Peace versus Justice? On the Effects of the ICC on the War in Ukraine

Posted on March 17, 2022 by Mark Kersten
(Photo: EPA / BBC)

When thirty-nine states asked that alleged war crimes in Ukraine be investigated by the International Criminal Court (ICC), they bolstered the chances that perpetrators will one day be held to account. But will the pursuit of ICC justice bring peace to Ukraine? Will the investigation de-escalate violence and deter atrocities, or could it make matters worse?

The short answer is that no one should expect that the ICC will deliver peace, solve the root causes of conflict in Ukraine, or lead to a wholesale reduction in violence. Expectations need to be managed. The ICC is in the accountability game, not the conflict resolution game, and as my research and book on the subject illustrate, the Court’s effects on peace are often ambivalent. But that does not mean that the Court’s pursuit of justice is not worth supporting. Far from it.

Based on what we know about the war in Ukraine, here’s what may – and may not – happen.

The ICC and Putin’s Existential War

There is no doubt that Russian President Vladimir Putin is a war criminal. For decades prior to Russia’s invasion and the horrors that followed, Putin unabashedly made war crimes a central part of his modus operandi. Whether it was his war in Chechnya in the late 1990s, his fabricated conflict in Georgia in 2008 (which is also under ICC investigation), his sadistic bromance with Syria’s Bashar al-Assad and their use of chemical weapons against civilians, or his annexation of Crimea and lethal proxy war in eastern Ukraine, there is ample evidence that Putin cares little for human life – whether Ukrainian, Russian, or otherwise.

At the same time, there are signs that the war in Ukraine has become existential for the Russian leader. With states devising new sanctions by the day, companies fleeing operations in the country, and landslide votes condemning his actions at the United Nations General Assembly, Putin is severely isolated. It is no longer implausible that elites, not wanting to go down with a sinking ship, will attempt to take power from Putin. It may very well be that Putin thus feels he must “win” or at least appear to win the war in Ukraine to survive it.

Under these conditions, it is unlikely that Putin is losing any sleep over the ICC’s investigation. To date, he has not responded to the Court’s intervention into Ukraine and it is likely of minor relevance to him given the stakes he has in the conflict he started.

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Posted in "Peace versus Justice" Debate, International Criminal Court (ICC), International Criminal Justice, Peace Negotiations, Peace Processes, Russia, Ukraine, War crimes | 2 Comments

After all this time, why has Ukraine not ratified the Rome Statute of the International Criminal Court?

Posted on March 14, 2022 by Mark Kersten

The following is a guest post B. Aloka Wanigasuriya on why Ukraine has not ratified the Rome Statute of the International Criminal Court. Aloka is an Australian lawyer and a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark).

(Photo: AP)

The International Criminal Court (ICC) recently initiated an investigation into the situation in Ukraine. The country is now the second post-Soviet state that is both at loggerheads with Russia and the site of an ICC investigation, following the situation in Georgia, which has been under investigation since 2016. Ukraine became a signatory to the ICC’s constitutive instrument, the Rome Statute, on 20 January 2000. However, despite an ongoing lobbying campaign by Ukrainian civil society urging the ratification of the Statute as well as assurances by president Volodymyr Zelensky’s office that ratification would be one of the president’s priorities, Ukraine is yet to become an ICC state party. The question posed by many is: why?

Background: Ukraine and the ICC

The relevance of the ICC within the Ukrainian context came to the fore with respect to the alleged international crimes that were committed during the Maidan protest movement in the winter of 2013-2014. At the time, given that Ukraine had not ratified the Rome Statute, the ICC had no jurisdiction to probe the alleged crimes. Consequently, the Ukrainian government lodged two separate declarations pursuant to Article 12(3) of the Rome Statute accepting the ad hoc jurisdiction of the ICC, the first, in 2014 and the second, in 2015.

Initially, in response to the Maidan crimes, the Verkhovna Rada of Ukraine (the Ukrainian parliament) adopted a declaration accepting the ad hoc jurisdiction of the ICC, which in its temporal scope, covered the alleged crimes committed during the protests. This declaration was lodged with the ICC on 17 April 2014 and accepted the Court’s jurisdiction over alleged crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014. Subsequently, on 25 April 2014, the ICC’s Prosecutor announced the commencement of a preliminary examination into the situation in Ukraine. However, concluding that the alleged crimes did not constitute crimes against humanity due to lack of evidence that such crimes were committed as part of a widespread or systematic attack against the civilian population, the Prosecutor decided not to proceed further with the preliminary examination into the Maidan events.

