1. Third, it may be the case that the political mechanisms aimed at achieving peace, and judicial mechanisms—particularly criminal accountability—cannot be conducted at the same time. Indeed, in some circumstances, the situation of violence or conflict on the ground may be so extreme that, for peace to be ultimately achieved, the judicial or prosecutorial component can only start after certain minimum conditions are secured through a politically negotiated process. Even in cases where violence has been temporarily contained, the situation may be so uncertain or unstable that the initiation of criminal proceedings could jeopardize what has been achieved so far through a peace negotiation. This would most likely occur when those accused in the criminal proceedings are in a position to effectively conduct the peace talks or to influence the situation of violence on the ground.1 The combination of the second and third considerations may mean that in certain circumstances, particularly where peace negotiations are attentive to justice concerns and the interests of victims, the setting aside of criminal prosecutions may lead to justice which in terms of quality and scope is more desirable.2 Thus, it may be in the very interests of justice in the long-run that certain criminal proceedings are temporarily set aside so that peace negotiations can be attempted.3

2. Fourth, a prosecutorial policy that takes these considerations into account can contribute to preventing or remedying some of the challenges that the Court currently faces as regards state cooperation, budgetary constraints, and lengthy or complex procedures. This is because, as we will explain in more detail later on, by knowing that the Prosecutor has the ability and willingness to defer an investigation or prosecution for the sake of peace negotiations with a justice component, states can be reassured that the Court will not interfere when a political solution is necessary. This can lead to more state cooperation in specific cases and to greater overall support for the Court, including of a financial nature. In the same vein, by allowing peace negotiations to be tried out first, the Prosecutor can avoid the initiation of criminal proceedings which, at a certain point in time, would be too cumbersome or costly in the face of difficult security or political conditions on the ground. Furthermore, if the political solution turns out to be successful both with regard to the attainment of peace and with regard to instilling local justice mechanisms which might be of the restorative variety, no investigation or prosecution might need to be initiated at all.4

II. The Legal Interpretation of the “Interests of Justice” Under Article 53(1)(c) of the Statute

Let us now turn to the legal basis of our argument. As has been extensively discussed elsewhere, Article 53(1)(c) and 2(c) allows the Prosecutor of the ICC to use her discretion for the purposes of temporarily setting aside a criminal investigation or prosecution “in the interests of justice.” In more detail, the language of Article 53(1)(c) of the Statute treats the interests of justice as a countervailing consideration to the gravity of the crime and the interests of victims,5 which, at the stage of the initiation of a formal investigation following preliminary examinations, are more likely to weigh in favor of criminal proceedings.6 On the other hand, Article 53(2)(c) treats the interests of justice as a balancing test under which “all the circumstances, including the gravity of the crime, the interests of victims, the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime,” should be weighed with the view of making a decision not to bring or proceed with criminal charges against specific individuals.7

Aside from the text of those provisions, three principal interpretative tools favor a broad interpretation of the interests of justice. First, the word “justice” is ordinarily broad and, even in the context of international criminal justice, its use has not been restricted to criminal proceedings or retributive justice in a strict sense.8 Rather, and because we are talking about what are “the interests of justice”—not justice in itself—any factors that are beneficial to international criminal justice, in the pursuit of its diverse aims or functions, could be considered as such interests. Those functions include, in particular, retribution, crime deterrence and prevention, symbolic or expressive justice, and reparations or restorative justice.9 The same outcome would be justified by the multifaceted object and purpose of the Rome Statute, as reflected in its Preamble.10 Similarly, other provisions that form part of the context of Article 53 of the Statute, such as Articles 13 and 16, allow criminal proceedings to be either initiated or deferred for the purposes of upholding goals such peace and security and alternative justice mechanisms.11 Thus, an interpretation of Article 53(1)(c) and 2(c), in accordance with Article 31 of the Vienna Convention on the Law of Treaties, would support a broad reading of the “interests of justice,” including all factors that are broadly considered to be goals of international criminal justice in all of its functions.

Furthermore, it is important to stress that the broad discretion enjoyed by the Prosecutor under Article 53(1)(c) and 2(c) is countered by the mandatory nature of the judicial review of her decision not to proceed with the interests of justice, in accordance with Article 53(3)(b) of the Statute.12 This contrasts with the initiation of preliminary examinations under Article 15(1) and (2) (which has no mechanism of judicial review) and with the non-mandatory review process for the Prosecutor’s decisions on the jurisdiction of the Court and the admissibility of a case, pursuant to Article 53(3)(a). This is yet another indication that the array of factors that can be considered under the interests of justice provision is wider than those that come within the scope of other discretionary decisions. A mandatory review process also dispels criticisms of politicization that are normally associated with a strict view of the interests of justice. Lastly, Article 53(4) of the Statute reaffirms the temporary nature of a decision based on the interests of justice. It provides that the Prosecutor may reconsider her decision at any time based on new facts or information. This demystifies the common assumption that stopping an investigation or prosecution for the sake of policy factors may cause a definite blow to international criminal justice.

Despite such ample interpretative support for a broad approach to the interests of justice, the OTP’s current view of the considerations coming within the scope of Article 53(1)(c) and 2(c) is quite narrow. As summarized in the 2013 Policy Paper on Preliminary Examinations and the 2007 Policy Paper on the Interests of Justice, the OTP does not presently consider that peace processes or other justice mechanisms can be considered by the Prosecutor when using her discretion not to initiate an investigation or prosecution.13 Rather, these are said to be “complementary” to international criminal justice and within the mandate of other institutions.14 Only those factors explicitly listed in Article 53(1)(c) and 2(c) can be considered as “interests of justice.”15 At most, the interests of victims could be defined more broadly and eventually encompass concerns with their security and psychological well-being that would weigh against the initiation of criminal proceedings.16 Yet the fact that other institutions have the primary purpose of addressing peace and security and alternative justice mechanisms does not exclude the ICC’s crucial role in managing its own impact on those considerations, nor does it mean that those considerations fall outside the scope of Article 53’s provisions on the “interests of justice.”17

Moreover, as we hinted earlier, factors such as the security situation on the ground and the prospects of a successful prosecution can be important indicators of whether or not it is appropriate to initiate or continue criminal proceedings in the midst of peace negotiations. Indeed, although it is debatable whether the security situation on the ground and the prospects of a successful prosecution are, in themselves, “interests of justice,”18 they can certainly be relevant factors when considered in connection with an ongoing peace process that has the prospect of achieving forms of justice other than the retributive. Despite this connection, the OTP does not presently consider that the security situation on the ground, the prospects of a successful prosecution, or even the inclusion of other justice mechanisms in a peace process, could be part of the interests of justice analysis even in connection with other factors. Paradoxically, the office has openly acknowledged that those two criteria must inform the selection and prioritization of cases for prosecution, in accordance with Article 54(1)(b).19 However, unlike the OTP seems to suggest, it is difficult to separate, both temporally and substantially, the discretion that the Prosecutor exercises for the purposes of “prioritising cases” from a decision to initiate a prosecution based on the interests of justice.20 The two happen virtually at the same time and are based on the same evidence and context. Furthermore, the discretion used in the selection and prioritization of cases does not differ, in nature or degree, from the one that the Prosecutor exercises when deciding, at an earlier stage, whether or not to proceed with an investigation in the interests of justice. Significantly, by removing those factors from the scope of Article 53(1)(c) and 2(c), especially when they are related to a peace negotiation, the Prosecutor escapes the mandatory judicial oversight which should exist for decisions involving such sensitive political issues.21

As was mentioned earlier, we believe that the time has come for the OTP to revise its policy on the interests of justice. In the next ten years of the Rome Statute, the ICC and the broader project of international criminal justice would benefit enormously from the inclusion of peace negotiations, particularly those with a justice component within the scope of Article 53(1)(c) and 2(c).

III. Peace Negotiations as “Interests of Justice”

Despite the OTP’s current reluctance to consider issues of peace and security under Article 53(1)(c) and 2(c), there is a significant and increasing number of scholars who support the inclusion of those factors as part of the interests of justice test, on both legal and political grounds.22 As we explained earlier, it is our own view that peace and security, and in particular peace negotiations, are broadly within the realm of interests pursued by international criminal justice and by the ICC itself, especially in the context of its deterrent and preventive functions.23 Indeed, unlike some have argued, it is not as if the “interests of justice” will suddenly be equated to the broader “interests of peace” once the Prosecutor decides to defer an investigation or prosecution in favor of peace negotiations.24 Rather, peace is temporarily favored because and to the extent that it is also an interest pursued by international criminal justice.25 Peace may not only contribute to better justice in the future, but it is also an inherent aim of justice.26 In sum, international criminal justice and its various functions might be better served if one or more specific criminal prosecutions or investigations are temporarily set aside for the purposes of attempting a peace settlement.

Although the OTP has refused to acknowledge this openly, an earlier OTP policy paper stressed that:

[N]o investigation can be initiated without having careful regard to all circumstances prevailing in the country or region concerned, including the nature and stage of the conflict and any intervention by the international community. Furthermore, the Prosecutor will have to take into account the practical realities, including questions of security on the ground.27

Similarly, in a document commissioned by the former Prosecutor entitled “Draft Regulations of the Office of the Prosecutor,” experts suggested that the “interests of justice” should be defined to include the following factors:

(a) the start of an investigation would exacerbate or otherwise destabilize a conflict situation; (b) the start of an investigation would seriously endanger the successful completion of a reconciliation or peace process […].28

In another expert paper, drafted at the request of the OTP, experts suggested that approaches other than prosecution should not be summarily dismissed by the Prosecutor.29

We believe that this is a better approach than the one adopted in the 2007 and 2013 Policy Papers. This is because it takes due account of the legal and factual justifications we set out earlier for including peace negotiations within the scope of the “interests of justice” test. Indeed, this approach is in line with an interpretation of Article 53(1)(c) and 2(c) of the Rome Statute that takes into account the text, context, and object and purpose of this provision, in accordance with Article 31 of the Vienna Convention on the Law of Treaties. Moreover, from a factual perspective, as we mentioned earlier, allowing investigations and prosecutions to be temporarily suspended for the benefit of political processes can contribute to the achievement of both peace and justice in the long run. Lastly, we believe that this approach can better contribute to addressing some of the ICC’s present challenges relating to state cooperation, budgetary constraints, and lengthy or complex proceedings. Indeed, having an OTP that is more willing to defer criminal proceedings in favor of peace negotiations is conducive to more state cooperation and overall political and financial support for the ICC. This is particularly the case where failure to cooperate is due to a state preference for a political rather than a judicial solution to a certain conflict or situation. Furthermore, if the peace settlement turns out to be successful, the initiation of a complex criminal procedure would be avoided, with all the financial, human, and operational costs that this would have entailed.

IV. Useful Criteria for Assessing Whether Peace Negotiations are in the “Interests of Justice” in Concrete Cases

Having established that on both legal and policy grounds the “interests of justice” test should include peace negotiations, it is perhaps useful to draw some criteria or guidelines that could assist the Prosecutor in making such an assessment in particular situations or cases.30 We are mindful of the fact that there is no one-size-fits-all solution to this question and that the evaluation of whether or not a certain political settlement is “in the interests of justice” is to be conducted on a case-by-case basis. However, it is possible to set out some parameters that could be applied in particular cases. For this purpose, some of the documents issued by the OTP itself, especially the earlier ones, are particularly helpful.

A. Support from Relevant Stakeholders, Particularly Victims

The first criterion which can be useful in assessing whether it is appropriate to set aside an investigation or prosecution in favor of a peace negotiation is the level of support that the latter has from those that have been affected by the conflict or situation, including the general public in the domestic community concerned and, particularly, the victims.31 Support from the international community, as represented by groups of states or international institutions, may also be relevant in assessing whether or not a peace negotiation is in the interests of justice.32 This “support” criterion is justified on both legal and policy grounds. On the one hand, the interests of victims, including direct and indirect ones, is an explicit factor listed in both Article 53(1)(c) and 2(c) of the Statute. Thus, it is only natural that the victim’s views and interests should also inform the consideration of whether peace negotiations are in the interests of justice. Consideration of support from the general public is grounded on the widespread recognition of self-determination and democratic governance as a human right and a general principle in international law.33 Lastly, support from the international community may be a good indicator that other international rules and standards are being complied with, particularly international human rights law.34 On a policy level, it appears that peace processes that have the support of victims and the domestic and international communities have greater chances of success.

B. Social Inclusiveness

As with the previous criterion, the degree of participation that a certain political settlement affords to the relevant stakeholders can assist the prosecutor in determining whether or not it is in the interests of justice to give such a settlement a try. Inclusiveness refers not only to the elites or those holding a position of power in the conflict or situation, but also to those that have been marginalized by it, such as victims and political minorities that are otherwise affected by the alleged crimes.35 Considering how inclusive is a certain political settlement is also a good measure of its democratic pedigree and its prospects of success.

