This year marks the 20th anniversary of the adoption of the Rome Statute, the treaty that established the International Criminal Court (ICC, Court), the world’s only permanent tribunal with a mandate to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. The euphoria that greeted its adoption has been tempered by an appreciation of its limits. Disappointment with the Court’s record has led to pessimism about the future of international criminal justice generally. Critics point out that the ICC has spent nearly US$1.5 billion since it began operations in 2002 and, in that time, convicted just three people on charges of war crimes and crimes against humanity.
The truth is more nuanced
But the ICC is more active, and its cases more complex, than many of its critics realize. The ICC has brought cases against 42 individuals, resulting in eight convictions (five for witness tampering). Cases have failed, for a variety of reasons – including state obstruction of access to evidence, and bribery and intimidation of witnesses – at the pre-trial, trial and appeal stages. Four persons are currently on trial; another is in ICC custody at the confirmation of charges stage. A large proportion of those charged are fugitives.
Another key point is that the ICC is a court of last resort. It does not have primacy of jurisdiction like the tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR), Sierra Leone (SCSL), and Cambodia (ECCC). Instead, the ICC’s guiding principle is complementarity: it will not intervene if a State is genuinely investigating or prosecuting. So, by design, the ICC’s duty to investigate and prosecute is deferential to domestic jurisdictions, which can result in challenging circumstances for all involved. Unlike predecessor tribunals, the Office of the Prosecutor (OTP) must devote considerable resources to encouraging, and assessing the progress of, domestic legal processes.
The Court carries a heavy workload and is forced to spread its resources thinly. Whereas the ICTY, ICTR, SCSL and ECCC had scores of lawyers and analysts poring over evidence from one conflict, the ICC has to deal with many. It is currently carrying out “preliminary examinations” in Afghanistan, Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine, the Philippines, Ukraine and Venezuela. It is conducting investigations in Uganda, the DRC, Darfur, the Central African Republic (CAR), Libya, Côte d’Ivoire, Mali, Georgia and Burundi. Each requires mastering a complex conflict with shifting alliances, an array of State and non-State actors, and dozens of societal factors central to a proper contextual understanding. Each requires gaining access to reliable evidence necessary to determine which party is responsible for which crimes, and whether the state is genuinely investigating or prosecuting. This requires a great deal of diplomatic engagement with numerous States.
All this detailed work requires far more resources than the Office of the Prosecutor (OTP) is given by the Assembly of States Parties (ASP) – the oversight body of the 123 States Parties. The late ICC Judge Hans Peter Kaul called in 2012 for a doubling of staff in the OTP “to fully cover the investigation and cooperation necessities for eight situations”. His point is even more relevant today.
There is widespread agreement that there is room for improvement on many of the Court’s core activities. Important reforms are being implemented by the OTP, led by Prosecutor Fatou Bensouda, who remains open to further scrutiny. Many informed suggestions have been made to improve investigative, pre-trial and trial processes. The implementation of these should positively impact the delivery of timely justice to victims and defendants, the Court’s perceived legitimacy, and the willingness of States to fund the Court and cooperate fully with it.
Streamlining amendments to procedural rules
One way to improve efficiency would be to put the onus on criminal practitioners, not diplomats, to improve the Court’s Rules of Procedure and Evidence (RPE). These regulate many aspects of the Court’s investigations, prosecutions, trials, and appeals. The amendment process is informed by an Advisory Committee on Legal Texts, composed of three judges, one representative from the OTP, one from the ICC’s Registry and one from its list of counsel. But ultimate responsibility for amendment of the RPE rests with the ASP and its working group on amendments to ICC procedures. The ASP should amend Article 51 of the Rome Statute and delegate its power to change the rules to the Advisory Committee, and expand it to include victims’ counsel and seasoned former practitioners. This would enable those most familiar with the Court’s procedures to improve them, and leave unaffected the ASP’s exclusive power to amend the Statute.
It would also lighten the diplomats’ load. States Parties could focus on matters of international cooperation which have seriously affected many ICC cases to date: arresting fugitives, suppressing bribery and intimidation of witnesses, and – most critical of all – ensuring timely OTP access to internal communications generated by state and non-state entities overseeing campaigns of persecution.
