Stocktaking of the International Criminal Court
Concluding Remarks on the Symposium on the 20th Anniversary of the Entry into Force of the Rome Statute
We are extremely grateful to the editors of Völkerrechtsblog, especially, Miriam Nomanni and Raphael Oidtmann, for hosting this symposium. A big ‘thank you’ also goes to the contributors – Tom Dannenbaum, Gabriel Lentner, Yvonne McDermott, Ingrid Mitgutsch, Lukas Emanuel Müller, Harmen van der Wilt, Damien Scalia, and Kim Thuy Seelinger – for their participation and contribution to the overall success of this online symposium. Regrettably, due to space constraints, we can only briefly summarise the main points raised by the authors.
Damien Scalia touches upon the experience of the accused in international criminal justice. The empirical approach followed in his research, based on interviews with individuals tried before the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), is assumed to reveal a ‘violent and inequitable’ procedure and ‘a law imposed by others’. In turn, these experiences do not allow convicted persons to recognise the crimes attributed to them who, in addition, perceive justice as imposed by certain States and the tribunals as politicised. Considering the ‘double standards’ in international criminal law, as highlighted in the contribution, Scalia concludes that international criminal justice is another way of continuing the political issues surrounding wars.
Echoing the spirit of ‘double standards’, Lukas Emanuel Müller reflects on the ‘troubled relationship’ between the ICC and the United Nations Security Council (UNSC) with respect to the Court’s jurisdiction (and its limits). The article explores the first UNSC deferrals from the International Criminal Court (ICC), which were met with sharp criticism, due to the exclusion from the Court’s jurisdiction of individuals from non-State parties to the Rome Statute. The article continues with the UNSC referrals to the Court. While the UNSC referrals were a step in the right direction, allowing the ICC to start its work, criticism was also unavoidable due to the inclusion of the ‘toxic paragraphs’, exempting once again nationals of non-State parties from Court’s scrutiny. Gabriel Lentner delves deeper into the analysis of UNSC referrals to the ICC, looking at selected legal and political issues arising from those referrals. According to Lentner, the UNSC permanent members (P5) have a ‘strong influence over the practical reach of the ICC’. The UNSC’s (P5) power to veto referrals is an illustration of this influence, with the existence of a legal prohibition of (the threat of) its use in cases of core international crimes remaining doubtful. The article returns to the topic of ‘toxic paragraphs’ in referral resolutions and their legality, which remains an unresolved issue, with the ICC not having addressed the issue yet. Lentner concludes that it is crucial to learn from the shortcomings of the referral mechanism and consider that the means to accountability should not rest solely on the UNSC.
Yvonne McDermott Rees touches upon another key issue, namely international criminal evidence. According to the author, recent practice as seen in the cases of Al Hassan, Laurent Gbagbo and Charles Blé Goudé and Jean-Pierre Bemba Gombo, seems to suggest that the ICC has an evidence problem. To develop international criminal evidence as a ‘coherent body of law’, McDermott puts forward three proposals for ICC judges: First, they need to abandon the ‘submission model’ for evidence, whereby admissibility and relevance of tendered evidence are decided upon at the end of the trial. Second, they need to decide on a ‘coherent epistemic framework’ for proving international crimes based on the ‘rectitude of the decision’ and the ‘highest standards of fairness’. Third, within that framework, they need to consider what approach needs to be taken regarding the evaluation of evidence and the ‘rigorous linking of fact-finding to just legal outcomes’ at each stage of the proceedings, in line with its standard of proof.
The issue of evidence is also of concern for the Office of the Prosecutor (OTP) when it comes for instance to the prosecution of sexual and gender-based crimes (SGBCs), as highlighted in Kim Thuy Seelinger’s observations on the OTP with regard to SGBCs. The recent conviction of Dominic Ongwen for multiple SGBCs marks an ‘exciting breakthrough’ at the ICC and showcases the progress of the Court in handling SGBCs. This progress also becomes apparent in the more expansive charging of SGBCs’ by the OTP as well as by recent OTP operations such as the appointment of multiple special advisers, which reflects the Prosecutor’s commitment in fostering accountability for such crimes. The author, who has been appointed Special Adviser on Sexual Violence in Conflict to the OTP, also looks at emergent issues the OTP will have to tackle, including ‘adopting a meaningful and systematic approach to gender analysis and accounting for intersectional identities and systems of oppression that motivate atrocity crimes at all’.
Tom Dannenbaum and Harmen van der Wilt discuss the challenge that has greatly increased in relevance since Russia’s invasion in Ukraine and that reveals one of ICC’s current main shortcomings, namely its lack of jurisdiction over the crime of aggression. Dannenbaum foresees in his contribution that the route forward in prosecuting the crime of aggression is by bypassing the ICC and focussing either on an international tribunal evocative of Nuremberg or domestic prosecutions by Ukrainian courts with the support of third States. The latter would ‘rebuff attempts to characterize it as victor’s justice’ and would also ‘manifest state practice and opinio juris in favour of victim states’ territorial jurisdiction and the non-applicability of functional immunities in aggression cases’. Speaking about immunities, van der Wilt points out in his article that the introduction of Article 15bis, section 5 of the Rome Statute, which hinders the ICC to prosecute the Russian attack on Ukraine ‘effectively reintroduced both personal and functional immunity by the back door’. The fact that it got somehow accepted that ‘international criminal justice is completely teethless in the face of blatant aggression’ disconcerts the author. He, therefore, suggests the deletion of this provision by the Assembly of State Parties (ASP) to the Rome Statute and enable at least the Prosecutor to initiate preliminary examinations into the allegedly committed crime of aggression by Putin.
There would be no doubt about the fulfilment of the gravity requirement if the ICC had jurisdiction over the attack on Ukraine. The gravity test developed by ICC’s case law is the subject of the blog of Ingrid Mitgutsch. By recalling the 2006 Lubanga decision, where the Court defined the criteria for when the gravity threshold is met, as well as the response by the Appeal Chamber holding those criteria unsuitable, the author illustrates the heterogeneous view on the gravity requirement within the Court. The recent decision in the Al Hassan case, however, brought clarity and ‘provided future Pre-Trial Chambers as well as the Prosecution with a detailed and well-balanced basis for gravity assessments in ICC cases to come’.
We are thankful for all the colleagues who have engaged with this symposium. Their thoughtful contributions raise many interesting and (still) challenging issues regarding the future of the ICC. We hope that this symposium has shed some light on the questions regarding the past and (more importantly) the future work of the ICC. We also hope that researchers and practitioners alike may find useful insights for their work in this series. Lastly, we would like to thank the readers of this symposium for following the discussions in this past week!