores the fact that heads of state like Slobodan Milosevic and the convicted Charles Taylor were apprehended after their arrest warrants were unsealed, in part because such indictments delegitimized and isolated them, giving others less incentive to protect them. While Bashir remains a fugitive, it is not because his arrest warrant was unsealed; rather, it is because states have failed to arrest him while in their territory and the UN Security Council, which referred the Darfur situation to the ICC, to date has failed to help.
In sum, comprehensive -- and honest -- education regarding the ICC, and the ICC’s own educational outreach to affected communities, are critical if stakeholders and the public are to embrace and support the ICC's mission to hold accountable those who have committed heinous atrocity crimes. Distortion of facts and truth by those who want to weaken the ICC, for private interests, is not in the public interest. The ICC and its prosecutor's office - both of which have under-resourced communication units — have sought to prioritize public information and outreach, and ensure that both are in strict conformity with the court’s mandate. Recent efforts to enhance the court’s public engagements even further have led ICC observers to note marked improvements in the quality of ICC communications, particularly news and announcements from the prosecutor's office.
Spurious attacks on the court by self-serving government officials investigated and indicted for committing atrocity crimes who are trying to elude justice, and dissemination of falsehoods and distortions about the ICC by their well-resourced and highly paid public relations professionals, are what smell like a skunk.
Greco is former president of the American Bar Association. He currently Chairs the ABA Center for Human Rights, and has chaired the ABA’s International Criminal Court Project for five years. The views expressed are solely those of the author.