19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
8 December 2020
Name of the Side Event: International Expert Review of the ICC: Civil Society perspectives on next steps (co-hosted by Human Rights Watch (HRW), International Federation for Human Rights (FIDH), & Liechtenstein, Spain, Switzerland, and Sierra Leone)
Report by: Isabelle Jefferies, Junior Research Associate PILPG-NL
Highlights:
In this event, members of civil society engaged in a discussion on the International Expert Review of the International Criminal Court (ICC). The review was commissioned by the Assembly of State Parties in December 2019, and delivered its final report containing extensive recommendations on September 30, 2020.
The conversation focused on the next steps to be taken, and in particular, on the role civil society has in this regard. Given its firsthand experience of the impact of the Court’s shortcomings, notably on victims and other affected communities, civil society has a unique perspective within the system of the Rome Statute.
The panel was unanimous in stating that civil society must play a key role in the implementation and monitoring of the recommendations made in the review.
Summary of the Event:
The ambassador for Sierra Leone began the conversation by emphasizing the significance of civil society within the system of the Rome Statute and the continued importance of this system in promoting the global fight against impunity. He drew attention to the importance of a continued commitment by all stakeholders to the Court, if the review process is to be successful. The ambassador for Liechtenstein also commented on the value of incorporating the voice of civil society in the review process. It is crucial to remember that without civil society, the Rome Statute would not have come about in the first place. Also, the review comes at a time when multilateralism is being undermined, and the Court faces increasing political attacks and widespread criticism, so its importance cannot be understated.
After these introductory comments made by the spokespersons of the event sponsors, questions were put to the panelist. In particular, they were asked to share their views on the substance of the recommendations made in the review, especially those relating to victims’ rights and engagement with impacted communities. Nino Jomarjidze, representing the Georgian Young Lawyers Association and the Georgian Coalition for the ICC, began by recalling that this review was an opportunity to strengthen the ICC and the Rome Statute system as a whole, and importantly, to deliver justice for victims. She raised some concerns with regards to the recommendation that the Office of the Prosecutor (OTP) should apply a higher threshold of gravity with regard to preliminary examination. In her view, this would result in further restrictions to the jurisdiction of the Court, and would cause disappointment to victims of serious international crimes.
Shawan Jabarin, from the Palestinian Rights Organization Al-Haq and the International Federation for Human Rights (FIDH), welcomed the recommendation that the Court should strengthen its relationship with civil society, and also bolster the place of victims within the Rome Statute system. He noted the recommendation made by the FIDH that a review mechanism should be created, whereby a body appointed by the bureau would have the mandate of planning, coordinating, and monitoring the implementation of the review, in consultation with civil society members. This would facilitate the effective and swift implementation of the recommendations. He noted that the experts failed to recommend an increase in the Court’s budget, and instead recommended ways in which it could become more efficient. For Jabarin, this would simply limit the number of cases taken on by the Court, and delay the investigation of the ones it does take on. Overall, this would simply cut the Court’s ability to fight impunity.
Leila Sadat, James Carr Professor of International Criminal Law at Washington University, Director of the Whitney R. Harris World Law Institute, and Special Adviser on Crimes Against Humanity to the ICC Prosecutor, commended the Expert Review, which was delivered on time, despite the ongoing COVID-19 pandemic. The report came up with some creative recommendations on how to improve the efficiency and quality of the Court’s jurisprudence and should help the Court move forward in a positive direction.
Chino Obiagwu, from the African Network for International Criminal Justice, was also satisfied with the recommendations and commended the report generally. However, he believed a number of political questions, which are highly relevant, lacked consideration, such as funding or problems of cooperation by State Parties.
The panel was also asked to discuss what the steps should follow after the delivery of the report. Some of the key comments made by the panelist were that the recommendations should be implemented in a timely and effective manner. However, they conceded this will not be an easy process, as it will require resources that the Court simply does not have. As a result, it may be useful for stakeholders to engage in dialogue with each other, in order to prevent an overlap on their respective work in the implementation of these recommendations. Furthermore, civil society should be included in the implementation process. Another suggestion of the panelist was to create a strategy of implementation. In fact, certain recommendations should have priority over others, whereby the ASP could start with “low hanging” areas which can be implemented with little political resistance and without significant changes to the rules of the Court.
Richard Dicker, Director at Human Rights Watch, joined the conversation to express his concerns on ensuring that judicial and prosecutorial independence is preserved throughout the reform of the court. The ASP should not be interfering with the ongoing functions of the judiciary and the prosecutor. It is crucial that the Assembly of State Parties separate the areas that are completely within the independence of the Prosecutor and the judiciary, from the areas that concern the functioning of the Court as an international organization. Jabarin emphasized the role of civil society in this regard, as they do not play a political role and will not compromise when it comes to such principles.
The panel was then asked to consider the recommendation made in the report concerning the creation of an Office for the Defense. In general, the panelists agreed with this recommendation. In fact, a strong and professional defense would be beneficial to the OTP as it would enable the proper conduct of cases, as well as the preservation of the rights of all parties. Moreover, this would enable the implementation of a code of conduct for the counsel for defense, and would also ensure that defense has appropriate resources, which could in turn reduce delays in the proceedings.
The panel then considered the role that civil society should play in implementing or monitoring the reforms after the implementations of recommendations concerning the culture within the Court, and notably the issues surrounding sexual harassment and bullying. The panelists touched upon the fact that it is actually civil society that had been pushing for the review of the Court for so long, and that now that the review has come, they will continue to engage with its implementation.
The conversation concluded with comments made by the Spanish Representative to the UN, Maria Bassols Delgado, who guaranteed Spain’s full support of including in the review of the Court.