The Intermediary Industry and the ICC

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.   Continue reading