Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?

The self-inflicted misfortunes of the International Criminal Court continue. The recent Pre-Trial Chamber decision not to authorise the opening of an investigation in Afghanistan has already generated considerable controversy (see here, here, here, here and here). The rather surprising news that Judge Ozaki would be allowed to continue to serve part time on the Court while becoming Japan’s ambassador to Estonia has also drawn criticism. And, of course, on Monday the Al Bashir immunity decision was handed down. Amidst the hubbub, one other development has gone relatively unremarked. The first four presidents of the ICC Assembly of States Parties (ASP) have released a joint op-ed through the Atlantic Council entitled “the International criminal court needs fixing”. For present purposes, it is enough to note several key points.

The op-ed calls for “an independent assessment of the court’s functioning by a small group of international experts”. This call appears triggered by the Afghanistan decision which they see as expressing “a lack of confidence that the Court could successfully carry out the job.” The rest of the piece pursues two central points – and a cluster of worrying claims.

First, the authors assert it is time for the court to “clarify the legal standards it applies to its criminal proceedings, work on the basis of clear prosecutorial strategies and policies, end its endless internal squabbles, and address its management issues head-on”. This is powerful stuff. However, the equation is not one-sided.

Second, the authors call for “a new deal” between the Court and its member states. In particular, “States have to stand up for the ICC and its mission to be judicially independent, even or in particular in situations where that may be politically inconvenient. And states need to give the Court the resources it needs to do the job.” Instead, however, they see at present “too little genuine political engagement, too little diplomatic support …”

So far, so reasonable. However, much of the op-ed is devoted to claims which risk overstating the Court’s potential and its impact. We need the Court more than ever, the authors assert, because of “conflicts conducted with cynical disregard for human dignity and international law” in places “from Syria to Myanmar, from Yemen to South Sudan”. Of course, none of these states are ICC parties. The authors also credit the ICC with having a “strong positive impact” and helping to bring about peace in Columbia (which may be true, but is also contestable). Finally, the authors claim:

Public calls for accountability, with the ICC as its beacon, have enabled important innovation, such as the accountability mechanisms for Syria and Myanmar, where the Court’s reach did not extend. Victims around the world, sadly millions of them, look to the court as their best, and often only, hope.

I will address these issues below, in what regrettably will be another long post.* My core contention, however, will be that the ASP (including its past presidents) is not a bystander to developments. Rather it is time for the ASP to step up and exercise the supervisory responsibilities conferred upon it under Article 112 of the Statute. Before turning to this theme (and avenues for reform), I will offer a few thoughts on the choice of rhetorical strategy in the op-ed.

By its existence, the Court has changed the world

Defenders of the Court commonly claim it cannot win. There are too many potential criteria for success and it will always be found to fail on at least one. As Phil Clark has noted, however, the proliferation of norms which the Court is said to uphold – not least by the Court itself – also makes it impossible for the Court to lose. A favoured argument made is of the type deployed by the authors here: even where the court has no jurisdiction, it inspires; even where it never gets beyond a preliminary investigation, it has a decisive influence on peace; for victims, it is often their best and only hope. Claims that the Court changes the world simply by existing are a useful to the extent they are impossible to disprove. They become the means by which the Court can fail its way to success.

This rhetoric also invites a correlation/causation confusion. Former Prosecutor Moreno-Ocampo was fond of claiming anything positive which happened in a state where the court had an active situation must be the result of the Court’s intervention. The cases in Kenya might have collapsed, but election violence was not repeated – so the actors must have changed their behaviour because the Court was watching. As Clark notes, this vision of states under investigation, particularly African states, as passive objects affected only by external interventions is both profoundly patronising and leaves the Court blind to the extent to which its actions can be manipulated or politicised by local actors for local ends.

The assertion that the Court has had decisive impact where it either lacks the ability to act or has done nothing concrete also creates high expectations for the Court’s effectiveness more widely. To paraphrase Kersten: if the credibility of an institution is at least in part a function of the gap between its ideals and what it is able to deliver in practice, then widening that gap is unwise. Again, some modesty would be advisable.

Towards an independent, effective and accountable Court … by means of an expert enquiry and some new blood in 2021

The proposed inquiry

It is certainly important that four “elders” of the ASP have decided that the Court is in need of reform, have recommended a process, and that such a report be delivered in time for the election of “the next generation of [ICC] leadership”. However, it is worrying that at such a galvanising moment for change, the limits of political imagination appear to be an expert report.

Certainly, such reports have played a role in the past: most notably, the 2006 report of the late Antonio Cassese into the Special Court for Sierra Leone’s functioning. There has also recently been a special investigation and report by a single expert into deaths in ICTY custody. Technical improvements could certainly be identified through an expert inquiry into the ICC. The labour-intensive process by which victims must have their applications individually assessed under Rule 89 is an obvious candidate.

The suggestion, however, is that a thorough stocktaking of internal management structures coupled with an infusion of new blood will transform the Court. In this vein the authors note they have been “disappointed by the quality of some of [the ICC’s] 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.” The problem, it would seem, is largely internal court management and legal standards (presumably regarding evidence and its evaluation and the standard of review on appeal).