C. Transparency and Public Scrutiny

For a peace negotiation to have better chances of succeeding, and for it to ensure the continued participation and approval of the relevant stakeholders, it is necessary that the relevant process is carried out in a transparent manner and is subject to some form of public scrutiny. Scrutiny, in this context, does not necessarily mean judicial control, but an accessible way in which the general public and other stakeholders can continue to express their views and measure the success and appropriateness of the peace talks. This form of scrutiny can be express or implied in the terms of the peace settlement, or it can be set up by a subsequent agreement or instrument. However established, public scrutiny plays a key role in the Prosecutor’s continued assessment of whether or not the peace negotiation remains in interests of justice. Indeed, in accordance in Article 53(4) of the Statute, the Prosecutor can, at any time, decide to resume the investigation or prosecution. Significantly, mechanisms of public scrutiny can provide the OTP with the necessary information on how the public views the peace settlement over time, after the initial buzz about it has settled down.

D. The Extent of a “Justice Component”

Since we are talking about a peace negotiation being in “the interests of justice” it is crucial that its goals include the achievement of justice in one or more of the senses or functions that we mentioned earlier, i.e. retribution, deterrence, crime prevention, restoration, reparations, or symbolic justice. Indeed, for a political process to be able to contribute to achievement of long-lasting peace and the establishment of a solid foundation for international criminal justice, it must, to some extent, contemplate one of the latter’s aims or functions. In the context of a peace agreement, a “justice component,” in this broader sense, can include the following non-prosecutorial forms of justice: the provision of reparations for victims, a broad judicial reform, new vetting mechanisms, the establishment of a truth and reconciliation commission, or other alternative forms of justice.36

E. Security Situation on the Ground, Particularly the Risk of Escalation of Violence

As we mentioned earlier, the security situation on the ground can be a useful way to measure, in concrete situations, whether a peace negotiation is indeed necessary or more pressing than a prosecutorial solution at a certain point in time.37 In particular, if the risk of escalation of violence is high, whether it is due to the initiation of the criminal proceedings or not, then it might be necessary and appropriate give some space to a political settlement.

Some commentators have referred to this criterion within the broader consideration of the “necessity” of setting aside the investigation or prosecution.38 Indeed, given the exceptional nature of an interests of justice decision,39 necessity is an overriding criterion to be considered when balancing all the specific factors coming within Article 53(1)(c) and 2(c). Necessity tells us that it is only when the investigation or prosecution cannot be carried out, i.e. when a deferral is the only means to ensure that the “interests of justice” are satisfied, that a decision pursuant to Article 53(1)(c) and 2(c) can be made.40 Significantly, one of the factors that can render a deferral necessary is the security situation on the ground, in particular the risk of escalation of violence.41 In fact, if the security and lives of those involved in the conflict or situation are at risk, it may be unwise and reckless to start or continue a criminal investigation or prosecution. This is not only to avoid the escalation of violence (in cases where the criminal proceedings themselves risk having such an effect), but also to preserve the lives and security of those within the OTP itself in charge of conducting the investigation on the ground.42

In sum, in the specific context of a peace negotiation, the security situation on the ground is an additional criterion that can inform the Prosecutor’s assessment of whether or not the political solution is more appropriate than the judicial one at a certain point in time. In addition, the security situation on the ground can also influence the prospects of a successful investigation or prosecution, which is also a criterion that the Prosecutor can take into account when assessing whether or not a peace negotiation is in the “interests of justice.” Indeed, without a safe environment on the ground, there is no way investigations can be conducted, particularly for the purposes of gathering the necessary evidence.43

F. Prospects of a Successful Investigation or Prosecution

As we mentioned earlier, the prospects of a successful prosecution are already being considered by the Prosecutor as part of her case selection and prioritization strategy, i.e. when selecting which prosecutions to initiate after conducting investigations. However, we believe that this criterion should also inform the evaluation of whether or not it is in the interests of justice to suspend an investigation or prosecution for the sake of attempting a peace negotiation. If the prospects of conducting successful investigations or prosecution are low, especially due to an ongoing armed conflict or difficult security conditions on the ground, this should weigh in favor of attempting a peace negotiation. Indeed, in those circumstances, allowing some space for a political solution can either avoid the initiation of a disastrous investigation or prosecution, or allow successful prosecutions to be established in the future. Thus, the prospects of a successful investigation or prosecution can also be a relevant criterion for evaluating the appropriateness of a peace negotiation under Article 53(1)(c) and 2(c).44

By “successful investigation or prosecution” we not only mean those that will eventually lead to a conviction. Rather, in the present context, being successful means that the Prosecutor foresees that she will be able gather the necessary evidence and support to secure an arrest warrant or summons to appear, to present a plausible case at the Confirmation of charges hearing, or to continue pursuing a case that is already in the trial stage, even if, at the end, the accused is acquitted. In considering whether there are good prospects of gathering evidence, the following factors can be relevant:

1. security on the ground;

2. state cooperation in allowing access to evidence;

3. complexity of documentary evidence, including translation, volume, and content;

4. difficulties with obtaining witness or expert testimony.45

Aside from evidentiary considerations, prospects of success also include proceedings that the Prosecutor foresees will run smoothly. Smooth proceedings are those which tend to be free from procedural embarrassments such as accused persons who have demonstrated an unwillingness to be present at trial, or the inability to protect witnesses or court officers, all of which might lead to excessively lengthy or cumbersome trials.

G. Other Criteria

Aside from the criteria listed above, and the other factors already listed in Article 53(1)(c) and 2(c), other commentators have proposed the following factors to be considered in the context of a peace negotiation:

1. compliance with international rules or standards,

2. absence of an intent to shield the perpetrators,

3. effectiveness of the bodies in charge of implementing the agreement,

4. provision of a sense of closure or justice to victims.46

It is worth noting that the list of criteria to be considered in the interests of justice test, either in the context of peace negotiations or in different circumstances, is not closed. Indeed, as can be inferred from the wording of Article 53(1)(c) (implicitly) and 2(c) (explicitly), all the relevant circumstances must be taken into account for the purposes of balancing out the interests of justice.47 Thus, the list of criteria suggested above is merely indicative. Other criteria may become relevant in concrete scenarios and it is difficult to predict all the factual considerations that may come within the scope of Article 53(1)(c) and 2(c). It is also important to note that the various criteria suggested above overlap among themselves and with other factors that are explicitly or implicitly recognized in Article 53(1)(c) and 2(c). In any event, the point is that clear guidelines, and, in particular, examples of criteria to be taken into account by the Prosecutor in the context of peace negotiations, can not only assist her in making an informed decision, but also provide more transparency and accountability to this process.

Conclusion

In sum, we believe that a key reform that would be instrumental in making the ICC and the bigger project of international criminal justice stronger, more efficient, and effective is the inclusion of peace negotiations and related criteria in the analysis of whether or not to pursue an investigation or prosecution in the “interests of justice” under Article 53(1)(c) and 2(c) of the Rome Statute. This is grounded on both legal and factual considerations. Crucially, as we mentioned earlier, the consideration of peace negotiations as part of a decision not to initiate an investigation or prosecution in the interests of justice would prevent or alleviate, at least in part, some of the current challenges that the ICC has faced in terms of state cooperation, budgetary restrictions, and length or complexity of criminal proceedings. Moreover, in practical terms, this reform would require very little operational or financial resources. Indeed, aside from a change of heart within the OTP (which is arguably the most difficult part), all that our proposed reform would require is the revision of the existing policy papers issued by the OTP on the interests of justice. A new policy paper on this question should be drafted and published to explicitly include peace and security considerations and, in particular, peace negotiations together with the more specific criteria suggested above. These could be incorporated in the form of clear guidelines. This reform would take very little time and effort, and yet it could contribute to making the next ten years of the Rome Statute less turbulent than its first twenty.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Talita de Souza Dias, “Interests of Justice”: Defining the Scope of Prosecutorial Discretion in Article 53(1)(c) and (2)(c) of the Rome Statute of the International Criminal Court, 30 Leiden J. Int’l L. 731 (Sep. 2017), paywall, doi; Kenneth A. Rodman, Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court, 22 Leiden J. Int’l L. 99, 101–02 (Mar. 1, 2009), paywall, doi; Linda M. Keller, The False Dichotomy of Peace Versus Justice and the International Criminal Court, 3 HJJ 12, 13 (2008), available online; Matthew R. Brubacher, Prosecutorial Discretion Within the International Criminal Court, 2 J. Int’l Crim. Just. 71, 82 (Mar. 1, 2004), paywall, doi; Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals 222 (2000); Priscilla Hayner, The Challenge of Justice in Negotiating Peace: Lessons from Liberia & Sierra Leone, in Building a Future on Peace and Justice Conference: Expert Paper 2 (Jun. 2007), available online. ↩

2. 2.

   Priscilla Hayner, Acting in the Interests of Justice (Chap. 8), in The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict 9 (2018). ↩

3. 3.

   Id. at 9. ↩

4. 4.

   Id. at 12. ↩

5. 5.

   Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice 2 (Sep. 2007) [hereinafter OTP Interests of Justice], available online, archived; Maria Varaki, Revisiting the “Interests of Justice” Policy Paper, 15 J. Int’l Crim. Just. 455, 459 (Aug. 18, 2017), paywall, doi. ↩

6. 6.

   Varaki, supra note 5. ↩

7. 7.

   de Souza Dias, supra note 1, at 737, 739, 751. ↩

8. 8.

   Id. at 740–41; Varaki, supra note 5, at 457–58. ↩

9. 9.

   de Souza Dias, supra note 1, at 740–41; Keller, supra note 1, at 36–47; Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510, 543 (2003), available online, archived. ↩

10. 10.

    de Souza Dias, supra note 1, at 745–47; Varaki, supra note 5, at 463. ↩

11. 11.

    de Souza Dias, supra note 1, at 745; Varaki, supra note 5, at 464. ↩

12. 12.

    de Souza Dias, supra note 1, at 744; Varaki, supra note 5, at 459. ↩

13. 13.

    OTP Interests of Justice, supra note 5, at 1, 4–9; Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations, 67–71 (Nov. 2013) [hereinafter Preliminary Examinations], available online, archived. See also Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation, 33 (Sep. 15, 2016), available online, archived. ↩

14. 14.

    OTP Interests of Justice, supra note 5, at 1, 7–9; Preliminary Examinations, supra note 13, at 69. ↩

15. 15.

    OTP Interests of Justice, supra note 5, at 4–7, 9. ↩

16. 16.

    Id. at 5–6; Preliminary Examinations, supra note 13, at 68. ↩

17. 17.

    Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, I.C.J. Rep. 151, 163 (Jul. 20, 1962), available online; de Souza Dias, supra note 1, at 743. ↩

18. 18.

    See Danner, supra note 9, at 544–45; Linda M. Keller, Comparing the “Interests of Justice”: What the International Criminal Court Can Learn from New York Law, 12 Wash. U. Global Stud. L. Rev. 1, 10 (2013), available online; Philippa Webb, The ICC Prosecutor’s Discretion Not to Proceed in the “Interests of Justice”, 50 Crim. L. Q. 305, 316 (Jan. 2005), available online.

    (Arguments in favor of including those factors within the scope of Article 53(1)(c) and 2(c)). ↩

19. 19.

    Preliminary Examinations, supra note 13, at 4–5, 15, 51. ↩

20. 20.

    Id. at 33, 49. ↩

21. 21.

    Varaki, supra note 5, at 465–66, 470. ↩

22. 22.

    See, e.g., Hayner, supra note 2; Varaki, supra note 5, at 467–70; de Souza Dias, supra note 1, at 751; Rodman, supra note 1; Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, 14 EJIL 481, 481–505, 493–98 (2003), available online; Brubacher, supra note 1, at 81–84; Webb, supra note 18, at 316; Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int’l L.J. 507, 524 (1999), available online. ↩

23. 23.

    See Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, clause 5, available online. ↩

24. 24.

    OTP Interests of Justice, supra note 5, at 1, 4. ↩

25. 25.

    de Souza Dias, supra note 1, at 741; Hayner, supra note 2, at 9. ↩

26. 26.

    Hayner, supra note 2, at 9. ↩

27. 27.

    Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor 2 (Sep. 2003) [hereinafter 2003 Policy Issues], available online. ↩

28. 28.

    Office of the Prosecutor, ICC, Draft Regulations of the Office of the Prosecutor (Annotated) 47 n.79 (Jun. 3, 2003) [hereinafter 2003 Draft Regulations], available online, archived. ↩

29. 29.

    Office of the Prosecutor, ICC, Informal Expert Paper: The Principle of Complementarity in Practice 23 (2003) [hereinafter Complementarity in Practice], available online. ↩

30. 30.

    See Hayner, supra note 2, at 13–14; Keller, supra note 18, at 10–11; Webb, supra note 18, at 316–18; Danner, supra note 9, at 543–45; Robinson, supra note 22, at 497–98.

    (In support of clear guidelines and proposing a series of criteria for assessing issues of peace and security and alternative justice mechanisms). ↩

31. 31.

