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.

(Photo: Schmidt Hammer Lassen)

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.

Coming Clean?

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”.

Would the OTP (and indeed the Presidency and all representatives of the Court) be well-advised to stop relentlessly beating the drum of “ending impunity” and  “delivering justice”? I see in a document published on the ICC website more measured language is being used, with the phrase “ a call to unite humanity against crimes” being repeated.

Does the OTP need to explain that “this is what we cannot achieve, and this is what we can achieve” – rather than continuing to pursue preliminary examinations and investigations where the predominant motive is expressivism? Victims want to see results and if the reality is that the prospect of delivering results through quality investigations followed by criminal trials is now lessened, then do the expectations of victims need to be addressed in other concrete and meaningful ways through other mechanisms and processes? Look at Colombia and The Gambia and the use of other imaginative mechanisms. At the same time, the OTP could also recruit more prosecutors from domestic jurisdictions who have extensive experience in supervising teams of prosecutors and who have advocacy experience and who know how to manage and, most critically of all, assess evidence.  We all know that cases have proceeded to trial supported by inadequate evidence. Making predictions or judgement calls about whether evidence will be sufficient to persuade judges to convict is a most difficult task. But it is what has to be done. This is a skill which cannot exclusively be “learned on the job”.

As far as investigators are concerned Phil Clark has suggested that the OTP needs to divert more resources to seeking to employ local investigators with local knowledge of local situations, instead of relying on generalist international investigators being sent from The Hague to investigate alleged crimes. The idea is to develop a footprint in the heart of the country and foster and nurture relationships by way of a more settled presence. But the OTP would need to manage this and not to have “investigation by intermediary” as its default position. This would chime with the change in OTP policy from short “bug-in /bug-out” probes to longer and more intensive investigations.

Judging Judges

Judges should be appointed who are the best for the job. Selection must be on merit alone. Past elections have been marred by the “trading of votes” or block voting along with the advancement of political agendas. This led to judges being appointed who are not the best for the job. For instance, should diplomats ever have been appointed as judges?

The ASP and the Advisory Committee on Nominations on the selection of judges must begin to show the political will to drive reform of the procedure for the election of judges and take steps to prioritise the appointment at the ICC of criminal law judges from international and national systems. There are, after all, plenty to choose from! It is not a difficult task. When the chips are down, the ICC needs to be able to call upon a core of judges who have significant real experience of criminal law – as judges. They should be experts and be at ease in the often-hectic atmosphere of a criminal court. They must inspire the confidence of Counsel and those observing proceedings.

It has been reported that there appears to be a lack of collegiality amongst judges at the ICC, with observers pointing to: (i) difficulties encountered in the appointment of Appeal Chamber judges to hear the Appeal in the Gbagbo case; (ii)  The Judge Osaki “fiasco”; (iii) the continuing petitioning for an increase in salaries and (iv) indelicate comments made by Judge Perrin de Brichambaut on a visit to China in 2017. These instances give the impression that certain judges do not appear to understand the precise effects that their decisions and utterances have on the reputation of the court amongst observers .  and the resulting reputational damage caused thereby.

An Honest Appraisal and a Commitment to Honesty

The ICC must be honest with victims. We now live in an age where the commission of mass atrocity crime can be subject to contemporaneous media coverage. Victims can find themselves giving accounts to many different reporters or investigators within weeks of relevant events and they have a valid expectation that they may be testifying in a court within a few years of crimes having been committed and that their testimony will lead to convictions of accused persons. But victims are not assisted if they are given false hope, if their expectations of a conviction are not tempered by reference to the need for quality evidence, the imperative of upholding defence fair trial rights, and frank explanations about the role of judges and the standard of proof.

The OTP must choose its words carefully when speaking with victims. For example, it was reported in March 2019 that a senior official at the ICC told victims in Bangladesh that the ICC will bring justice to Rohingya victims from Myanmar. This sort of language is unhelpful. It is neither measured nor nuanced. It does not admit to limitations or conditions. In short it is likely to build expectations which the ICC may not be able to deliver. Victims need to be given realistic advice, not “feel-good” advice that might be misleading.

Future Functions of ICC Organs

The function of the Pre-Trial Chamber has come under scrutiny. To quote Kevin Jon Heller: “the Afghanistan rejection is simply the next front in the ongoing war between the OTP and the judiciary over who has primary authority to decide which situations the ICC will investigate”. So, would the Court suffer materially if the PTC no longer existed?  Should its role be curtailed, and should it be given a more limited mandate? Has the PTC, in the Afghanistan decision, overstepped the mark by usurping the OTP of its discretionary authority and undermining its independence? Here in England and Wales, judges do not usurp the authority of the prosecution, which has an unfettered discretion Crown Prosecution Service to decide to charge a defendant and pursue a case to trial, safe in the knowledge that, although a judge might disagree with its approach or even recommend alternative approaches, the prosecution is in the driving seat. This contrasts without many systems operating the civil law model,whereas investigating judge directs the judicial police investigation.  and the trial judge is in command of any subsequent proceedings. Is it difficult for some ICC judges to re-adjust their approaches, given their experience in domestic jurisdictions? Who should be in the driving seat – the OTP or the PTC?

The PTC has, at times, performed its functions as if conducting a mini-trial – not simply determining if there is a prima facie case. Is it the role of the PTC to give prosecutors second-chances to get their cases in good order? Should PTC judges suggest to the prosecution in which areas the cases presented are weak in terms of evidence? Are the judges to act as judges or are they second-string prosecutors?

Does the ICC need to identify and concentrate on a revised core function? Should the provision of advice and support to states by way of positive complementarity come from providers who are selected by, but not connected with, the court and who have, for instance , relevant recent expertise in court procedures and case management in domestic jurisdictions or, say, in the training of judges and the provision of advocacy training in the domestic context?

Should the ICC be co-ordinating its positive complementarity efforts more with other bodies, such as the African Union, the UN, and the EU?

The avowed strategy  in the new draft OTP Strategic Plan “to give increased consideration to the possibility of bringing cases that are narrower in scope, focusing on particular incidents, areas, or time periods, or a single accused and, in particular, when appropriate, bringing cases against notorious or mid-level perpetrators who are directly involved in the commission of crimes (rather than the highest echelons of a military or political apparatus) may be beneficial in the long run, but this strategy can only succeed if there is cultural change. As Douglas Guifoyle has remarked(most presciently in my view): “Improving internal processes and waiting for new leadership is unlikely to do the job. The usual wisdom in organisational reform is that culture eats strategy for breakfast. Institutional culture is unlikely to change rapidly in an organisation where most of the leaders are serving staggered nine-year terms”He has summed up the challenge ahead. Until there is a marked change in the management and culture of those delivering the food at the ICC breakfast buffet, strategy will be the first dish to be marked “off the menu”.