This approach manages to lack both realism and ambition. The first part of the authors’ “new deal” is that the court must become an institution worth backing, the second is that states must give it the support and resources to do the job. With respect, there have been 20 years in which this could have happened. It is hard to see why that should change now especially in, as the authors accept, a much more challenging political landscape than the post-Cold War moment of the Court’s founding. In this context, internal housekeeping will help, but will not be enough of itself.

A further reason this approach is unlikely to succeed follows from its deployment of universalist rhetoric. Yes, of course, the court would be more effective if it had universal participation and universal participation in an international criminal court is, at least in theory, a consummation devoutly to be wished. However, it is not possible to reason from an ought to an is.

The ICC is not a de facto universal court already empowered by higher international law norms such as a ius puniendi resident in the entire international community (as Kress has beautifully but unpersuasively argued). It is an intergovernmental organisation of limited competence in, unfortunately, every sense. Confusion between its universal aspirations and its contractualist underpinnings in treaty law pervade thinking about (and by) the Court. It results in missteps such as the Court’s increasing abandonment of complementarity as its founding principle and its increasing assertions that, in practice, it is for national systems to defer to its prosecutions rather than the other way around. The Rome Statute promised us a Court of last resort that would defer to genuine State prosecutions, not a Court of first resort which micromanages the conduct of national investigations and prosecutions.

If the Court wishes deeper support, both it and its supporters need to strike a new rhetorical balance between its universal aspirations and its contractual reality.

New blood

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. The elections to replace those with terms expiring in 2021 will result in six new judges joining an existing bench of 12 others, and a new Prosecutor who may be drawn from OTP ranks. There will be no complete break with the current epoch before 2027.

It is common enough to suggest that any given group of judges is out of touch. What is unusual is finding that the same group of judges has conducted an internal referendum on their competence to steer their Court through a legitimacy crisis. De facto, this was what the ICC judges did on 4 March 2019 by ratifying in a 15 to 3 vote a request by Judge Ozaki that she be allowed to continue on the Court part-time to finish work on the judgement in Ntganda while simultaneously serving as Japan’s ambassador to Estonia. That 15 of 18 judges saw in this nothing that would “affect confidence in [her judicial] independence” under Article 40(2) is jaw-dropping. The possibility that Ozaki presented her fellow judges with a fait accompli does not help. However, in a bizarre twist, having put the Court and her colleagues through this process, Judge Ozaki then resigned her ambassadorship on 18 April 2019.

We can also add to the catalogue of tone-deaf behaviour by ICC Judges the 2017 Beijing University Law School speech given by Judge Perrin de Brichambaut where he established a novel division of court membership into four classes: the “Europeans … who pay the bills, … The Africans who … provide the suspects and the accused”, the “odd” Latin American countries, and the irrelevant Asian States. (Japan, the Court’s single largest budget contributor, must be thrilled.) This is before we get to his remarks suggesting three trial judges decided in advance no interlocutory appeals in Bemba would be allowed because as civil lawyers they agreed such a thing “shouldn’t exist” and his pointed disparagement of specific and named lawyers appearing before him to represent victims.

This piece was, happily, drafted before the Appeals Chamber decision in Al Bashir on questions of immunity in surrender proceedings. I will therefore not comment at length on that decision and its finding a special rule of custom attaches to international courts stripping heads of state of immunity, nor the peculiarity of appending a 190-page joint concurring opinion signed by four of five judges to that decision, nor the curious practice of repeatedly cross-referencing from the Chamber decision to the joint concurrence. At a glance, however, the concurrence wholeheartedly endorses the Court’s universalism: an international court can be formed by ‘two or more’ States and such a court’s ‘universal character remains undiminished by the mere fact that any of the States entitled to join it elected to stay out in the meantime, or declined to consent to the court’s jurisdiction as the case may be’ (paras 56-57). Farewell nemo dat quod non habet and the court being founded in the consent of state parties.**

Improvements in judicial culture at the ICC are needed. The establishment of the ASP Advisory Committee on judicial nominations has helped somewhat. There is also the perennial debate as to whether the List A and List B system of judicial nominations (that is, nomination based on expertise in either criminal law or international law) needs reform. If running a criminal trial is 95% procedural law, such expertise is vital in ICC judges. On the other hand, the ICC Statute is a public international law instrument and many of its provisions cannot be (successfully) applied without a deep PIL background. The difficulty of the present system is the presumption that while both sets of expertise are needed on the bench, judges expert in only one can pick up the other on the job.

This is not good enough. Those seeking appointment to the ICC bench should be better prepared before they arrive. Legal careers and ICC appointment cycles are long enough that this should be possible. But how might it be achieved? One possibility is establishing a judicial college, through which current and past ICC judges – appropriately supported by ASP members – could cultivate a community of practitioners and scholars capable of succeeding them. Members of this college, committed to the Court and developed themselves as “rounded” candidates, might over time come to be the preferred pool of talent from which new ICC judges are appointed.

