Shehzad Charania joins JiC for this brilliant review of a recent debate and conversation regarding the future of the International Criminal Court (ICC). Shehzad is the Director of the Attorney General’s Office and International Law Adviser to the PM’s Office. He was the Legal Adviser to the British Embassy in The Hague between 2013 and 2016. He is on the Steering Group of the London Conference on International Law. Previous contributions by Shehzad (including some terrific interview of ICC staff) can be found here.
Background: The inaugural London Conference on International Law (LCIL) in October 2019 brought together international law academics, judges, practitioners, representatives of civil society, business leaders, and other stakeholders to see how States and other actors engage with international law. Panels ranged from subjects as diverse as international law and cyber and the prohibition on the use of force, to trade and investment, maritime security and climate change. Shehzad Charania chaired a panel entitled What is the Use of the ICC, with the former ICC President Silvia Fernandez de Gurmendi, ICC Deputy Prosecutor James Stewart, British Ambassador to the Netherlands Peter Wilson and Dr Sarah Nouwen of Cambridge University.
With the adoption of the Rome Statute of the International Criminal Court (ICC) in 1998, then UN Secretary General Kofi Annan called the ICC “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law”. Philippe Kirsch, Head of the Canadian Delegation and Conference Chair, and later the Court’s first President, called the ICC “the future of humanity”. The President of the Conference, Giovanni Conso of Italy, said the international community had written “a new page of history with a message that it would never again tolerate impunity. Yet in April 2019 four former Presidents of the ICC’s Assembly of States Parties, some of whom were at the Rome Conference, made the following observations in a joint Op-Ed:
the powerful impact of the Court’s central message is too often not matched by its performance as a judicial institution. We are disappointed by the quality of some of its judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential.
With the panel, I set out to explore the stark contrast between the messages of hope and optimism 21 years ago, to the Court’s most prominent supporters questioning the value of the Court today. I begin by asking James Stewart whether the ICC and specifically the Office of the Prosecutor (OTP) has lived up to the expectations set down in Rome. Stewart responds by accepting that “it is not going to satisfy the audience to say that it is too early to tell”. Rather, he recognises the “anxiety and impatience for results”. At the same time however, he notes that the ICC has been designed by States to act as a “backstop” or “failsafe mechanism” so that where States who have the primary responsibility to prosecute genocide, war crimes and crimes against humanity are unwilling or unable to investigate or prosecute Rome Statute crimes, “only then will the ICC step in to ensure justice is done”. Stewart accepts that the OTP has experienced “real setbacks”, but he emphasises the notable successes which are evidence that the OTP is able to achieve results, such as the successful convictions of Ahmad Al Faqi Al-Mahdi, Bosco Ntaganda – on all counts of war crimes and crimes against humanity, and Jean-Pierre Bemba Gombo and his co-defendants for crimes against the administration of justice.
But wasn’t referring to over twelve failed prosecutions compared to only three final convictions for core crimes, and excoriating criticism from Judges as merely a “setback” somewhat of an understatement, I ask? With respect to the judgments, Stewart is clear that the OTP is open to constructive criticism – emphasising the word “constructive”. But he is clear that the way the OTP operates today is very different to how it has operated in the past. “The Office is continually improving the way it works,” he says, “optimising systems, bringing out the best in our people, and creating a culture to ensure critical thinking and self-reflection”.
I ask Silvia Fernandez to consider the challenges facing the judiciary. Fernandez replies that “they are the same as when I left”, the key challenge being to “expedite proceedings and enhance their quality”. Picking up on Stewart’s comment, she notes that while the judges have indeed been critical of the OTP, “it is important that they too exercise self-reflection to look into their own actions and processes”. Fernandez accepts that this is easier said than done. First, many of the problems which impact on the length of proceedings are beyond the control of the Judges, such as insufficient cooperation and the protection of witnesses. Second, she says that the “lack of a collegial approach” from the Judges must be tackled. Without addressing the problem, there will be “even more fragmented decision-making with multiple separate and dissenting opinions, leaving real uncertainty as to the state of the law”. Third, while the harmonisation of practices and procedures will go some way towards achieving the goal of greater efficiency, there will be times when Judges have to recommend changes to the Rules of Procedure and Evidence. But Fernandez laments that “this avenue has been virtually closed off because of an insistence by States to seek unanimity for amending the RPE”. This is not required under the Rome Statute but, she argues, “States are prepared to allow a single one of their member to block – sometimes for political reasons – what are technical changes necessary to increase the efficiency of proceedings”.
I then ask Peter Wilson to set out the challenges for States Parties to the Rome Statute. He names three. First, there must be real engagement by States in order to articulate common objectives vis-a-vis the Court. This is not easy within a context where it is “difficult enough just to agree the ASP agenda”. The second challenge is non-cooperation: tackling this is vital to the Court’s success. It goes to the heart of the relationship between States and the Court, and, he says, “it remains imperative that every State voices its concern when the Court makes findings of non-cooperation, rather than let a small handful of States who do speak out suffer repercussions when they take a stand”. Third, it is important for States like the UK “to have the space to speak out to say that not everything is right with the Court”. This should not be taken to mean that those who do this – like the four former ASP Presidents – do not support the Court. In the past, States have been reluctant to say publicly what they have been voicing in private. But this has changed, enabling “an open conversation about the need for reform”. To the UK, a reform process will be “a chance to strengthen the Court, not undermine it” – but Wilson accepts that those within the institution feel under attack and so there is a need to ensure the message is delivered correctly. Continue reading