    Hayner, supra note 2, at 13; Complementarity in Practice, supra note 29, at 24 n.73. ↩

32. 32.

    Complementarity in Practice, supra note 29, at 23 n.73. ↩

33. 33.

    Universal Declaration of Human Rights, UN General Assembly Resolution 217 (III), Article 21(3) (Dec. 10, 1948), available online; International Covenant on Civil and Political Rights, Articles 19, 21, 22, 25, Dec. 19, 1966, UN General Assembly Resolution 2200A (XXI), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), available online; Strengthening the Role of the United Nations in Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization, UN General Assembly Resolution 64/155 (Dec. 18, 2009), available online. See also Robinson, supra note 22, at 497. ↩

34. 34.

    Complementarity in Practice, supra note 29, at 23 n.73; Robinson, supra note 22, at 498. ↩

35. 35.

    Christine Bell, What We Talk About When We Talk About Political Settlements: Towards Inclusive and Open Political Settlements in an Era of Disillusionment 9–10 (Sep. 1, 2015), available online. ↩

36. 36.

    See Hayner, supra note 2, at 9; Complementarity in Practice, supra note 29, at 23 n.73; Robinson, supra note 22, at 497–98; Danner, supra note 9, at 544. ↩

37. 37.

    See Preliminary Examinations, supra note 13, at 50(e), 51(e); 2003 Policy Issues, supra note 27, at 2; 2003 Draft Regulations, supra note 28, at 47 n.79; Complementarity in Practice, supra note 29, at 74. See also Hayner, supra note 2, at 13; Keller, supra note 18, at 10; Danner, supra note 9, at 544–45. ↩

38. 38.

    de Souza Dias, supra note 1, at 742–43; Robinson, supra note 22, at 495–97; Complementarity in Practice, supra note 29, at 23 n.73. ↩

39. 39.

    de Souza Dias, supra note 1, at 735, 739, 742, 746; OTP Interests of Justice, supra note 5, at 1, 3–4, 9; Robinson, supra note 22, at 486, 493, 497. ↩

40. 40.

    de Souza Dias, supra note 1, at 742; Robinson, supra note 22, at 496. ↩

41. 41.

    de Souza Dias, supra note 1, at 742–43. ↩

42. 42.

    2003 Policy Issues, supra note 27, at 2, 6. ↩

43. 43.

    Id. at 2, 6. ↩

44. 44.

    Id. at 7; Webb, supra note 18, at 315–16; Danner, supra note 9, at 545; Keller, supra note 18, at 10. ↩

45. 45.

    Preliminary Examinations, supra note 13, at 51, 70; 2003 Policy Issues, supra note 27, at 1–2. ↩

46. 46.

    Hayner, supra note 2, at 13–14; Complementarity in Practice, supra note 29, at 23–24 n.73; Robinson, supra note 22, at 497–98. ↩

47. 47.

    de Souza Dias, supra note 1, at 739, 751. ↩

48. Suggested Citation for this Comment:

    Dapo Akande & Talita de Souza Dias, A New Approach to the “Interests of Justice” in the Ten Years Ahead of the Rome Statute: Why and When Should the Prosecutor use her Discretion under Article 53(1)(c) and 2(c) of the Statute to Defer Investigations or Prosecutions in Situations of Active Armed Conflict in Favor of Peace Negotiations?, ICC Forum (Jun. 28, 2018), available at https://iccforum.com/anniversary#Akande.

    Suggested Citation for this Issue Generally:

    In the Rome Statute’s Third Decade, What Key Reforms Could Make the International Criminal Justice Project Stronger, More Efficient, and More Effective?, ICC Forum (Jun. 28, 2018), available at https://iccforum.com/anniversary.

The ICC has also faced considerable challenges. These include critiques of its legitimacy from State and non-States Parties alike, difficulties apprehending defendants (15 of whom are at large as of this writing), lengthy trials involving difficulties of proof, and problematic jurisprudence and jurisprudential methodologies in several areas of the law. Critics have alleged that the Court is both too strong and too weak;10 that it is targeting Africa because it is a tool of the West11 and, at the same time, is bringing politically motivated prosecutions against Western States;12 that the Office of the Prosecutor (OTP) has targeted defendants who are too high ranking to be brought before the Court;13 or, as others have complained, has only brought cases against low-level accused.14 As Darryl Robinson has written, whatever it does, “the ICC cannot win.”15 The Court occupies, to paraphrase U.S. Judge Patricia Wald who served at the International Criminal Tribunal for the former Yugoslavia (ICTY), “a small center in a whirling international vortex” in which almost everything it does “has political implications.”16 Criticism of the Court is, therefore, inevitable. Nonetheless, it is worth asking what actions the organs of the Court can undertake either to minimize or diffuse those criticisms or respond to them with useful reforms.

This short comment considers three challenges the Court must meet to become the fair, effective, and independent Institution envisaged in the summer of 1998. These are:

1. political challenges to the Court’s power, authority and independence;

2. challenges stemming from difficulties of the Court’s trial processes; and

3. concerns about the Court’s early case law.

This comment also suggests steps that the Court could undertake to meet these challenges.

Argument

II. Three Key Areas of Concern

A. Political Challenges

The world in 2018 is not the world of 1998, and it is not sensible to assume that the world of 2028 is likely to be much better. The 1990s were a time of conflict, but also of hope, and renewed focus upon international law and institutions.17 Twenty years later, the Cold War seems resurgent as the Security Council is again paralyzed by bitter disagreements between the great powers, particularly the Russian Federation and the United States. This has made effective action on some of the worst atrocity situations in the world (e.g. Syria) extremely challenging. Ratifications of the Rome Statute have slowed considerably, leaving seventy States, including many major powers, outside the Rome Statute system, and this situation is unlikely to improve soon. Two States that have been the subject of Preliminary Examinations have withdrawn from the Statute in response,18 which is their sovereign right, but worrying. Talk of a “mass exodus” of African Union members has punctuated discussions about the Court at its annual Assembly of States Parties meetings for the past few years,19 sparked by indictments of African leaders who fought their battles both in and outside the courtroom,20 attacking the Court politically as well as the specific cases against them, and even, as discussed below, attempting to amend or reinterpret key Rome Statute provisions in their favor to preserve their immunity from the Court’s jurisdiction.21

The hostility of the United States towards the international criminal justice project has also posed a major challenge.22 The lack of U.S. support has not proved fatal to the Court, but it has weakened it. Given that the Nuremberg trials were very much an “American show,”23 U.S. attacks on the Court also pose a more existential and fundamental challenge to the Institution than challenges by other States. Although instrumental in the establishment of the Yugoslavia and Rwanda Tribunals in the 1990s, and relatively supportive in terms of funding, intelligence sharing, and the secondment of personnel, the United States has been less positive about the ICC. This has jeopardized the ability of some countries to cooperate with the Court and deprives the Court of financial and logistical support. It also leads to arguments that the Court is not even-handed because it cannot compel U.S. persons to appear before it even though the U.S. has participated in Security Council referrals to the Court in three cases involving non-States Parties (whilst exempting or attempting to exempt its own nationals from the Court’s jurisdiction): Sudan,24 Libya,25 and Syria.26 The accusation of double standards erodes perceptions that the Court is fair and independent. The Prosecutor’s request to open an investigation into the Situation in Afghanistan, which may implicate U.S. persons and policies, may obviate some of the critique directed towards the ICC itself, but may lead to other difficulties if the Court finds itself on the receiving end (again) of punishing treatment from the United States.27

The absence of Russia, China, and India is equally problematic, but for different reasons. These populous and influential States are nuclear armed, and two of them, like the United States, can refer situations to the Court and suspend investigations in their capacity as permanent members of the U.N. Security Council. Following the U.S. example,28 the Russian Federation repudiated its signature of the Rome Statute in November 2016, following a reference by the Prosecutor to Russia’s “occupation” of Crimea.29

It is not just large countries that have spurned the Court, however. Following the indictment of Sudanese President Omar Al Bashir of Sudan in 2009, members of the African Union, asserting that the Court was “targeting Africa,” launched a campaign against the Court. Sudan asserted that the Court was a “political organ of the EU…built to indict Africans,” and that it had no obligation to cooperate with it as a non-State Party to the Statute, even pursuant to a Security Council Resolution, in a reprise of the U.S. arguments made at Rome against the Statute.30 The AU campaign involved a refusal to arrest Omar Al Bashir during his international travels (including to ICC States Parties);31 an effort to persuade the Security Council to defer the Sudan case (and later the Kenya cases, which also involved indictments of a Head of State); to amend the Statute to permit the General Assembly (as opposed to the Security Council) to suspend an investigation or prosecution;32 long sessions at the ICC Assembly of States Parties on “Indictment of Sitting Heads of State and Government and its Consequences on Peace and Stability and Reconciliation”33 (and similar topics such as “Africa and the ICC” in subsequent years); the adoption of a new Rule of Procedure and Evidence, 134 quater to permit Heads of State to be excused from trial and represented by counsel only;34 and the adoption of a new treaty, the Malabo Protocol,35 providing for immunity for Heads of State in direct contravention of customary international law and the Rome Statute.36

Given these political difficulties, which are not likely to improve any time soon, the Court must endeavor to satisfy its supporters and win over its detractors, keeping in mind that it must remain fair and independent. The Court alone cannot change the political framework within which it operates, and much of the political blowback it experiences is because “it is working.”37 Yet sometimes the Court is its own worst enemy, appearing aloof and bureaucratic rather than engaged and open. It can engage in more extensive outreach to explain its activities and do the kind of “public diplomacy” necessary for an institution to earn public support and trust. It can do more to educate the public about its work, make its website much more user friendly (even the latest version is extraordinarily difficult to navigate), produce or sponsor books and videos explaining the importance of its work, and engage in more victim-centered activities that underscore the importance of justice and reparations for afflicted communities. The Court’s Registry, which receives about 52 percent of its budget,38 is largely responsible for these actions. It should ensure that visitors to the Court are treated as valued members of its public constituency, not as impediments to its effective functioning. After all, the Court is a publicly funded State institution that must be accessible and open to the international community it serves. Finally, although there has been some discussion of whether nationals of non-States Parties should be employed at the Court,39 their presence at the Institution not only allows them to become ambassadors for the Court in their home countries but indicates the Court’s desire to one day truly achieve universal ratification. The Court’s Assembly of States Parties must provide sufficient funds to allow the Registry and other organs of the Court to carry out this important work, so critical to ensuring the Court’s political survival.

B. Challenges Relating to the Trial Process and Functioning of the Institution

A difficult political climate requires the Court to be scrupulous about its trial processes, so it can demonstrate that it is indeed “fair, effective, and impartial,” and able to perform the core tasks assigned to it by its Statute. This has, to date, been a major weakness of the Institution although it is improving with time and experience. Trials are too slow, evidence is often insufficiently robust, and the Pre-Trial Chambers have, in particular, often issued rulings that are difficult to understand and created difficulties for both the prosecution and the defense as well as consumed a great deal of time.

During the Preparatory Committee discussions that preceded the Rome Conference, the view was often expressed that the ad hoc international criminal tribunals relied too heavily on common law procedures for their functioning and had become too adversarial.40 This, it was thought, was leading to long trial times and delays, problems with evidence, and excessively lengthy judicial opinions with verbose majority and dissenting opinions. There was also considerable concern about having an “independent prosecutor” that could bring cases on his or her own initiative. As one U.S. State department official worried aloud, no one wanted an “independent counsel for the universe.”41

Responding to these and other concerns, during the negotiations, the French government introduced a new draft that relied much more heavily on civil law procedure. By the time that 165 States and 250 NGOs had finished with the Statute on July 17, 1998, it was a curious blend of common and civil law procedures that was very unlike the Statutes of earlier ad hoc tribunals and seemed more like a civil law than a common law system. It imposes an obligation to pursue the truth and investigate “incrimination and exonerating circumstances equally,” on the Prosecutor,42 allows the defendant to make an unsworn statement, and permits the introduction of all evidence relevant to the case, excluding only evidence that might be unduly prejudicial to the accused’s right to a fair trial.43 Terms like “indictment,” used to describe the charging document at the ad hoc tribunals, disappeared from the Statute to be replaced with language that was sui generis (document containing the charges) and difficult to understand.

It was hoped that the introduction of a civil-law style Pre-Trial Chamber that could function as a sort of collective investigating magistrate would provide a bulwark against frivolous or insufficient cases moving forward. It may have done so, but at a considerable cost. It was also hoped that the Pre-Trial Chamber confirmation process would streamline cases and make proceedings more efficient, which clearly has not been the case. The Pre-Trial phase of the Lubanga case, for example, lasted nearly three years, from March 16, 2006 until the opening of the trial in January 2009. The trial then took another three years, and the appeal took an additional two and a half years after that, meaning that the case was not “over” until December 1, 2014, eight years after Lubanga’s transfer to The Hague. In contrast, the ICTY’s first case against Duško Tadić took half that time—two years from arrest and transfer to the Tribunal to the issuance of the Trial Chamber’s judgment; and an additional two years for the appeal.