The following year, on 8 September 2015, in light of events that unfolded in Crimea and eastern Ukraine, the Ukrainian government lodged a second Article 12(3) declaration accepting the ad hoc jurisdiction of the ICC, which covered alleged crimes associated with the occupation of Crimea and the fighting in eastern Ukraine. Unlike Ukraine’s first declaration, this second declaration, which applied from 20 February 2014, had no prescribed temporal limitations. Based on this latter declaration, on 29 September 2015, the ICC Prosecutor announced the extension of the preliminary examination of the situation in Ukraine to include alleged crimes committed after 20 February 2014 in Crimea and eastern Ukraine.

Throughout the preliminary examination, Kyiv displayed a receptiveness to the ICC’s activities, with the Ukrainian government and civil society organizations furnishing the Court with relevant information regarding the conflict-related crimes. However, despite this active engagement with the Court, the process for Ukraine becoming a fully-fledged member state to the Rome Statute encountered multiple obstacles. The initial obstacle to ratification was a Ukrainian Constitutional Court decision from 2001, which found that the ICC’s principle of complementarity was in conflict with the Constitution of Ukraine. Here, the Constitutional Court found that any potential ICC involvement would be contrary to the constitutional provision which conferred exclusive competence in matters of the judiciary to the Ukrainian national courts.

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Posted in Guest Posts, International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine | Tagged | 2 Comments

The epidemic of coups exposes political fragility in Africa, but military rules aren’t the answer

Posted on March 9, 2022 by Mark Kersten

The following is a guest-post by Olusegun Akinfenwa, a correspondent for Immigration Advice Service. Olusegun’s work raises awareness about the harsh socio-political realities confronting African communities, with a view to bringing lasting solutions to them.

Malians demonstrate following the military coup in Mali in 2021 (Photo: BBC/EPA)

The recent wave of coups in Africa has exposed the political fragility in many countries in the continent and reintroduced the debate on whether military rules are indeed a thing of the past. Given human rights violations and failed efforts to institute democratic governance by civilian authorities, some might welcome military rule. But it is not the solution to good governance and stability on the continent.

This “epidemic of coups” started in Mali in August 2020 after Col Assimi Goita overthrew President Ibrahim Boubacar Keita. In March 2021, an attempted coup was reported in Niger amidst the contestation of President Mohamed Bazoum’s election victory.

The wave moved to Chad in April 2021 after the killing of President Idriss Deby on the battlefield. The constitution was bypassed, as he was hurriedly replaced by his son, Gen. Mahamat Idriss Deby.

In May 2021, Mali again witnessed what has been termed a coup within a coup, as Col. Goita overthrew transitional government leaders and proclaimed himself president. In September, Guinea President Alpha Conde, who was re-elected to a third term in office in 2020, was overthrown by Col. Mamady Doumbouya.  

In October, the military forcefully took control of the civilian-military transitional government and deposed the civilian arm led by Prime Minister Abdallah Hamdok. This marked the last of a string of coups in 2021, making it among the years with the highest number of military takeovers in Africa.

The coup epidemic would later resurface in January 2022, as the army led by Col. Paul-Henri Sandaogo Damiba overthrew President Roch Marc Christian Kabore. A few weeks later, an attempted coup was reported in Guinea Bissau on February 1. Though it was a failed attempt, several casualties were recorded.

These many takeovers within just 18 months are a stark reminder in Africa of the past and a reality check for the continent’s political leaders. Between 1956 and 2001, 80 successful military coups and 108 failed attempts were reported in sub-Saharan Africa. But as more countries embraced civilian rules in the past two decades, there was a great reduction in coup d’états. As such, many concluded that military rules were a thing of the past. But the recent events may have proven otherwise.

