Editor’s note: This post is Part II of a three-part series. Read Part I here.
In part one of this series of posts, I outlined the background to the 18th International Criminal Court Assembly of State Parties (ASP) adopting a resolution establishing an Independent Expert Review (IER) of the Court to begin work – and report – in 2020.* This brief post will examine the mechanics of that review process and consider some of the early criticisms made of it.
It bears repeating that, as many State Parties said in the ASP general debate, reviewing and strengthening the Court is a process, not an event. (A development I find encouraging, given my earlier scepticism of reform-by-expert-inquiry alone.) The IER will occur in parallel with an ongoing dialogue between the ASP and the Court, and the Court’s own internal efforts to reform and strengthen its processes. Critically, there now appears wider acceptance that while it is independent the Court must also be accountable. Indeed, probably the most effective accountability mechanism the ASP can bring to bear is simply scrutiny. In an ideal world, the other organs of the Court would look to effective internal reform in order to anticipate or limit ASP-initiated reform. The extent to which this is already happening is considered in the next, third, post in this series.
The structure of the IER and its mandate
A concern I had about the IER at the outset is its short timeframe (para 25). It is to commence work on 1 January 2020 and report in September. February and March are given over to “[c]onsultations with States Parties, Court officials, and civil society” and an interim report is scheduled for June-July. By the standards of the international system (or the Court) this is blisteringly fast. However, a longer timeframe may introduce its own problems. Aligning the availability of experts to serve on the IER becomes more complex the longer its mandate. Further, in terms of the animating force behind the IER, the terms of the present members of the ASP Bureau (the presidency or executive committee of the ASP) expire in December 2020. Finally, my concerns are fewer once the IER is understood as part of a larger review project not an end in itself.
In terms of structure, the IER resolution appoints three experts to each of three “clusters” (nine experts in total), each cluster dedicated to examining a set of issues:
(b) Judiciary and the judicial process; and
(c) Preliminary examinations, investigations and prosecutions.
The experts shall elect a Chair to coordinate their efforts. They are tasked with making “concrete, achievable, actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole” (para 6). Their mandate extends to “a thorough review of a technical nature of processes, procedures, practices, and the organization of and framework for the Court’s operations as set out in the Statute” (Annex I, para 1).
An indicative list of issues falling within each cluster is found in the “Matrix of possible areas of strengthening the Court and Rome Statute system”, a document prepared by the ICC Bureau. The Matrix divides review areas up between the IER (blue), specialised working groups (green) and organs of the Court (white).
Issues in cluster one (governance) include: management and governance culture; the administrative role of the registrar; “Unified Governance and Leadership (one-Court principle, shared values)”; staff engagement and various human resources questions; the establishment of an ombudsman/internal grievance procedures; the role of ASP oversight and other audit bodies; the Trust Fund for Victims; the budget process; “Fair Trial, Defence and Legal Aid’; and “Strengthening public awareness and image of the Court”.
Issues in cluster two (judiciary and the judicial process) include: “Election of the President and the Vice-Presidents of the Court”; “Efficiency of the judicial process (at all stages, including [the] role of pre-trial [processes], timelines and -limits)”; “Development of process and procedures to promote coherent and accessible jurisprudence and decision-making, including through learning from best practices form other jurisdictions, while respecting … judicial independence”; “Working methods of the judiciary (calling of newly-elected judges, training, collegiality, mechanisms for exchanging best practices with other international and national judges)”; victim participation; and reparations.
Cluster three (preliminary examinations, investigations and prosecutions) covers: the “[n]umber and function of deputy prosecutors”; preliminary examinations; “Prosecutorial strategies, including on case selection and prioritization”; investigations and case-preparation; OTP structure (“including staffing levels and competences”); and completion strategies (with a “focus on mechanism for closure”).
A peculiar feature of these preliminary and indicative lists is the general absence (unless I have missed something) of any express reference to the conduct of the trial phase per se. The possible exception is the “fair trial, defence, and legal aid” heading which is oddly placed in cluster one rather than in two or three.
The listed experts are:
Nicolas Guillou (Cluster 1: Governance; France) – a Judge at the Kosovo Specialist Chambers and former Chef de Cabinet to the President of the Special Tribunal for Lebanon, with experience as a French investigative judge.