Some of these difficulties were unavoidable. Complementarity, a core principle of the Rome Statute, was unknown at the ad hoc tribunals, and Chambers wrestled with its meaning and interpretation in the Court’s early cases. Also, as I have written elsewhere, it seemed in 1998 as if the quid pro quo for obtaining an “independent” Prosecutor, and for making the jurisdictional regime of the Statute strong and automatic (at least over genocide, crimes against humanity, and war crimes) in Rome was that States demanded an extremely complex procedure for challenging jurisdiction and admissibility.44 Thus the ICC pre-trial process is not slow and cumbersome because the Institution is failing to respect the Statute: it is slow, cumbersome, and complicated because that is how the framers of the Rome Statute intended it, largely because they feared the independence of the Court. It could be helpful to amend the Statute, in particular articles 17, 18 and 19, to provide for more clarity and more efficiency, perhaps limiting the number of challenges and requiring them to be brought earlier in the proceedings.

In addition, the insertion of a Pre-Trial Chamber phase has added a second layer of judicial “bureaucracy” to the proceedings. It has also made procedure at the ICC quite different from the procedure at the ad hoc tribunals, making it difficult to draw upon the “best practices” of those institutions to help the Court become operational and efficient quickly. For example, the Pre-Trial Chambers initially rejected the notion that the prosecution could plead modes of liability in the alternative, requiring the case to rest on one theory; alternative modes of liability had been permitted at the ad hoc tribunals, and is now permitted at the ICC.45 Because pre-trial proceedings are very brief however, and the facts not fully elucidated, this often turned out to be a problem later in the trial, requiring the Trial Chambers to rely upon Regulation 55 to “recharacterize” the charges, a cumbersome process that is inefficient and potentially prejudicial to the accused.46 Pre-Trial Chambers also crafted complicated theories of liability in the Court’s early cases, decisions that were often lightly footnoted explorations of untested legal theories. They rejected the practice of “witness proofing”47 and demanded high levels of corroboration in the proof adduced by the Prosecution even at very early stages during the pre-trial phase.48 They thus endeavored to exercise control over the shaping of the case (consistent with an inquisitorial style procedure), a shift that may not have been required or even supported by the Rome Statute itself.49

It is vital that the ICC become more successful at managing the trial and pre-trial process so that trials take less time and cases are managed more efficiently. This is a burden shared by the OTP, the Judiciary, the Registry, and even the Assembly of States Parties. The OTP, which was heavily criticized especially in the Court’s early days, has been responsible for some of the procedural and evidentiary problems that have arisen to date, such as the difficulties stemming from the Prosecutor’s reliance upon intermediaries in the Lubanga case50 and indicting defendants without sufficiently comprehensive investigations and evidence.51 Yet this does not relieve the Chambers’ obligation to increase the speed and consistency with which they apply the Statute. Whilst a return to a more adversarial approach may not be the solution, the Court needs to operate as a criminal court, not as an international bureaucracy. Defendants have the right to be tried in a reasonably short period of time, victims need redress sooner rather than later, and it is expensive and inefficient for trials to drag on for years.

The OTP has responded to many of the legitimate criticisms directed at it by adopting policies and strategies to guide its activities, including policies on case selection and prioritization, on victims’ participation, on children in armed conflict, on sexual and gender-based violence, and on the interests of justice. In 2013, it also adopted a Code of Conduct for the Office, two reports on Prosecutorial Strategy, and a Strategic Plan.52 Chambers have been less active in responding to concerns about the need for reform. Perhaps there need to be stricter deadlines not only for the issuance of judgments and other decisions, but for the conduct of proceedings. There is now a Chambers Practice Manual directed primarily at the Pre-Trial Chambers, as well as to OTP and defense counsel. It is clear from reading the text that the Pre-Trial Chamber process, particularly the confirmation proceedings, has been fraught with difficulty. Given that it involves only a perfunctory hearing (live witnesses are discouraged) and the Pre-Trial Chambers are admonished to “keep the reasoning strictly limited to what is necessary and sufficient for the Chamber’s findings on the charges,”53 one wonders what the purpose of the pre-trial confirmation process really is. Either the Statute should be amended to remove the confirmation process entirely, allowing the ICC to revert to the practice at the ad hoc tribunals, or clearer rules should be established for its implementation. This leads me to my final point, which raises concerns about the early jurisprudence of the Court.

C. Challenges Stemming from the ICC’s Early Judicial Work

One of the most important measures of the Court’s effectiveness is the quality and impact of its judgments. Although there is no formal doctrine of stare decisis at the ICC, the judgments are highly influential within the Court itself, particularly the judgments of the Appeals Chamber. They also represent important contributions to the interpretation and elaboration of customary international law and they may provide guidance to national systems applying “Rome Law” in their national legal systems. Judgments can be read, analyzed, and studied for decades after the proceedings have ended, and the public looks to them to understand what is and what is not prohibited by the Statute. In short, the Court’s jurisprudence is a primary “product” of the Court. The OTP may be the “engine” of the Court, receiving communications from the public, investigating crimes, and bringing indictments where the evidence leads it, but the judges are driving the train.

Looking at the jurisprudence of the Court thus far, one feels that perhaps the judicial branch of this Institution has not yet found its voice. This is, after all, the living embodiment of the Nuremberg Tribunal and the Nuremberg principles, the world’s first international criminal court, intended to be at the center of a new system of global justice in which no one is above the law. Whilst of course the Rome Statute is the primary text that the judges must apply, it is a text embedded in an international legal system, not just a set of rules,54 and the meaning of the Statute must always be considered in context.

Chambers have not yet settled upon a clear methodology to be used in interpreting the Rome Statute, although some recent judgments have made significant strides in this direction.55 The absence of methodology was particularly evident in their approach to modes of liability, which constructed from the relatively simple text of article 25(3) a stunningly complex system based upon the “control of the crime” theory of legal scholar Claus Roxin, that departed from customary international law and the text of the Statute itself. I—and others—have written about that jurisprudence extensively and this is not the place to re-engage that debate.56 But this is not the only example. It has also evidenced itself in the Ntaganda Appeals Chamber’s decision on the question of liability for crimes of sexual violence against child soldiers, which in my view was correctly decided but could have been reinforced with additional references and analysis.57 There is a similar concern regarding the several decisions of the Court addressing the problem of immunities (either procedural or substantive) under article 27, one of the most important elements of the Statute with a lineage tied directly to the International Military Tribunal at Nuremberg. This jurisprudence is neither entirely coherent nor completely convincing. Yet it concerns an issue of vital importance to the Court—so important that the Appeals Chamber has now requested amicus submissions on the question.58

As to sources, there seems to be a tendency to set aside past precedent from the ad hoc tribunals or other courts even when it would properly inform the Court’s judgments, and there does not seem to be a clear notion of when the Court feels it is or is not useful and appropriate to do so. Whilst there was some criticism of the ICTY for its extensive and often teleological approach to issues of interpretation, opinions like Tadić and Erdemović, to name just two, were extensively researched, replete with references to national case law, customary international law sources, and other authorities. They are still referenced and cited because of their quality and significance. ICC Chambers, however, often eschew the jurisprudence of the ad hoc international criminal tribunals even when it is relevant and appropriate to the issue at hand,59 and rarely conduct the kind of in-depth survey of State practice needed to establish either a rule of customary international law or a general principle of law.

Finally, although many judgments and dissents are beautifully written and researched, some decisions do not exhibit the clarity of exposition and elegance of prose one might expect from the world’s first global criminal court. Of course, it is traditional in many civil law systems for judgments to be opaque and even cryptic, and not to permit public dissent. The Court also works in two languages and proceedings are often conducted through interpreters. Yet once the drafters of the Rome Statute decided to permit majority and dissenting opinions, and left so many interpretative questions open in the Statute, it became incumbent upon the Court’s judges not only to elaborate upon their reasoning in detail, but to consider writing to the larger public eagerly awaiting and digesting their opinions rather than to just a handful of international criminal law scholars and specialists. Judges may have felt timid or uncomfortable about doing this in the Court’s early years; but as the Rome Statute moves into its third decade, they may wish to wield their pen with greater confidence.60 After all, to paraphrase one of the great Justices of the United States, it is “emphatically the duty of the Judicial Department to say what the law is.”61

III. Conclusion

The ICC has grown more quickly than was expected in 1998. The Court has had undeniable successes, but significant growing pains as well. This comment suggests that greater awareness of the political environment in which it is embedded, better public outreach and transparency, more effective trial processes, including a significant reform of the pre-trial confirmation process in particular and the complex regime governing challenges to jurisdiction and admissibility, and having the judges develop a stronger voice and more coherent judicial methodology will help ease the Court into a successful third decade. At the inauguration of the permanent premises in 2016, the Mayor of the Hague, J. J. van Aartsen, referred to the ICC’s new premises as the “Peace Palace of the 21st Century.” With the entry into force of the aggression amendments this summer, it may become just that; but it will take a concerted effort, more resources, and political support from States and civil society for that dream to really become a reality.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 Geo. L.J. 381 (Mar. 2000), paywall. ↩

2. 2.

   M. Cherif Bassiouni, The Normative Framework of International Humanitarian Law: Overlaps, Gaps and Ambiguities, 8 Transnat’l L. & Contemp. Probs. 199, 203 (1998), paywall, later version available online.

   (An estimated 170 million died in more than 250 conflicts that took place after World War II). ↩

3. 3.

   About, ICC, available online (last visited Jun. 11, 2018).

   Assembly of States Parties, Report of the Bureau on equitable geographical representation and gender balance in the recruitment of staff of the International Criminal Court, ICC-ASP/16/35, ¶¶ 11, 16 (Nov. 22, 2017) [hereinafter Staff Recruitment], available online.

   (Of these, and not including elected officials, the Court has 449 Professional Staff with 90 nationalities as of July 31, 2017).

   Id. at ¶ 22.

   (These figures include 59 nationals from non-States Parties, representing approximately 12% of the Court’s staff). ↩

4. 4.

   The Reckoning (Skylight Pictures, Jul. 14, 2009), paywall.

   (Quotes Christine Chung, an ICC OTP prosecutor). ↩

5. 5.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, clause 4, available online. ↩

6. 6.

   The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute (TC I, Apr. 5, 2012), available online. ↩

7. 7.

   The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Judgment and Sentence (TC VIII, Sep. 27, 2016), available online. ↩

8. 8.

   The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3343, Judgment Pursuant to Article 74 of the Statute (TC III, Mar. 21, 2016), available online. ↩

9. 9.

   Scholars are studying it closely. See, e.g., Daniel Krcmaric, Should I Stay or Should I Go? Leaders, Exile, and the Dilemmas of International Justice, 62 Am. J. Pol. Sci. 486 (Mar. 25, 2018), paywall, doi; William Burke-White, Bargaining for Arrests at the International Criminal Court: A Response to Roper and Barria, 21 Leiden J. Int’l L. 477 (Jun. 2008), paywall, doi. ↩

10. 10.

    Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89 (2003), available online. ↩

11. 11.

    See, e.g., Adam Taylor, Why So Many African Leaders Hate the International Criminal Court, Wash. Post, Jun. 15, 2015, available online. ↩

12. 12.

    See, e.g., Thierry Cruvellier, Can the International Criminal Court Be Saved From Itself?, N.Y. Times, Dec. 17, 2017, available online.

    (Expresses doubt as to the likelihood of success of the Court’s investigations into U.S. actions in Afghanistan). ↩

13. 13.

    See, e.g., Simon Tisdall, Bashir Slips Out of Court’s Grasp, The Guardian, Jun. 11, 2009, available online.

    (Recounts criticisms from African and Western officials). ↩

14. 14.

    See, e.g., William A. Schabas, The Banality of International Justice, 11 J. Int’l Crim. Just. 545, 550 (Jun. 8, 2013), available online. ↩

15. 15.

    Darryl Robinson, Inescapable Dyads: Why the International Criminal Court Cannot Win, 28 Leiden J. Int’l L. 323 (2015), paywall. ↩

16. 16.

    Patricia M. Wald, Running the Trial of the Century: The Nuremberg Legacy, 27 Cardozo L. Rev. 1559, 1581–82 (2006), available online. ↩

17. 17.

    United Nations Decade of International Law, General Assembly Resolution 44/23 (Nov. 17, 1989), available online.

    (In November 1989, the U.N. General Assembly declared 1990–1999 as the “United Nations Decade of International Law.”). ↩

18. 18.

    Office of the Prosecutor, ICC, Report on Preliminary Examination Activities 2017, ¶ 289 (Dec. 4, 2017), available online.

    (Burundi notified the U.N. Secretary-General of its withdrawal on October 27, 2016, which became effective on October 27, 2017).

    Press Release, ICC, ICC Statement on The Philippines’ Notice of Withdrawal: State Participation in Rome Statute System Essential to International Rule of Law (Mar. 20, 2018), available online.

    (The Philippines deposited a written notification of withdrawal on March 17, 2018). ↩

19. 19.