The ASP’s share of the blame

Finally, and most importantly, the ASP is not an innocent bystander to the Court’s present dysfunction. The ASP is the Court’s legislative and management oversight body (Article 112). It sets the rules of procedure and evidence (Article 51). It sets the elements of crimes (Article 9). It has power to establish, as it has done, a body to advise on judicial nominations (Article 36(4)(c)) and an independent oversight mechanism (Article 112). It elects the judges (Article 36). It elects the prosecutor (Article 42). Indeed, the only senior Court official not appointed by the ASP is the Registrar (Article 43(4)). However, the ASP’s management oversight functions are plainly intended to extend to all aspects of the Court’s mangement other than those impinging on judicial independence (Article 112(2)(b)).

If the ASP wishes to clean up the Court’s management, and the legal standards applied in judicial proceedings, then the tools are already within its hands.  Indeed, the ASP needs to be more muscular in asserting what Article 112 already establishes: the centrality of the ASP and its administrative arm, the Bureau, to the Court’s management and governance.

The ASP must remind the rest of the Court that while certain of its arms benefit from judicial and prosecutorial independence, the ICC remains, fundamentally, an intergovernmental organisation. It is an IGO founded in state consent and delegated jurisdiction. Idealists within and beyond the Court need to revisit the widespread and problematic assumption that the Court exists for victims and derives its legitimacy from them. The ASP should reassert that it is the authentic representative of the Court’s foundational legal authority: the state parties without which the Court would not exist.

I will sketch below some possible options for ICC reform. But the first step in any reform has to be the ASP accepting that it is the ICC’s legislative and oversight arm.

Avenues for reform

Briefly, for those of us wishing to be friends to the Court, options for reform may be grouped into three categories: realistic, ambitious, and idealistic. Realistic options are those which do not greatly depart from “business as usual”. Ambitious options are those which would require  substantial changes to working practices, attempts to re-orient priorities and culture, or which involve creating new mechanisms within the existing structure of the ICC Statute. Idealistic reform requires, first, formulating new ideas irrespective of (at least as a first order consideration) their political feasibility. This category will include all reforms requiring substantive statutory amendments.

The most realistic option is what has been called for: an independent expert inquiry. It is also, for the reasons I have outlined, perhaps the least likely to achieve its stated goal. (Though it might succeed in making modest improvements and efficiencies.)

More ambitious options involve the ASP grasping the legitimacy and responsibility conferred upon it by Article 112 as the Court’s legislative and oversight arm and articulating its understanding of the Statute’s goals and principles (such as complementarity) more clearly. This category could also include options such as streamlining victim participation (eg the problems around Rule 89); or establishing a judicial college to cultivate an “ICC-ready” pool of candidates for election.

Idealistic proposals must start with a clear sense of when international criminal tribunals work and why the ICC has struggled. As I’ve said before: international criminal tribunals require territorial access, resources and political backing to function effectively. As Bosco notes in respect of the tribunals for Yugoslavia and Rwanda:

[…] the ad hoc approach had the value of requiring sustained political support for investigations. Powerful countries committed time, money and leadership to creating those special courts. The states that funded the tribunals … offered political and even military support to help ensure enforcement of tribunal judgments. In time, that commitment produced results.

This can be contrasted with “an overstretched and ineffective ICC that dips into a variety of complex crises”.

Put another way, international criminal tribunals succeed when embedded in a particular context such that support can be mobilized. The ICC can’t succeed if it continues to be everywhere, doing everything, for everyone. How might we change that?

I am tempted by the idea that the ICC should not have been established as a permanent standing court with a seat in The Hague, but primarily as a mechanism for assisting the creation of special chambers in national legal systems with international elements (ie hybrid courts) with a small standing court attached. The present structure of the ICC encourages the OTP and Chambers to attempt an impossible form of even-handedness in the number and geographic spread of its investigations.

An international criminal court (or, perhaps, a commission for international criminal justice) established from the outset to facilitate delivering international justice within national systems may have avoided some of the difficulties the ICC has encountered. Obviously, the ‘hybrid’ tribunals have had their challenges and also risk being manipulated by local actors for local ends, especially perhaps the Extraordinary Chambers in the Courts of Cambodia. Nonetheless, such a structure would require more concentrated engagement from the court or commission with local conditions and the model would put the onus back on state parties to adequately support investigations and prosecutions.

Such amendments to the Rome Statute are plainly not realistic. But considering such possibilities may shift the Overton window of discussion. And steps in such a direction might be possible without statutory amendment. It is already possible for the Court to sit outside the Hague: Article 3(3); and for part-time Judges of the Court to take outside employment so long as it is unlikely to interfere with their judicial functions: Article 40(3). Thus, the Court could already either constitute Chambers dedicated to a particular situation which sit in those states; or ICC judges (once designated as part-time) could be seconded to hybrid tribunals. All of which is simply to say, significant structural changes and a new vision of complementarity may already possible.

Author’s note: *My thinking on these questions has been helpfully informed by Twitter exchanges with Dov Jacobs, Kip Hale and Sergey Vasiliev. Neither they, nor any government official has seen this piece in advance of its publication. The usual disclaimers apply.

**My views on this point are highly preliminary.