The demands for an “independent evaluation” through a small group of experts, formulated by four former presidents of the Assembly of State Parties of the International Criminal Court (ICC) and accompanied by several critical blogs (see, inter alia, here, here, here and here) is the outcome of several controversial court decisions and the Court’s manifest problem in its decision-making process, i.e., its serious governance problems.
Probably the most controversial decision, made on 12 April 2019, concerns the rejection by Pre-Trial Chamber (PTC) II of the Prosecutor’s application of the initiation of a (formal) investigation into the Afghanistan situation involving crimes allegedly committed by the Taliban, Afghan and US military forces. The PTC based its decision on a broad interpretation of the ambiguous concept of “interests of justice” (Art. 53(1)(c) Rome Statute) and the expected lack of cooperation by Afghanistan and the USA, allegedly resulting in limited chances of a successful investigation. Thereby the Chamber converts the interests of justice concept into a utilitarian efficiency clause which is predicated on the possible success of the proceedings. Not only is this difficult to reconcile with the rationale of the said concept but also incompatible with the wording of Art. 53(1)(c) which links the “interest of justice” to, inter alia, the gravity of the crime and the interests of the victims. Yet, both of these criteria speak for the opposite result than that reached by the Chamber, namely the opening of the formal investigation. For the gravity of the crimes is acknowledged by the Chamber itself and the victims’ interests are reflected by the submission of information by hundreds of them during the preliminary examination. If a Chamber considers that despite the existence of gravity and interests of victims “an investigation would not serve the interests of justice”, i.e. “nonetheless” (Art. 53(1)(c)) the existence of these criteria, it must show that there are more important “substantial reasons” which displace the prima facie interests of justice (derived from gravity and victims’ interests) in favour of opening a formal investigation. In other words, while the term “nonetheless” makes clear that there may be countervailing considerations which may speak against the opening of an investigation despite gravity and victims’ interests, these countervailing considerations must be thoroughly substantiated and, at any rate, do not turn the interests of justice clause into a mere, free floating policy factor which gives a Chamber an unfettered discretion (see also Ambos, Treatise International Criminal Law Vol. III, 2016, p. 390). The present Chamber fails to grasp these complexities and therebyshows a lack of sensibility with regard to the “interests of justice” concept. Thus, it is not surprising that the decision has met serious criticisms in the international criminal law blogsphere (see here, here, here and here) and the Prosecutor filed a leave to appeal request on 7 June 2019. The most recent Appeals Chamber decision from the 6 May 2019, denying the personal immunity of the then Sudanese President Al-Bashir and interpreting the non-immunity rule of Art. 27 Rome Statute as one of customary law, has also received some criticism (see here and here) but ultimately deserves support (see here and here) since it confirms the historical (Nuremberg) trend of non-immunity in international criminal justice.
At any rate, judicial decisions always give rise to criticism and are indeed welcome objects of academic controversy. Thus, controversial judicial decisions do not pose an existential threat to a solid judicial institution but the already mentioned governance issues do. The failures of the Office of the Prosecutor are well-known. The criticism of the often absent chief Prosecutor Fatou Bensouda and regarding the Office’s lack of investigative skills is getting increasingly louder. Some judges are fighting publicly, e.g. about the position of the presiding judge in the Appeals Chamber. Some judges criticize decisions of their colleagues publicly, even if they sat together in the same Chamber; others complain about their low income. The latest scandal about the Japanese Judge Ozaki is downright absurd: during the ongoing trial against the Congolese paramilitary leader Ntaganda, she accepted a job offer as the Japanese ambassador to Estonia, without first stepping down from her judicial office. This was accepted by a majority of her fellow judges, although the Statute (Art. 40(3)) explicitly prohibits that judges have other occupational duties; probably due to the increasing international condemnation, the president of the court announced on 1st of May that Ozaki had resigned from her diplomatic post. There is a climate of rivalry between the judges which also affects the legal officers. Some of them, including very experienced ones, leave the court; others try to switch to another unit.
All this has also an impact on the quality of judicial decisions and brings back the old debate on the election criteria for judges. According to the current rules, a person may be elected as a judge if s/he either possesses special competences in criminal law and procedure (Art. 36(3)(b)(i) Statute, “list A”), especially of a practical nature, or brings with him/her the skills in international law that are relevant to the “judicial work” of the Court (Art. 36(3)(b)(ii) Statute, “list B”). At the beginning of the Court’s existence, the international law track could still be justified given that the position of an ICC Judge did not only require the skills of a criminal trial judge but also organizational and diplomatic ones, e.g. concluding bilateral agreements or planning and moving a new court building. However, this situation has changed with increasing judicial and trial activity. Thus, today, the Court needs, above all, experienced criminal lawyers with the appropriate practical experience (as rightly pointed out, although in passing, by Dov Jacobs). In light of the current challenges of an ICC Judge, the international law track does not seem to be any longer justified and should be abolished. This is, of course, not to say that ICC judges do not need basic knowledge of international law – they do (as rightly pointed out by Dire Tladi in response to Dov) given the various international law sources and issues of International Criminal Law – but to keep that requirement we do not need the whole list B track; indeed we should close that door since it has too often been abused to present candidates who had no practical judicial experience at all but were former diplomats and thus close to the executive power. Instead, the election criteria should be limited to the ones reflecting criminal law and trial experience, with the additional requirement of (basic) knowledge of international (criminal and humanitarian) law. Of course, an amendment of the Statute is extremely difficult and therefore unlikely. At any rate, the focus on criminal law and trial experience could already be achieved by rightly interpreting the current list B provision given that candidates must always have capabilities that are important for the “judicial work” of the ICC. And these are primarily the aforementioned criminal law/trial ones.
Of course, any reform of the election criteria, as well as the actual election procedure of the judges, would have to be monitored closely. In this respect, the Advisory Committee on Nominations of Judges, that met for the first time in 2013, would have to be strengthened since its decisions are so far only recommendations but not binding. This Committee needs to have an actual filter function, it must be able to reject obviously unsuitable candidates. It is unacceptable that every applicant for a regular staff position at the ICC has to pass a professional examination, but that the judges are not even checked for sufficient command of the working languages English/French, let alone their knowledge of (international) criminal law. Insiders complain that some judges at the ICC are not familiar with the basics of international criminal law, for example, the difference between the Court’s jurisdiction and the admissibility of proceedings or the definitions of the international core crimes.
To fully implement the aforesaid effective filter function the Committee must consist of independent experts and not primarily of former ICC judges (which is currently the case). In addition, national candidates for judges should be selected in a two-stage, publicly advertised, national-international selection process. An example could be the selection procedure which was used for the Kosovo Specialist Chambers (KSC): a pre-selection at the national level (although this was handled with varying seriousness by the participating States) and then at the international level (EU) where some of the nationally selected candidates are shortlisted and then invited to a selection interview. A similarly transparent and competitive procedure should be adapted for the ICC chief-prosecutor and her deputies. Germany, as the second-most-important contributor to the ICC, ought to push forward these reforms and support the demands for an independent, external evaluation of the ICC. When selecting its own suitable candidates, Germany and other State-Parties should use a transparent procedure based on a public call (as already done in the United Kingdom).
Note: This piece is a revised version of an article first published in German in Frankfurter Allgemeine Zeitung on 6 June 2019.