Mónica Pinto (Cluster 1; Argentina) – a human rights and use of force scholar, professor emirita of international law at (and former Dean of) the University of Buenos Aires law school, a judge of the World Bank Administrative Tribunal, and 2016 OHCHR Special Rapporteur on the independence of judges and lawyers.
Mike Smith (Cluster 1; Australia) – a former Australian career diplomat, who was inter alia Assistant Secretary-General and Executive Director of the United Nations Counter-Terrorism Committee Executive Directorate and is now an Adjunct Professor at Macquarie University. He has experience in the UN Human Rights system, including as Chair of the UN Commission on Human Rights and in human rights inquires.
Anna Bednarek (Cluster 2: Judiciary; Poland) – presently a Trial Chamber Judge of the Special Tribunal for Lebanon. She has had a judicial career in Poland and served as a judge of Special Chamber of the Supreme Court of Kosovo.
Iain Bonomy (Cluster 2; U.K.) – a senior Scottish judge who served for five years on the International Criminal Tribunal for the Former Yugoslavia.
Mohamed Chande Othman (Cluster 2; Tanzania) – a former Chief Justice of Tanzania, who has served (among many other capacities) as Chief of Prosecutions of the International Criminal Tribunal for Rwanda, and Prosecutor General of East Timor under UNTAET. He is also the UN Secretary General’s Eminent Person charged with investigating the death of Dag Hammarskjöld.
Richard Goldstone (Cluster 3: Prosecution and investigation; South Africa) needs no introduction to readers of EJIL:talk! Most famously, he was the first Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia.
Hassan Jallow (Cluster 3; The Gambia) – Chief Justice of the Supreme Court of the Gambia. He served as Prosecutor of the International Criminal Tribunal for Rwanda for over a decade.
Cristina Romano (Cluster 3; Brazil) – a prosecutor of the Federal Prosecution Service of Brazil and former trial attorney at the ICTY.
A number of criticisms have already been made of the IER mechanism and its composition, many of which were to be expected. As to mandate, Kevin Heller has predicted that this structure could lead to a top-down “technocratic critique” that ignores “the Court’s larger, more structural issues.” Others have taken issue with the fact the IER is staffed largely with international criminal law “insiders” and lacks any obvious critics of the court, or civil society representatives. Contrary to some early suggestions, it does feature academic representation (albeit not ICL specialists). It has also been noted that the IER lacks an expert with obvious experience as defence counsel. As Kate Gibson notes, the Court “misses out when it excludes” defence practitioners from debates or “significant review processes”. As she puts it, those who “have been in the trenches at this Court, … know what works, and have ideas for improvement.”
The extent to which these concerns have merit depends on what one hopes the IER will realistically achieve. The IER mechanism also deserves to be assessed against what its principal audience – the ASP – will consider credible. An IER process that the State Parties are likely to take seriously almost certainly required it to be staffed with those who had prior experience in international criminal tribunals or otherwise in the UN system; and to be credible it also needed to be composed of people with no prior association with the ICC itself. The involvement of academic ICL specialists or civil society representatives was not obviously on the cards in a “State-driven process” (see part one). Indeed, in the plenary discussion on review the Netherlands noted that the ASP did not need an IER report that lands in a drawer or becomes the topic of a seminar. Nonetheless, it is regrettable that a defence perspective was not included, albeit that the “fair trial, defence, and legal aid” issue group will necessitate the cluster one experts engaging with defence practitioners.
Whether the IER report will suffer from a top-down, technocratic perspective remains to be seen. Certainly, glancing at the Matrix suggests the ASP anticipates the IER may make recommendations going to working practices, the judicial code of ethics, the Chambers Practice Manual, the Court’s rules and regulations, and the rules of procedure and evidence. Amendments to the Statute itself appear the preserve of the ASP. Nonetheless, if the cluster two review concludes fundamental reform of the Pre-Trial process is needed, nothing in the terms of reference per se would prohibit structural recommendations possibly requiring statutory amendment.
Overall, and despite my earlier concerns, I am cautiously optimistic that this is a step in the right direction – especially when understood not as a single event but part of a wider review process and longer conversation. The question to be addressed in Part Three of these comments is the extent to which the most important partners in a review process – the organs of the court – seem ready to engage.
*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.