    See, e.g., Memorandum to African States Parties of the International Criminal Court for the Assembly of States Parties 14th Session, at 2 (Nov. 17, 2015), available online.

    (In January 2015, then AU Chair Robert Mugabe of Zimbabwe threatened to urge African states to withdraw from the ICC).

    Sidiki Kaba, ASP President, Speech at the Fifteenth Session of the Assembly of States Parties (Nov. 16, 2016), available online. ↩

20. 20.

    See, e.g., John Mukum Mbaku, Africa and the International Criminal Court: Is There Room for Cooperation?, Geo. J. Int’l Aff. (Apr. 26, 2017), available online (last visited Jun. 11, 2018). ↩

21. 21.

    See generally Yvonne M. Dutton, Bridging the Legitimacy Divide: The International Criminal Court’s Domestic Perception Challenge, 56 Colum. J. Transnat’l L. 71, 109 (2017), available online; Assembly of States Parties, Report of the Working Group on Amendments (Thirteenth Session), ICC-ASP/13/31, ¶ 12 (Dec. 7, 2014), available online.

    (Introduced Kenya’s proposal to amend Article 27 of the Rome Statute). ↩

22. 22.

    See, e.g., Göran Sluiter, The International Criminal Court, 23 NQHR 480, 480–82 (Sep. 1, 2005), paywall. ↩

23. 23.

    Elizabeth Borgwardt, A New Deal for the World: America’s Vision For Human Rights 233 (2007). ↩

24. 24.

    Security Council Resolution 1593, S/RES/1593 (Mar. 31, 2005), available online.

    (Voted to refer the Situation in Darfur to the ICC; the United States abstained). ↩

25. 25.

    Security Council Resolution 1970, S/RES/1970 (Feb. 26, 2011), available online.

    (Voted unanimously to refer the Situation in Libya to the ICC). ↩

26. 26.

    Security Council Official Records, 7180th Meeting Agenda: The Situation in the Middle East, S/PV.7180 (May 22, 2014), available online.

    (On May 22, 2014, a Resolution was introduced by France to refer the situation in Syria to the ICC. The United States and 12 other nations voted in favor. China and the Russian Federation voted against the resolution, preventing its adoption). ↩

27. 27.

    See, e.g., John Bolton, The Hague Aims for U.S. Soldiers, Wall St. J., Nov. 20, 2017, available online.

    (“The ICC constitutes a direct assault on the concept of national sovereignty” and that “America should welcome the opportunity…to strangle the ICC in its cradle.”). ↩

28. 28.

    Leila Nadya Sadat, Summer in Rome, Spring in the Hague, Winter in Washington? U.S. Policy Towards the International Criminal Court, 21 Wis. Int’l L.J. 557, 557–58 (2003), paywall; see also Edward T. Swaine, Unsigning, 55 Stan. L. Rev. 2061, 2064–65 (2003), available online. ↩

29. 29.

    See, e.g., Shaun Walker & Owen Bowcott, Russia Withdraws Signature from International Criminal Court Statute, The Guardian, Nov. 16, 2016, available online. ↩

30. 30.

    Sudan’s FM: “ICC is a court built to indict Africans”, Al Jazeera, Oct. 29, 2016, available online. ↩

31. 31.

    Sudan’s Omar al-Bashir, BBC News, Apr. 6, 2016, available online.

    (Bashir made diplomatic visits to South Africa, Saudi Arabia, and Egypt despite the international travel ban). ↩

32. 32.

    Hanibal Goitom, African Union: Amendment to Rome Statute of International Criminal Court Sought, Global Legal Monitor, Feb. 16, 2010, available online. ↩

33. 33.

    Assembly of States Parties, ICC, Special Segment as Requested by the African Union: “Indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation”, ICC-ASP/12/61 (Nov. 27, 2013), available online; Beth Van Schaack, ICC Assembly of States Parties Rundown, Just Security, Nov. 27, 2013, available online. ↩

34. 34.

    Probably in contravention of Article 63(1) requiring the accused to be present during the trial, and Article 27’s admonition that the “Statute shall apply equally to all persons without any distinction based on official capacity.” ↩

35. 35.

    Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, art. 46A bis (2014) [hereinafter Malabo Protocol], available online. ↩

36. 36.

    Leila Nadya Sadat, Official Immunity at the International Criminal Court (forthcoming). ↩

37. 37.

    William Pace, Convenor of the CICC, Remarks at Netherlands Ministry of Foreign Affairs Conference Held in Honor of the Opening of the Permanent Premises (Apr. 19, 2016). ↩

38. 38.

    Assembly of States Parties, ICC, Resolution of the Assembly of States Parties on the Proposed Programme Budget for 2018, the Working Capital Fund for 2018, the Scale of Assessment for the Appointment of Expenses of the International Criminal Court, Financing Appropriations for 2018 and the Contingency Fund, ICC-ASP/16/Res.1 (Dec. 14, 2017), available online. ↩

39. 39.

    See Staff Recruitment, supra note 3. ↩

40. 40.

    Silvia A. Fernández de Gurmendi, The Process of Negotiations, in The International Criminal Court: The Making of the Rome Statute 217, 221–24 (Roy S. Lee ed., 1999), available online. ↩

41. 41.

    Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law 229 n.12 (2002).

    (References the ongoing investigation of U.S. President Bill Clinton by Independent Counsel Kenneth Starr). ↩

42. 42.

    Rome Statute, art. 54(1)(a). ↩

43. 43.

    Rome Statute, arts. 67(1)(h), 69(4). ↩

44. 44.

    Sadat & Carden, supra note 1, at 417. ↩

45. 45.

    The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ¶ 36 (PTC II, Mar. 8, 2011), available online.

    (Declines to make findings on both principal and accessory liability in the alternative).

    But see, e.g., The Prosecutor v. Dominic Ongwen, ICC-02/04-01/15, Decision on the Confirmation of Charges Against Dominic Ongwen, ¶ 149 (PTC II, Mar. 23, 2016), available online.

    (Retains an alternative mode of liability in the charges as requested by the Prosecutor). ↩

46. 46.

    See, e.g., The Prosecutor v. Germain Katanga, ICC-01/04-01/07, Defence’s Document in Support of Appeal Against the Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges Against the Accused Persons (AC, Jan. 10, 2013), available online; see also Dov Jacobs, A Shifting Scale of Power: Who is in Charge of the Charges at the International Criminal Court?, in The Ashgate Research Companion to International Criminal Law: Critical Perspectives 205 (William A. Schabas, Niamh Hayes & Yvonne McDermott eds., 2013), available online. ↩

47. 47.

    The Pre-Trial Chamber and, subsequently, the Trial Chamber ruled against the practice of “witness proofing.” See The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing (PTC I, Nov. 8, 2006), available online; The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, ¶ 57 (TC I, Nov. 30, 2007), available online. These decisions have been criticized. See, e.g., Susana Sácouto & Katherine Cleary, Witness Proofing at the International Criminal Court, Am. U. Wash. C. L., WCRO (Jul. 2009), available online. ↩

48. 48.

    See, e.g., The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the Confirmation of Charges, ¶ 119 (PTC I, Dec. 16, 2011), available online.

    (Notes the lack of corroboration of the testimonies of several witnesses);).

    The Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11, Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute (PTC I, Jun. 3, 2013), available online.

    (Explains the Chamber’s approach to evidence and, notably, the Chamber’s reluctance to accept anonymous hearsay from different documentary evidence as corroborating each other). ↩

49. 49.

    Jacobs, supra note 46. ↩

50. 50.

    Larry D. Johnson, The Lubanga Case and Cooperation between the UN and the ICC: Disclosure Obligation v. Confidentiality Obligation, 10 J. Int’l Crim. Just. 887 (2012), paywall, doi. ↩

51. 51.

    See, e.g., The Prosecutor v. Callixte Mbarushimana, supra note 48, at ¶¶ 291–303.

    (Finds the Prosecutor’s evidence to be insufficient to establish contribution to a common plan).

    See also International Bar Association, Evidence Matters in ICC Trials 56 (Aug. 2016), available online.

    (Discusses the need for stronger investigations and comprehensive evidence following the Mbarushimana case). ↩

52. 52.

    Policies and Strategies, ICC OTP, available online (last visited Jun. 11, 2018). ↩

53. 53.

    International Criminal Court, Chamber’s Practice Manual (May 12, 2017), available online, archived. ↩

54. 54.

    Rosalyn Higgins, Problems and Process: International Law and How We Use It (Nov. 9, 1995). ↩

55. 55.

    The Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgment Pursuant to Article 74 of the Statute, ¶¶ 43–49 (TC II, Mar. 7, 2014), available online; The Prosecutor v. Jean-Pierre Bemba Gombo, supra note 8, ¶¶ 75–86. ↩

56. 56.

    Leila Nadya Sadat & Jarrod M. Jolly, Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25’s Rorschach Blot, 27 Leiden J. Int’l L. 755 (2014), available online. ↩

57. 57.

    Patricia Viseur Sellers, Ntaganda: Re-Alignment of a Paradigm, IIHL (Apr. 2018), available online. ↩

58. 58.

    The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, The Hashemite Kingdom of Jordan’s Appeal Against the “Decision under article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender [of] Omar Al-Bashir” (AC, Mar. 12, 2018), available online; The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09 OA2, Order Inviting Expressions of Interest as Amici Curiae in Judicial Proceedings (Pursuant to Rule 103 of the Rules of Procedure and Evidence) (AC, Mar. 29, 2018), available online. ↩

59. 59.

    Sadat & Jolly, supra note 56.

    (To an outside observer, this appears like an effort to distinguish the Rome Statute from the statutes of earlier tribunals for the sake of doing so, at the cost of unnecessarily fragmenting international criminal law). ↩

60. 60.

    The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA5, Judgment on the Appeal of Mr Ntaganda Against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”, ¶ 67 (AC, Jun. 15, 2017), available online.

    (There is a reference by the Appeals Chamber itself, for example, to defense counsel’s accusation of “judicial activism” due to the “seemingly unprecedented nature” of the Appeals Chamber’s conclusion in the Ntaganda case. Whilst the Chamber refutes the accusation, its rebuttal could be much stronger and an explanation of the logic clearer). ↩

61. 61.

    Marbury v. Madison, 5 U.S. 137 (1803), available online. ↩

62. Suggested Citation for this Comment:

    Leila Nadya Sadat, Politics, Procedure, and Law: Three Continuing Challenges for the ICC in its Third Decade, ICC Forum (Jun. 28, 2018), available at https://iccforum.com/anniversary#Sadat.

    Suggested Citation for this Issue Generally:

    In the Rome Statute’s Third Decade, What Key Reforms Could Make the International Criminal Justice Project Stronger, More Efficient, and More Effective?, ICC Forum (Jun. 28, 2018), available at https://iccforum.com/anniversary.

Argument

I. Reform of the Chambers

The executive summary of the 2017 Annual Report from the International Criminal Court to the General Assembly of the United Nations begins by declaring that:

The International Criminal Court continued to experience a heavy workload during the reporting period.1

It is good to be told this because the casual observer might not get the impression that this is an institution with a “heavy workload.” Many people visit the Court but few actually get to attend a hearing. That is because, despite the “heavy workload” of the Court, there does not appear to be much courtroom activity. Most of the time, the three elegant modern courtrooms in the new permanent premises appear to be idle.

This comment was written during May 2018. According to the hearing schedule on the website of the Court, eight days of trial are scheduled in the Ongwen case. There is nothing else in May nor is anything scheduled for June or July. The next court dates reserved in the calendar are in September, when three days have been set aside for the Appeals Chamber hearing in the Bashir case. The pattern was much the same for the first four months of the year. In fact, there have only been regular hearings this year in Ongwen. The other two trials, Gbagbo et al. and Ntaganda, seem to have been relatively dormant, and in 2018 there have been only a few trial days in these cases. If the workload is so heavy, why are the courtrooms almost always empty?

The Budget proposed to the Assembly of States Parties in late 2017 explained that in the coming year “In the Trial Division, three cases will continue at the trial hearing stage”.2 Incidentally, the Proposed Programme Budget for 2018 projected there would be 400 hearing days.3 Elsewhere, it speaks of 160 days of planned trial hearings.4 But at mid-year, it is hard to see where these targets came from. Of course, even when hearings are not underway, judges in the Trial Chambers need to prepare interlocutory decisions and read submissions by the parties. But the relative paucity of courtroom activity suggests a workload that is anything but heavy. But what about the other Divisions?

During the calendar year 2017, the Appeals Chamber issued six significant decisions, three in the Gbagbo et al. case and three in the Ntaganda case.5 These were interlocutory rulings dealing with issues of admissibility of evidence, detention, and jurisdiction. In total, the Appeals Chamber decisions issued in 2017 amounted to 197 pages averaging about 300 words per page. But most of these pages consisted entirely of descriptive reviews of the positions taken by the parties. The substantive portion, which is usually given the heading “Determination by the Appeals Chamber,” amounts to fewer than 60 pages spread over the six rulings. During 2017, none of the members of the Appeals Chamber issued a separate or dissenting opinion. Moreover, in each of the decisions, judges were “borrowed” from the other Divisions because one or more of the members of the Chamber could not sit because of conflicts. The Appeals Chamber has been more active in the early months of 2018 and, no doubt, during 2017 it was working on the decisions it issued the following year.

