Remembering Rome: The Case for Civil Society Engagement in ICC Review

Wednesday, July 17, marks the World Day for International Justice, a day to celebrate the adoption of the Rome Statute of the International Criminal Court (ICC) on July 17, 1998. While much fanfare attended last year’s events – to mark the Statute’s twentieth anniversary – this year the mood is likely to be more subdued. Despite the recognition enjoyed by the court as a central pillar of the international justice system to fight impunity for the most serious crimes, the ICC and its supporters face a period of introspection following a series of controversial outcomes, questions about competence, and the perception that the court as an institution is unmoored and politically weakened.

Indeed, calls to review the ICC have grown from a wide range of actors, with commentators going as far as to suggest that a reform is needed. Some have contended that there should be “complete structural change” in the way the court conducts investigations and prosecutions and that the criteria and process to elect judges must be revised. To that end, four former presidents of the Assembly of States Parties of the ICC wrote in April that “an independent assessment of the Court’s functioning by a small group of experts is badly needed.” Whether such an urgently needed group will, in fact, be appointed remains to be seen.

What also remains unclear is whether these conversations on court review will benefit from the vital perspectives and expertise that civil society organizations can contribute. Civil society played a pivotal role in building consensus for the creation of the ICC and helping to negotiate the Statute itself.  Civil society campaigns have long pressed for ratification of the Rome Statute, as well as its implementation at the national level. Civil society groups have likewise been engaged in efforts to make the court function better, such as advocating for improved practices on victim participation and more responsible reliance on intermediaries and for more inclusive gender justice. Through close monitoring and advocacy, these organizations have built an expert level of knowledge on ICC proceedings and institutional processes. They are well placed to advise.

Civil society has also long contributed to bridging the gap between the court and affected communities where investigations have taken place. At the local level, civil society organizations work with the court in conducting outreach and in interacting with victims. In many contexts, the court simply would not be able to function on the ground without the knowledge and collaboration of local civil society. These few examples point to the diverse contributions civil society provides, and, while these groups are not always supportive of particular judicial decisions or institutional court policies, they share a common goal: closing the impunity gap and providing a measure of justice to victims of grave crimes.

As the ICC embarks on its next phase of development – with even the court itself joining the calls [pdf] for review – civil society fully expects to continue this tradition of robust participation. Yet, it is unclear if there will be openness to civil society input, and, if so, how those views will be received and considered. States that fund and support the court have a significant role to play, and discussions about review are already taking place among states in New York and The Hague. However, the importance of civil society involvement cannot be overstated. Who is better placed to put their finger on the court’s failings and needed improvements and to garner the support needed to make changes happen than those who have experienced the operations of the ICC firsthand and have a strong stake in its success?

As James Goldston, the Open Society Justice Initiative’s executive director notes, “The ICC owes its existence to the courage and persistence of independent voices, activists and victims of grave crimes who kept the dream of a permanent tribunal alive for decades. With the Court facing historic challenges today, civil society has a vital role to play in helping shape a review process that is credible, thorough and impartial.”

Pascal Kambale, the Open Society Foundations’ Senior Program Advisor to the Africa Regional Office, stresses that the views of local civil society in countries where the ICC has operated can provide vital insights:

“Since the establishment of the ICC, African civil society organizations have demonstrated their unwavering commitment to the Rome Statute. They have vigorously advocated for African States to ratify and domesticate the Rome Statute as well as honor their treaty obligations. The civil society-led strategic litigation efforts in countries like Kenya and South Africa following the indictment of former Sudan President Omar Al-Bashir are evidence of their invaluable contribution to the ICC.  In building many of its cases, the court has relied on African civil society documentation and information on atrocities. Most importantly, without active civil society in African situation countries, the Hague-based ICC would remain an unfamiliar entity for victims of mass atrocities. African civil society continues to play a role in the ICC because they know that their continent needs it perhaps more than any other. Therefore, no effort to review this institution can succeed unless it recognizes and takes on board African perspectives.”

Indeed, meaningful participation by civil society in the ICC review process will ultimately contribute to a better system of international criminal justice.

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