Last week, the Group of Independent Experts appointed to undertake a review of the International Criminal Court (ICC) and Rome Statute system submitted their interim report to States Parties and other stakeholders. At the most recent Assembly of States Parties (ASP) to the ICC in December 2019, the ASP passed a resolution commissioning the independent expert review to make “concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system.”
The Group of Independent Experts began its work in January. According to its interim report , over the past several months, the Group gathered and analyzed information from experts inside and outside the court, identified cross-cutting issues, and began to formulate their findings. The Independent Expert Review (IER) is divided into three clusters of work: governance; judiciary; and preliminary examinations, investigations, and prosecutions. Each cluster has three experts.
In his opening remarks to the Bureau of the ASP, IER Chair Richard Goldstone noted that the experts held 272 meetings and interviews with 243 current and former court officials, staff, external defense, and victims representatives. The IER also met States Parties, the ICC Staff Union Council, and 54 non-governmental organizations, among others. Several civil society organizations also submitted recommendations directly to the IER, including the Open Society Justice Initiative. The interim report acknowledged the IER’s limitations, including not being able to visit ICC situation countries or directly consult with local civil society. However, civil society in situation countries who organized “consultations and surveys” were able to share their results with the IER.
The interim report further elaborates on the topics covered by the IER. While the ASP resolution provided a list of topics for each cluster to consider, the experts expanded on this list in accordance with their terms of reference. In the governance cluster, notable additional topics include “ethics and the prevention of conflicts of interest” and the court’s “response to external political measures against it.” The latter is especially significant in light of the US government’s most recent threats to the ICC.
In the judiciary and judicial process cluster, experts newly included “improvement to the system of the nomination of judges” among other issues. The Justice Initiative’s report on the election of ICC judicial candidates, Raising the Bar,highlighted this as an area for improvement. Research has found that national nomination processes often lack merit-based criteria. The experts also added management of transitions, and working methods of the judiciary to the list. States issued a “matrix” of potential topics for review last year that included judicial training as a possible action under working methods of the judiciary. The Justice Initiative made its own submission to the IER covering the importance of judicial training at the ICC.
The Group of Independent Experts added three additional topics to the cluster covering the work of the Office of the Prosecutor (OTP):
- Relationship between the OTP and international organisations and civil society organisations;
- Complementarity, to the extent that it is relevant to preliminary examinations, prosecutorial and completion strategies;
- Non-cooperation by, or dilatory responses from, some States Parties and international organisations.
These are significant additions to the IER, and several recommendations covering these areas have been provided in a joint report from the Justice Initiative and Amsterdam Center for International Law at the University of Amsterdam.
The IER is now in the final phase of its work. The Group of Independent Experts will hold a final meeting September 1-3, and submit its final report and recommendations to States Parties on September 30. After the IER concludes its work, the review moves on to the next stage, which includes States Parties, the court, and other stakeholders working together to operationalize recommendations and make change at the ICC a reality.
It is commendable that the review is taking place to submit action plans to rectify serious deficiencies relating to the ICCs ability to deal effectively with the worst crimes against humanity.
It is critical that there be an efficient international independent system not obstructed by political interference and lack of funding, identified by a prosecutor I have had discussions with, resulting in delays, lack of judges, ability to investigate complaints adequately,apprehend those who should be charged etc., all being basic activities involved in the proper administation of an effective justice system.
You would know the extent of international crimes needing to be prosecuted and the millions of people suffering as a result of genocide, billions of dollars stolen, recruitment of hundreds of thousands of child soldiers under threat of their families being killed if they do not obey and the production of lightweight weapons for use by them. There are ,of course, many other crimes and difficulties in bringing alleged perpetrators before the court, in which case, would it be possible to review evidence in the absence of such people and if a prima facie case is established, publishing such a finding in the international media to expose the situation.
I wish you well in your endeavour to rectfy the situation in the hope the most important problem, in my opinion, is improved.
Yours sincerely Philip Scales AM