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Thursday, April 8, 2010

ICC and Kenya: questions of prosecutorial communication

I've posted an extensive legal comment on the Invisible Blog on last week's decision at the ICC to allow the commencement of a formal investigation in Kenya. But important in these matters is also the question of communication and how the Court is perceived by various communities who have an interest in the functioning of the Court. As I mentioned in a previous post, I don't believe that the Court focusing on Africa is a sign of its neo-colonialist nature. But the fact remains that perceptions, whether right or wrong, are fundamental, especially for an institution that relies so heavily on governmental and non-governmental cooperation for its daily operation.
In this context, it is interesting to look at the press conference held by the Prosecutor the day after the decision.  Mr. Ocampo has once again shown his capacity to express himself in a clear and synthetic way, with strong Orwellian statements aimed at striking our hearts and minds. Here's one example:
The judges decided. There will be justice in Kenya. To contribute to the prevention of crimes during the next election we must proceed promptly. We will. There is a list of 20 suspects, but it is not binding. We envision at least two cases against one to three persons in each case. We will focus on those most responsible according to the evidence that will be impartially collected. We aim to finalize the bulk of the investigation during 2010. We will present our case before the Judges. They will decide. This is a judicial process.
On the content, there is nothing "decided" yet, the judges just allowed the commencement of a formal investigation. There have been no indictments, no arrest warrants or confirmation of charges and I would be surprised if anything notable happened in the next 18 months before the next election.

But for the purposes of this post, I'd like to focus on the form. It just seems incomprehensible that the Prosecutor of an international Court express himself in such a telegraphic fashion. Mr. Ocampo also appears in a video produced by the Hauser center where he reproduces exactly the same way of conveying ideas. And the example I give earlier does not show that he actually repeats some of sentences throughout the statement, to increase their impact...
I don't know why he believes he should express himself like this. The statement seems to be perfectly tailored for an audience that seems to be perceived as incapable of comprehending sentences longer that 5 words (Human Rights activists and Africans?...). I'm a little reluctant to attribute such thoughts to Prosecutor Ocampo, but one can't help feeling patronized when being spoken to like a child. And if it's not based on what he perceives to be what people want to hear, I don't really see any other explanation for such absence of effort in drafting a statement. Ok. We get it. Justice good. Criminals bad.

More importantly, this is not just an issue of the Prosecutor. He is also the most visible figure of the ICC. He represents the Court when he travels abroad or announces new investigations and cases. Critics of the ICC in past years invariably focus on the Prosecutor and I believe that the capacity of the Court depends, and will depend in the future on how the Prosecutor conveys his ideas to the communities whose help the ICC as a whole requires. Too often, Mr. Ocampo seems to act as a spokesperson of the Court and of the general "interests of justice". That is not his function. He is a prosecutor whose role is to gather legal evidence of the commission of crimes and provide both incriminating and exonerating facts against a defendant. His statements, both in form and in content, go beyond this by portraying him as a avenger of wrongs, on a crusade against crime, which reflects badly on the ICC (see, among other examples, Ocampo's recent "Bashir is Hitler" comment). Indeed, the ICC is but one institution in the general international framework for the advancement of international peace and security, and Mr Ocampo is but one keg of this institution. A perception of arrogance (whether real or not is not the question) on the part of the most public figure of the ICC can only be a hindrance for its ultimate success.

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