Happenings in The Hague: How the Independent Expert Review of the ICC’s Performance Can Strengthen the Court

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So, I heard there is talk of reviewing the performance of the ICC, a so-called ‘ICC Review’? What is that about and why is it necessary?

Well, I am sure you remember the recent setbacks that caused a lot of criticism of the Court’s work: judicial decisions that shed light on weak spots in the Court’s investigations and legal reasoning, but also on the impact of external factors on the Court’s work. The most recent of these decisions, which has been the driving force behind the creation of the ICC review, is the denial of an Afghanistan investigation (now reversed, asdiscussed in our last Happenings in The Hague explainer). These decisions caused deep disappointments, particularly to the victims and affected communities concerned. Serious concerns were raised about the way some Court organs, and some senior level staff, approach their work. You may remember the action taken by some judges seeking to increase their already significant salaries, and other employment disputes over the past years, that significantly tarnished the image of the Court. These developments were only the tip of the iceberg. In recent years, many experts and observers seem to have reached a consensus that the ICC is not performing well, and that concrete and meaningful steps are needed to strengthen the Court and its performance. As put by four former presidents of the Assembly of States Parties to the ICC: The ICC needed fixing! But how to go about doing that?

In 2019, several NGOs, including FIDH, advocated with States and the Court to set up an independent assessment process of the Court. Such an assessment could provide the Court’s incoming leadership – the new ICC Prosecutor and President, who will take office in 2021 – with concrete recommendations that they can act on to improve the Court’s performance.

I am convinced! And? Has this happened?

Yes, it has!

The Independent Expert Review (IER) was set up during the 2019 session of the Assembly of States Parties (ASP). The ASP holds an annual meeting for States Parties to the Rome Statute and makes vital decisions to the functioning of the Court, including in relation to the Court’s budget, cooperation and non-cooperation with the Court, and elections of the Court’s judges, prosecutor or other positions.

Last year, the ASP decided to set up the IER, and to appoint a group of nine independent experts to carry it out. The IER will be done in parallel with a review done by the States Parties on a number of issues (cooperation and non-cooperation with the ICC, complementarity, and equitable geographical representation and gender balance in the Court).

In any event, tame your enthusiasm; the IER alone will not be a magic fix. Bettering the Court’s performance is a long-term project requiring action by the Court itself, as well as by the States Parties. The Review, however, can be an impetus for such change.

OK, duly noted. So what exactly will the experts do?

The group of independent experts started their work on 1 January 2020. The group is tasked with assessing a number of issues affecting the Court’s performance. Some of these issues relate to the Court’s governance, such as human resources and the Court’s budget process; others to the judicial process, including matters affecting victims such as participation and reparation; and finally, issues relating to the work of the Office of the Prosecutor, including in the areas of preliminary examinations, investigations and prosecutions.

In assessing these issues, the experts will have access to Court staff and materials, as required, and of course with confidentiality arrangements. This is due to the delicate nature of the Court’s work, meaning it is crucial to preserve the confidentiality of a great deal of information and activities, which if exposed, could harm the conduct of investigations, cases, or persons including victims, witnesses, ICC staff or partners.
The independent experts were also mandated to consult with all relevant stakeholders.

Including civil society?

Yes; this is something FIDH strongly promoted, especially consulting civil society working in countries where the ICC is investigating or conducting preliminary examinations. In our view, the voices of those most affected by the Court’s performance need to be heard and given central attention.

That said, and despite the experts inviting civil society input early on, there were a number of limitations including the consultation period’s short time frame (less than three months), language barriers, lack of visibility to this process, particularly for actors in situation countries, and not to mention the coronavirus pandemic which erupted halfway through the consultation period.

In any event, based on the input received and other accessed information, the experts will present a report with their findings and recommendations.

Yet another report! How can it concretely impact how the Court performs?

Yes, you’re right, this is another report. But the fact that this review is happening is already a step in the right direction, as States and the Court itself recognise that the performance of the Court needs to be improved. The serious shortcomings have been ignored for too long, and tackling these head-on through a Review that assesses the Court’s performance can only be a good thing.

The experts’ report will thus be crucial to shaping the overall performance of the ICC and the Rome Statute system; it is expected to make concrete, achievable and actionable recommendations to improve the performance of the Court and the Rome Statute system as a whole.

How the Court and its staff will implement recommendations remains to be seen. Of course, the implementation of these recommendations must respect the Court’s independence, which means some recommendations should be dealt with only by the Court rather than by States.

That’s good… So, when can we expect to see this report?

The final report should be released by the experts in September, with an interim report expected later this month.

Very nice, will keep my eyes open. By the way, did FIDH submit anything to the experts?

Yes, we most certainly did. Together with our member organisation, the Kenya Human Rights Commission, we convened a consultation meeting that brought together civil society organisations and legal professionals working with victims in 12 ICC investigations or preliminary examinations. The discussions arising from this meeting formed the basis of our submission to the experts, where we highlighted issues important to the Court’s work affecting victims’ rights and the delivery of visible and impactful justice. It’s publicly available now–you should definitely check it out. There are also several interesting submissions produced by other civil society organisations; some of them can be found here and here.

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