Such amendments to the Rome Statute are plainly not realistic
Posted: Mon Feb 17, 2025 9:20 am
Briefly, for those of us wishing to be friends to the Court, options for reform may be grouped into three categories: realistic, ambitious, and idealistic. Realistic options are those which do not greatly depart from “business as usual”. Ambitious options are those which would require substantial changes to working practices, attempts to re-orient priorities and culture, or which involve creating new mechanisms within the existing structure of the ICC Statute. Idealistic reform requires, first, formulating new ideas irrespective of (at least as a first order consideration) their political feasibility. This category will include all reforms requiring substantive statutory amendments.
The most realistic option is what has been called for: an independent expert inquiry. It is also, for the reasons I have outlined, perhaps the least likely to achieve its stated goal. (Though it might succeed in making modest improvements and efficiencies.)
More ambitious options involve the ASP grasping the legitimacy and responsibility conferred upon it by Article 112 as the Court’s legislative and oversight arm and articulating its understanding of the Statute’s goals and principles (such as complementarity) more clearly. This category could also include options such as streamlining victim participation (eg the problems around Rule 89); or establishing a judicial college to cultivate an “ICC-ready” pool of candidates for election.
Idealistic proposals must start with a clear sense of when international criminal tribunals work and why the ICC has struggled. As I’ve said before: international criminal tribunals require territorial access, resources and political backing to function effectively. As Bosco notes in respect of the tribunals for Yugoslavia and Rwanda:
[…] the ad hoc approach had the value of requiring sustained political support for investigations. Powerful countries committed time, money and leadership to creating those special courts. The states that funded the tribunals … offered political and even military support to help ensure enforcement of tribunal judgments. In time, that commitment produced results.
This can be contrasted with “an overstretched and ineffective ICC that dips into a variety of complex crises”.
Put another way, international criminal tribunals succeed when embedded in a particular context such that support can be mobilized. The ICC can’t succeed if it continues to be everywhere, doing everything, for everyone. How might we change that?
I am tempted by the idea that the ICC should not have been established as a permanent standing court with a seat in The Hague, but primarily as a mechanism for assisting the creation of special chambers in employment database national legal systems with international elements (ie hybrid courts) with a small standing court attached. The present structure of the ICC encourages the OTP and Chambers to attempt an impossible form of even-handedness in the number and geographic spread of its investigations.
An international criminal court (or, perhaps, a commission for international criminal justice) established from the outset to facilitate delivering international justice within national systems may have avoided some of the difficulties the ICC has encountered. Obviously, the ‘hybrid’ tribunals have had their challenges and also risk being manipulated by local actors for local ends, especially perhaps the Extraordinary Chambers in the Courts of Cambodia. Nonetheless, such a structure would require more concentrated engagement from the court or commission with local conditions and the model would put the onus back on state parties to adequately support investigations and prosecutions.
But considering such possibilities may shift the Overton window of discussion. And steps in such a direction might be possible without statutory amendment. It is already possible for the Court to sit outside the Hague: Article 3(3); and for part-time Judges of the Court to take outside employment so long as it is unlikely to interfere with their judicial functions: Article 40(3). Thus, the Court could already either constitute Chambers dedicated to a particular situation which sit in those states; or ICC judges (once designated as part-time) could be seconded to hybrid tribunals. All of which is simply to say, significant structural changes and a new vision of complementarity may already possible.
The most realistic option is what has been called for: an independent expert inquiry. It is also, for the reasons I have outlined, perhaps the least likely to achieve its stated goal. (Though it might succeed in making modest improvements and efficiencies.)
More ambitious options involve the ASP grasping the legitimacy and responsibility conferred upon it by Article 112 as the Court’s legislative and oversight arm and articulating its understanding of the Statute’s goals and principles (such as complementarity) more clearly. This category could also include options such as streamlining victim participation (eg the problems around Rule 89); or establishing a judicial college to cultivate an “ICC-ready” pool of candidates for election.
Idealistic proposals must start with a clear sense of when international criminal tribunals work and why the ICC has struggled. As I’ve said before: international criminal tribunals require territorial access, resources and political backing to function effectively. As Bosco notes in respect of the tribunals for Yugoslavia and Rwanda:
[…] the ad hoc approach had the value of requiring sustained political support for investigations. Powerful countries committed time, money and leadership to creating those special courts. The states that funded the tribunals … offered political and even military support to help ensure enforcement of tribunal judgments. In time, that commitment produced results.
This can be contrasted with “an overstretched and ineffective ICC that dips into a variety of complex crises”.
Put another way, international criminal tribunals succeed when embedded in a particular context such that support can be mobilized. The ICC can’t succeed if it continues to be everywhere, doing everything, for everyone. How might we change that?
I am tempted by the idea that the ICC should not have been established as a permanent standing court with a seat in The Hague, but primarily as a mechanism for assisting the creation of special chambers in employment database national legal systems with international elements (ie hybrid courts) with a small standing court attached. The present structure of the ICC encourages the OTP and Chambers to attempt an impossible form of even-handedness in the number and geographic spread of its investigations.
An international criminal court (or, perhaps, a commission for international criminal justice) established from the outset to facilitate delivering international justice within national systems may have avoided some of the difficulties the ICC has encountered. Obviously, the ‘hybrid’ tribunals have had their challenges and also risk being manipulated by local actors for local ends, especially perhaps the Extraordinary Chambers in the Courts of Cambodia. Nonetheless, such a structure would require more concentrated engagement from the court or commission with local conditions and the model would put the onus back on state parties to adequately support investigations and prosecutions.
But considering such possibilities may shift the Overton window of discussion. And steps in such a direction might be possible without statutory amendment. It is already possible for the Court to sit outside the Hague: Article 3(3); and for part-time Judges of the Court to take outside employment so long as it is unlikely to interfere with their judicial functions: Article 40(3). Thus, the Court could already either constitute Chambers dedicated to a particular situation which sit in those states; or ICC judges (once designated as part-time) could be seconded to hybrid tribunals. All of which is simply to say, significant structural changes and a new vision of complementarity may already possible.