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 faced by the ICC and the Rome Statute system (RSS). 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 was mandated to:
- Submit a proposal for the categorization of the IER recommendations by 30 April 2021, to the ASP Bureau.
- Submit a proposed action plan to the Bureau by 30 June 2021. 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:
- States Parties (Argentina, Austria, Belgium, Brazil, Colombia, France, Germany, Japan, Kenya, Mexico, Spain, Switzerland, United Kingdom Document 1, Document 2 , Joint submission by the Nordic countries -Denmark, Finland, Iceland, Norway and Sweden- Document 1, Document 2, and Study Group on Governance (SGG) Co-Chairs and focal points)
- Civil society (Human Rights Watch, Maruah, Philippines-CICC, SALC). The CICC Review Team also submitted its Comments on the Review Mechanism's proposal for categorization of the Independent Experts Review recommendations and remaining review issues - Complementarity and positive complementarity.
- And the International Criminal Court Bar Association
On 31 May 2021, the ASP Bureau adopted the “Categorization of recommendations and remaining issues” submitted by the Review Mechanism.
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:
- Office of Internal Audit
- Independent Oversight Mechanism
- Office of Public Counsel for the Defence
- Staff Union Council
Proposal of action plan for the assessment of the IER recommendations
On 30 June 2021, the ICC Review Mechanism submitted its "Comprehensive action plan for the assessment of the recommendations of the Group of Independent Experts", together with an Introductory note. The Mechanism also circulated a Report on the overall progress of its work, in accordance with its establishing resolution.
Comments on the action plans were made by various stakeholders:
- States parties: Belgium, Brazil, Finland, Finland and Senegal, Ireland, Italy, Japan, France, Germany and the United Kingdom (Document 1 and Document 2), Liechtenstein, Mexico, New Zealand (as the facilitator for the review of the procedure for the nomination and election of judges), Nordic Countries (Denmark, Finland, Iceland, Norway and Sweden), Republic of Korea, Serbia, Spain, Study Group on Governance, Switzerland (doc 1 and doc 2) and Switzerland (as the facilitator for the omnibus resolution).
- The Court: the Court as a whole (doc 1 and doc 2), and the Staff Union Council.
- Civil society: American Bar Association, Asia Justice and Rights (AJAR), Human Rights Watch, the International Federation for Human Rights (FIDH), and the World Federalist Movement. The CICC Review Team also submitted its Recommendations for the proposal of an Action plan for the assessment of the Independent Expert Review recommendations.
- And the International Criminal Court Bar Association, Working Group on Defence and Counsel Issues (doc 1 and doc 2)
The 20th session of the ICC- ASP
On 9 December 2020, during the 20th 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/20/Res.3), which extended the work of the Review Mechanism for another year, as well as continuing in 2022 with the assessment and where appropriate, implementation of recommendations of the IER.
This was preceded by a dedicated plenary session on the review process during which the Review Mechanism presented on their report to the Assembly and opened the floor for an interactive dialogue among stakeholders, including civil society, to discuss the status of assessments of the recommendations found in the “Matrix: Progress in the assessment of the IER recommendations,” dated 2 December 2021.
ICC Review Process in 2022
The Review Mechanism continued its work in 2022 with the assessment and implementation of IER recommendations allocated to it pursuant to the Comprehensive Action Plan adopted the year prior.
At its first meeting on 28 February 2022, the Mechanism adopted its programme of work for the first half of 2022, which included both meetings to assess pending recommendations, as well as roundtable meetings to discuss the implementation of recommendations that were assessed positively.
On 30 June 2022, the Mechanism published a report on its overall progress in the first half of the year, which included eight meetings on the topics of tenure, unified governance, strategic vision of the Court, relations with civil society and the media, induction and professional development, the Secretariat of the ASP, and the Trust Fund for Victims. Members of the Review Team participated in each of these meetings. The Mechanism’s report was paired with a matrix, an annex document summarizing the progress of recommendations – i.e., whether it was assessed positively, negatively, or remains pending. The Mechanism will circulate an updated program of work for the second half of 2022, leading up to the December session of the ASP.
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 .
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 and Yasmina Gourchane at gourchane@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