The Pre-Trial Division was even less productive during 2017. Pre-Trial Chamber II issued two decisions concerning the Court’s futile efforts at apprehending President Bashir of Sudan.6 These two rulings totalled 75 pages, of which about half could be considered to be substantive in nature. Judge Perrin de Brichambault issued separate opinions amounting to more than 60 pages. Pre-Trial Chamber I issued an arrest warrant in the Libya Situation, a short decision of 17 pages of which about 5 are substantive in nature.7 Maybe one of the Pre-Trial Chambers also held in camera proceedings and issued sealed arrest warrants. In recognition of the modest workload of the Pre-Trial Chambers, its judges have been reassigned to the other Divisions on a temporary basis, where they are engaged in trials and in reparation-related activity.8

Heavy workload? It looks like the real problem of the Court is that it doesn’t have enough work. It would be unfair to blame the modest productivity of the Pre-Trial Chambers and the Appeals Chamber on their members. Essentially the Pre-Trial Chambers operate in response to applications from the Prosecutor. The Appeals Chamber hears some of its cases as of right but most of the interlocutory decisions require leave to appeal from judges in the other Divisions. If anything, however, the judges of the other Divisions have tended to be rather generous in granting leave to appeal. For example, in December 2017, a Pre-Trial Chamber granted the Kingdom of Jordan leave to appeal a decision holding that it violated the Rome Statute by failing to arrest Omar Al Bashir. The Chamber admitted that “the plain meaning” of the requirement in Article 82 that such an appeal “affect the fair and expeditious conduct of the proceedings or the outcome of the trial does not appear to encompass the matter at hand”. However, it “considers it appropriate in the present circumstances to give that requirement an extensive interpretation based on its object and purpose”.9 This is a pretty feeble explanation. The Chamber suggested an Appeals Chamber ruling might advance the proceedings against Bashir. The problem is that this is an appeal by Jordan, not by Bashir and not by the Prosecutor. Jordan isn’t a party in the The Prosecutor v. Al Bashir case and consequently has no right to appeal under Article 82. Jordan is only a party in the incidental proceedings pursuant to Article 87. It is hard to see how those proceedings can be advanced by a ruling of the Appeals Chamber or, for that matter, what possible interest Jordan has in advancing them. But the appeal generates activity for an underworked Appeals Chamber and so it is welcomed by all concerned.

A situation where a majority of the judges of the Court do not have enough work in their own Divisions to keep them busy full-time suggests shortcomings in the operating practices of the Court and, probably of even more importance, flaws in the design of the Rome Statute. It is quite unsatisfactory for judges to be borrowed more or less systematically from one Division because its workload is meagre in order to assist judges in another Division who are short of personnel. Would it not be enough to have one Pre-Trial Chamber? Increasingly, the functions of the Division have been shortened and simplified. Where possible, the work has been delegated to a single judge instead of a three-judge Chamber. Originally, one-third of the judges of the Court were devoted to pre-trial work. Perhaps that made sense in the early years because there was little if any activity in the other Divisions. But practice shows that the pre-trial duties can be fulfilled by only a few judges, perhaps even one. She or he might borrow a couple of judges from the Trial Division on a case by case basis where a full three-judge panel is really required.

The Rome Statute does not even permit reassignment of judges of the Appeals Chamber. Thus, there is no quid pro quo whereby the judges of the Appeals Chamber in a sense repay the other Divisions who have loaned them judges to fill gaps in the Appeals Chamber benches. One solution that appears reasonable, although it will be extremely unpopular with the members of the Appeals Chamber, is to put them on part-time status. Article 35(3) of the Statute permits the Presidency to designate judges who sit part-time. This provision was applied in the early years of the Court but there is no reason why it cannot be used in order to take account of a Division with a rather light workload, one that is prevented by the Statute from sharing the burdens of the other Divisions. Appeals judges, other than the President of the Court, would not need to reside in The Hague. The members of the Appeals Chamber would be called upon as needed and remunerated for each day that they are on duty. It seems a great luxury to have a full-time bench of five Appeals Chamber judges, some of whom are disqualified from sitting in specific cases, where the productivity is so modest.

These changes to the practice of the Pre-Trial Division and the Appeals Division would not require an amendment to the Rome Statute.

II. Victim Participation and Reparations

Victims are part of the Rome Statute framework in two ways. They may participate in proceedings and they may claim reparations. These two aspects of the Rome Statute are distinct. One does not depend upon the other. Together, however, they have often been heralded as great innovations of the Rome Statute regime and major improvements over previous international criminal justice institutions.

To date, the results of these two features of the Rome Statute have been quite underwhelming. Victim representatives are present at most stages of the proceedings, where they often participate quite actively by making representations, filing submissions, and expressing the interests of victims in various ways. The victims themselves are rarely present in the courtroom. The vast majority have never been to The Hague. Their interests are assured by legal representatives. It cannot be denied that this has made a useful contribution to the proceedings. The issue, however, is whether the scale of the contribution justifies the enormous cost for the institution as a whole. Assessing the contribution of victims, an expert study prepared in 2014 under the auspices of the University of Amsterdam observed that in Lubanga, “none of the evidence elicited by victims was accepted by the Court”. In Bemba, it said that:

[T]he indications are that questioning by victims’ representatives has done little more than duplicate the evidence already elicited by the Prosecution.

The experts concluded that there were:

[F]ew empirical indications of victims’ contribution to the evidential and forensic search for the truth.10

The expert study quite wisely focussed attention on the issue of cost. It did not dispute the principle of victim participation, but implied that the rather thin contribution it was making might not justify the expense. It referred to the budget of the Victims Participation and Reparations Section and the Office of Public Counsel for Victims, which it said totalled a little over €3 million for the previous year. But that gives a very incomplete picture of what is involved in victim participation because it does not account for the increased length of proceedings that results from having a third party in the courtroom.

According to the website of the Court, some 451 filings were made during the calendar year 2017. The number can only be approximate, because the website will register a translation of a filing as a distinct document. Nevertheless, the information on the website gives a useful picture of the situation. Of the total, 266 originated in the Office of the Prosecutor, 53 were from the defense, 73 were from the Office of Public Counsel for Victims, and 61 were from the legal representatives of victims. Thus, the various victim representatives account for 134 filings—about 30% of the total. Costs are associated with each one of these filings. They must be studied by the Office of the Prosecutor, by defense counsel, and by the judges. They may provoke other filings from the parties and lead to a decision from which there may be an application for an appeal. Oral representations may also be associated with these submissions. The Court should undertake a full audit of the total cost involved in victim participation so that informed decisions can be taken about the value of the contribution that victim participation makes to the proceedings. The discussion should not be about the theoretical benefit of victim participation but, rather, about whether the added cost and the lengthening of proceedings can be justified by what seems to be somewhat inconsequential added value.

The reparations themselves have been largely collective in nature, with funding going to a range of non-governmental organisations. Very little trickles down to individuals. In the Katanga case, the approximately 300 victims of a terrible massacre were each awarded individual reparations of $250. This is not a typo. One or two or three zeros have not been omitted inadvertently. Two hundred and fifty dollars.11 Individual reparations will also be provided in the Al Mahdi case, but the precise amount has not yet been set.12 Perhaps the victims of the destructions of the Timbuktu structures will be more fortunate than the poor citizens of Bogoro who didn’t even get enough to buy a new iPad. With the exception of Jean-Pierre Bemba, those convicted by the Court have been determined to be indigent. To date, all reparations have been financed by the Trust Fund for Victims. To that extent, the role of the Trust Fund in the collective reparations process bears similarities with the work of international development non-governmental organisations.

However, successful international development non-governmental organisations must demonstrate an acceptable balance between the costs of delivery and the actual benefits. The Trust Fund for Victims would never survive in such an environment because its costs of operation actually exceed the amount of benefits it delivers to victims. In 2016, the Trust Fund for Victims had total revenue of €3,632,000.13 More than half of this—€1,885,000—came from the funds of the Court itself as a charge for administrative expenses of the Secretariat of the Trust Fund for Victims.14 The balance—€1,727,000—was in the form of voluntary contributions, mainly from wealthy States Parties, with Sweden the biggest contributor. The actual amount that the Trust Fund paid out to “victims” in 2016, entirely in the form of grants to various organisations, was €1,530,372.15 The total expenditures of the Trust Fund for the same period amounted to €3,902,000. In other words, the cost of delivering €1.5 million to victims was about €2.4 million. The main beneficiaries of the Trust Fund for Victims appear to be the professionals who work in The Hague at the seat of the Court, as well as airline companies and hotels.

But, as in the case of victim participation, these numbers do not tell the full cost of administering the reparations system. A substantial amount of judicial and administrative activity within the work of the Court is devoted to identifying victims and awarding them reparations. There are costs of the litigation. Time is consumed by judges, by translators, by lawyers. As with the participation of victims, the Court should prepare a full audit of the expense involved in delivering reparations to victims. Then let the Assembly of States Parties, and the global public, assess the legitimacy and the credibility of a costly system where the victims themselves appear to receive little more than a tiny fraction of the total that is expended in their name and justified on their behalf. It appears that several million euros of the Court’s financial resources are being directed to an extremely inefficient system for the delivery of projects of various kinds that are said to benefit the victims of international crimes. It would probably be better for the Court to redirect this to prosecutions, and to restrict activities related to reparations to cases where this is justified by the resources of the offender.

III. Offenses Against the Administration of Justice

Representatives of the Court sometimes present its performance by talking about its record of convictions. They claim that there have been nine convictions and only one acquittal. But of the nine convictions, the majority are not for “the most serious crimes of concern to the international community as a whole”, to borrow the words from the Preamble of the Rome Statute. They are for offenses against the administration of justice in accordance with Article 70 of the Statute. The five convictions for Article 70 offenses have resulted in an average sentence of thirteen months in prison, much of which was served in pre-trial detention. This is likely to be revised upwards for three of the defendants following their appeal, but only slightly. The maximum sentence for an Article 70 conviction is five years’ imprisonment.

Despite the insignificance of these five prosecutions, at a procedural level they were treated like other prosecutions under the Rome Statute. At least fourteen judges have been involved at various stages, but that number is going to increase because the proceedings are not over. Pre-Trial Chamber II issued a 55 page decision on the confirmation of charges.16 The Trial Chamber issued a verdict of some 458 pages17 followed by a sentencing decision of 100 pages,18 and that is not counting the 26 written decisions and 80 oral decisions that it delivered in the course of the trial. The Appeals Chamber decision totals 699 pages,19 but it also issued twelve interlocutory decisions. And the whole business isn’t finished yet because the sentences were overturned for three of the defendants and remanded back to the Trial Chamber for a new determination. Inevitably, the new ruling will be appealed. According to the Court’s website, 2,082 documents now make up the record of the case. This compares with an average of somewhat more than 3,000 for the trials of Lubanga, Katanga, and Bemba. But it should be borne in mind that, unlike the other three big trials, victims did not participate in the Article 70 cases, and that would have added several hundred documents to the file. In other words, the Bemba et al. Article 70 proceedings are of much the same order of magnitude as the handful of prosecutions by the Court for the core crimes.

This amounts to a quite extraordinary expenditure of the resources of the Court for what remains a very, very minor matter. Attempts to bribe witnesses would never pass the famous gravity threshold that is imposed on “real” cases. For example, the Prosecutor declined to proceed in a situation where nine people lost their lives because it was not of sufficient gravity.20 As for the complementarity criterion, the issue doesn’t even arise in such prosecutions. Yet cases involving the administration of justice might well be prosecuted by national courts where the crimes took place, as is contemplated in the Rules of Procedure and Evidence. The Rome Statute says it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. Why isn’t this also the case with crimes of fraudulent and dishonest conduct committed in the course of international proceedings that take place on their territory?

To the extent that the Court insists on retaining its ability to prosecute Article 70 cases, consideration might be given to developing an expedited mechanism whereby trials could take place in a simple hearing before a single judge with an appeal before a three-judge chamber. Dispense with the confirmation hearing and with interlocutory appeals. Alternatively, defense counsel who misbehave might well be dealt with using a disciplinary paradigm rather than one of international criminal justice. These proposals might be accomplished through amendments to the Rules of Procedure and Evidence.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Report of the International Criminal Court on its Activities in 2016/17, UN Doc. A/72/349, at 2 (Aug. 17, 2017), available online. ↩

2. 2.

   Assembly of States Parties, Proposed Programme Budget for 2018 of the International Criminal Court, ICC-ASP/16/10, ¶ 156 (Sep. 11, 2017), available online. ↩

3. 3.

   Id. ¶ 35; see also id. at p.48. ↩

4. 4.

