A review of the ICC's performance for a strengthened Court and Rome Statute System

In 2018 the Rome Statute celebrated its 20th anniversary. States Parties, Court officials, civil society and other key stakeholders reflected then on the achievements and the challenges of the ICC and the Rome Statute system. The ICC’s own shortcomings had become evident: limited success of the Prosecution in the courtroom, with a low conviction rate, taking into account the number of cases investigated; limited impact in the countries concerned; lack of an adequate level of cooperation; among others.That triggered discussions on steps to strengthen the Courtand the Rome Statute system.

In 2019, this led to the launch of a review of the functioning of the court’s and the Rome Statute system.

The ICC REVIEW PROCESS in 2019 and 2020

2019 – The launch of the ICC review process

In May 2019, the president of the Court, on behalf of the three court principals, sent a letter to the President of the Assembly of States Parties calling for an “independent comprehensive expert review of the Court’s performance.”

During the following months, States Parties developed a "Matrix", a working paper outlining a number of concrete and actionable areas for change that could strengthen the ICC and the Rome Statute system. This mapping exercise helped identify areas for consideration by an independent expert review, which received broad support from States Parties, the Court and civil society. In addition, the Matrix also identified other matters that the Court, States Parties, and other stakeholders could address separately to enhance the work of the ICC and to strengthen the Rome Statute system more broadly.

 

The 18th session of the ICC- ASP

At the 18th session of the Assembly of States Parties in December 2019, States Parties adopted a resolution, establishing a formal process of review of the ICC and of the Rome Statute system.

The Assembly mandated a group of independent experts to carry out an Independent Expert Review (IER) of the work and functioning of the ICC and to make concrete recommendations to the ASP and the Court for their consideration. Nine experts were appointed and assigned to cover three ‘clusters’ of issues: Governance, Judiciary, and Prosecution and Investigation.

In addition to commissioning the IER, the resolution establishing the review process of the ICC and the Rome Statute system also identified four priority areas for States Parties to address through the relevant working groups and facilitations of the Bureau of the Assembly:

  • Strengthening cooperation;
  • Non-cooperation;
  • Complementarity and the relation between national jurisdictions and the Court;
  • Equitable geographical representation and gender balance

 

2020 – The Independent Expert Review process

The experts began their work in January 2020 and conducted more than 270 interviews. In addition to court officials and staff, they heard the views of other key stakeholders, including civil society and states parties. A general call was also made to send written submissions, and a number of States Parties and Civil Society organizations responded. The experts also received views during meetings with relevant stakeholders. While the experts were very open to input from civil society, unfortunately access to them was limited especially for civil society organizations based in the countries where the ICC operates. In particular, the experts were unable to travel to ICC situation countries and engage directly with civil society organizations working with affected communities.

In July 2020, the experts issued a short interim report providing information particularly on their working methods and on the consultations conducted.

On 30 September 2020, the experts issued a comprehensive final report containing an extensive analysis of the work and functioning of the Court, as well as 384 short and long-term recommendations addressed to the Court and States Parties. To facilitate the implementation process, and in light of the varying complexity and urgency of the recommendations, the experts listed the priority recommendations in an Annex.

The report was initially issued in English, and is now also available in French. The Introduction and annex on prioritized recommendations is also available in Spanish.

Following the publication of the IER report, ICC States Parties began discussions to lay out the processes to follow-up to the experts’ findings and 384 recommendations.

 

The 19th session of the ICC- ASP

On 18 December 2020, during the 19th session of the Assembly of States parties, ICC States Parties adopted the Resolution on the Review of the International Criminal court and the Rome Statute system (ICC-ASP/19/Res.7), that created a "Mechanism" mandated to follow up on the IER Report and established a timeline for its work in 2021.

The resolution also requested the Court to submit a response to the IER report by 31 March 2021, to regularly report to States Parties on its progress in the assessment and implementation of the IER recommendations, and to report to the ASP ahead of the 20th session of the Assembly of States Parties.

ICC Review Process in 2021 – Assessing and implementing the experts’ recommendations

The ICC Review Mechanism

In early 2021 States Parties appointed Ambassador Paul Van Den Ijssel (Netherlands), based in The Hague, and Ambassador Michael Kanu (Sierra Leone), based in New York, as the State party representatives heading the ICC Review Mechanism.  States parties also appointed three regional country focal points: Bangladesh, Chile, and Poland.

The Mechanism is mandated to:

  • Submit a proposal for the categorization of the IER recommendations by 30 April, to the ASP Bureau.
  • Submit a proposed action plan to the Bureau by 30 June. The proposed action plan should:

-   Allocate the IER recommendations to the relevant court organs and ASP thematic focal points, facilitations, and working groups for their considerations. The Mechanism is expected to deal with the rest of the recommendations;

-   Prioritize the IER recommendations; and

-   Set deadlines for the consideration of the IER recommendations.

  • Regularly brief States Parties on its progress and submit a report on the review process to the ASP ahead of the 20th session of the Assembly of States Parties.

 

Proposal for the categorization of the IER recommendations

On 29 April 2021, the ICC Review Mechanism submitted its “Proposal for the categorization of the IER recommendations and remaining review issues" to the ASP Bureau, together with an Introductory note.

The Review Mechanism also published the Comments on categorization submitted by:

 

The Response of the ICC to the Independant Expert Review of the ICC and the Rome Statute system 

On 14 April 2021, the ICC submitted its "Overall response of the Court to the Independent Expert Review of the International Criminal Court and the Rome Statute System- Final report; Preliminary Analysis of the Recommendations and information on relevant activities undertaken by the Court", as per the request of the ASP in December 2020.

Other independant bodies provided separate submissions in response to the report of the Group of Independent Experts:

Civil society’s views on the ICC Review

As the work of the Review Mechanism moves forward, States Parties, the Court and all stakeholders keep the focus on the ultimate goal of the review process: strengthening the Court’s delivery of justice.

The Review Process offers a fresh opportunity to bring states, court officials, experts and civil society closer together in our joint, ongoing effort to bolster the work of the Court and its ability to serve the communities affected by its work. While we may all have different views on the issues identified by this process, it represents an important step in developing a framework within which we can all support the Court to exercise its mandate to its full potential over the coming years.

Genuine engagement with and accessibility of the process for civil society – including those working with affected communities in ICC situation countries – is essential, particularly in discussions around the substance of the experts’ recommendations as well the topics of the broader review.

Civil society will be monitoring and engaging withthis process, pressing stakeholders to discuss and adopt measures to improve the ICC and RSS, in full respect for the judicial and prosecutorial independence of the Court .

ALL CIVIL SOCIETY RESOURCES AND SUBMISSIONS ON THE ICC REVIEW

NGO Team on the ICC Review

The Coalition for the ICC has set up a NGO Team on the ICC Review. For more information on this issue and the ICC Review Team, please contact Virginie Amato at amato@coalitionfortheicc.org.

ASP Information on the Review of the ICC and the Rome Statute system

The ICC Assembly of States Parties (ICC-ASP) official webpage on the Review of the ICC and the Rome Statute system can be found here