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

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. herehere 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. 

The Mechanism considers some of these recommendations as reflecting ‘ongoing commitment’ or as already implemented (e.g. R17) at the Court. Here, at least two recent developments are of note: the appointment of the ICC Focal Point for Gender Equalityand the OTP’s establishment of the Ad Hoc External Panel on Workplace Culture. Both initiatives are aimed at improving working culture, the latter focusing on (sexual) harassment, discrimination, retaliation or ‘any other form of misconduct’, although the exact terms of reference are not public. The Focal Point, on the other hand, is tasked with monitoring the ICC’s gender equality efforts, advocating on issues impacting women and gender, and advising on gender parity targets. The upcoming ASP session should show whether these initiatives will be sufficient to address the prioritised recommendations, or whether additional steps in implementation are necessary.

II.             Internal Grievance Procedures

Relatedly, the Action Plan highlights a number of recommendations on the avenues for addressing workplace misconduct – internal grievance procedures (R115-121, 129-130). In relation to this, the IER report is unequivocal: the avenues for staff to make use of the disciplinary regime are acutely limited (para. 305).The Report also highlights the extreme difficulty of relying on internal mechanisms regarding the misconduct or misbehaviour of a Judge: ‘The perception is that they are all immune’ (para. 302). In this regard, the prioritised recommendations not only propose a unified internal justice system for all staff, non-staff, former staff, and elected officials, but also recommend handing over the settlement of disputes to professionals (to replace current staff-operated mechanisms). Furthermore R117-R121 put forward a mediation and dispute settlement process involving the appointment of an Ombudsperson, First Instance Dispute Judges (a non-permanent position), and the stronger involvement of ICC human resources staff. 

Several steps aimed at implementing the recommended changes are in progress. The appointment of the aforementioned Focal Point is one component, in addition to which the Court is also seeking funds for ‘consultancy costs for an ombudsperson’ (para.349). Review of the Independent Oversight Mechanism has landed on the ASP agenda as well. What we shall not yet see are any plans for a solution to the discipline and judicial accountability of Judges, with R126-127 scheduled for assessment in 2023

III.           Office of the Prosecutor

With a new leader at the helm, the OTP is the organ undergoing the most visible change. Keen observers will have noted the modified OTP structure, recent prosecutorial decisions, and the upcoming election of not one, but two deputy prosecutors. This might cause some difficulty for the assessment of the OTP-specific recommendations, although the Review Mechanism considered the upcoming change in leadership at the time of its drafting (e.g. R226-227). Among the recommendations prioritised for assessment before the end of 2021, three areas stand out: (i) the selection and prioritisation of cases and perpetrators (R232-R242); (ii) preliminary examinations (R251-R261, R265-267); (iii) internal quality control mechanisms (R305-319). 

Regarding (i) and (ii), the Prosecutor is reportedly conducting ‘a comprehensive review of all preliminary examinations, investigations and prosecutions, as well as of the OTP’s Policy on Case Selection and Prioritisation and the newly adopted Policy on Situation Completion’ (para.23). As such, it might be too early to see much change (beyond adjustment of policies) by the start of the upcoming ASP. However, we have already seen a controversial narrowing of the Afghanistan investigation and a conclusion of the long-standing preliminary examination into Colombia, perhaps illustrative of the new approach to decision-making. 

As for internal quality control mechanisms, no details as to the means of improvement or assessment are provided in the Action Plan. In the meantime, the Court,  in its response to the IER, considers the  relevant recommendations as reflecting the principles set out in its policies (R305, para.596) and best practices (R311, paras.606-607), or that are already ‘actionable’ (R313, para.615). Notably, the IER report too has prioritised the recommendations regarding evidence reviews and implementation of the lessons learnt processes (R305, 311, R313, Annex I para.60). Seeing them prioritised by the Review Mechanism might indicate an agreement with this self-assessment or be read as an instruction to provide further information for assessment by the end of the year. 

