18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 2 (3 December 2019)
Name of the Event: Strengthening the ICC while Upholding its Independence and Safeguarding the Integrity of the Rome Statute (Side Event)
Overview by: Keri van Douwen, Junior Research Associate PILPG-NL
Main Highlights:
The panelists underlined the importance of inclusion to ensure the legitimacy of the Court: both equal gender and geographical representation should be satisfied.
Richard Dicker, HRW, noted that the Independent Expert Review is a welcome development but it should not be expected to transform all the Court’s problems. Responsibility lies with ASP, States Parties, and the new generation of leadership.
Fiona McKay, OSJI, underlined that the new generation of leadership, to be elected at the 19th ASP, should be elected based on merit only.
Richard Dicker moreover stated that States Parties should be more active in defending the Court against external attacks.
Summary of the Event:
By means of opening the event, H.E. Mr. Christian Wenaweser, Permanent Representative of Liechtenstein to the UN (and former ASP president) shortly introduced the ongoing efforts to strengthen the ICC. One of these initiatives is a review conducted by independent experts, a topic widely discussed at this year’s ASP. Most of the event and subsequent discussion evolved around this Independent Expert Review (IER). H.E. Mr. Michael Imran Kanu (Ambassador/Deputy Permanent Representative for Legal Affairs, Permanent Mission of the Republic of Sierra Leone to the UN) welcomed and supported the principles underlying the review process, while remaining concerned about the Court’s lack of inclusion. All regions should be included in the Court’s processes, including African states. As historically the Rome Statute has not always reflected smaller states, it remains important to stress equal participation. This is also important for the Independent Expert Review: a lot depends on who is appointed, both competence and geographical representation are of the highest importance. Mr. Imran Kanu expressed hope the Review will lead to recommendations for improvements of the Court as well as the ASP and affirmed Sierra Leone’s full support to the process.
Richard Dicker, director of the International Justice Program of Human Rights Watch, reiterated the importance of learning from tribunals such as the SCSL and ICTY. These examples show that when judicial institutions face problems in terms of managing an ambitious mandate, such issues may be solved through creating an independent expert review. While having been involved in the ICC’s mission for over 25 years, Richard Dicker stressed that civil society organisations are not a fan club and recognize the Court’s disappointments, both in its practice and its policy. It is imperative for the legitimacy and relevance for the ICC to overcome these shortcomings and improve over the coming years. The Review is considered a welcome development and focus should be placed on independence and expertise, according to Mr. Dicker. The experts undertaking the review should be independent from the Court, from States Parties, and from civil society or any other entity seeking to direct the research. As to expertise, it is imperative that the individuals tasked with this review are civil practitioners who have worked in complex criminal cases and are familiar with the investigation, prosecution, and the management of complicated proceedings. Furthermore, Richard Dicker continued, the recommendations resulting from the review should not be used by states to beat the Court over the head, but instead should be acted upon appropriately. In other words, States Parties tendency to micromanage the recommendations should be contained. At the same time, Richard Dicker emphasized the importance of realizing that the Review is not going to transform all the Court’s problems. It is up to the new generation of leadership, as well as States Parties, civil society and communities most affected, to create a common framework that will guide the Court in bringing its practice to a higher level of conduct.
Representative Fiona McKay of OSJI predominantly spoke about the nomination and election process of judges and the prosecutor. As the ICC is a court of law, judges are the cornerstone of its effectiveness and legitimacy. At the heart of the ambition to strengthen the court lies the realization that judges are elected based on merit, meaning that they have the experience needed to carry out their functions. Certain elements of the Draft Resolution significantly improve the election process. The first problem is how judicial candidates are nominated at the national level, as too few nomination processes are transparent and merit based. Although this is a solid and necessary start, the issue should remain under review as there may be a need for further improvement after next year’s election. H.E. Mr. Wenerwarsen argued similarly that, while a lot of work has been done to ensure an inclusive (gender and geographically diverse) composition of the bench, more can be done with respect to the quality of the election process. Strengthening the ICC should not be left only to the Independent Expert Review.
Several comments were brought forward by the audience focused on the legitimacy of the Court and its relevance to the international community. It was noted that it is difficult to present ‘the product’ that the Court is able to produce, which raises questions among States Parties about their support to the ICC. Similarly, the Ambassador to the Netherlands from Estonia exemplified that it is difficult for communities most affected to understand what the aim of the ICC is, when political leaders are brought to the Court while direct perpetrators continue to live alongside their victims.
Lastly, the discussion focused on the possibility to uphold the independence of the Court and the integrity of the Rome Statute in the context of the attacks the Court has been facing. The panelists placed emphasis on the necessity of the willingness of States Parties to stand up. These political attacks are not only aimed at the Court as an institution but also at individuals who simply do the job they were asked to do by “all of us”. It could be helpful to draft recommendations on steps that States Parties may take as the attacks are political and therefore ask for a political response. Nevertheless, “there will continue to be attacks so long as the Court is trying to do the job that the Rome Statute mandated it to do, which is investigate and prosecute individuals, no matter how powerful the governments they serve are,” Mr. Dicker stated. He continued that it is imperative that States Parties up their active defense of the Court and do not fall prey to considerations of whether it remains worthwhile to spend diplomatic capital on a Court that finds itself in the crossfire of the US government and whose performance might be disappointing. States Parties will have to become more active in defending the fight against impunity to counterbalance the fire and fury that the Trump administration will undoubtedly unleash on the Court if it will go forward with its investigations into Afghanistan and/or Palestine.