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.
Stewart picks up on Wilson’s comments on State cooperation. He agrees entirely that cooperation is critical to the Court’s success. But he emphasises that “a lack of cooperation in any given situation is not always going to be the overriding factor in the Prosecutor deciding whether to open an investigation”. For example, the likely lack of cooperation from Burundi following their withdrawal from the Rome Statute did not result in the Court deciding not to investigate the allegations of Rome Statute crimes there. In such scenarios, there remain a variety of investigative methods, for example by relying on the cooperation of other States.
In responding to the various points made, Sarah Nouwen notes that “the ICC’s greatest achievement remains its existence”. But the high expectations created in Rome about what the Court would deliver, and “consistently reinforced by the Court’s own statements”, is self-defeating because “the ICC will never be able to meet such lofty aims”. This is particularly problematic, she says, when “it is not clear that the Court’s stakeholders all have the same interests”. The criticism from States, situation countries, defendants, victims and affected communities, and academics converge behind a common theme, namely that the Court “does not do enough justice”. But what this means to each varies. For example, for a State Party which is a major funder, the key issue is the Court’s record on retributive justice, which is considered an insufficient quid pro quo for the money put in. Others, including many African States Parties, say there is insufficient distributive justice in the sense of distributing blame; in other words, the Court is too selective and should be more ambitious in pursuing powerful States. Victims in Kenya have complained about the lack of restorative justice. Where, they ask, is the Trust Fund for Victims in their communities, having promised to establish a presence there following the 2007-08 post-election violence many years ago? Equally, when we hear about reform and review, and “putting the Court back on track”, this means different things to different parties. Even the simple mantra of “fighting impunity” is complex: surely a call for more convictions for Rome Statute crimes merely provides an incentive for the Court to go after cases where it can more easily obtain a conviction, and therefore shift its focus to self-referrals and doing exactly what states parties want the Court to do. But such a practice has led critics to say that the ICC has become the “International Court of Convenience”. An alternative understanding of “fighting impunity” is targeting those who sit above or beyond the law such as Heads of State, rather than simply where there is an absence of punishment, for example, for low to mid-ranking soldiers. This is because even in a domestic justice system it is accepted that the State cannot prosecute every crime. But this means prioritising the hardest cases, where obtaining cooperation will be a real challenge.
On where Wilson sees the Court’s priorities, he recalls that the UK in its ASP statement in 2018 said that “prioritisation is not a dirty word”, and feels that the ICC should focus on its status as a Court of last resort. This means that “the ICC should not try to be a human rights monitoring mechanism” that seeks to second guess ongoing national processes. On the specific question of the resources the Court requires to fulfil its mandate, Wilson disagrees with the criticism from Judge Geoffrey Henderson in the case of Laurent Gbagbo that the ICC is not sufficiently resourced. While he accepts “the UK should not be immune from well-evidenced requests for more funds”, Wilson notes that having been responsible for negotiating budgets in the UN for many years, and also within the UK Government, there will always be a call from some quarters for more money. But, he says, there must be “parameters, limits and strategies on how the limited resources available are to be used to their best effect”.
Stewart responds that he fully accepts that the OTP has to justify the resources it seeks in order to build trust among States. He desperately wants to believe that being able to demonstrate the effective and efficient use of funds will result in greater investment in the longer term. But in the last few years he fears budget discussions have taken on an “unnecessary and unfortunate adversarial tone”, which is “dismaying”. “Of course, the OTP sets priorities,” he says. This is “a matter of common sense”. But the squeeze on its finances means that “we do not have the depth or flexibility required to conduct our work in the most efficient and nimble way, which ultimately, and paradoxically, costs States more money”.
On the question of resources, Fernandez describes budget discussions as “extremely painful”, for a number of reasons. First, because of the Court’s own internal processes, and the difficulty in aligning all the organs of the Court behind a single vision. For too long the budget proposal put to States was seen as simply “the sum of every organ’s wish list”. “There must be coherence”, she says, and achieving this was one of her main aims and achievements as President. But it is a difficult process, she recalls, because, during her tenure, before the budget proposal was even presented to States, she had always felt, much like Stewart, that “the largest funders had already decided how much they were willing to pay”. So, there was not a discussion or genuine negotiation on what the Court needed, but rather a demand from States requiring the Court to decrease its request to their desired, arbitrary level. At the same time, Silvia is sanguine in expressing sympathy with the position of States: budget discussions had to be seen in the context of States’ financial constraints, as well as the Court’s performance – the criticism it receives and the perceived lack of results clearly taints the views of States and affects their willingness to pay. But she agrees with Nouwen that the ICC should not become the International Court of Convenience where the Prosecutor pursues the easy cases – the “small fry”, as she puts it. While self-referrals helped establish the Court’s workload in the early days, Fernandez agrees with Stewart that the Court cannot consider whether there would be cooperation before deciding to proceed with an investigation. “Cooperation is not static,” she says, evidenced by the fact that the first arrest warrants the Court issued resulted in a surrender ten years later.
