Let review of ICC performance strive to restore its legitimacy

It seems that the necessary review of the International Criminal Court’s (ICC) performance will get underway in the new year, after member states to the Rome Statute approved plans for an assessment of the court and the Rome Statute system. During the 18th session of the Assembly of States Parties to the Rome Statute which took place at The Hague last week, the ICC President, Chile Eboe-Osuji, Prosecutor, Fatou Bensouda, and Registrar, Peter Lewis, renewed their support for a review that aims at strengthening the performance of the Court, and highlighted similar efforts they had already made in improving the performance of the organs they respectively lead.

All 17 states that spoke during a plenary debate expressed support for the review and welcomed proposals to establish an Independent Expert Review (IER) set to commence work in January 2020. Nine experts were appointed by the resolution adopted by the States Parties who would look into areas of the court’s governance, judiciary, prosecutions and investigations.

While supporting the review, representatives of civil society urged that the process should incorporate expertise and independence and that any review should be inclusive and consultative of the views of civil society, particularly those from ICC situation countries.

A variety of reasons have left the ICC in turmoil, hastening calls for an independent review of all aspects of the court. These include the much-criticised decision by a group of ICC judges to file a claim for a pay rise before the International Labour Organisation’s Administrative Tribunal. William Pace, then leader of a civil society coalition promoting international criminal justice, described the decision by the judges to file suit as “reckless.”

Besides the salary dispute, the court had already witnessed the failure of high profile cases, including those arising out of the Kenya situation, and the more recent acquittals of former Central African Vice-President, Jean-Pierre Bemba, Ivory Coast former President, Laurent Gbagbo, and his former Minister, Charles Ble Goude. The denial of an investigation into the situation in Afghanistan by a panel of pre-trial judges was the straw that broke the camel’s back.

The apparent consensus for a review of the court still leaves important issues to be addressed. The first is who will be seen to own and drive the review process. The states parties on the one hand, and the court in its corporate capacity, on the other, are in silent competition to control the review. By framing it as an “independent expert review” the parties seek to overcome any contestation about ownership and control. The emphasis on independence is supposed to mean that the review will not be under the control of either the court or the states, while the idea that it is “expert” denotes a lack of extraneous considerations like the parochial institutional interests within the court.

Another layer of issues which the review process must anticipate is an ingrained institutional attitude of entitlement in the ICC, exemplified by the audacity by a set of judges, led by their president, to sue for higher salaries. Overall, the repeat failures of the court, amid the very comfortable existence that the emoluments structure affords its staff, recalls the kind of issues raised by three UN workers, Heidi Postlewait, Kenneth Cain and Doctor Andrew Thomson, in their controversial 2004 book, Emergency Sex and Other Desperate Measures. While the book was criticised for other reasons, questions about inadequate leadership within the UN in crisis situations, and the inherent limitations that the body face when required to make interventions on the ground, were never doubted.

The practices of the ICC have evolved into two tracks: the first track is one of reflection and planning which takes place mostly at The Hague. The second is the track of implementation, which takes place in the field, so far mostly in Africa, where majority of the situations before the court are from. The court has faced a longstanding criticism that there is no deliberate effort to link the two tracks. The fear now is that even the proposed review will fall into, and replicate, the very weaknesses that necessitated the review.

Incorporating the views of the people on the ground will, however, not be easy. Although the ICC is driven from one place at The Hague, the field work is now dispersed in many continents. While a community of practice now binds and disciplines those that work out of Europe, the field is not united by anything other than their lived experiences, themselves diverse. In the field, the knowledge is often only raw and has not necessarily been processed through higher reflection. While not impossible to do so, the difficulty of organising the participation of such a dispersed constituency of actors will be a real challenge for the review.

While listening to the concerns of the court’s key constituency may not be a simple undertaking, the IER must resist the temptation to choose the easy wrong over the hard right. The review should strive to restore the court’s tattered image and capacity and restore its legitimacy in the eyes of those seeking justice.

- The writer is the executive director at KHRC. gkegoro@gmail.com