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Posted in African Union (AU), Chad, Coups, Economic Community of West Africa (ECOWAS), Guinea Bissau, Mali, Niger, Sudan | Tagged | 1 Comment

States that Neutered the Crime of Aggression have a Special Responsibility to Address War Crimes in Ukraine

Posted on March 8, 2022 by Mark Kersten
Destruction following the shelling of Kharkiv, Ukraine (Photo: BBC / Getty)

In an unprecedented move, thirty-nine states have requested that the International Criminal Court (ICC) investigate atrocities committed in Ukraine. It is a welcome and important development. But one crime that the ICC will not be investigating is the crime of aggression, despite Russia’s invasion of Ukraine is a textbook example of a criminal invasion. Why? Because the crime’s definition was neutered by Western states. States that handicapped the ICC’s ability to investigate aggression have a special responsibility to step up to the plate and help to achieve justice for atrocities.

The word aggression is on the tips of the tongues of diplomats and observers describing events unfold in Ukraine. For many, the illegal invasion of Ukraine by Russian forces clearly fits the bill of an illegal, aggressive war. It was for exactly these kinds of situations that the ICC was given jurisdiction over the crime of aggression under the Rome Statute. But when states negotiated its definitional contours, they left it a largely impotent shell of its potential self.

Over a decade of contentious negotiations over the contours of the crime of aggression, the likes of Canada France, the UK, and Japan, sought to severely restrict the definition of the crime. Noah Weisbord, a Canadian law professor who has written a book on the subject has observed that Canada’s position, for example, was viewed by other states as providing “avenues for rogue leaders to use force as they please”.

The result of the negotiations was two troubling requirements that curtail the ICC’s jurisdiction: one, the Court could only investigate the crime of aggression if both states – the aggressor and the invaded party – were members of the Court, and two, if ICC member-states “opted-in” and accepted jurisdiction over the crime of aggression.

Even if Kyiv decided to join the ICC tomorrow, the Court could not investigate the crime of aggression in Ukraine. The only way for the ICC to be able to initiate such an investigation would be if the United Nations Security Council referred the situation in Ukraine to the Court. But with Russia sitting plum on the Council with a veto in its back pocket, that’s not going to happen.

Given its involvement in watering down the crime of aggression, those states that neutered the definition of aggression under the Rome Statute have a special responsibility to address other international crimes being committed in Ukraine, including war crimes and crimes against humanity.

The referral of Ukraine to the ICC is a good first step. The decision matters, because without a member-state of the ICC like Canada or Lithuania referring Ukraine, the Court’s Prosecutor, Karim Khan, would have to undertake the cumbersome process of asking judges in The Hague to authorize the investigation. Put otherwise, the move saves the Prosecutor some time and expedites the investigation. According to Khan, a team of investigators was already on its way to Ukraine last week.

But more can be done. Governments should consider putting money where its proverbial mouth is.

With Western states now actively sending the ICC Prosecutor jobs, they should abandon their position that the Court’s budget should be effectively frozen and consider making voluntary contributions to the ICC’s work. This is not unprecedented. Amidst allegations of genocide, in 2005 the Canadian government of Paul Martin contributed $500,000 to the ICC to support its investigation into atrocities committed in the Darfur province of Sudan.

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Posted in Canada, Crime of Aggression, France, International Criminal Court (ICC), Rome Statute, Russia, Ukraine, United Kingdom | Tagged | Leave a comment

How Many More Crimes Can Putin Commit Before the World Calls Him A War Criminal?

Posted on February 26, 2022 by Mark Kersten

Protests in London, calling for an end to Russian aggression in Ukraine (Photo: BBC)

On February 24, during a United Nations Security Council meeting, Sergiy Kyslytsya, Ukraine’s Ambassador to the UN was informed that Russia’s invasion of his country had begun. Moments later, Kyslytsya turned to his Russian counterpart Vassily Nebenzia and told him: “There is no purgatory for war criminals. They go straight to hell.”

There is little doubt that Russia’s invasion into Ukraine is a violation of international law and the UN Charter. It is also a crime. It should be called as such, not only by human rights and justice advocates, but by states.

In recent days, many state representatives, media, and scholars have rightly gone to great lengths to stress the abhorrent behaviour of Russian President Vladimir Putin. But it is almost as if what Putin is doing now is particularly egregious. This invasion is the Russian president’s calling card and war crimes are his signature.