But isn’t this the central dilemma for the ICC, I ask? How can the Court succeed in a context where it relies on a State’s cooperation to enable the investigation and prosecution of its own nationals? Nouwen’s answer is that the Court needs to step back and consider its definition of success. All too often, the Court gets blamed, and sometimes even accepts the blame, for what is outside its control. For example, the Court cannot be blamed for the high number of fugitives, which must be a burden for States to bear. The Prosecutor should instead define success through the quality of its investigations. Nouwen recalls that the Court found this was lacking in the case of Laurent Gbagbo, with the Trial Chamber’s judgment revealing the OTP’s real lack of understanding of Ivorian society. Here, the ad hoc tribunals had a clear advantage, because both the ICTR and ICTY spent all the years of their existence seeking to understand a single conflict. Nouwen accepts that the ICC does not have this luxury.
Wilson also notes that the quality of Judges is vitally important to the Court’s success. It is vital that States put in place the most transparent and rigorous process for the nomination of judicial candidates. He also urges States Parties to enhance the role of the Advisory Committee on Nominations (ACN) so that it reports on the quality of the judicial candidates much earlier in the process, allowing States more time to assess the pool, and call out those who are clearly not up to the job.
Fernandez agrees that the nomination and election process for Judges must be improved. But States have to raise their game: it took over ten years for the ASP to establish the ACN, and only after NGOs had been running their own scrutiny process for some time. “The Court needs – and has – good Judges who will take the necessary steps to ensure more cohesion, collective discussion and collegiality,” she says. The situation is not helped however by the fact that every three years six new Judges join the Court, which means that “efforts towards ensuring a more collegiate judiciary must be restarted”.
On collegiality, Nouwen argues that the lack of civility in judgments has provided the Court’s critics with ready ammunition. Nouwen observes that the vast majority of the Judges’ time seems to be spent on infighting and internal politics. But she also picks up on the legal content of decisions, which she describes as “frequently self-contradictory, thereby undermining confidence in the law”.
As to how to resolve the broader issues afflicting the Court, Nouwen argues that while the Court needs greater ambition in certain areas, it must remain modest in others. She singles out in particular the need for more in situ trials – such a development would be beneficial for the affected communities, and also for the Judges in their assessment of complementarity if they can see the difficult nature of implementing justice in some of the Court’s war-torn situation countries.
Stewart notes that the OTP has advocated in situ hearings in the past, most recently in the Dominic Ongwen case. But, more broadly, the OTP is now trying to ensure a greater and longer presence in situation countries, in order to build contacts and networks. He hopes that this will serve to build confidence among affected communities, bringing justice closer to where the crimes have been committed. This wouldn’t be easy, he says. “The OTP must tread carefully because many situation countries are terribly divided: this creates challenges which have to be handled sensitively”. He notes one particularly good example of an initiative to bring affected communities closer to the ICC justice process was a Danish initiative to bring leaders from Northern Uganda to The Hague, and also to have the hearings live-streamed in villages.
More broadly with regards to in situ trials, Stewart notes that security is a critical issue. In the case of Thomas Lubanga, the Government told the Court that it could not guarantee ICC staff safety. This is not something which can be ignored. Fernandez adds that the additional layers of security that would be required for ICC judges and staff in some situation countries would have meant isolating the Court “in a way that would have created the very distance an in situ trial is designed to eradicate”. Nouwen accepts these concerns but points out that Court’s focus on security has been noted and criticised by victims groups, particularly in Kenya where this is perceived as “ICC lives being worth more than local lives”. On the issue of court reform, Wilson sets out three areas he considers a priority. First, strengthening the professionalism within the Court. In this regard, he notes that the upcoming elections for a new Prosecutor and six new Judges will be critical. Second, enhancing the efficiency of the Court. This means that in setting out the areas in which it wants to do more, the Court first has to consider where it can do less before more resources are granted. Third, improving the relationship and interaction between the Court and States Parties, including on complementarity and enforcing the duty of cooperation. In this respect, Wilson sees as a model the close dialogue between the European Court of Human Rights and national judiciaries.
For Fernandez, the efficiency of proceedings should continue to be the Court’s priority, as it was under her leadership. In particular, there should be a renewed focus on the harmonisation of practices within the Pre-Trial Division, which have been divergent in the past, and as a result don’t serve the purpose of ensuring the best preparation for trial. Continuity between the Pre-Trial Chamber and Trial Chamber is therefore key, and this best practice is now reflected in the Chambers Manual. But “it still has to be applied consistently,” she stresses. Another urgent priority for Fernandez is the need to streamline the process of victim participation, and the reparations process in particular. But Fernandez also notes the “increasing tension” between the Office of the Prosecutor and the Judges and agrees that judicial language in recent decisions is “unhealthy”. Part of the solution is for Judges to modernise their Code of Conduct to regulate interaction between themselves, the parties and participants, and States.
Stewart says that the OTP has embraced the review process, but he hopes that external experts will look favourably upon the OTP’s genuine achievements over the last seven years, which he feels those outside the institution, perhaps even the esteemed former ASP Presidents, do not fully understand. “The OTP today is not the same OTP as when Fatou took over,” he stresses. However, Stewart believes that the OTP is not satisfied to rest on the progress made; it wishes to continue improving its performance.
Two months after this panel, the ASP agreed on a panel of experts to conduct a review of the Court, which will report in advance of the next Assembly in December 2020 This Assembly will also elect a new Prosecutor, six new Judges, and a new ASP President. Within three months of these elections, the Court itself will also have a new President. This is undoubtedly a critical period for the ICC, during which its performance, as well as the support it receives from States Parties, will continue to be heavily scrutinised.