In the opening days of the Review Conference, one often heard references to the Review Conference as an “historic event” and a “second constitutional moment”. With the significant exception of the possible adoption of the crime of aggression, which would indeed be a profound development, there is reason to ask whether the Conference is more a “constitutional moment” or just “another day at the office”.
My first blog highlighted the potential value of the stocktaking exercise. Amending attitudes and understandings could prove as important, or more important, than amending the Statute. I remain positive about the idea of stock-taking, the topics selected, the format adopted and the prominent panelists invited to open discussions.
However, given that the venue is a Review Conference, and given that the stocktaking is in part a substitute for actual amendments to the Statute, one might have hoped that the delegates would at least tackle a few issues of comparable difficulty and significance and take some meaningful decisions about their vision for international justice. Instead, the discussions among States have adhered quite closely to safe, well-worn and self-congratulatory scripts.
Thus, for example, in the discussions on peace and justice, most States intervened to deliver an essentially similar message: Peace is good. Justice is good. Peace and justice are not contradictory. Except perhaps sometimes when they at least seem so, and such situations require careful thought and handling. The last point is typically made in a knowledgeable tone hinting that the speaker has a few deep insights into how this is done (and giving the sense that different delegations might handle the balancing in very different ways). Repeat 40 times in different voices and languages, with no real delving into controversies or solutions.
Similarly, with respect to complementarity, we are treated to the insight that States should do more to carry out their own investigations and prosecutions and should help each other to that end.
What are the tangible outcomes? With respect to “impact on victims and affected communities”, discussions will result in a pre-packaged, safe and anodyne resolution confirming that States Parties will continue to do the obviously valuable and sensible things that they have been doing. On “peace and justice”, no resolution or declaration will be adopted. On the live issue of “positive complementarity” – ie. precisely how far may the ICC go in encouraging and supporting national systems — States Parties will agree to ask the Court for a report and to consider the matter further. It is probably a sound decision to seek input from the Court before making any further decisions. However, a decision to request a report and consider the matter further is hardly historic or visionary.
There are still several positive things to observe about ‘stocktaking’. First, it has elevated awareness among participants to at least a very basic common understanding and vision of the role of international criminal justice in complex contexts. While the mantras have been basic, they do reflect a solidifying common vision about the need for strong State engagement and have identified a few priority areas. Second, States seem to have overcome the “set it and forget it” attitude that was common after the creation of the ICC (i.e. that having created the ICC, there was nothing more for them to do on international justice). Attention is now focused on what States can and must do to strengthen cooperation, to promote effective national proceedings, to support the Court politically, and to assist with victim reparations. The stocktaking, pledging ceremony, and other panels and discussions have led States to undertake an array of commitments to strengthen the system, particularly with respect to cooperation. Third, the repetition of lip service should help lead to an internalization of those ideas and commitments.
Fourth, and finally, one must be grateful that States are at least not taking steps in the wrong direction, and that they are indeed peering pensively in the right direction.