Everything transpiring now in Ukraine, including reports of rocket attacks on civilian buildings, is par for Putin’s course. Days ago, international law scholars Frédéric Mégret and Kevin Jon Heller predicted that Putin would commit the crime of aggression by invading Ukraine. No one should be surprised if the situation gets worse. Putin’s personal biography is littered with the embrace of atrocity crimes and human rights violations.

Putin came to fame and eventually to power on the back of Russia’s 1999-2000 war in Chechnya. In annihilating the breakaway region’s separatist movement, Russia deployed horrific levels of violence. Human Rights Watch has documented legions of atrocities, including allegations that Russian forces “indiscriminately and disproportionately bombed and shelled civilian objects” and “ignored their Geneva convention obligations to focus their attacks on combatants”. The West responded meekly to allegations of war crimes. Rather than being condemned, Putin was largely hailed as a leader that promised Russians a better life and the West – better relations, when he replaced Boris Yeltsin as Russian president. That was not to be the case.

In 2008, Putin turned his attention to Georgia and ordered Russian troops – whom he called “peacekeepers” – to invade the Georgian provinces of South Ossetia and Abkhazia. They were not there to keep the peace. While Moscow invoked humanitarian language in arguing that it had a “responsibility to protect” its citizens in both territories, Russian forces indiscriminately attacked civilian targets – a war crime. It is also alleged that Russian allies in South Ossetia forcibly transferred ethnic Georgians out of the region.

In 2014, Putin invaded Ukraine, leading to the illegal occupation and annexation of Crimea while also igniting a conflict in Lugansk and Donetsk that has cost an estimated 14,000 lives. During the violence, Russian-backed militants bombed Malaysia Airlines Flight 17 over Ukraine, killing all 298 people onboard. Attacks by Russian forces against civilians were commonplace and allegations of murder and torture were reported in detention facilities – referred to as “Europe’s last concentration camps” – run by pro-Russian separatists.

These are just a tiny cross-section of Putin’s crimes that have been documented by human rights and investigation bodies.

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Posted in International Criminal Court (ICC), Russia, Ukraine, War crimes | Tagged , , | 3 Comments

The Justification of Russia’s Invasion of Ukraine under International Law

Posted on February 22, 2022 by Mark Kersten
(Luhansk. Photo: BBC)

To help any and all interested observers, media, and curious diplomats, we have provided an authoritative analysis into the question: what is the justification of Russia’s invasion of Ukraine under international law? The answer, in 20+ languages:

None.

Жодного.

никакое.

Aucune.

لا يوجد

Keine.

Żaden.

Hakuna.

Ninguna.

없음

žiadny.

mitte ühtegi.

neviens.

არცერთი.

没有

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Posted in Donetsk, Lugansk, Ukraine | Leave a comment

Calling COVID-19 vaccine mandates a ‘crime against humanity’ isn’t just wrong, it’s dangerous

Posted on February 5, 2022 by Mark Kersten
Protesters descending on Ottawa (Photo: Reuters)

Among the many claims made by demonstrators converging on Ottawa for the “Freedom Convoy” is that the Canadian government’s vaccine mandate constitutes a “crime against humanity”. For over a decade, I have studied mass atrocities and worked with people in states around the globe to address international crimes. The use of “crimes against humanity” in the context of Canada’s response to the COVID-19 pandemic isn’t just wrong, it is dangerous.

On Twitter, former hockey player Theo Fleury declared that “Trudeau has finally united Canadians. We are united against him. #CrimesAgainstHumanity #treason”. The statement garnered significant support, with almost 8,000 ‘likes’. Fleury was perhaps taking his cue from James Bauder, one of the right-wing organizers of the Convoy, who has claimed that Trudeau “should be arrested… for participating in committing crimes against humanity.”

There have been and continue to exist legitimate concerns about the possible over-reach of governing authorities in response to the pandemic. In Quebec, for example, a lockdown curfew was put in place in 2021 and then enforced by Premier François Legault against homeless people. The policy likely contributed to the death of at least one person, Raphaël André, who froze to death in a portable toilet after being unable to find shelter during curfew hours. There are also open questions over whether the federal government’s closure of the southern border to asylum seekers violated international human rights law or whether the decision of provinces, such as Newfoundland, to close their borders to non-residents was justified.

