Introduction
The International Criminal Court (ICC), which was founded in 1998 and began its operations in 2002, is a key actor in the broader system of international accountability for grave crimes that encompasses national judiciaries, hybrid and ad hoc courts, international investigative mechanisms and other institutions. Amongst these other bodies the ICC looms large in the global imagination and in the hopes of civil society and atrocity victims the world over. It is a court of last resort that is meant to encourage accountability for grave crimes at the national level while also backstopping the failures of domestic justice systems.
However, the court has struggled to fulfil its ambitious mandate and has faced mounting criticism, even from its closest supporters. Civil society organizations have raised concerns over the years about the court’s failure to meet expectations due to insufficient understanding of the field and the lack of consideration for victims’ priorities. Poor quality investigations and prosecutions, controversial decisions, institutional infighting, and a lack of accountability for poor performance have compounded mounting external problems, including a lack of state cooperation and political backlash from powerful states, notably the United States. By early 2019, it became clear that the broad sense of crisis had created a potential opportunity for reform through a number of measures, including an independent assessment by international experts. The ICC will undergo a significant change of leadership in the beginning of 2021, making it an ideal opportunity to identify needed improvement.
Independent Expert Review of the ICC
On December 6, 2019, after several months of negotiations, the Assembly of States Parties (ASP) to the ICC passed a resolution, by consensus, on the Review of the International Criminal Court and the Rome Statute System. Specifically, the ASP was “[g]ravely concerned by the multifaceted challenges” faced by the court in ending impunity and preventing crimes. The resolution further commissioned an independent expert review of the court that will make “concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system.”
The terms of reference included in the resolution divide the independent expert review into three clusters of work: governance; judiciary; and prosecution and investigation. Each cluster has three experts appointed to it, who are expected to consult with relevant stakeholders, including civil society, in the course of their work. The experts will submit a comprehensive report including recommendations to the ASP and the court at the conclusion of their work. According to the terms of reference, the report will be public, “subject to appropriate confidentiality measures.” It is also expected that the ASP will consider the experts’ recommendations and decide on next steps at its nineteenth session in December 2020.
Other Areas of Review by States Parties and the Court
In addition to the Independent Expert Review, the ASP resolution also highlights other avenues through which the states parties and the court itself can work to strengthen the ICC and improve its performance, together with other relevant stakeholders. The Bureau of the ASP developed a “Matrix over possible areas of strengthening the Court and Rome Statute system” as a starting point for a comprehensive dialogue. The matrix provides a list of “concrete and actionable issues” and is a considered a living document intended to be used to facilitate discussions on areas of review.
The matrix’s three broad categories of issues for review are: governance, management, and leadership; investigations, prosecutions, and the judicial process; and the external environment. While the Independent External Review is mandated to cover some issues, the Bureau working groups and facilitations are addressing other areas identified for review. The ASP resolution noted four priority areas for the Bureau and its working groups to handle in 2020: strengthening cooperation; non-cooperation; complementarity and the relationship between national jurisdictions and the court; and equitable geographical representation and gender balance.
Under the governance, management, and leadership category, the Bureau and states parties will exclusively address two issues: the election of judges and the election of the prosecutor. For example, in order to “ensure the highest quality of nomination and election of judges” the matrix outlines several actions, including strengthening the mandate of the Advisory Committee on Nominations. Accordingly, the ASP passed a resolution specifically addressing that issue in December 2019. The matrix also encourages actions to strengthen national nomination processes in order to secure the most qualified judges to the ICC bench.