By: Leila Nadya Sadat
This piece was originally posted on The International Criminal Court Forum, a project run by the UCLA School of Law’s Human Rights Project, as part of a series celebrating the ICC’s 20th anniversary. It is re-posted here in honor of International Justice Day.
The adoption of the Rome Statute of the International Criminal Court by 120 States on July 17, 1998 marked an uneasy revolution in international law and practice. A response to the devastation wrought by war and the commission of atrocity crimes, the Rome Statute was negotiated just after the collapse of the Soviet Union in 1989, but still in the shadow of possible nuclear war. The Statute’s adoption was a sign of faith and optimism in the capacity of international law and international institutions to prevent and contain violence and create a more peaceful and prosperous world.
At the time of the Court’s establishment, euphoria and skepticism about both its utility and its prospects were present in roughly equal measure. It was thought that it might take decades to reach the sixty ratifications necessary to bring the treaty into force and most observers were surprised when that goal was achieved after only four years. The NGO Coalition for the International Criminal Court (the CICC), which began campaigning for the Court in 1995, set as its goals for the treaty a fair, effective, and independent Court. Twenty years later, the Court has become operational and these objectives can be assessed and measured rather than speculated upon, although it is admittedly hard to gauge the long-term impact of the Court’s activity at this early stage.
With 900 staff hailing from more than 100 countries and 123 States Parties, the Court has grown considerably faster than experts predicted twenty years ago. It has 11 Situations under investigation, 26 cases pending or complete, and 10 Preliminary Examinations under way. As a “justice start up,” tasked with investigating and prosecuting the “most serious crimes of concern to the international community as a whole,” the ICC is, by definition, an institution asked to bring the rule of law into some of the most difficult and dangerous situations in the world, a mission that requires it to confront State power on an ongoing basis.
Turning the complex and heavily negotiated provisions of the Statute into a blueprint for a functioning international institution has clearly been both exhilarating and exhausting for those involved and has been more difficult than the construction of the ad hoc international criminal tribunals due to the wider scope of the ICC’s mandate. The Court has had some significant successes, securing convictions of individuals for serious crimes including enlistment, recruitment, and use of child soldiers (Lubanga); attacks upon cultural property and heritage (Al Mahdi); and sexual and gender-based violence (Bemba). It has also begun the process of issuing reparations and its focus on victims is much more significant than predecessor institutions. The shadow of the Court looms large in the mind of victim groups, civil society advocates, governmental officials, rebel leaders, the media, and even in the decisions of other national courts. The annual meeting of the Court’s Assembly of States Parties brings together States, NGOs, and other stakeholders to discuss not only matters of importance to the ICC itself, but global justice, peace, and security more generally. At the international level, having an institution focused upon global justice whose mission must be factored into the resolution of difficult international issues has changed the equation in a way that is hard to quantify (although scholars are studying it closely), but is deeply significant. At national and regional levels, the ICC has encouraged the establishment of new courts and other mechanisms to address international crimes—an example of “positive complementarity” inspired by the Rome Statute system.
The ICC has also faced considerable challenges. These include critiques of its legitimacy from State and non-States Parties alike, difficulties apprehending defendants (15 of whom are at large as of this writing), lengthy trials involving difficulties of proof, and problematic jurisprudence and jurisprudential methodologies in several areas of the law. Critics have alleged that the Court is both too strong and too weak; that it is targeting Africa because it is a tool of the West and, at the same time, is bringing politically motivated prosecutions against Western States; that the Office of the Prosecutor (OTP) has targeted defendants who are too high ranking to be brought before the Court; or, as others have complained, has only brought cases against low-level accused. As Darryl Robinson has written, whatever it does, “the ICC cannot win.” The Court occupies, to paraphrase U.S. Judge Patricia Wald who served at the International Criminal Tribunal for the former Yugoslavia (ICTY), “a small center in a whirling international vortex” in which almost everything it does “has political implications.” Criticism of the Court is, therefore, inevitable. Nonetheless, it is worth asking what actions the organs of the Court can undertake either to minimize or diffuse those criticisms or respond to them with useful reforms.
This short comment considers three challenges the Court must meet to become the fair, effective, and independent Institution envisaged in the summer of 1998. These are:
- Political challenges to the Court’s power, authority, and independence;
- Challenges stemming from difficulties of the Court’s trial processes; and
- Concerns about the Court’s early case law.
