The International Criminal Court Independent Expert Review: questions of accountability and culture

The Independent Expert Review of the International Criminal Court commissioned by the ICC Assembly of State Parties (ASP) reported on 30 September 2020.* (Final report here, background here.) There were concerns this could be a dry, technocratic report. It is not.

It is frank and forthright in setting down in black and white what many insiders or court-watchers knew. It will have made for very uncomfortable reading in most quarters. Nonetheless, it appears a scrupulously fair and extraordinarily detailed account of the Court’s operations and internal problems. For all its length, its style is admirably lucid and to-the-point.

The report runs to 348 pages and 384 recommendations (about 76 of which are “prioritised recommendations”). Here I would like to focus on two elements: one macro, one micro. At the macro level the experts suggest a new way of conceptualising the ICC as a complex institution and suggest reforms to its governance and oversight. These have some potential but would require amendments to the Statute. I also fear they may embody an inflated conception of what judicial and prosecutorial independence require and cut too far into the legitimate management role of the ASP. Indeed, part of the reason one must be sceptical of immunising the judges and prosecutors from too much scrutiny is what the report identifies at the micro-level: a workplace culture characterised by “bullying” and a climate of “extreme fear” created by the ICC’s own leadership.

I should emphasise that the report is extremely broad ranging and there is much more to learned by studying its account of the administration of justice, the operation of chambers, and the work of the Office of the Prosecutor (OTP) and of the Trust Fund for Victims. What I set down here are simply early thoughts about issues of particular concern to me given my previous writing on this topic for this blog and elsewhere.

Governance structure

The report notes (para 26): “the ICC is both a judicial entity (ICC/Court) and an international organisation (ICC/IO). As a judicial entity, the Court must benefit from judicial independence. As an international organisation, States Parties reasonably expect to be able to guide and shape the institution.”

From this lucid starting proposition (with which I entirely concur) a “Three Layered Governance Model” is proposed. This boils down to proposition that there are three layers or pillars of ICC functioning:

(1) core judicial and prosecutorial activity which “require absolute independence” and the only supervision of which should be through judicial proceedings (eg appeals) (para 28);

(2) broader concerns of the administration of justice, activities carried out by the Presidency and the OTP which should be subject to a new oversight mechanism – a Judicial Audit Committee made up of “current or former, national or international judges and prosecutors with relevant experience” and convened as necessary (R3); and

(3) the administration of the ICC as in international organisation concerning of personnel and budget matters, headed by the Registrar and accountable to the ASP and the Court’s Independent Oversight Mechanism (IOM).

There are, for me, several problems in this approach. It appears to embody the idea that judicial and prosecutorial independence are endangered by accountability mechanisms going beyond judicial processes (eg appeal) under pillar (1) or external audit under pillar (2). No obvious role is given to the ASP or IOM as oversight mechanisms other than in pillar (3). I do not think this is tenable.

Certainly, a very narrowly understood scope of activity within (1) should be immunised from any oversight outside judicial process (Prosecutorial decisions about which situations to investigate, who to charge, judicial decisions in individual cases etc). However, in all other matters – including broad questions of the running of the Court which would encompass much falling within pillar (2), the ASP has a clear management oversight mandate. Article 112(2)(b) of the Rome Statute states the ASP is to ‘[p]rovide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court’. Indeed, as the body which sets and amends the Rules of Procedure and Evidence the ASP is already rightly implicated in pillar (2) activity as the Court’s legislative arm.

Does this ASP role run contrary to judicial independence? As I have argued elsewhere (drawing on the work of James Crawford and Joe McIntyre) judicial independence is not an end in itself but a means to an end: impartial judicial conduct. This end is supported by judicial accountability mechanisms which ensure impartiality. Judges exercise discretionary power, and under the rule of law no discretionary power may be “unlimited or uncontrolled” (Crawford and McIntyre).   Commentators on the Court often take a rather romantic or absolutist view of what judicial independence requires, failing to note that judges of the ICC are already subject to less disciplinary oversight than in many democracies (Guilfoyle, p.45 at n. 295). (For a rare piece on oversight of the Prosecutor see Turner’s 2012 article).