Still, none of these harms – absolutely none – amount to a crime against humanity.

The idea of defining atrocities as crimes against humanity originates from efforts to abolish the slave trade in the United States. Towards the end of World War II, the term was formalized in law, and the Nazi regime’s leadership was charged with crimes against humanity at the Nuremberg trials. The core idea was that these atrocities were so heinous, so shocking, that they were not just crimes against their victims, but against all of humanity.

A cruel irony of those insisting that Canadian authorities have committed crimes against humanity is their association with figures toting the insignia of the very mass atrocity perpetrators that crimes against humanity were intended to address: in Ottawa this past weekend, some protestors brandished the Confederate Flag, a symbol associated with white supremacy and slavery, and Swastikas, the signature of Nazism.

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Posted in Canada, Crimes against humanity, Indigenous Peoples | Tagged , | 5 Comments

The Real Victims of Australia’s Migration Policies aren’t Tennis Stars, They’re Refugees

Posted on January 12, 2022 by Mark Kersten
Refugees and asylum seekers in an Australian detention center in Nauru (Photo: The Guardian)

The furor over whether or not Novak Djokovic will or will not be allowed to compete in the Australian Open has pitted the Serbian tennis star and vaccine skeptic against the government of Australia. But Djokovic is no victim and the government is no hero.

The focus – and noise – surrounding the battle of Djokovic versus the Australian government is a distraction from the plight of thousands of asylum seekers that have been denied entry into Australia and who are herded onto island prison camps run by private security firms. When it comes to Australia and migration, we should be focusing on their plight, not that of rich and privileged sporting stars.

For the past decade, Australia enthusiastically implemented a zero-tolerance approach towards asylum seekers trying to reach its shores. In brief, Australia captures undocumented people who reach the country as well as those attempting to enter via boat. It then transports them to privately operated processing centres in third countries, most notoriously Nauru and Manus Island, Papua New Guinea, with whom Australia has bilateral agreements. 

Once in detention, asylum seekers have three options: return to their original state (irrespective of harms they may face in doing so); find a third country that will accept them; or stay in the camps on in the hope of having their claim processed by Australia. If detained asylum seekers choose to remain, they may be imprisoned at these centres indefinitely. As the government admits: “there is no limit in law or policy to the length of time for which a person may be detained.”

None of this saves Australia a dime. Expenditures for its offshore detention facilities run in the billions of dollars each year and the average cost to detain an asylum seeker in one of the island facilities costs Australia about twice that of an onshore detainee.

The conditions in the camps can be deadly. Consider the story of Reza Barati, who made it to Australia in 2013. The 23-year-old Iranian Kurd’s arrival on Australian soil came just days after the adoption of the Regional Resettlement Arrangement between Australia and Papua New Guinea, which permits Australian authorities to transfer asylum seekers like him from Australia to Manus Island. Just six months after his transfer, he was killed by guards during a riot.

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Posted in Australia, Human Rights, Immigration, International Criminal Court (ICC), Nauru, Refugees | Leave a comment

Enough is Enough: The ICC Should Announce an Investigation into Migrant Abuses

Posted on December 8, 2021 by Mark Kersten
(Photo: Angelos Tzortzinis/AFP/Getty Images)

The scenes are all too familiar: migrants desperately clinging onto dilapidated dinghies as towering naval ships armed with heavy-duty guns encircle them. Some migrants make it to Europe. Many perish. Thousands are sent back each year to Libya. Back on shore, they are incarcerated in camps where they are vulnerable to sexual violence, torture, arbitrary detention, and human trafficking. Some try their luck on the Mediterranean again. The treacherous journey repeats.

Far from the scene of migrant drownings, the Prosecutor of the International Criminal Court (ICC) presented a familiar refrain at his bi-annual address to the United Nations Security Council on 24 November 2021,. Karim Khan lamented crimes perpetrated against migrants in Libya, calling them “troubling” and calling for accountability to “march alongside” global condemnations.