This comment also suggests steps that the Court could undertake to meet these challenges.
II. Three Key Areas of Concern
A. Political Challenges
The world in 2018 is not the world of 1998, and it is not sensible to assume that the world of 2028 is likely to be much better. The 1990s were a time of conflict, but also of hope, and renewed focus upon international law and institutions. Twenty years later, the Cold War seems resurgent as the Security Council is again paralyzed by bitter disagreements between the great powers, particularly the Russian Federation and the United States. This has made effective action on some of the worst atrocity situations in the world (e.g. Syria) extremely challenging. Ratifications of the Rome Statute have slowed considerably, leaving seventy States, including many major powers, outside the Rome Statute system, and this situation is unlikely to improve soon. Two States that have been the subject of Preliminary Examinations have withdrawn from the Statute in response, which is their sovereign right, but worrying. Talk of a “mass exodus” of African Union members has punctuated discussions about the Court at its annual Assembly of States Parties meetings for the past few years, sparked by indictments of African leaders who fought their battles both in and outside the courtroom, attacking the Court politically as well as the specific cases against them, and even, as discussed below, attempting to amend or reinterpret key Rome Statute provisions in their favor to preserve their immunity from the Court’s jurisdiction.
The hostility of the United States towards the international criminal justice project has also posed a major challenge. The lack of U.S. support has not proved fatal to the Court, but it has weakened it. Given that the Nuremberg trials were very much an “American show,” U.S. attacks on the Court also pose a more existential and fundamental challenge to the Institution than challenges by other States. Although instrumental in the establishment of the Yugoslavia and Rwanda Tribunals in the 1990s, and relatively supportive in terms of funding, intelligence sharing, and the secondment of personnel, the United States has been less positive about the ICC. This has jeopardized the ability of some countries to cooperate with the Court and deprives the Court of financial and logistical support. It also leads to arguments that the Court is not even-handed because it cannot compel U.S. persons to appear before it even though the U.S. has participated in Security Council referrals to the Court in three cases involving non-States Parties (whilst exempting or attempting to exempt its own nationals from the Court’s jurisdiction): Sudan, Libya, and Syria. The accusation of double standards erodes perceptions that the Court is fair and independent. The Prosecutor’s request to open an investigation into the Situation in Afghanistan, which may implicate U.S. persons and policies, may obviate some of the critique directed towards the ICC itself, but may lead to other difficulties if the Court finds itself on the receiving end (again) of punishing treatment from the United States.
The absence of Russia, China, and India is equally problematic, but for different reasons. These populous and influential States are nuclear armed, and two of them, like the United States, can refer situations to the Court and suspend investigations in their capacity as permanent members of the U.N. Security Council. Following the U.S. example, the Russian Federation repudiated its signature of the Rome Statute in November 2016, following a reference by the Prosecutor to Russia’s “occupation” of Crimea.
It is not just large countries that have spurned the Court, however. Following the indictment of Sudanese President Omar Al Bashir of Sudan in 2009, members of the African Union, asserting that the Court was “targeting Africa,” launched a campaign against the Court. Sudan asserted that the Court was a “political organ of the EU…built to indict Africans,” and that it had no obligation to cooperate with it as a non-State Party to the Statute, even pursuant to a Security Council Resolution, in a reprise of the U.S. arguments made at Rome against the Statute. The AU campaign involved a refusal to arrest Omar Al Bashir during his international travels (including to ICC States Parties); an effort to persuade the Security Council to defer the Sudan case (and later the Kenya cases, which also involved indictments of a Head of State); to amend the Statute to permit the General Assembly (as opposed to the Security Council) to suspend an investigation or prosecution; long sessions at the ICC Assembly of States Parties on “Indictment of Sitting Heads of State and Government and its Consequences on Peace and Stability and Reconciliation” (and similar topics such as “Africa and the ICC” in subsequent years); the adoption of a new Rule of Procedure and Evidence, 134 quater to permit Heads of State to be excused from trial and represented by counsel only (probably in contravention of Article 63(1) requiring the accused to be present during the trial, and Article 27’s admonition that the “Statute shall apply equally to all persons without any distinction based on official capacity”); and the adoption of a new treaty, the Malabo Protocol, providing for immunity for Heads of State in direct contravention of customary international law and the Rome Statute.
