It is well-known that the ICC cannot function without intermediaries. This is especially true for units which directly interact with intermediaries on a regular basis, such as the Office of the Prosecutor (OTP), the Victims Participation and Reparations Section (VPRS), the Public Information and Documentation Section (PIDS) and the Trust Fund for Victims (TFV). But other units dealing with victims and witnesses (such as the Victims Witness Unit [VWU], or the Office of Public Counsel for Victims [OPCV]) may also use intermediaries. Intermediaries are a permanent fixture within the ICC.
Intermediaries – in the broadest sense – are “go betweens” and play critical roles in all sorts of transactions in different societies and cultures. They can be individuals, or organizations. Even if intermediaries operate sometimes as a “cottage industry,” the ICC/OTP’s reliance on them has encouraged their use to evolve into a more complex, multi-faceted industry.
In March 2014, the ICC adopted Guidelines, a Code of Conduct and a Model Contract for Intermediaries http://www.icc-cpi.int/en_menus/icc/legal%20texts%20and%20tools/strategies-and-guidelines/Pages/default.aspx, With these steps, the efforts to institutionalize and regulate intermediaries have reached a new level. They include a provision for a Working Group on Intermediaries to monitor the Guidelines for the first two years (through March 2016), and monitoring by a permanent observation mechanism (which is not described in the Guidelines). A detailed review of the Guidelines is scheduled eighteen months after their adoption (September 2015). Perhaps these are preliminary stages toward an eventual Convention on Intermediaries. These provisions recognize that the intermediary controversy is not yet settled, but continues as a “live” issue within the international justice community.
The Guidelines are not legally binding or enforceable, and apply differently to the three categories of intermediaries identified in Section 3: intermediaries under contract; intermediaries approved by the Court (through an affidavit), and unapproved intermediaries (described as those who are “self-appointed” or are “one-off”). The terms and conditions for each category are detailed, including selection criteria and accountability, possible forms of remuneration, compensation or reimbursements, etc. The intermediaries’ current and envisioned tasks and functions are detailed in “Annex I.”
It is easy to get “lost” in these suggested guidelines and general principles and to lose sight of the fundamental question: Why are intermediaries needed at all by the ICC, and, particularly, by the Prosecution?
The answer is simple: Intermediaries do the work “on the ground” that the ICC/OTP cannot do. But, why can’t the OTP investigators and legal assistants do the work necessary for investigations and with potential witnesses? First, does the OTP choose as investigators and legal assistants individuals who have worked “on the ground” in countries and struggles in which the ICC is interested (aka “situations” and “affected communities”)? Second, what is the ICC’s reputation in a particular region? Is the ICC an entity which is trusted “on the ground?” Is it perceived as delivering justice in a fair manner? Is it likely that a person would provide information to the ICC?
Where negative perceptions and practices exist in respect to the ICC, I do not think that the use of intermediaries solves these underlying problems. Guidelines, contracts and codes of conduct for intermediaries do not alter how the ICC is perceived. If anything, reliance on intermediaries for the functioning of the ICC “in the field” invites even more problems.
The Lubanga case – a “wake-up” call for international justice
The use of intermediaries by the Prosecution in international criminal trials has been a continuing source of controversy and litigation (see, postings by Yvonne McDermott on Lubanga case at http://www.intlawgrrls.com/2010/08/outsourcing-investigations-icc-and.html and by Elena Baylis on using organizations as 3rd party intermediaries at http://www.intlawgrrls.com/2010/08/outsourcing-investigations-icc-and.html.
In its Judgment, the Lubanga Trial Chamber rejected the reliability of testimony of some Prosecution witnesses, including alleged child soldiers, based on the alleged conduct of intermediaries, including buying testimony and influencing witnesses. The Trial Chamber also withdrew the victim status of these witnesses. Yet, none of the Prosecution intermediaries cited were ever prosecuted under Rule 70, Rome Statute.
[NOTE: The Prosecution has initiated cases, based on Article 70, against Walter Barasa, a Prosecution intermediary and Kenyan journalist, for allegedly offering money to Prosecution witnesses if they withdrew testimony against defendants Ruto and Sang in the Kenya case; and against four persons in the Bemba case – including his Lead Counsel and other members of the Defence team]
The Judgment also criticized the Prosecution’s use of intermediaries: “The prosecution should not have delegated its investigative responsibilities to the intermediaries….notwithstanding the extensive security difficulties it faced” (para. 482). The Guidelines (at p. 3) echo the principle that intermediaries are not a substitute for ICC staff. But, it is tough, if not impossible, to distinguish between the duties and functions of intermediaries (at p. 6 and in Annex I) and those of ICC staff. There are definitely more “grey” areas than clear delineations of difference between ICC staff and intermediaries.
In addition, the prevalence of the use of intermediaries by the OTP, as well as other units, raises the spectre of a two-tiered system: a more formalized quasi-staff structure of contracted intermediaries (with certain benefits and privileges), and a secondary, more local and informal structure of uncontracted/free agent intermediaries (whose support is decided on a case-by-case basis and who are likely to be at a greater risk, because they may have less or no access to resources provided by the UN). A parallel to this is the unequal situation of ICTR employees in Arusha, where “foreign” nationals are paid at a higher rate than “local” staff, although the positions and tasks of each may be similar or even identical.
The intermediary issue is not going away: and it has fast become an integral part of international justice. The Defence has taken the lead in challenging the use of intermediaries by by Prosecution, and its negative impact on their clients’ fair trial rights, especially in respect to disclosure. In the wake of Lubanga, there have been decisions which establish protocols, on a case-by-case basis, for handling disclosure of information about intermediaries to the Defence. For example, in September 2013, in the Kenya case against Ruto and Sang, http://www.icc-cpi.int/iccdocs/doc/doc1659992.pdf the Trial Chamber ordered the confidential disclosure of a list of Prosecution intermediaries, who had contact with any Prosecution trial witnesses, including date of contact(s) and description of general purpose (s). The Chamber denied the Prosecution’s motion for leave to appeal the decision.
But, the Guidelines make it clear that intermediaries are not only a concern for the Defence, but for anyone involved in the international justice system. The potential for the mis-use and abuse of intermediaries has been realized time, and again. But the question remains: can the issues of intermediaries be resolved without considering the underlying reasons they exist in the first place?