18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 2 (3 December 2019)
Name of the Event: It’s about time - revisiting the timing and duration of decision-making at the ICC (Side Event hosted by Austria, Finland, Germany, the Netherlands, Norway, the United Kingdom and the Wayamo Foundation)
Overview by: Raghavi Viswanath, Junior Research Associate and Emma Bakkum, Senior Research Associate PILPG-NL
Main Highlights:
The length of proceedings at the ICC has been long-criticized for adversely impacting the rights of the accused, the rights of the victims, and the legitimacy of the Court.
The length of proceedings is linked to structural issues – such as the institutional design of preliminary examinations, the heightened emphasis on victims’ participation, and even the lack of collegiality between the organs of the Court.
This calls for strengthening of internal guidelines, and a reconsideration of the goals that victims’ participation and preliminary examination are in service of.
Summary of the Event:
This side event hosted by the Wayamo Foundation started with a host introduction by moderator Mark Kersten (Senior consultant, Wayamo Foundation, and Senior Researcher, Munk School of Global Affairs and Policy, University of Toronto). He then opened the floor for the panelists. The first panelist, Lorraine Smith van Lin (Post-conflict justice advisor, Redress) began by inviting the audience to look back at how far the ICC has come, and use these lessons to improve its future. She identified four structural issues with the Court which have a direct bearing on the length of the proceedings, namely, the impact of victims’ participation, the role of the pre-trial division, the challenges that different legal backgrounds of the judges bring, and the general lack of collegiality within the institution. She discussed the impact of the length of proceedings on victims, in particular with regard to reparations. This in turn impacts the credibility and legitimacy of the Court on the ground. Case in point is Lubanga where there was a time lag of nearly 15 months between the Trial Chamber’s decision and the Trust Fund for Victims’ programmes. It is important for the ICC to devise solutions to mitigate such delays.
Elizabeth Evenson (Associate Director, International Justice Program, Human Rights Watch) then spoke about how the length of the proceedings should not be used as a proxy for deeper, systemic issues with the Court. Addressing the objections to the time taken by preliminary examinations, Ms. Evenson observed that the delays in preliminary examinations had had a negative impact on the perceptions of the ICC’s legitimacy. However, she observed that while the time factor assumes great importance, it is better to inquire into the goals of preliminary examinations instead. The challenge is to find ways to effectively engage the OTP and the national authorities in making preliminary examinations more meaningful. The Court must also consider engaging in more detailed legal discussions in the preliminary examinations – as that creates political impetus.
Shehzad Charania (Director of the UK Attorney General’s office) concurred. He invited States Parties to assess what they could do to prompt reform – either by way of cooperation (reduce the use of the veto) or secondary legislations. Mr. Charania also discussed the ICC’s recent practice of self-imposed deadlines. In his view, these steps should be welcomed. A closer look at the practice of the Court shows us how factually and legally similar cases have followed significantly different timelines. By way of illustration, he compared the time taken by the Ruto chamber with that of the Kenyatta chamber. A similar trend can be gleaned from the ICTY’s timelines in Popovic and Prlic. There was nothing different in these cases except for the judges. In his argument to welcome the ICC’s self-imposed deadline, Mr. Charania referred to the existing framework of using deadlines in the Rome Statute and Rules of Procedure and Evidence and proposed to draw inspiration from the ICTY’s completion strategy. He suggested that, although no direct precedent, it is only logical that deadlines are extended to preliminary examinations as well. This would also help the parties hold judges or the OTP accountable for any procedural aberrations. However, he warned against mechanically transposing domestic timelines.
Lorraine also commented on the extent to which length of proceedings is affected by victims’ participation. In Lubanga, the judges were inclined to be more inclusive regarding victims’ participation since it gave them useful insights to the socio-political context in which the crimes had been committed. In contrast, in Bemba, the Defence counsels were critical of such a flexible approach. They claimed that victims had effectively assumed the position of parties to the conflict, and that they were given an unfair advantage over the Defence. In conclusion, she noted that the time was right and appropriate for a review, considering that the institution has also begun to appreciate the need for better internal regulations and more consistency. However, in so doing, the Court must ensure that it involves all stakeholders.
The floor was opened for audience comments/questions. Benjamin Gumpert first commented on how the more deep-rooted issue is one of collegiality or ‘civility’ (one which Judge Tarfusser recognized in his Gbagbo opinion). The first step to achieving collegiality is for all the organs to come together in devising internal guidelines. In particular, he suggested the introduction of sentencing guidelines and rules for the protection of vulnerable witnesses, as is common practice in domestic jurisdictions. These efforts must be focused at increasing docket pressure. Philip Ambach from the ICC Victims Participation and Reparations Section then warned the panelists of the risks of over-regulation. While performance indicators were a step forward, his own experience made him realise that the absence of strict rules allowed the Court to be more flexible in its treatment of victims’ rights. In response, Lorraine spoke about how the need and impact of victims’ participation must be assessed differently depending on the stage of proceedings. Building on her point, Mr. Charania added that involving 5000 victims (like the Court did in Bemba) was without doubt going to strain the Court’s resources. Nonetheless, we must appreciate that the creation of the Rome Statute was a political and legal exercise. Efficiency and speed were not the goals identified during its conception. Therefore, it is going to be radically difficult to introduce such goals 20 years into the working of the project. And, ultimately, speed is a better concession to make, than quality.
In conclusion, Liz Evenson responded to the question regarding the futility of preliminary examinations. She noted that the absence of substantive engagement with national efforts at the preliminary examination stage can create the perception that the ICC is unlikely to continue investigation (as was the case in Colombia). However, this was a question of operationalization, more than utility. The preliminary examination stage has unique benefits - both in terms of political impetus and monitoring.