Given these political difficulties, which are not likely to improve any time soon, the Court must endeavor to satisfy its supporters and win over its detractors, keeping in mind that it must remain fair and independent. The Court alone cannot change the political framework within which it operates, and much of the political blowback it experiences is because “it is working.” Yet sometimes the Court is its own worst enemy, appearing aloof and bureaucratic rather than engaged and open. It can engage in more extensive outreach to explain its activities and do the kind of “public diplomacy” necessary for an institution to earn public support and trust. It can do more to educate the public about its work, make its website much more user friendly (even the latest version is extraordinarily difficult to navigate), produce or sponsor books and videos explaining the importance of its work, and engage in more victim-centered activities that underscore the importance of justice and reparations for afflicted communities. The Court’s Registry, which receives about 52 percent of its budget, is largely responsible for these actions. It should ensure that visitors to the Court are treated as valued members of its public constituency, not as impediments to its effective functioning. After all, the Court is a publicly funded State institution that must be accessible and open to the international community it serves. Finally, although there has been some discussion of whether nationals of non-States Parties should be employed at the Court, their presence at the Institution not only allows them to become ambassadors for the Court in their home countries but indicates the Court’s desire to one day truly achieve universal ratification. The Court’s Assembly of States Parties must provide sufficient funds to allow the Registry and other organs of the Court to carry out this important work, so critical to ensuring the Court’s political survival.
B. Challenges Relating to the Trial Process and Functioning of the Institution
A difficult political climate requires the Court to be scrupulous about its trial processes, so it can demonstrate that it is indeed “fair, effective, and impartial,” and able to perform the core tasks assigned to it by its Statute. This has, to date, been a major weakness of the Institution although it is improving with time and experience. Trials are too slow, evidence is often insufficiently robust, and the Pre-Trial Chambers have, in particular, often issued rulings that are difficult to understand and created difficulties for both the prosecution and the defense as well as consumed a great deal of time.
During the Preparatory Committee discussions that preceded the Rome Conference, the view was often expressed that the ad hoc international criminal tribunals relied too heavily on common law procedures for their functioning and had become too adversarial. This, it was thought, was leading to long trial times and delays, problems with evidence, and excessively lengthy judicial opinions with verbose majority and dissenting opinions. There was also considerable concern about having an “independent prosecutor” that could bring cases on his or her own initiative. As one U.S. State department official worried aloud, no one wanted an “independent counsel for the universe.”
Responding to these and other concerns, during the negotiations, the French government introduced a new draft that relied much more heavily on civil law procedure. By the time that 165 States and 250 NGOs had finished with the Statute on July 17, 1998, it was a curious blend of common and civil law procedures that was very unlike the Statutes of earlier ad hoc tribunals and seemed more like a civil law than a common law system. It imposes an obligation to pursue the truth and investigate “incrimination and exonerating circumstances equally,” on the Prosecutor, allows the defendant to make an unsworn statement, and permits the introduction of all evidence relevant to the case, excluding only evidence that might be unduly prejudicial to the accused’s right to a fair trial. Terms like “indictment,” used to describe the charging document at the ad hoc tribunals, disappeared from the Statute to be replaced with language that was sui generis (document containing the charges) and difficult to understand.
It was hoped that the introduction of a civil-law style Pre-Trial Chamber that could function as a sort of collective investigating magistrate would provide a bulwark against frivolous or insufficient cases moving forward. It may have done so, but at a considerable cost. It was also hoped that the Pre-Trial Chamber confirmation process would streamline cases and make proceedings more efficient, which clearly has not been the case. The Pre-Trial phase of the Lubanga case, for example, lasted nearly three years, from March 16, 2006 until the opening of the trial in January 2009. The trial then took another three years, and the appeal took an additional two and a half years after that, meaning that the case was not “over” until December 1, 2014, eight years after Lubanga’s transfer to The Hague. In contrast, the ICTY’s first case against Duško Tadić took half that time—two years from arrest and transfer to the Tribunal to the issuance of the Trial Chamber’s judgment; and an additional two years for the appeal.