Building trust and efficiency
More attention should be paid to judicial management of all stages of the process, from confirmation of charges to final appeal. The recent and controversial _Bemba_ Appeals Chamber judgment raised the quantum of evidence required for confirmation of charges, and set forth a less deferential standard of appellate review. Regardless of where one may stand on this controversial decision, no one argues that it will help make the pre-trial, trial or appeal stages faster. Better management at all stages is more important than ever.
To achieve this, the ASP should encourage regular training for ICC judges. Recent efforts to improve the judicial candidates that the ASP elects have borne fruit. And judges have adopted measures – such as a practice manual – to streamline the pre-trial process. However, much more can be done. Most notably, the training of judges after election is infrequent at best. The ASP should require ICC judges to fashion a regular training program for themselves, possibly after consultations with external experts in the international legal community. States Parties could award grants to civil society to support this. Many States Parties value judicial training. Civil law countries train judges at a young age, and many common law countries, such as the United Kingdom, provide training to judges who typically have decades of legal experience prior to appointment. Training in European Union (EU) law is strongly encouraged by the European Commission. The expedition of proceedings would benefit from ICC judges frankly exchanging views and tips during training on subjects such as how best to handle lying or terrified witnesses, unruly counsel, and new forms of electronic evidence.
Establishing a culture of judicial development at the ICC can also help build trust. As former ICC President Silvia Fernández de Gurmendi has recently argued (in an AJIL Unbound symposium to mark the 20th Anniversary of the Statute):
“[c]ollegiality cannot depend on individual temperaments and personalities. Collegiality is vital for the success of the Court and must therefore be promoted institutionally through proactive efforts … Highly competent judges working collegially are essential for the Court to succeed and thrive.”
Unlike many jurisdictions, where criminal judges and lawyers work and socialize with each other for decades, ICC judges arrive from different legal cultures and spend only a few years working together. A lack of familiarity and comfort with each other’s legal backgrounds, and a desire to prove their own worth, can lead to tension, delay, and distrust. A judicial development program could help to break down walls and build up faith among ICC judges, resulting in better information-sharing and greater trust by appellate judges that their trial counterparts have scrutinized the evidence thoroughly and made fair factual findings. Such a program is far from a panacea, but would empower the ICC bench to enhance the Court’s judicial performance.
Arresting fugitives: the lifeblood of the Court
Another area for improvement is securing arrests, as emphasized by former ICC judge Adrian Fulford (in the same AJIL Unbound symposium). Over a quarter of those charged by the ICC remain fugitives. The inability to secure the arrest or surrender of accused is one of the most debilitating realities that any criminal court can face.
The Court does not have its own police force to execute arrest warrants. Nor did any other international court. But the ICTY was able to arrest all its living indictees largely because of the concept of “conditionality”: membership in the EU and the North Atlantic Treaty Organization (NATO) was linked to full cooperation with the ICTY. In particular, Serbia and Croatia were under immense pressure to arrest fugitives in order to further EU and NATO accession negotiations.
The ASP, and the UN Security Council, have yet to show willingness to tie economic or security cooperation to compliance with arrest warrants. It is unlikely that all 123 State Parties would ever collectively do so, but there is nothing to prohibit blocs of them from taking the initiative. Such blocs, or States individually, could tie trade benefits, economic aid, and security cooperation to compliance with ICC arrest warrants. Incentives could be paired with negative repercussions, such as asset freezes and travel bans. The UN Sanctions Committee could play a role, and not only for the situations in Darfur and Libya referred to the ICC by the UN Security Council.
The ASP should also consider a proposal by U.S. Ambassador David Scheffer for willing States Parties to join an ICC Arrest Procedures Protocol that would streamline the deployment of tracking and arrest operations onto the territories of ratifying states. This would enable logistical cooperation that could prove crucial in taking advantage of small windows to arrest ICC indictees, and would allow joining States to burnish their human rights credentials and put pressure on other States to follow suit.
Building a Better ICC
Atrocities continue to unfold from Venezuela to Myanmar, Yemen to the Philippines, and Afghanistan to Burundi. We have no option but to strengthen the ICC, and to support other ways to deliver justice after mass atrocity. The suggestions above are offered in the spirit of adding constructively to the ongoing debate aimed at improving the performance of an institution that the world desperately needs to work, and work well.
This article originally was published in August 2018 by the Blog of the European Journal of International Law. Republished here with permission of Kip Hale.