By Thomas Verfuss in The Hague
Thursday, September 19th, 2019 was not only a special day because the International Criminal Court (ICC) in The Hague held hearings on the merits for the first time with suspects from the Central African Republic (CAR) in the dock. It was also a first because for the first time since the inception of contemporaneous international criminal justice in 1993, the public and the press following the hearing did not have a written document at their disposal that describes the charges brought by the prosecution. The course of events is also a missed chance to make the CAR a better place.
It is a general principle of communication that people participating in or following and trying to understand and then having to describe a meeting had better have read the document(s) that are being talked about. The more so in international criminal proceedings where the alleged crimes the litigation is about are often complex – and are at the same time of national importance in the “situation countries” (ICC sociolect)i.e. the states where the alleged crimes have been committed.
ICC registry staff says informally that the indictment, also known as document containing the charges or DCC in ICC sociolect, was put at their disposal by the Office of the Prosecutor (OTP) only at 9.30 pm on the 18th, the eve of the start of the confirmation hearing. The document started to be circulated to the press the next morning, when the hearing had already started. Journalists could not read the document of more than 160 pages and listen to the speakers in the courtroom at the same time – hence the first international criminal proceedings on the merits that were reported about only based upon oral understanding – and possible misunderstanding.
Talking about misunderstandings: the Central African journalists were
given the DCC in English, language they barely understand, whereas French is
also a working language of the ICC, that should be used when dealing with
francophone countries like the CAR – to ensure ICC proceedings are understood
in the country they are all about.
Journalists do not only write about court proceedings once they have started. In important cases they write an article a few days earlier – called a “curtain raiser” in the anglophone and “lever de rideau” or “avant-papier” in the francophone world, in order to alert the public and their less specialized journalistic colleagues working for other media houses to upcoming important proceedings.
That is not possible if the indictment is published only on the evening before the hearing, after close of business. “I do not push the refresh button on the ICC website in the evening all the time”, the reporter of a big international news agency told colleagues on the public gallery during a break of the September 19th hearings.
One OTP staff member, who does not want to be quoted because it was a private conversation, suggested to a journalist that journalists might have written curtain raisers based on the arrest warrants against Alfred Yekatom and Patrice-Edouard Ngaïssona.
Those arrest warrants were issued in 2018. In theory one might assume that they are an accurate description of the charges still today, based on a statement of Prosecutor Fatou Bensouda during her first press conference in The Hague after she had taken over from her predecessor Luis Moreno Ocampo, whose cases often did not lead to conviction or even the confirmation of charges.
Bensouda said, with the best of intentions, that she would ask for an arrest warrant only once she is convinced she has the necessary evidence to obtain a conviction.
In practice that is not a realistic expectation, given the very limited means that the more than 120 states parties to the Rome Statute, the founding treaty of the ICC, give the OTP to fulfill its mandate in the about 20 countries that are now under its active scrutiny. Journalistic observers that know the court well, must take into account that, as a matter of necessity and efficient use of means, the OTP may throw extra investigative resources on a case only once an arrest has been secured, though Bensouda, in better circumstances with more resources, would prefer to do otherwise: be “trial-ready” once a suspect is arrested.
So it would not have been professional for a journalist to write a curtain-raiser a few days before the September 19th hearings based on the 2018 arrest warrants, and then claim: “These are the charges.”
And indeed, prosecutor Kweku Vanderpuye stated for the OTP during the September 19th hearing that new charges had been added since the arrest warrants. He did not say what they were, and journalists could not listen to him and check the 164-page DCC at the same time.
The late publication of the DCC was not only a risk for the quality of journalism. It is also a missed chance for the CAR. International criminal court and tribunal cases are not about pickpockets. They are high-profile cases that often involve suspected perpetrators like politicians active at national level in their countries of origin.
The OTP will bring charges based on the crimes it has jurisdiction for and it thinks it can prove. The defence will act with the narrow view of how to avoid the conviction of the defendant. Journalists will have a broader view on what the case may mean for good governance or even criminality under international law of key actors in their country.
The OTP may, for example, allege that a politician has conspired for his own interest with a domestic criminal organization to incite violence in for example a post-election situation. The OTP may allege that this is part of an organizational criminal plan, qualifying as crime against humanity. The OTP may fail to obtain a conviction, for example because of witness tempering and intimidation, a frequent problem in international criminal courts and tribunals. The politician who goes free in court, might meanwhile rise to high or even highest office.
For journalists, it is not only the court case that matters. If the prosecution investigation finds leads to connections with criminal organisations, this may contribute to a case that may be successful for the OTP or fail.
Journalists may see a wider picture. If investigators of an international court, with all their expertise, find indications that a politician of national importance is involved with an important domestic criminal organization, journalists of that country may check their own records and those of their media houses whether they have indications for the same criminal involvement or related involvement or not. That may lead to domestic publications that were not made before, because journalists were not sure of their own investigative results. Criminal charges brought internationally may encourage journalists to pick up media investigations into national politicians’ wrongdoings again, which may lead to new publications, that in turn might help investigators of international courts, that often rely on newspaper publications. In any event, even if there are no new charges or convictions at the ICC, the publications triggered by OTP allegations can help to eliminate “rotten apples” domestically.
So charges brought by international prosecutors and national media publications can have an effect of “complementarity”, a core idea of the Rome Statute system, and help the OTP to obtain convictions if justified – provided that the charges are made known to the press in a timely manner.
The Association of Journalists at the International Criminal Court (AJICC) has approached the Assembly of States Parties (ASP), the legislator of the Rome Statute system, for a change of the rules that would oblige the OTP to publish the charges no later than 14 days before the start of the confirmation hearings, to make sure that journalists, especially those from the “situation countries” concerned, can not only carefully read them, but also do their own investigations.