Pillar (3) certainly includes uncontroversial management matters that should be within the purview of the IOM and ASP. Making the Registrar responsible for all of them might require statutory amendment insofar as, for example, Article 42(2) provides that “The Prosecutor shall have full authority over the management and administration of the [OTP], including the staff, facilities and other resources thereof”. Perhaps anticipating this objection, the Report suggests the Prosecutor could delegate functions to the Registry (R6). More generally, at present the Registrar is not accountable directly to the ASP. The Registrar is elected by the judges and is dependent on them for re-election: Article 43(4) and (5). However, the “Three Layered” model expressly contemplates the Registrar would remain accountable to the judges under pillar (2) but report to the ASP under (3).

It is also not clear where, in this governance structure, allegations of serious misconduct against judges or senior OTP members would be dealt with. Do pillars (1) and (2) insulate them from such oversight, or should this fall within the standard HR policies administered in pillar (3)? If the latter was intended, which seems highly unlikely, it would be the Registrar who purportedly had responsibility for such matters. And this is a real question given what comes next.

Workplace culture

It is one thing to hear rumours and anecdotal accounts of how bad things can get at the ICC. It is another to see it spelled out in black and white. Before highlighting some very concerning findings it is worth underscoring that the report is not some one-sided hatchet job. It emphasises repeatedly the dedication and sincere commitment of those who work at the ICC. It also acknowledges that some causes of low-morale are structural (the ICC has limited capacity internally for career advancement, see e.g. para 82) and tartly observes that “The Hague is a comfortable expat city and a non-hardship duty station … [there is a] need for staff to have reasonable expectations as to what an international, culturally diverse, non-career bureaucracy can offer” (paras 68-69). This makes what follows the more remarkable. Comments on the working climate and culture at the court largely speak for themselves. They include:

“The Court appears to suffer internally from distrust … and a culture of fear” (para 62).

“The Experts heard many accounts of bullying behaviour amounting to harassment in all Organs of the Court, though particularly in the OTP. They also heard frequent complaints … [of an] adversarial [workplace culture that is] implicitly discriminatory against women. They heard a number of accounts of sexual harassment, notably uninvited and unwanted sexual advances from more senior male staff to their female subordinates. Female interns seemed to be particularly vulnerable to such approaches …” (para 209)

“In the Experts’ assessment, there is a general reluctance, if not extreme fear, among many staff to report any alleged act of misconduct or misbehaviour by a Judge (and in general, by a senior official). The perception is that they are all immune” (para 302).

“[T]he Court is widely perceived from within as too bureaucratic, too inflexible, and lacking in leadership and accountability. … [A] risk adverse environment seems to dominate, where leaders avoid or delay taking responsibility when needed, priorities change and accountability is lacking” (para 63).

“On the one hand, there appears to be an approach of self-perceived aristocracy from some Judges, treating staff as ‘commoners’. On the other hand, there appears to be a tendency of lack of consideration of Judges from some legal staff. … [I]n the current working environment, some legal staff, having been at the Court for more than 10 years, might consider themselves as being more competent than an incoming Judge” (para 74).

It goes on in this manner in some detail. It is both breathtaking and, frankly, angering that those entrusted with the stewardship of an important international organisation which aims – at a very basic level – at justice and fairness have failed so egregiously to foster those values internally. The description is one of a workplace so toxic it results in many instances of “extended sick leave, including for burnout” (para 66).

Conclusions

It will be interesting to see the response, if any, from the Court’s leaders. It is an organisation that tends to come out swinging when criticised. We have seen this in the past in the absurd ‘Q&A document’ response to the Al Bashir immunity decision or the OTP’s ‘nothing to see here’ response to the independent inquiry into the collapse of the Kenya Cases.

Nonetheless, there is much more that merits attention in the report including the performance of Chambers (the judiciary), the OTP and the ASP; and some very interesting observations on the need to rebuild trust both within the ICC and between it and the ASP. I hope to turn to these matters in future posts. In the interim, one would have to observe that there is a great deal to praise in such a frank, fearless and thorough report. It has much to commend it as a review mechanism that other international organisations should consider.

* I write here in a purely personal academic capacity and note that no government official had sight of this post prior to publication. I would like to thank Barrie Sander, Hemi Mistry and Yvonne McDermott Rees for comments on a draft of this post.