The Politics of ICC Referrals – A Proposal

ICC Prosecutor Fatou Bensouda at the UN Security Council (Photo: Evan Schneider/UN)

In the wake of the military and judicial interventions in Libya, this blog has often criticized the relationship between the UN Security Council and the International Criminal Court (ICC). The criticisms are well-known to most readers and hinge on the premise that the UN Security Council’s referrals have placed the Court at the whims of the Council member’s political interests and thus threaten the Court’s independence, impartiality and legitimacy as a judicial institution.

While the practice and politics of UN Security Council referrals have received the lion’s share of attention in recent months, the reality is that every type of referral mechanism opens the ICC up a unique set of potential manipulations. Security Council referrals put the Court at risk of being instrumentalized by the narrow political interests of the Council’s members, especially the permanent five veto-wielding members. The Court’s experience with self-referrals, as in the case of Uganda or the Democratic Republic of Congo for example, has exposed the potential of the ICC to be leveraged by the referring government. As a result, the Court is often seen as pursuing one-sided justice against rebel groups while ignoring government perpetrated atrocities. While technically not a ‘referral’, opening cases proprio motu – through the ICC Prosecutor’s discretion – can also create problems as states argue that the Prosecutor does not have the political authority to intervene and that the Court lacks checks-and-balances in its mandate. Kenya is the best example where this has occurred.

In short, every mechanism available to bring a situation under investigation by the ICC is open to criticism. None is perfect and all are, to one degree or another, political. Yet what has frustrated many observers of the ICC is that the Court often appears unwilling to admit to, let alone critically address, the potential drawbacks of each type of referral. This unwillingness has been particularly worrying given ample evidence from past experiences which demonstrates that accepting referrals with open arms can undermine the public perception of the Court’s independence and legitimacy.

That being said, it is easy to only be critical of the ICC and its relationship with both states and the Security Council. While informed criticism is necessary, it is also important to consider possible solutions which could bolster the Court’s capacity to pursue international criminal justice. In this spirit, here is a proposal which could help the ICC to assess and address the political nature – and dangers – of referrals.

My proposal is that the ICC create an arm’s length, independent body called a Referral Review Panel (RRP). Of course, the name is largely irrelevant but this title reflects its purpose. The role of the panel would be to critically assess ICC referrals, whether it be from a state, from the UN Security Council or in cases where the Prosecutor opened the investigation him/herself. Upon receiving a referral or deciding to open of an investigation proprio motu, the panel would examine the legality of a referral and its substantive content. Referring to past experiences, rulings and academic analyses, the panel would also address the potential legal and political risks and drawbacks of each referral to the Court’s legitimacy and independence. Moreover, in situations where a state should be – but has not been – referred to the ICC, the panel could convene to consider how best to engage the international community on referring the situation to the Court but doing so in such a way that does not hinder the institution’s independence. Syria would be a case in point here.

Importantly, the RRP would be independent from the Court itself. It could be established by the Office of the Prosecutor (OTP) or perhaps by the ICC’s Registry. But once created, it would not be composed of OTP or any other ICC staff. This would be particularly important because it would allow the OTP – and the ICC more broadly – to insulate itself from any harsh findings that the RRP may have with regards to particular referrals. In other words, the independence of the RRP could protect the OTP from any significant disturbance in its relations with the state(s) in question.

While the conclusions of the RRP would be made public, its findings would be advisory rather than legally binding. An RRP report would provide the basis upon which the OTP could proceed to an investigation and would allow the Court to address whether some issues – such as the exclusion of non-states parties from investigation or prosecution or the refusal to fund ICC investigations (present in both Security Council referrals to the ICC) – were legal and legitimate or not.

Notably, as far as I know, the creation of such a panel would not require the approval of the Assembly of States Parties nor any changes to the Rome Statute itself. Nor do I believe it would require a significant financial investment on the part of the Court. Indeed, it could likely be staffed voluntarily. And we all know there are enough high-level, experienced and critically-minded experts in international criminal justice who would be willing to volunteer!

Perhaps most importantly, the establishment of a Referral Review Panel would demonstrate a degree of institutional maturity and an interest in critical self-examinaton on the part of the ICC. Institutionalizing such a practice would, in itself, be a highly welcome development.

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About Mark Kersten

Mark Kersten is the the Deputy Director of the Wayamo Foundation and a Fellow based at the Munk School of Global Affairs, University of Toronto. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016). The views posted on this blog do not necessarily represent those of the Wayamo Foundation.
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4 Responses to The Politics of ICC Referrals – A Proposal

  1. Milly says:

    This is an interesting idea but isn’t this already conducted by the OTP? She and her office examine all referrals made under Articles 13 and 14 and through article 15 can start a preliminary examination under 53(1)(a)-(c) to meet the criteria, which is then submitted to the PTC for judicial review. Would this panel not double up on that work and be subject to judicial misunderstanding and contradiction? In protecting the ICC from political backlash I agree with you a RRP would, but in many of President Song’s recent speeches he has very clearly acknowledged this issue and has asked for cooperation and understanding in dealing with it. Mind you this is also a rather political plea, but i suppose it is in his job description!

  2. Philip says:

    What about the possibility for a member State, or a group of member States, to refer a situation concerning another member State? Obviously, the situation has not yet arisen, but little thought has been given to such a prospect.

  3. Mark Kersten says:

    Thanks to you both for the insightful comments.

    Milly – the Situation Analysis Section of the JCCD does do some of this but I don’t think they do political analysis to the extent that I am suggesting the panel would do. The RRP panel would point to the specific opportunities for state and non-state actors to manipulate and leverage the ICC referral itself. And rather than being staffed with ICC lawyers, the panel would have regional experts, perhaps some diplomats, etc. – people with knowledge of the politics of international law not only international law. I think this type of analysis is done best when it is not ‘in-house’.

    Philip – absolutely. While that hasn’t happened yet, this would also very much be an issue that I envision an RRP tackling.

  4. This is provocative. I have also been wondering lately the idea to create such mechanism that would allow to scrutinize referrals made to ICC by both states and UNSC. This panel should not asses only the political aspect but financial implication of such referral. It hurts to see how referrals made without ‘full and wide’ commitments from the referring party as we know the Court has already been facing a lot of burden by itself.

    The problem is, what is the legality of such panel and who should create it. As you suggest, it could be either the Prosecutor or the Registry, but on which legal basis? And if this panel was created, how about the political backup for this panel? How to make sure a newly established panel will be respected by states and even by the UNSC?

    Another point is that this will create another ‘bureaucracy’ to the court and eventually lessen the expeditiousness nature that public highly anticipate from the Court.

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