By Paul van den IJssel in The Hague
“Because we care about the fight against impunity for international crimes, because we care about justice to victims, we want to strengthen the International Criminal Court and improve its functioning.”
This is not a literal quotation, but it is a fair description of the prevailing thought that led to the review of the functioning of the International Criminal Court (ICC), which started at the end of 2018 and is still going on.
Where did it all start?
The review was prompted by a growing consensus among more and more States Parties to the Rome Statute that there was a need to have a critical look at the way the court was functioning. They were increasingly uncomfortable about the long court procedures, the perceived lack of success in the courtroom, and the large number of sometimes long pending investigations that did not lead to prosecution. That some judges, including the court’s president at the time, had taken legal action against the court because of salary issues did not help to improve the atmosphere. Also, there were more and more voices among civil society organisations in favour of some sort of review of the functioning of the court.
It was clear right from the beginning that any attempt to reform the court was going to be a tall order because there is no encouraging historical precedent of reviewing and changing an international organisation. Trying to review an international court appeared to be even more challenging because important fundamentals such as judicial and prosecutorial independence come into play.
However, the die had been cast and the process started in earnest in June 2019 at a retreat of the Bureau of the Assembly during which members formulated the outline of a mandate of the review of the International Criminal Court and the Rome Statute system. In the course of that year consensus had grown that the review should be done by independent experts. That year’s Assembly of States Parties (ASP) meeting decided the composition of the Independent Expert Review (IER), who later picked Richard Goldstone, the former Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, as their chairman.
In September 2020, the experts produced their report, which contained 384 recommendations on a wide range of aspects of the work of the ICC. Although the report was well received, there were questions on how to translate it into real change. Making the recommendations part of the assembly’s regular structure of discussions would probably not have worked. So, in December 2020, the ASP established the Review Mechanism, which was tasked with organising debate on the recommendations and generally promoting and monitoring their implementation. In classical multilateral style, the mechanism had a country representative from each region – Bangladesh, Chile, and Poland for the Asia and the Pacific, Latin American and Caribbean, and Eastern European groups respectively; and two co-chairs, Michael Kanu from Sierra Leone from the African Group, and me from the Western European and Others Group (WEOG).
What did we do?
To a certain extent our work was spelled out for us in the ASP resolution. Our first job was to categorise the recommendations. That meant sorting them according to responsibility. The recommendations fell into three categories, depending on the organ that had decisive say over the matter: the responsibility of the court, the responsibility of the ASP, or joint responsibility of both the ICC and the ASP. The guiding principles were the text of the Rome Statute and the recommendations, the views of the ICC and member states, and of course common sense.
In most cases it was clear what the responsible organ was. However, some of the recommendations were less clear and opposing views existed, for example on complimentarity. In the end the Mechanism had to make a choice with full realisation that this is not an exact science and that some choices would therefore by nature be arbitrary. To mitigate this, we adopted a suggestion that had come up during talks with the court focal points and opted for full transparency and inclusion in discussing the recommendations. The strategy meant that regardless of the category, each recommendation would be widely discussed by all stakeholders. This became a guiding principle for the review. When the Bureau adopted the categorisation in May 2021, it made a mention of the notion of wide discussions.
Comprehensive action plan
Next was the formulation of a comprehensive action plan, whose main purpose was to set out a road map that would include a timetable for the assessment of the 384 recommendations. Again, we invited input from the states parties, the court, and civil society organisations. We had specific discussions with the various facilitators. The discussions were helped by the fact that the IER experts had identified priorities issues. We also had to identify the structures where the discussions would take place. The recommendations were divided among existing working groups, which acted as platforms for discussion. To underline the interrelationship of the recommendations and to keep the exercise workable, we divided the recommendations into groups. These included the ones on unified governance, workplace culture, the Trust Fund for Victims, and tenure policy. Some of them did not have a logical place in the existing structure, and for these the Review Mechanism itself would constitute the platform for their discussion.
We leaned heavily on the suggestions made by the experts and also used the input of states parties and the court to set the timing of the assessment. Overall, there was general consensus on what recommendations would have priority, for example, the ones on improving workplace culture. We also considered actual developments on the ground, for example the wish of the newly elected Prosecutor to reinstate (against the advice of the IER) a second deputy prosecutor. The recommendation was among the first to be assessed, and it was agreed that it should be put aside.
Our comprehensive action plan, presented to the Bureau on June 30, 2021, was quickly adopted and became the road map and timetable of the review.
In September 2021 the assessment process started. Our assumption was that there were three possible outcomes. A recommendation could be assessed positively, meaning that it would be implemented. If the outcome was negative, the recommendation would not be implemented. A third possibility was that the recommendation would be assessed positively but implemented in a modified form. This approach worked well and the Review Mechanism was able to complete the assessments scheduled for the second part of the year. There were a few delays in some working groups, sometimes due to late submission of the input of the court, on which, understandably, the review exercise has put a lot of strain. All in all, however, the assessment process had a good start.
The recommendations on workplace culture were among the first to be assessed and were all approved.
We introduced two further instruments to strengthen the review process. We developed a matrix that contains information on the assessment outcome and the likely date of implementation. It was designed to make the process even more transparent and to allow stakeholders to keep track of the process. The idea is that the matrix will keep on expanding as more assessed recommendations are added. The second instrument is a round table on the recommendations actually implemented. It was realised that it is important to keep track of what is happening on the ground after recommendations are positively assessed. The aim of this exercise is after all actual implementation of the recommendations. The Assembly of States Parties received both instruments positively and the first round table on the implementation of working culture-related recommendations took place in June 2022.
Where are we today?
The Review Mechanism and other working groups have continued to make progress in the assessment of the recommendations, as seen by the steady growth of the matrix. Most of the recommendations that have been discussed have been positively assessed and in some cases implementation has started. The Mechanism continues to follow the comprehensive action plan and intends to have most recommendations assessed by the end of this year. Any that will be left over should be cleared during the first half of 2023. We hope to clear all backlogs during that period.
We will also focus on the pace of the implementation of the recommendations. At some point in time, however, the ASP will have to decide whether to continue the role of the Review Mechanism and also include monitoring of the implementation of the recommendations in the responsibility of the regular structures of working groups and the Bureau.
The review process is far from over. Therefore, it is too early to draw any definitive conclusion about its success or failure. This article has tried to draw the picture of a process aiming at reforming and strengthening an international organisation. So far, we can be positive about the commitment of all the stakeholders. Time is not on our side and focus will shift. Therefore, it is important to maintain a brisk pace and firmly focus on concluding the assessments latest by next year.
One positive development is that the review exercise has evolved to become a common undertaking between the court, states parties, and other stakeholders after initial disappointment and distrust among some of the players at the start. It could have easily turned into a “we against them” discussion. Another possible source of tension that has been avoided is conflict over some of the recommendations on topics where judicial and prosecutorial independence may come into play. In my view, the strategy to allow transparent and inclusive discussion of all the recommendations regardless of the organ ultimately responsible has played an important role in making this possible. All the parties involved deserve credit for this.
We are not there yet in this review process, but already there is some change – the court is now looking more critically at its working methods; and the distrust between states parties and the court is diminishing as the two come to the realisation that they are in this together.
Paul van den IJssel has been Representative of The Netherlands to the ICC and is at present co-chair of the Review Mechanism. Ambassador Van den IJssel wrote this article in his personal capacity.