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

Editor’s Note: This post is Part III of a three-part series. Read Part I here and Part II here.

In the first two parts of this series of posts, I examined the background to and structure of the 2020 Independent Expert Review (IER) of the International Criminal Court. The IER 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”. In particular, I noted that the IER is not an end in itself, rather it is the beginning of a member State-driven process of Court “review” originating in the ICC Assembly of States Parties (ASP).* (The “term” review seems preferred for its neutrality over “reform”).

The crystallising consensus around this broader process appears to be that it must, naturally enough, be conducted in dialogue with the organs of the Court. As I have already indicated, in my view the best possible outcome of the process would be that the ASP asserts its role as the legislative and governance arm of the Court principally through scrutiny and dialogue. The necessary corollary of judicial and prosecutorial independence is judicial and prosecutorial accountability – albeit that such accountability mechanisms may be exercised with quite a light touch. In an ideal world, the result would be that the Court’s organs would start implementing necessary reforms as a result of scrutiny and in order to avoid the ASP stepping in to legislate (as it can regarding amendments to the Statute and Rules of Procedure and Evidence). The question is the extent to which the organs of the Court appear to “get it” in terms of the need for review and are already taking steps in the right direction. Richard Clements has already ably written on the ICC’s “internal progress narrative” in which it presents its own history as a “move from inefficient bureaucracy in the early days to efficient and well-managed organization today”. My reflections here are intended more as a snapshot impression of the present moment, however, rather than an assessment of the ICC’s culture of managerialism over the longer duration.

The Judiciary

I have commented before on the serious, and too frequently public, cleavages in the ICC judiciary and its apparent lack of a collegiate working culture.

The President of the Court’s remarks in the 2019 ICC ASP plenary session on Court reform were eyebrow-raising. His published remarks run to slightly more than four pages. Two of these pages concern the judges’ pay litigation (referred to as a dispute about ‘conditions of service’). The last half a dozen sentences concern internal reform, and point to the guidelines adopted at a judicial retreat in October 2019 on ‘timeframes for key decisions at the pre-trial, trial and appeals stages’. These are now incorporated in the Chambers Practice Manual. This is a small step in the right direction.

The Court has separately reported that the Judges also adopted at their October retreat ‘Guidelines for ICC Judgement Drafting’ and ‘Guidelines for ICC Judgment Structure.’ These guidelines are incorporated by reference into the Chambers Practice Manual (para 85) but do not appear to have been made publicly available.

Overall, these appear positive developments – but their implementation will be everything. Cynics might note the proximity of the judicial retreat to the ASP, but this is precisely the kind of internal reflection that effective external scrutiny should provoke.

The Registry

I am no particular expert on Registry matters. Attempts to overhaul the governance of the Registry in the past – which have met with limited success – have been ably documented by Richard Clements. I would note, however, that Registrar Peter Lewis’s comments in the plenary panel discussion on Court review at the 2019 ASP were brief and pithy. They appeared to boil down to: we welcome the opportunity to engage with IER experts; we hope that the review will also look to issues of State cooperation, and questions of equitable geographic representation and gender balance in staffing; and that there is a need for a culture change to improve the Registry’s functions. Taken at face value, these views appear refreshingly open to engagement. The reference to the need for a change in culture is particularly heartening (though culture change is a notoriously difficult thing to bring about.)

However, it remains plain that the Registry has its own set of significant challenges. It recently had to admit in Court filings that through an ‘oversight’ it had not complied with a September 2019 court decision in Ntganda requiring translation of the complete trial chamber judgment (a further 375 pages) into the defendant’s native Kinyarwanda. Translation is a significant resource burden for the Court and, as an observer, often seems implicated in delaying proceedings and features as a frequent frustration of defence counsel and others.

The Office of the Prosecutor (OTP)

Even among those critical of the Court, few would suggest the lawyers and staff of the OTP are not dedicated and hardworking people doing a difficult job. My criticisms of OTP performance have largely been directed at the leadership level, where responsibility must ultimately lie. I have also praised some very positive signals in the most recent OTP Strategy document.

Nonetheless, the most notable publication in the leadup to the December 2019 ICC ASP was the OTP releasing – on 26 November 2019 – a somewhat odd document regarding the external review into the collapse of the Kenya cases. I say ‘somewhat odd’ because it consists of: a reply by Prosecutor Bensouda to the report (20 pages) and then as annexes: first, the executive summary of the external review report (6 pages and not, notably the whole report); and, second, a reply by Prosecutor Moreno Ocampo who is criticised in the summary report (a little more than a page). One would have thought it more usual to release the full report and then such replies as separate documents.

The report’s executive summary is certainly worth reading. It notes the ‘the challenges presented in cases against powerful, high level accused willing to engage in concerted propaganda campaigns and pervasive witness interference’; the problems posed by ‘insider’ evidence and witness protection; and the lack of State cooperation.

Nonetheless, the report is critical of Prosecutor Moreno Ocampo’s leadership, characterising his style as ‘autocratic, not open to contrary assessments or viewpoints, too often marginalizing those who disagreed with him or reacting angrily and threateningly’ (para E8). This had further consequences in terms of: ‘micro-manage[ment] of the [daily decision-making] process to the detriment of the cases’ (para E9); ‘deadlines set by Prosecutor 1 based on considerations other than sound prosecutorial practice’ (para E16); and a case strategy based around a ‘target-based approach to investigation and charging rather than an evidence-based approach … [which] forced investigators and prosecutors to try to fit the evidence into cases against pre-determined targets rather than determining targets based on the evidence’ (para E17).

Not everything is sheeted home to Moreno Ocampo and external actors. Suggested reforms are made in terms of future leadership style, staffing practices, office structure, the process of investigation and case building, and dealing with challenges posed by witness evidence in complex cases. The general tone of the reply by Prosecutor Bensouda to these issues is that such recommendations are already “fully implemented or underway”, or that OTP practice is already “well ahead of the recommendation”, or is “well on its way” to meeting the recommendations. Not a lot, it seems is left to do; and much had already been done before the report was delivered.

Overall, this seems potentially more defensive than suggestive of serious deliberation: drawing a firm line under the mistakes of the past. The absence of the full report is regrettable.

Conclusion

It seems obvious in all of this that the organs of the Court are feeling a degree of heightened scrutiny, arising in part from the dissatisfaction of the ASP. (A challenge for the Court as a whole remains, of course, that it has multiple constituencies with competing demands and visions of success.) That the Court’s organs are reacting to such scrutiny is of itself a good thing: this is how accountability through oversight usually works. The question is the quality of that reaction.

As the Coalition for the International Criminal Court has put it ‘critique can be uncomfortable to receive – as well as to give’. But if honest critique of the Court’s functioning is to have an impact, the Court’s leaders must be open to the message. The picture in this respect remains somewhat mixed as between the judiciary, OTP and Registry. It cannot be easy to lead an institution which is such a lightning rod for naked attacks, but the confidence of the Courts’ friends increasingly needs to be earned and not assumed. One way to rebuild that confidence is not just to begin taking steps in the right direction – but to signal strongly an openness to genuine review and reform. The IER is a golden opportunity to do so and one can only hope it will meaningfully embraced.

*I was grateful to attend the 2019 ICC Assembly of States Parties 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.