Regarding the overall changes to the OTP, perhaps the most obvious and far-reaching is the planned reorganization of the Office, which, while designed to ‘improve its capacity to conduct its core activities’ and enhance ‘the workplace environment’ also aims to address ‘many of the recommendations of the IER’ (para.26; for an organigram of the proposed OTP structure, see p.32 of the budget proposal). The Prosecutor intends to do away with the Executive Committee (ExCom), Divisions (and the Division directors), assigning most of the staff into ‘Prosecution pillars’, grouped into ‘Unified teams’ of lawyers, investigators, analysts, and other staff. The Prosecution Pillars are to be led by senior coordinators and report to one Deputy Prosecutor each (the two Deputies will also be elected during the upcoming ASP), with additional changes made to the preliminary examinations section (as proposed in R251-253, p.227). Removal of ExCom and strengthening of the Immediate Office of the Prosecutor reflects the Prosecutor’s vision of a more streamlined, efficient OTP, but the extent to which it addresses the IER recommendations is to be assessed once sufficient time has passed for the effects of the changes to become visible.

Looking ahead: Evaluating Implementation & Transparency of the Process

Evaluating the recommendations throughout the Review process is as important as the recommended changes themselves. As mentioned before, a number of recommendations are already reportedly implemented or reflecting current practices, and identified as ‘low hanging fruit’ for assessment (e.g. R232-235, R237-239, R251-R253) in the Court’s response, as well as the Action Plan.However, the Review Mechanism does not specify how and with what criteria, measures, and methods the implementation is being assessed and qualified as ‘ongoing’ or, in the future, as ‘implemented.’ 

Considering the difficulties inherent to changing institutional culture, this is worrying. The Mechanism should consider (at least): (i) what specific methods of evaluation are appropriate for assessing implementation of recommended changes; (ii) how, and to what extent, Court staff and other stakeholders might be involved in the process. 

Evaluation methods, and the data needed to assess the broad range of processes might vary depending on the nature of the recommendations, the extent of structural, workflow, or policy impacts, and their priority status. Here, the Mechanism might consider structural changes as implemented once the adjusted structures are fully functional, while workflow adjustments might necessitate long-term information from staff impacted by the change. Likewise, it would be wise to consider the extent to which policy documents must be implemented for the underlying recommendation to be assessed as complete. Issuance of documents on its own is hardly sufficient, and a longer-term monitoring of daily implementation is key. Among the many options, the Mechanism might consider developing an overall strategy of Review evaluation, periodic strategic adjustments, feedback opportunities for and from staff (e.g., staff surveys specifically regarding institutional change), as well as a possible re-evaluation at the end of the three-year cycle. 

The information required to assess much of the institutional and workflow change lies with the Court staff and non-staff members, civil society, and others upon whose contributions the IER Report has been built. We must not forget that all institutions are made up of people, and people will make or break the Mechanism’s intended strategies. Without internal buy-in, the process risks becoming forgotten, misunderstood, restricted to high-level meetings and unsupported decisions. In order to truly consider the extent of the Review implementation, the Mechanism would do well to solicit information beyond new policies and guidelines, and into the everyday compliance with them. This might also open up avenues to adjusting the Review strategies and discontinue changes that prove to be counter-productive to the goal of a more effective and efficient system. Finally, considering the priority of shifting workplace culture towards a more inclusive space, the Mechanism would do well to show an example.  

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. 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).
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2 Responses to A Sea Change or Business as Usual? The Review of the International Criminal Court Continues

  1. El Roam says:

    Thanks for that useful post and information.

    To read about alleged sexual harassments in the ICC? that is very bad. Such international institution, should serve as example.

    This is very disappointing.

    Thanks

  2. We actually live in an era where there are Human Beings practising their version of religious beliefs that not only condone Rape as a Form of divine worship and the Revival of Slavery as Reinstating divine obedience.

    These sick criminals are attempting and will continuously attempt to justify & legalize crimes on the pretext of religious divinity.

    The laws must remain Secular. Especially Criminal Laws. This is where international institutions such as the ICC has the pivotal role to play in ensuring that the perpetrators of atrocity crimes are tried and punished. Impunity must not be left to gain strength.

    https://www.seattletimes.com/nation-world/isis-fighters-rape-enslave-yazidi-women-girls-in-the-name-of-religion/

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