His Honour Judge Keith Raynor joins JiC for this post on the need for reforms and a culture change at the International Criminal Court. Keith is a Circuit Judge at Woolwich Crown Court in London and Vice President of The Kosovo Specialist Chambers. This blog is based on a talk he gave at Lincoln’s Inn in London on 22nd May 2019, a full copy of which can be found here.
Not long ago, a fellow judge of mine at the Kosovo Specialist Chambers argued that the moment has come for the International Criminal Court (ICC) to “re-calibrate and to do a reality-check”. That is right. The time has come to reform. This post offers some views – and many questions – on what may be needed for the ICC not only to survive, but to prosper in the future.
The recent Afghanistan Pre-Trial Chamber (PTC) decision is equivalent to the child’s unmasking of the reality of The Emperor’s New clothes. No more pretence that the law is supreme. An acknowledgement or perhaps a surrender to the reality that power politics will inevitably influence decisions and that powerful States are unlikely to be held to account.
To expand the Emperor’s clothes metaphor, it is going to be difficult for the Court to conceptualise, design, cut, create, modify, produce , brand and market a real set of clothes embroidered with a clear message of legitimacy for Emperors to wear – especially if weavers believe that they are now participating in a “rigged” market.
For victims, the news is depressing. The Afghanistan decision indicates that their expectations amount to no more than aspirations; that the institution in which they had placed enormous trust may actually be incapable of recognising their suffering because judges have determined that investigations might not be feasible, might inevitably be doomed to failure or, because the prospects for successful and meaningful investigations are unlikely, for instance due to limited prospects of meaningful cooperation from relevant authorities.
So, the time has come for practitioners, members of staff at the ICC, judges, observers, academics, diplomats and all others who have an interest in the survival of the court, to encourage immediate, tough institutional reform and the emergence of a more positive culture. The recent PTC Afghanistan decision should be viewed as the catalyst for immediate change. True, meaningful proposals for reform can only be implemented through the Assembly of States Parties (ASP). But the ASP must act now. If not, the future of the court will remain at risk.
Former presidents of the ASP have together recommended that a group of experts undertake an independent assessment of the court’s functioning is a move in the right direction. But is appointing a team of experts to produce a UN- style report really enough? In times of crisis, the unimaginable become the imaginable. We are dealing here with the failure of a business model and there is a pressing need for fundamental restructuring. Appointing a traditional UN panel of experts may not be the best available option. Has the time come for the court to look to experts in business restructuring to assist? Should a Chief Executive Officer of a multi-national corporation be recruited to investigate and re-shape the ICC? The key, regardless, will be the effective implementation of sensible, even if radical, proposals.
Perhaps now, after the Afghanistan decision, we have a catalyst for meaningful reform aimed at making the ICC more focused, re-shaping procedures that currently have little value(for instance, the confirmation process being transformed into a mini-trial) , ensuring personnel truly of the highest calibre are employed, building a more positive, united culture. Doing this would provide a greater opportunity for the ICC to operate more effectively and avoid being reduced to a “pointless” exercise.
If an enhanced awareness of Realpolitik is now the name of the game, should the ICC Office of the Prosecutor (OTP) “come clean” and ditch other investigations, which have no realistic prospect of success or, in other words, to be honest with everyone (and especially victims) and say “this situation is not going to end up with accused being indicted and trials taking place, so we’re abandoning ship”?
The OTP is spread too thinly. That is clear. It cannot deliver quality investigations across so many fronts, given its budgetary restrictions. Should the OTP now prioritise and concentrate on, say 10 matters only? If this was done there would no doubt be severe criticism, especially from victims. But what is the alternative? Potentially allowing weak investigations and cases to trundle on for years, using up resources that can more effectively be deployed elsewhere. It is a depressing prospect I accept, but the Court cannot perform an “Everyman” function properly. We have enough evidence of that as it stands.
Does the OTP need to put concrete action before expressivism? The Emperors’ New Clothes have been revealed. Now politics trumps expressivism. The PTC Afghanistan decision now suggests that, far from casting its shadow, the court has in effect encouraged powerful States to act with impunity and disregard international law and sent the message that bullying wins and non-cooperation is rewarded”. Continue reading