   Id. ¶ 75. ↩

5. 5.

   The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA 4, Judgment on Mr Bosco Ntaganda’s Appeal Against the Decision Reviewing Restrictions on Contacts of 7 September 2016 (AC, Mar. 8, 2017), available online; The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA5, Judgment on the Appeal of Mr Ntaganda Against the “Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9” (AC, Jun. 15, 2017), available online; The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC-02/11-01/15 OA10, Judgment on the Appeal of Mr Laurent Gbagbo Against the Decision of Trial Chamber I of 10 March 2017 entitled “Decision on Mr Gbagbo’s Detention” (AC, Jul. 19, 2017), available online; The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC-02/11-01/15 OA11 OA12, Judgment on the Appeals of Mr Laurent Gbagbo and Mr Charles Blé Goudé Against Trial Chamber I’s Decision on the Submission of Documentary Evidence (AC, Jul. 24, 2017), available online; The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC-02/11-01/15 OA9, Judgment on the Appeal of Mr Laurent Gbagbo Against the Oral Decision on Redactions of 29 November 2016 (AC, Jul. 31, 2017), available online; The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA6, Judgment on the Appeal of Mr Bosco Ntaganda Against the “Decision on Defence request for leave to file a ‘no case to answer’ motion” (AC, Sep. 5, 2017), available online. ↩

6. 6.

   The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, Decision under Article 87(7) of the Rome Statute on the Non-compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir (PTC II, Jul. 6, 2017), available online; The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Decision under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender [of] Omar Al-Bashir (PTC II, Dec. 11, 2017), available online. ↩

7. 7.

   The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, ICC-01/11-01/17, Warrant of Arrest (PTC I, Aug. 15, 2017), available online. ↩

8. 8.

   Proposed Programme Budget for 2018 of the International Criminal Court, supra note 2, ¶ 161. ↩

9. 9.

   The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Decision on Jordan’s Request for Leave to Appeal, ¶ 15 (PTC II, Feb. 21, 2018), available online. ↩

10. 10.

    Guénaël Mettraux, Shireen Avis Fisher, Dermot Groome, Alex Whiting, Gabrielle McIntyre, Jérôme De Hemptinne & Göran Sluiter, Expert Initiative on Promoting Effectiveness at the International Criminal Court 181–82 (Dec. 2014), available online, archived. ↩

11. 11.

    The Prosecutor v. Germain Katanga, ICC-01/04-01/07, Order for Reparations Pursuant to Article 75 of the Statute, ¶ 300 (TC II, Mar. 24, 2017), available online. ↩

12. 12.

    The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Reparations Order (TC VIII, Aug. 17, 2017), available online. ↩

13. 13.

    Assembly of States Parties, Financial Statements of the Trust Fund for Victims for the Year Ended 31 December 2016, ICC-ASP/16/13, at 14 (Aug. 8, 2017), available online. ↩

14. 14.

    Assembly of States Parties, Financial Statements of the International Criminal Court for the Year Ended 31 December 2016, ICC-ASP/16/12, at 10 (Aug. 31, 2017), available online. ↩

15. 15.

    Financial Statements of the Trust Fund for Victims for the Year Ended 31 December 2016, supra note 13, at 23. See also Assembly of States Parties, Report to the Assembly of States Parties on the Projects and the Activities of the Board of Directors of the Trust Fund for Victims for the Period 1 July 2016 to 30 June 2017, ICC-ASP/16/14 (Aug. 21, 2017), available online. ↩

16. 16.

    The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute (PTC II, Nov. 11, 2014), available online. ↩

17. 17.

    The Prosecutor v. Bemba et al., ICC-01/05-01/13, Judgment Pursuant to Article 74 of the Statute (TC VII, Oct. 19, 2016), available online. ↩

18. 18.

    The Prosecutor v. Bemba et al., ICC-01/05-01/13, Decision on Sentence Pursuant to Article 76 of the Statute (TC VII, Mar. 22, 2017), available online. ↩

19. 19.

    The Prosecutor v. Bemba et al., ICC-01/05-01/13 A A2 A3 A4 A5, Judgment on the Appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido Against the Decision of Trial Chamber VII entitled “Judgment pursuant to Article 74 of the Statute” (AC, Mar. 8, 2018), available online. ↩

20. 20.

    Office of the Prosecutor, Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report, ¶¶ 71–2 (Nov. 6, 2014), available online. ↩

21. Suggested Citation for this Comment:

    William A. Schabas, Two Ways to Live within the Budget: Restructure the Chambers; Tame Victim Participation and Reparations, ICC Forum (Jun. 28, 2018), available at https://iccforum.com/anniversary#Schabas.

    Suggested Citation for this Issue Generally:

    In the Rome Statute’s Third Decade, What Key Reforms Could Make the International Criminal Justice Project Stronger, More Efficient, and More Effective?, ICC Forum (Jun. 28, 2018), available at https://iccforum.com/anniversary.

I. The Quality of Fact-finding

The cases that are brought before the ICC are still highly dependent on fact-finding and testimonial evidence. It follows from a number of cases that, unfortunately, witnesses are being subjected to various forms and degrees of interference. For example, as the ICC Prosecutor said in relation to the Kenya case:

There was a relentless campaign to identify individuals who could serve as Prosecution witnesses in this case and ensure that they would not testify. This project of intimidation preceded the start of our investigation in Kenya, intensified in the weeks leading up to the beginning of the trial, and continued throughout the life of the case.

As a result, potential witnesses told us they were too afraid to commit to testifying against the Accused. Others, who initially gave us accounts of what they saw during the post-election period, subsequently recanted their evidence, and declined to continue cooperating with the Court.

In addition, at public prayer rallies, local politicians and community leaders branded Prosecution witnesses as liars who had all given false evidence. On social media, anonymous bloggers engaged in a steady stream of speculation about the identity of protected witnesses. This speculation frequently devolved into vitriolic commentary about witnesses’ motives for cooperating with the Court.1

It exceeds the scope of this comment to analyse in detail the exact causes and nature of interference in all ICC investigations. Suffice it to say that we have been fortunate enough that in some cases, such as the Lubanga trial—the first ICC case—several instances of influencing witnesses came to light, as these witnesses themselves admitted in court that their initial statements provided to the prosecution were false and the result of instruction by so-called intermediaries. We do not know how many other instances of witness interference may have taken place in the totality of ICC investigations which have not been discovered, and have thus resulted in instances of false testimony—or no testimony at all. Also, looking at the statement of the Prosecutor in the Kenya case, and bearing in mind the problems with intermediaries instructing witnesses and the prosecution of bribing witnesses by defendant Bemba and his co-accused, I think it is safe to conclude that the problem of witness interference is at present the greatest threat to accurate fact-finding at the ICC.

With this cloud of possible interference of witnesses hanging over the functioning of the Court, the question arises of which steps and reforms could be taken to reduce this and to enhance the quality of fact-finding?

Some steps have already been taken. The use of intermediaries by the OTP and the ensuing interferences with witnesses in the ICC’s first cases have led, in 2014, to the adoption of Guidelines Governing the Relations between the Court and Intermediaries.2 When the interference of witnesses comes within the purview of Article 70 of the Rome Statute (the Statute), amounting to an offense against the administration of justice, criminal prosecutions at the ICC can be initiated. This happened in respect of Mr. Bemba and four co-accused resulting in convictions and sentences. In the Kenya case, arrest warrants have been issued against suspects of witness interference, but nobody has been arrested and surrendered to the Court yet.

I am unpersuaded that the Guidelines on Intermediaries and the prosecution of criminal witness interference will suffice to address the problems.

It seems to me that, at the heart of the problem of witness interference, are the facts that:

1. the investigations stretch out too long before the commencement of the trial, and

2. the parties have a partisan, non-objective approach towards their collection of evidence, and engage in fact-finding without judicial supervision.

The key to reducing the instances and severity of witness interference thus lies in limiting the period of time that witnesses can, prior to trial, be the object of attempts of interference. A stronger role for the judge in the pre-trial investigations can serve to ensure that the period of time between first contacting the witness and taking testimony in court is limited as much as possible and that the investigations of the parties are under “judicial supervision” in a broader sense.

The role of the judge in pre-trial investigations is a matter that divides criminal justice systems. In the continental European tradition—notably in a country like France—judge-led investigations excluding the parties is the norm, at least in more serious cases; in French, this investigating judge is called the juge d’instruction. This approach to investigations serves to ensure objective and comprehensive fact-finding without the risk of investigations being distorted by a partisan approach. Judge-led investigations have long been unknown in international criminal justice, until the establishment of the ECCC. Adhering to Cambodian procedural law, which is based on the French system, all investigations at the ECCC are exclusively conducted by an Office of two co-investigating judges.3

In adversarial criminal justice systems, such as in the US or the UK, the judge has only a small role in fact-finding, limited to issuing the warrants that may be necessary for certain investigative activities. The approach of using party-driven investigations, without significant judicial involvement and oversight, has also prevailed in international criminal justice.

Between the extremes of either exclusive judicial investigations, or investigations only by the parties, there are more flexible options. In the Netherlands, for example, the pre-trial judge has a supervisory function in pre-trial investigations, which—depending on the needs of the investigation—may result in a greater or more marginal role.

It seems to me that the system of the ICC, with the creation of the Pre-Trial Chamber and bearing in mind some of its powers, is flexible enough to give the judge a stronger role in the investigations. We have already witnessed some developments which point towards a more active Pre-Trial Chamber and a stronger judicial role in the investigations, especially with the aim of dealing with the problem of (potential) interference with witnesses.

Article 56 of the Statute, entitled “Role of the Pre-Trial Chamber in relation to a unique investigative opportunity,” has been used to take testimony prior to trial. This provision was included in the Statute to secure evidence prior to trial in case there is a strong risk it will not be available later on; the most mentioned example is that of a terminally-ill witness. The Article 56 collection of evidence is, in principle, to be triggered by the Prosecutor, but it can also be initiated on the Pre-Trial Chamber’s own initiative under Article 56(3) of the Statute, subject to appeal by the Prosecutor.

With specific reference to risks of witness interference, the Pre-Trial Chamber justified the use of Article 56 in the Ongwen case as follows:

The PTC Single Judge specified the Article 56(2) measures enabling him to take the Witnesses’ testimony. Pursuant to Article 56(1)(a) of the Statute, he found a unique investigative opportunity to take the Witnesses’ testimony in light of a risk that it may not be available subsequently for the purposes of a trial. In so finding, he considered specific meetings, publications and other events with the potential to taint the Witnesses’ evidence, in conjunction with the risks inherent in the passage of time, in particular, the possible recurrence of events with the potential to taint the Witnesses’ evidence.4

This use of Article 56 is not without criticism. The question arises whether hearing witnesses prior to trial out of fear of interference later on amounts to “unique investigative opportunities” as intended by the drafters and whether the defense is not significantly disadvantaged by having to cross-examine these witnesses without proper preparation and knowledge of the Prosecution’s case.

The question may arise why another provision in the Statute has not been used to deal with the problems pertaining to witness interference. Article 57(3)(c) of the Statute empowers the Pre-Trial Chamber, without requiring an application from the parties, to protect witnesses and also to preserve evidence. Arguably, this proprio motu power in the preservation of evidence could open the door to a more active judicial involvement in the pre-trial collection of evidence, which might even go as far as conducting judicial investigations—if so required by the circumstances of a particular case. However, commentaries to this provision in the Rome Statute—and the very limited case law on this point—show that the views are divided whether or not the Pre-Trial Chamber could use this provision to take on a much stronger role in the pre-trial investigations; furthermore, the Prosecutor has objected against encroachment on her investigative powers that could be the result of a stronger judicial role in the collection of evidence.5

Looking at the idea behind having a Pre-Trial Chamber at the ICC to start with, namely ensuring the preservation of evidence, there does not seem to be that much against having a stronger role of the Pre-Trial Chamber in the investigations.6 And that was even without the drafters having anticipated rather widespread and structural problems regarding the interference with witnesses.

It is therefore my opinion that a flexible—and thus at times strong—role for the Pre-Trial Chamber in the collection of evidence can improve the quality of fact-finding and has the potential of reducing instances of witness interference. When the Pre-Trial Chamber considers it to be in the interests of justice—or necessary—Article 57(3)(c) of the Statute empowers the Chamber to take a variety of steps and measures to ensure the preservation of evidence. For example, on the basis of Article 57(3)(c) of the Statute, the Pre-Trial Chamber could require to be kept informed about the existence and nature of contacts with the parties’ witnesses. It could also deal with all possible interference risks, including ordering additional protective measures, which is mentioned as a separate power in Article 57(3)(c) of the Statute.

The advantage of using Article 57(3)(c) in a more active—even pro-active—manner is that it enables the Court to enhance the quality of fact-finding without having to resort to amendments to the Statute, or even to the Rules of Procedure and Evidence. As has been done in other matters, the Pre-Trial Chamber, if there is a need to do so in a particular case, can develop a protocol aimed at being informed of and supervising the investigations of the parties, or even substitute these investigations in respect of certain witnesses whom the Chamber deems particularly vulnerable. When the circumstances so dictate, this could, in my view, go as far as prohibiting further contacts between a party and a witness and have a pre-trial statement taken directly by the Chamber.

