The International Criminal Court Independent Expert Review: reforming the Court: Part I

Editor’s note: This post is Part I of a three-part series.

I was fortunate enough to attend the 18th International Criminal Court Assembly of State Parties (ASP) in The Hague for four days from 2-5 December.* A number of themes were apparent in the general debate as well as other panel discussions in plenary. External political challenges to the Court were widely noted (and in especially dramatic terms by the President of the Court). There was an obvious and high degree of consensus around the (successful) Swiss amendments on intentional starvation as a war crime in non-international armed conflict, the importance of the Court maintaining a focus on sexual and gender-based violence, the need to achieve greater equitable geographic representation and gender balance across the Court’s staff, and the importance of strengthening the process for the election of judges and the next Prosecutor. A significant resolution on the nomination and election of judges was passed which introduces recorded public roundtable discussions with judicial candidates, open to State parties and other stakeholders. There was also a call from Vanuatu to acknowledge the climate change crisis and add ecocide to the Rome Statute and a sobering moment as South Africa noted it was still contemplating withdrawal. The African Union and Kenya maintained their positions on head of state immunity from international criminal proceedings.

Important as these issues were, however, the dominant theme was plainly that of review and strengthening of the Court, which ASP President O-Gon Kwon noted had been a focus of media and academic interest. It was certainly taken up by State parties. Other than 20 statements made in the plenary session on review of the Court, the idea of the review was widely supported in the general debate (see for example statements by: Finland on behalf of the EU, Denmark, Zambia, Malawi, France, the UK, Luxembourg, Uruguay, South Korea, Mexico, Australia, Poland, Peru, New Zealand, Spain, Romania, Malta, Canada, Ghana, Chile, and Argentina among others). Unsurprisingly, the ASP adopted a resolution empowering nine independent experts to conduct an external review of the Court’s functioning in 2020.

Before examining the independent external review (IER) process in part two of these series of posts, I would like to try to capture some of the context and atmospherics around the idea of the IER. Perhaps the most pointed example of how far the debate has shifted was the statement from the Coalition for the International Criminal Court. While re-stating their role as supporters of the Court, the CICC noted:

We are critics as well. While critique can be uncomfortable to receive – as well as to give – we aim for a constructive and respectful dialogue … including on the ICC’s review, the court’s budget, defense of the court’s independence, … elections, amendments, … and other issues.

This is a far cry from the strident tone of the CICC’s address to State Parties in 2017. The disgruntlement with which the UK’s 2018 ASP statement was met at the time (“we cannot bury our heads in the sand and pretend everything is fine when it isn’t”) was little in evidence. The mood was certainly not uniform. But the taboo that the ICC should not be seen to be criticised (whether for fear of damaging it, playing to its enemies, or out of an exaggerated notion of judicial independence) was clearly broken. And State parties had quite a bit to say. I think the Danish statement in particular is worth reading in full (similar sentiments were expressed by Australia, Canada, NZ, Poland and the UK).

Denmark outlined several sets of challenges facing the Court. Challenges on the judicial side include: “establishing fully consistent jurisprudence and legal doctrine. Clarity on evidentiary thresholds and other legal parameters for trials. Efficient conduct of high-impact investigations and prosecutions in a transparent and predictable manner”. Governance challenges include: “Streamlined decision-making procedures, delegated authority and cooperation across organs”, as well as the development of a one-court culture and sense of purpose. The ASP was not immune from criticism under this head: there “are some of the areas where States Parties can and should do more. This also applies to our own working methods, organization of work and the management oversight we provide” (emphasis added). Finally, “A last set of challenges is presented by the external pressures and threats against the Court.” As for the path forward:

We believe that a process consisting of two tracks – a targeted independent expert review as one track and the other being States Parties working together with the Court on more political issues – is the right approach. Lean, efficient and results oriented. … While this is overall a state-driven process, it must be a joint endeavor between the States Parties and the Court, each respecting and understanding the others mandate and concerns. Independence and accountability must go hand in hand.

This hits so many nails on the head it is almost difficult to choose a place to begin. Three key points for me are as follows. First, it openly acknowledges that judicial and prosecutorial independence are not in principle compromised by accountability. Second, it acknowledges that state parties have a central role in the management and oversight of the Court: the review will be “state-driven” but will be in dialogue with the Court. Third, it openly acknowledges that there are political issues in the operation of the Court and these are appropriately dealt with by the Court’s political arm: the ASP. What counts as political? Looking at the IER terms of reference (Appendix II) the ASP appears to consider as its domaine réservé matters of elections, court staffing, (non-)cooperation, and – importantly – complementarity.

There were also a few key code-phrases or buzzwords in the general debate. In particular transparent, inclusive and State-party driven. The critical paragraph in this context is para 4 of the IER resolution, declaring the IER is to be part of a:

transparent, inclusive State-Party driven process for identifying and implementing measures to strengthen the Court and improve its performance, and underlines that, for this process to be successful, it must involve all States Parties, the Court and other relevant stakeholders.

As noted above, the review process is expected to be driven by States Parties but in dialogue with the Court, and not to the exclusion of civil society. What I take from this, however, is an assertion of responsibility: the Court is both an independent judicial institution and an intergovernmental organisation under the stewardship of its States parties. This is an important shift. The use of “transparent and inclusive” points to the need to consult widely with States parties, not just the best-resourced with a presence in The Hague. The ICC UN Liaison Office in New York may thus be involved in facilitating the process.

A quick note of caution: convergence on the necessity of review obviously does not imply agreement among ASP members on all issues potentially falling under that broad heading (to paraphrase the Danish statement again). The delicate balance involved is perhaps most evident in the preference for the neutral term “review” rather than “reform” (connoting known deficiencies requiring redress).

Further, some national statements seemed lukewarm about the wisdom of engaging in a review process while the Court is under external attack. Lichtenstein, while supporting a review process in general, was forceful in declaring “The Rome Statute is not the problem.” The German statement was quite guarded as to what areas might be a legitimate focus for review (elections, the budget) and seemed keener to emphasise “What we need is to defend our multilateral institutions”, especially the Court, in a period when “populism and nationalism … [are] finding new fertile ground”. The Swedish statement takes a similar line and tone. Nonetheless, there was obvious consensus on the necessity of the IER.

Indeed, a central theme of numerous statements in the general debate was that review and strengthening of the Court was an ongoing process beyond the IER’s term and mandate. This process would need to occur both from within the Court itself and in dialogue with the ASP and from within. This leads to the question: to what extent are the organs of the Court ready to engage in reform? To what extent do they get it? This will be the subject of my third post.

*I was grateful to attend as part of the Australian delegation. I write here, however, in a purely personal academic capacity. Nothing I write should be taken to express the views of the Department of Foreign Affairs and Trade. I note that no government official had sight of this post prior to publication.