Some of these difficulties were unavoidable. Complementarity, a core principle of the Rome Statute, was unknown at the ad hoc tribunals, and Chambers wrestled with its meaning and interpretation in the Court’s early cases. Also, as I have written elsewhere, it seemed in 1998 as if the quid pro quo for obtaining an “independent” Prosecutor, and for making the jurisdictional regime of the Statute strong and automatic (at least over genocide, crimes against humanity, and war crimes) in Rome was that States demanded an extremely complex procedure for challenging jurisdiction and admissibility. Thus the ICC pre-trial process is not slow and cumbersome because the Institution is failing to respect the Statute: it is slow, cumbersome, and complicated because that is how the framers of the Rome Statute intended it, largely because they feared the independence of the Court. It could be helpful to amend the Statute, in particular articles 17, 18 and 19, to provide for more clarity and more efficiency, perhaps limiting the number of challenges and requiring them to be brought earlier in the proceedings.
In addition, the insertion of a Pre-Trial Chamber phase has added a second layer of judicial “bureaucracy” to the proceedings. It has also made procedure at the ICC quite different from the procedure at the ad hoc tribunals, making it difficult to draw upon the “best practices” of those institutions to help the Court become operational and efficient quickly. For example, the Pre-Trial Chambers initially rejected the notion that the prosecution could plead modes of liability in the alternative, requiring the case to rest on one theory; alternative modes of liability had been permitted at the ad hoc tribunals, and is now permitted at the ICC. Because pre-trial proceedings are very brief however, and the facts not fully elucidated, this often turned out to be a problem later in the trial, requiring the Trial Chambers to rely upon Regulation 55 to “recharacterize” the charges, a cumbersome process that is inefficient and potentially prejudicial to the accused. Pre-Trial Chambers also crafted complicated theories of liability in the Court’s early cases, decisions that were often lightly footnoted explorations of untested legal theories. They rejected the practice of “witness proofing” and demanded high levels of corroboration in the proof adduced by the Prosecution even at very early stages during the pre-trial phase. They thus endeavored to exercise control over the shaping of the case (consistent with an inquisitorial style procedure), a shift that may not have been required or even supported by the Rome Statute itself.
It is vital that the ICC become more successful at managing the trial and pre-trial process so that trials take less time and cases are managed more efficiently. This is a burden shared by the OTP, the Judiciary, the Registry, and even the Assembly of States Parties. The OTP, which was heavily criticized especially in the Court’s early days, has been responsible for some of the procedural and evidentiary problems that have arisen to date, such as the difficulties stemming from the Prosecutor’s reliance upon intermediaries in the Lubanga case and indicting defendants without sufficiently comprehensive investigations and evidence. Yet this does not relieve the Chambers’ obligation to increase the speed and consistency with which they apply the Statute. Whilst a return to a more adversarial approach may not be the solution, the Court needs to operate as a criminal court, not as an international bureaucracy. Defendants have the right to be tried in a reasonably short period of time, victims need redress sooner rather than later, and it is expensive and inefficient for trials to drag on for years.
The OTP has responded to many of the legitimate criticisms directed at it by adopting policies and strategies to guide its activities, including policies on case selection and prioritization, on victims’ participation, on children in armed conflict, on sexual and gender-based violence, and on the interests of justice. In 2013, it also adopted a Code of Conduct for the Office, two reports on Prosecutorial Strategy, and a Strategic Plan. Chambers have been less active in responding to concerns about the need for reform. Perhaps there need to be stricter deadlines not only for the issuance of judgments and other decisions, but for the conduct of proceedings. There is now a Chambers Practice Manual directed primarily at the Pre-Trial Chambers, as well as to OTP and defense counsel. It is clear from reading the text that the Pre-Trial Chamber process, particularly the confirmation proceedings, has been fraught with difficulty. Given that it involves only a perfunctory hearing (live witnesses are discouraged) and the Pre-Trial Chambers are admonished to “keep the reasoning strictly limited to what is necessary and sufficient for the Chamber’s findings on the charges,” one wonders what the purpose of the pre-trial confirmation process really is. Either the Statute should be amended to remove the confirmation process entirely, allowing the ICC to revert to the practice at the ad hoc tribunals, or clearer rules should be established for its implementation. This leads me to my final point, which raises concerns about the early jurisprudence of the Court.