The Prosecutor’s remarks came in the wake of yet another report from human rights groups imploring the ICC to genuinely investigate atrocities committed against asylum seekers attempting to cross into Europe from the north African state. For years, the court has insisted it will investigate these crimes, only to dither and then re-state its interest in doing so before the Security Council. Enough is enough. It is time to hold accountable all actors involved in abuses against people on the move – including European states.

Atrocities against migrants: From Libya to Sudan to Libya again

Libya has played a critical but sordid role in helping Europe stave off unwanted asylum seekers. Throughout the 2000s, former Libyan dictator Muammar Gaddafi helped European states ensure people on the move would not use Libya as a launching point to cross the Mediterranean. Western states were happy with the arrangement and Gaddafi was rewarded for doing their dirty work.

In 2008, for example, Italy agreed to invest $5bn in Libya in exchange for its continued work in controlling African asylum seekers. Both sides were satisfied while people on the move lived in horrific conditions. In 2011, Gaddafi fell from power, in large part due to the intervention of those same states that had seen him as a partner in migration control. Following a Security Council referral of Libya to the ICC that same year, the court also issued an arrest warrant for Gaddafi, on allegations of war crimes and crimes against humanity.

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A Sea Change or Business as Usual? The Review of the International Criminal Court Continues

Posted on November 29, 2021 by Mark Kersten

Gabriele Chlevickaite joins JiC for this blog post on the status of the review and reform of the International Criminal Court. Gabriele worked in the Office of the Prosecutor of the ICC in 2014-2017, and Independent Expert Review in 2020. All information contained in this article is drawn from public sources. The article reflects the author’s personal views.

(Image: Perkins & Will)

It is hard to keep pace with the changes at the International Criminal Court. Just over the past year, a whirlwind of swearings-in introduced six new judges, the President and Vice-Presidents of the Court as well as of the Assembly of States Parties (ASP), and the Chief Prosecutor of the OTP. On top of all that, the ASP is resolutely continuing with the ‘Review of the International Criminal Court and the Rome Statute System’ (Review), building upon the Independent Expert Review (IER) of last year. In anticipation of the upcoming ASP meeting in December, where the Review process will presumably make a decent feature (it is point 12 on the preliminary agenda), where are we now, and what can we expect in this regard from the 20th session of the ASP? 

The Review Mechanism and Comprehensive Action Plan

The Final Report of the IER sets forth 384 recommendations addressing court-wide matters (i.a. governance, human resources, budget), organ-specific matters (Chambers, OTP, Registry), and external governance (i.a. ASP, oversight mechanisms). The recommendations are ‘aimed at assisting the ASP and the Court’ in enhancing the Court’s impact through higher efficiency and cost-effectiveness (para.988). While the report provides a framework for change, this ASP-led Review process now continues in the form of a ‘Review Mechanism.’ This body, made up of State Party representatives (currently The Netherlands and Sierra Leone) and ad country focal points, is ‘dedicated to planning, coordinating, keeping track and regularly reporting to the Assembly Presidency and the Bureau on the assessment of the recommendations contained in the Report of the Group of Independent Experts and further action, as appropriate <…>’ (para.4). Hence, the continued monitoring of the Independent Expert Review (IER) recommendations is in its hands.

To date, the most important output of the Review Mechanism is the categorisation of all the IER recommendations with corresponding timelines for their assessments through the Comprehensive Action Plan (Action Plan). This document identifies recommendations to be prioritised for assessment (i.e., implementation?), dividing the extensive list into four 6-month periods, up to the second half of 2023. While not easily digestible, the plan defines some important expectations from the Court for the upcoming years, with a select few areas unpacked below.

I.               Governance

Working culture at the Court, the area most widely reported on after the issuance of the IER report (see e.g. here, here and here) is unsurprisingly getting priority treatment by the Mechanism. The prioritised IER recommendations 14-20 (R14-20) provide for a wide-ranging aim to ‘rebuild and strengthen internal trust and re-shape the working culture at the Court,’ but also changes to be made to i.a. recruitment processes, gender equality, and staff wellbeing (p.26). Alongside working culture in general, bullying and harassment in particular are underlined (R87-88), with the Experts proposing multiple avenues for reporting instances of misconduct. 

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Posted in ICC President, ICC Prosecutor, ICC Registry, International Criminal Court (ICC) | Tagged , | 2 Comments