Follow-up to the IER Report – What will it look like?

Maria Elena Vignoli, Human Rights Watch - Article originally published on International Justice Monitor on 10 February 2021
 

Last December, the states parties of the International Criminal Court (ICC) adopted a resolution establishing a framework to follow up on the final report of the Independent Expert Review (IER), and to advance discussions on other topics as part of a broader review process (review resolution). The report, produced by nine independent experts tasked with assessing the work of the ICC, contains 384 recommendations aimed at bolstering the court’s performance.

Ahead of the final report, civil society organizations called on the court and states parties to  carefully consider the follow-up to the report and to put in place processes to assess the experts’ recommendations following three principles:

• Genuine dialogue among all relevant stakeholders;
• Scrupulous respect for the court’s judicial and prosecutorial independence; and
• Transparency and inclusion – that is, ensuring that these important discussions are open and accessible to all relevant stakeholders, including civil society.

The review resolution was the product of compromise, following difficult and lengthy negotiations. Some of the language could have been stronger, particularly on the distinction between the recommendations the court should consider, and those that states parties should consider, consistent with the need to respect the court’s independence. However, the framework established by the resolution does include safeguards to that end. It also puts in place a mechanism that is expected to work in an inclusive and transparent manner in close coordination with the court and in consultation with all states parties and civil society. This follow-up is critically important to ensure the experts’ report is not left to collect dust on a shelf and the review serves its purpose to strengthen the court’s work.

The framework established by the review resolution includes a “Review Mechanism” and a timeline for its work.

The Review Mechanism is tasked with the “planning, coordinating, keeping track and regularly reporting” on the assessment of the IER recommendations and further action. It is also expected to carry out the same steps around the four issues identified in late 2019 by the Assembly of States Parties (ASP) as priority areas for states parties in the context of the broader review process (i.e., beyond the IER report): strengthening cooperation; non-cooperation; complementarity and the relationship between national jurisdictions and the court; and equitable geographical representation and gender balance.

The Review Mechanism will consist of two state party representatives, supported by three ad country focal points, positions assigned to countries without designating the individuals who will fill them. We understand that on February 5, the Bureau – the ASP’s leadership body – appointed the members of the Review Mechanism, following approval by all states parties. The two state party representatives are:

• Ambassador Paul van den Ijssel (Netherlands) in The Hague; and
• Ambassador Michael Imran Kanu (Sierra Leone) in New York.

Bangladesh, Chile, and Poland have been selected as ad country focal points. The review resolution explicitly calls for gender balance in the selection of the representatives. It is unclear how that issue was addressed in the selection.

In parallel, the review resolution invites the court to designate focal points to “engage and interface” with the Review Mechanism. Since the court was not given the opportunity to comment on the experts’ final report in advance of its publication, the review resolution requests the court’s focal points to submit an “overall response” to the IER report, and a preliminary analysis of the recommendations, by March 31. This should provide the Review Mechanism and all relevant stakeholders with an important basis for their discussions.

The review resolution lays out a detailed timeline for the work of the Review Mechanism in the coming months, focusing on two main outputs: a categorization of the IER recommendations and an action plan to assess them.

1. Categorization of the IER Recommendations

The Review Mechanism is required to submit to the Bureau a proposal for categorizing the recommendations in the experts’ final report and other review issues by April 30. The resolution specifies that this categorization is to be done “according to the entity responsible” for addressing the recommendation (either the court, the ASP, or both).

This exercise is an opportunity to translate into practice the principle of respect for the court’s independence. The categorization should recognize that the court should consider the recommendations that the experts directed at its organs, while states parties address recommendations that the experts directed at the ASP.

The Bureau is expected to consider and adopt the categorization by May 30.

2. Action plan for assessing the experts’ recommendations

The Review Mechanism is required to submit to the ASP and the Bureau by June 30 a comprehensive plan for the “assessment of the [experts’ recommendations], including requirements for possible further action.” This plan should:

• Allocate the IER recommendations to relevant court organs, ASP mandates (i.e. working groups, facilitations, or focal points), or the Review Mechanism itself, for their consideration;
• Prioritize the IER recommendations. The experts already identified the recommendations that they believe should be prioritized and the review resolution requires the Review Mechanism to base its proposal on their suggestion;
• Set timelines for the consideration of the IER recommendations.

The Bureau has until July 30 to adopt the action plan. This timeline means that the substantive discussions on specific recommendations may not begin before then.

The review resolution requires both the Review Mechanism and the court’s focal points to provide regular updates to all states parties and to report to the ASP ahead of its next session, scheduled for December 2021.

Civil society, a key stakeholder

As the Review Mechanism begins it important work, starting with the categorization of the IER recommendations, it is crucial for all stakeholders involved to keep the focus on the ultimate goal of the review process: strengthening the court’s delivery of justice. The process should continue to recognize that the court will be primarily responsible for implementing a number of recommendations and, as such, should be the ultimate decision-maker about whether and how to do that.

Civil society can play an important role in monitoring and engaging with this process. The review resolution specifically calls for consultation with civil society around categorizing the recommendations and the action plan to assess them. Engagement with civil society – including groups 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.  

Maria Elena Vignoli – Counsel, International Justice Program at Human Rights Watch.