C. Challenges Stemming from the ICC’s Early Judicial Work
One of the most important measures of the Court’s effectiveness is the quality and impact of its judgments. Although there is no formal doctrine of stare decisis at the ICC, the judgments are highly influential within the Court itself, particularly the judgments of the Appeals Chamber. They also represent important contributions to the interpretation and elaboration of customary international law and they may provide guidance to national systems applying “Rome Law” in their national legal systems. Judgments can be read, analyzed, and studied for decades after the proceedings have ended, and the public looks to them to understand what is and what is not prohibited by the Statute. In short, the Court’s jurisprudence is a primary “product” of the Court. The OTP may be the “engine” of the Court, receiving communications from the public, investigating crimes, and bringing indictments where the evidence leads it, but the judges are driving the train.
Looking at the jurisprudence of the Court thus far, one feels that perhaps the judicial branch of this Institution has not yet found its voice. This is, after all, the living embodiment of the Nuremberg Tribunal and the Nuremberg principles, the world’s first international criminal court, intended to be at the center of a new system of global justice in which no one is above the law. Whilst of course the Rome Statute is the primary text that the judges must apply, it is a text embedded in an international legal system, not just a set of rules, and the meaning of the Statute must always be considered in context.
Chambers have not yet settled upon a clear methodology to be used in interpreting the Rome Statute, although some recent judgments have made significant strides in this direction. The absence of methodology was particularly evident in their approach to modes of liability, which constructed from the relatively simple text of article 25(3) a stunningly complex system based upon the “control of the crime” theory of legal scholar Claus Roxin, that departed from customary international law and the text of the Statute itself. I—and others—have written about that jurisprudence extensively and this is not the place to re-engage that debate. But this is not the only example. It has also evidenced itself in the Ntaganda Appeals Chamber’s decision on the question of liability for crimes of sexual violence against child soldiers, which in my view was correctly decided but could have been reinforced with additional references and analysis. There is a similar concern regarding the several decisions of the Court addressing the problem of immunities (either procedural or substantive) under article 27, one of the most important elements of the Statute with a lineage tied directly to the International Military Tribunal at Nuremberg. This jurisprudence is neither entirely coherent nor completely convincing. Yet it concerns an issue of vital importance to the Court—so important that the Appeals Chamber has now requested amicus submissions on the question.
As to sources, there seems to be a tendency to set aside past precedent from the ad hoc tribunals or other courts even when it would properly inform the Court’s judgments, and there does not seem to be a clear notion of when the Court feels it is or is not useful and appropriate to do so. Whilst there was some criticism of the ICTY for its extensive and often teleological approach to issues of interpretation, opinions like Tadić and Erdemović, to name just two, were extensively researched, replete with references to national case law, customary international law sources, and other authorities. They are still referenced and cited because of their quality and significance. ICC Chambers, however, often eschew the jurisprudence of the ad hoc international criminal tribunals even when it is relevant and appropriate to the issue at hand, and rarely conduct the kind of in-depth survey of State practice needed to establish either a rule of customary international law or a general principle of law.
Finally, although many judgments and dissents are beautifully written and researched, some decisions do not exhibit the clarity of exposition and elegance of prose one might expect from the world’s first global criminal court. Of course, it is traditional in many civil law systems for judgments to be opaque and even cryptic, and not to permit public dissent. The Court also works in two languages and proceedings are often conducted through interpreters. Yet once the drafters of the Rome Statute decided to permit majority and dissenting opinions, and left so many interpretative questions open in the Statute, it became incumbent upon the Court’s judges not only to elaborate upon their reasoning in detail, but to consider writing to the larger public eagerly awaiting and digesting their opinions rather than to just a handful of international criminal law scholars and specialists. Judges may have felt timid or uncomfortable about doing this in the Court’s early years; but as the Rome Statute moves into its third decade, they may wish to wield their pen with greater confidence. After all, to paraphrase one of the great Justices of the United States, it is “emphatically the duty of the Judicial Department to say what the law is.”
The ICC has grown more quickly than was expected in 1998. The Court has had undeniable successes, but significant growing pains as well. This comment suggests that greater awareness of the political environment in which it is embedded, better public outreach and transparency, more effective trial processes, including a significant reform of the pre-trial confirmation process in particular and the complex regime governing challenges to jurisdiction and admissibility, and having the judges develop a stronger voice and more coherent judicial methodology will help ease the Court into a successful third decade. At the inauguration of the permanent premises in 2016, the Mayor of the Hague, J. J. van Aartsen, referred to the ICC’s new premises as the “Peace Palace of the 21st Century.” With the entry into force of the aggression amendments this summer, it may become just that; but it will take a concerted effort, more resources, and political support from States and civil society for that dream to really become a reality.