The Transparency Turn at the International Criminal Court: Incompatible Ideals in the Preliminary and Pre-Trial Proceedings

In response to the now commonly-held position that the world’s first international criminal court (the ICC) finds itself in crisis, so much so that some have suggested a crisis fatigue is setting in, many are calling for reform and increased transparency from the Court. The Assembly of States Parties (ASP), non-governmental organisations (NGOs), academics and other interested observers demand more of it earlier in the proceedings, the Office of the Prosecutor (the OTP) has committed to more of it and yet we do not have a really clear idea of what transparency may mean or do in the Court’s earliest proceedings. Transparency ends up serving as a floating signifier thought to address several different ends while it in fact risks, at times, undermining the stated objectives of the Court: deterrence and complementarity. In taking a closer look at these calls for transparency this project examines how both the OTP the Court communicates about its work in order to understand what is made transparent, in what language, how and to what end. Transparency is called for by the Court’s observers and interlocutors, it is promised by the OTP and the Court in support of its judicial mandate and yet the intrinsic appeal of the concept itself and its seeming embeddedness in the Court’s institutional culture, I argue, disguises a lot of ambiguity and complexity in its realisation. Transparency is intuitively appealing, misleadingly thought to yield exactly what it says, yet we lack a particularly precise idea of what it actually means. In fact part of the appeal of transparency is, I will come to show, this amorphous character. Complicating things a little further is the fact that the concept possesses near mythical powers whose seeming simplicity disguises what has been referred to as the complex labour involved in its manufacture. To date there has not been any critical reflection what these specific calls for and commitments to transparency may actually do to the Court’s work or our understanding of it; transparency has essentially been given a free pass from scrutiny in the pursuit of more of it. And yet, it is inextricably tied to a culture of managerialism and is, as examined in this dissertation, often expressed in the Court’s communicative practices that resemble and overlap with marketing and public relations practices. Building upon the recent managerial and marketing approaches to international criminal justice , and by drawing on an emerging field of research called Critical Transparency Studies (CTS), strategic expressivism, and myth, I take a closer look at three communicative practices that have emerged as particularly relevant in terms of their reach: the Court’s use of Twitter and Instagram; the OTP’s issuance of press releases; and, the public disclosure of arrest warrants, summonses to appear and the communications pertaining to them. I show that transparency is not an unconditionally positive aspiration for the Court. The commitment to and pursuit of transparency, through the communicative practices that I examine, reveals tensions with the stated objectives of the Court: deterrence and complementarity. It risks confusing understanding, it hurts the OTP narrative when taken up by opponents of the Court’s processes, and the practice reveals that the Court has had considerably more success apprehending suspects when its orders are issued and executed under seal, relying on the quiet diplomatic work among the Court’s networks, behind the scenes. It is thus high time that the nearly mythical concept of transparency be interrogated in order to understand how it impacts the Court’s earliest stages of proceedings before making further demands of the OTP and the Court to commit to even more of it.