Obviously, such a potentially far-reaching role for the Pre-Trial Chamber in certain investigations is not without problems. It raises the structural question whether the emphasis may gradually shift from the trial to the pre-trial phase and thereby risks threatening the external publicity of international criminal proceedings. Especially in international criminal trials, justice must be seen to be done. It is not helpful in this regard if there is a development which contributes to evidence not always being presented at a public trial. But, that said, it does not have to be a consistent development in all cases; the law is flexible enough to adjust the role of the Pre-Trial Chamber to the needs and threats in a particular investigation.

In cases where the Pre-Trial Chamber exercises a firmer grip on pre-trial investigations, another issue relating to the organizational structure of the Court needs to be addressed. The Pre-Trial Chamber will have to be up to the task and be able to deliver on the promises it may make in both policies and practices as it undertakes more involvement in the investigations. This means more staff, especially more staff specialized in investigations and their challenges. Also, with the election of judges and the allocation of them among the Chambers, care should be taken that there is sufficient experience and expertise in criminal investigations.

To conclude on this point, reform of the Pre-Trial Chamber in the direction of a stronger role in the investigations will not be without controversy, problems, and costs. However, I am convinced that the problems in investigations, especially interference with witnesses, are significant and we should not be burying our heads in the sand. The Judges themselves appear to have acknowledged the seriousness of the problems with witness interference and have already started to take a stronger role in investigations by making use of Article 56. I believe, however, that Article 56 is not the best basis to continue on this path of a stronger judicial role in the investigations. Article 57(3)(c) of the Statute offers a more solid and also flexible legal basis to take a variety of measures to protect the quality and integrity of the investigations, if the circumstances of a particular investigation so require.

II. Non-cooperation by States

One of the greatest frustrations of every supporter of an effective ICC is undeniably the current non-cooperation by states. This does not really concern states which are not a party to the Statute, as they have no obligation to cooperate unless such cooperation is required by another source of law than the Statute, such as a Security Council Resolution or Article VI of the Genocide Convention. But states which have voluntarily joined the ICC, and have accepted all the obligations in the Statute, have refused to cooperate with the Court, and appear to get away with it. With South Africa’s non-cooperation having been recently addressed by the Court and with Jordan’s non-cooperation still pending at the level of the Appeals Chamber, we have arrived at a critical phase in the Court’s life when it comes to dealing with non-cooperation. The worst thing that could happen to the effective functioning and authority of the Court is that non-cooperation is increasingly considered “business as usual.”

I recently published an article in which I tried to address many of the problems resulting from non-cooperation and how the Court, especially the ASP, should respond to this.7 It exceeds the scope of this comment to deal with all those issues here as well. I will focus on some major points.

Before I do, I’d like to emphasize that there may not always be much difference that the law alone can make in ensuring cooperation with the Court. The recent history of international criminal justice has demonstrated how important unwavering political pressure on non-cooperating States is to have legal obligations—finally—enforced. The reality, simply, is that the ICC does not presently benefit from the same degree of political pressure that was available, for example, to the ICTY when the European Union insisted on the arrests of Karadzic and Mladic. Rather, the Security Council, which referred the situations of Libya and Sudan to the Court, has let down the Court in a painful manner when it comes to having these mandates effectively fulfilled.

With the limitations of the law in mind, a solid legal framework regarding non-cooperation is nevertheless an important pre-requisite for subsequent effective enforcement measures. A number of problems have arisen in the Court’s practice until now.

First of all, the fact remains that the ICC’s law on cooperation has been the result of a compromise and is not necessarily always geared towards effective cooperation. Simply, the drafters did not always make the interests of the Court prevail. An interesting example in this regard is Article 97 of the Statute, dealing with consultations between the Court and the requested State, which allows a State to raise potentially every problem it may encounter in executing a request for cooperation. These consultations should result in a resolution of the cooperation dispute, but, also looking at the drafting history, it is not said that this resolution should be in favor of an effectively functioning Court. In its case law, the Chambers, dealing with Article 87(7) litigation, have tried to interpret and apply Article 97 in a manner that would favor effective cooperation, but this approach may not be in keeping with the drafting history.8 The bottom-line is that the entire law on cooperation, together with the law and procedures on the enforcement of cooperation obligations, would have benefited from substantive obligations which would unequivocally be in favor of an effective Court.

The second problem relates to the Court’s case law under Article 87(7) of the Statute. The procedure under this provision is aimed at establishing a judicial finding of non-compliance, which is the condition for subsequent measures by the Assembly of States Parties or the Security Council. The litigation under Article 87(7) has (i) not always been of sufficient quality, and (ii) also has come to mix too much law with politics.

The lack of quality in Article 87(7) case law can be illustrated by the fact that, after years of litigation and many decisions, there is still no persuasive substantive analysis by the Court on the issue of state immunity as an obstacle to the arrest and surrender of Sudanese sitting president Al Bashir. It is only very recently that the Appeals Chamber has chosen to address this matter thoroughly; in the appeals procedure in Article 87(7) litigation involving Jordan’s failure to arrest Al Bashir, the Appeals Chamber has called for amicus curiae briefs, with a view to be thoroughly informed on all international law issues surrounding the arrest of Al Bashir by States Parties.9 It begs the question why this had not been done already a long time ago.

Another shortcoming of the case law under Article 87(7) is the discretion that has been granted to the competent Chamber, following a decision by the Appeals Chamber, to decline to refer non-compliance to the ASP.10 This raises the question about what criteria should guide the Chamber in referring non-compliance to the ASP. Rather, one would expect that when the non-compliance is considered serious enough to trigger Article 87(7) proceedings, referral to the ASP should be automatic. It would then be up to the ASP to take appropriate action. The exercise of non-referral discretion by Chambers has resulted in a number of unsatisfactory decisions. A few States, such as Nigeria and South Africa, have been spared the referral of their non-compliance to the ASP, whereas other States in identical situations have been referred for their non-compliance to the ASP. Moreover, the reason why some non-cooperation has not been referred to the ASP has led to some remarkable observations, amounting to an encroachment upon the powers of the ASP. For example, the non-referral of South Africa was based, in part, on the view that subsequent action by the ASP was unlikely to be effective in obtaining the requested cooperation.11 I don’t think this is the message that should be sent to non-cooperative States.

Finally, we should look at the role of the ASP in enforcing cooperation. One must admit that the mandate of the ASP in terms of dealing with non-cooperation is not particularly persuasive. Pursuant to Article 112(f), the ASP is empowered to consider any question relating to non-cooperation. “To consider” does not endow the ASP directly with specific powers, but is broad enough to develop a robust and active approach by the ASP towards non-cooperation. What we see in practice is, however, quite disappointing. Over the years, the ASP has taken a great variety of initiatives in organizing its dealings with non-cooperation. On the basis of the ASP’s internal documents on procedures on non-cooperation, the following measures appear at present available to react against non-cooperation:

• Emergency Bureau meeting, at which it can be decided what further action can be taken;

• Open letter from the President of the ASP, on behalf of the Bureau, to the state concerned, reminding that state of the obligation to cooperate and requesting its view on the matter;

• A meeting of the Bureau, at which a representative of the state concerned would be invited to present its views on how it would cooperate with the Court in the future;

• Holding a public meeting on the matter to allow for an open dialogue with the requested state;

• Submission of a Bureau report on the outcome of the aforementioned dialogue to the plenary session of the ASP, including a recommendation as to whether the matters require action by the Assembly;

• Appointment in the plenary session of the ASP of a dedicated facilitator to consult on a draft resolution containing concrete recommendations on the matter.12

None of the measures can be considered to be effective or seriously sanction non-cooperation. When non-cooperation seriously hampers the effective functioning of the Court, one would expect the development and use of more robust enforcement measures. Those could include a financial sanction or taking away, for some period of time, the right to vote in the ASP. I realize that a more robust approach towards enforcement within the ASP may create tensions and problems, but one should also not underestimate the consequences of continuing on the present path. Regrettably, non-cooperating States see that there is nothing to fear in case of non-cooperation and, as a consequence, non-cooperation has appeared to have become business as usual.

This trend needs to be reversed. I therefore propose the following reforms, which can all be put in place without amending the Statute:

• I would urge for a reversal of the current jurisprudence and ensure that referrals of judicial findings of non-cooperation to the ASP, which were considered to be important enough to initiate the proceedings under Article 87(7), to the ASP are automatic upon a finding of non-cooperation.

• A possible framework for enforcing non-cooperation within the ASP could consist of a number of measures, or administrative sanctions, that can be imposed against the non-cooperating State. If an administrative sanction is appropriate, which sanction would be necessary and proportionate under the circumstances should depend on a number of factors, including the degree to which the non-cooperation has undermined the functioning of the Court and whether the cooperation was provided at a later stage. Clearly, failure to execute an arrest warrant, knowing that there is probably no likely later opportunity to provide the requested assistance, should rank as a serious instance of non-cooperation which substantially undermines the functioning of the Court; it justifies a more severe reaction compared to other forms of non-cooperation. Another relevant factor could be whether or not the non-cooperating State is a “first offender” or has failed to cooperate with the Court in the past.

• Applying the aforementioned factors, the ASP, or rather a specialized Committee within the ASP, could then impose a range of measures and administrative sanctions which, in order of severity and bearing in mind the particular context of the Court, could consist of the following:

  1. a formal warning;

  2. losing the right to present nationals as candidates for ICC elected positions;

  3. losing the right to vote within the ASP for a specified period of time; or

  4. an administrative fine, for example in the form of increase in the annual contribution to the Court.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Fatou Bensouda, Prosecutor of the ICC, Statement Regarding Trial Chamber’s Decision to Vacate Charges (Apr. 6, 2016), available online (last visited Jun. 8, 2018).

   (This statement was made following the vacating of charges in the Kenya case against William Samoei Ruto and Joshua Arap Sang). ↩

2. 2.

   International Criminal Court, Guidelines Governing the Relations between the Court and Intermediaries (Mar. 2014) available online, archived. ↩

3. 3.

   See Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, ECCC, NS/RKM/1004/006, at Article 23 new (amended Oct. 27, 2004), available online; Extraordinary Chambers in the Courts of Cambodia, International Rules (Rev.9), at Rules 55–69 (amended Jan. 15, 2015), available online. ↩

4. 4.

   The Prosecutor v. Dominic Ongwen, ICC-02/04-01/15-520, Decision on Request to Admit Evidence Preserved Under Article 56 of the Statute, ¶ 8 (TC IX, Aug. 10, 2016), available online. ↩

5. 5.

   See Fabricio Guariglia, Kenneth J. Harris & Gudrun Hochmayr, Article 57: Functions and Powers of the Pre-Trial Chamber, in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 1126 (Otto Triffterer ed., 2nd ed. 2008). ↩

6. 6.

   See William A. Schabas, The International Criminal Court—A Commentary on the Rome Statute 697 (2010). ↩

7. 7.

   Göran Sluiter, Enforcing Cooperation: Did the Drafters Approach It the Wrong Way?, J. Int’l Crim. Just. (forthcoming 2018), paywall, doi. ↩

8. 8.

   See The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, Decision under Article 87(7) of the Rome Statute on the Non-compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir (PTC II, Jul. 6, 2017) [hereinafter South Africa Non-Compliance], available online; The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-309, Decision under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender [of] Omar Al-Bashir (PTC II, Dec. 11, 2017), available online. ↩

9. 9.

   The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09 OA2, Order Inviting Expressions of Interest as Amici Curiae in Judicial Proceedings (Pursuant to Rule 103 of the Rules of Procedure and Evidence) (AC, Mar. 29, 2018), available online. ↩

10. 10.

    The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11 OA 5, Judgment on the Prosecutor’s Appeal Against Trial Chamber V(B)’s “Decision on Prosecution’s Application for a Finding of Non-compliance under Article 87(7) of the Statute,” (AC, Aug. 19, 2015), available online. ↩

11. 11.

    See South Africa Non-Compliance, supra note 8, at ¶ 135. ↩

12. 12.

    Assembly of States Parties, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/10/Res.5, at Annex ¶ 14 (Dec. 21, 2011), available online. ↩

13. Suggested Citation for this Comment:

    Göran Sluiter, Key Reforms for the Next Decade of the ICC—Towards a Stronger Judicial Role in the Investigations and a More Robust System of Enforcing State Cooperation, ICC Forum (Jun. 28, 2018), available at https://iccforum.com/anniversary#Sluiter.

    Suggested Citation for this Issue Generally:

    In the Rome Statute’s Third Decade, What Key Reforms Could Make the International Criminal Justice Project Stronger, More Efficient, and More Effective?, ICC Forum (Jun. 28, 2018), available at https://iccforum.com/anniversary.