On Tuesday, 8 December 2020, Al-Haq’s Director General Shawan Jabarin presented at an official side event to the Assembly of States Parties, to the International Criminal Court (ICC) organised by FIDH, HRW, The American Bar Association ICC Project, and Open Society Justice Initiative and jointly sponsored by Liechtenstein, Spain, Switzerland, and Sierra Leone. The panel considered the topic of the ‘International Expert Review of the ICC: Civil society perspectives on next steps’, which provided a space for ‘civil society organizations to reflect on the substance of the final report of the Independent Expert Review and, in particular, on how the experts addressed the issues raised by civil society’ in order to inform ‘upcoming conversations around the assessment and implementation of the Experts’ recommendations’.
The panel included Chino Obiagwu, African Network for Internaitonal Criminal Justice, Prof Leila Sadat of Washington University, James Carr Professor of International Criminal Law, Director of the Whitney R. Harris World Law Institute and Special Adviser on Crimes Against Humanity to the ICC Prosecutor, Nino Jomarjidze from the Georgian Coalition for the ICC and Georgian Young Lawyers Association and Shawan Jabarin, General Director of Al-Haq and Vice President of FIDH. Panellists discussed inter alia the budget and adequate resourcing of the ICC, urging the need for a needs-driven approach and to move away from a resource driven approach; and challenges around preliminary examinations inlcuding the opening, length, outreach to victims and victims participation.
Shawan Jabarin examined two key areas including an indepth analysis of the Independent Expert review and drawing on critical experiences from the gorund in relation to Al-Haq’s engagement with the ICC in the Situation in the State of Palestine.
1. Independent Expert review
Referring to publication of the Independent Expert Review of the International Criminal Court and the Rome Statute System in September 2020, Mr. Jabarin welcomed the recommendations aimed at bolstering the place of victims at the ICC, including their participation, their understanding of the proceedings, and their interactions with the Court. To this end, it was stated that a harmonious and comprehensive interpretation of victim rights is required throughout all stages of the criminal proceedings, to ensure that victims are a central part of ICC proceedings, and for the institution to directly engage the reality on the ground.
It is clear, that the ICC review should be a continuous process, and one which can develop as the Court develops. FIDH recommendations, highlighting the necessity for, ‘establishing a Review Mechanism, which would consult and cooperate with civil society members, appointed by the Bureau and with the clear task to plan, coordinate, monitor and report on the implementation of the Review’s recommendations’ were emphasised, and it was noted that it would be important to ‘Encourage the Court and its staff to implement the recommendations regarding the mandate of the ICC towards victims, including through the designation of a Court Focal Point to engage with and complement the work of the Review Mechanism’.
The delay and confusion around the appointment of a new Prosecutor was noted as unfortunate. Uncertainty in this process, can lead to perceptions of unwarranted politicisation, and can undermine the activity of the Court. It was noted that it would be necessary when selecting a new prosecutor that all parties should aim to reach a consensus on the most suitable candidate, and commit to an election that is fair, transparent, and free from any political interference.
Concern was expressed as to the proposals of the Independent Expert Review, which, in stating that ‘The greatest concern […] relates to the increasing number of situations before the OTP and its insufficiency of resources’, suggests that the Court should engage with fewer situations by requiring a higher threshold of human rights violations (of gravity) be present before proceedings can commence. Two strategies proposed by the Review include:
- narrowing the standards for admissibility by applying a higher threshold for gravity,
- and: taking feasibility considerations into account during situation selection.
Questions around the feasibility of opening an investigation, including difficulties pertaining to problems of access, of lack of cooperation, and of funds, have already been the subject of criticism in the Afghanistan Situation, where the Appeals Chamber held that such considerations should not be used as a justification for not opening investigations. Serious and significant disputes between the Office of the Prosecutor and Chambers as to the gravity of identified war crimes in the Comoros Situation have also proven difficult.
Although the Expert Review documented underfunding at several stages of the report, they did not recommend an increase in the Court’s budget. In response, it was proposed then that States Parties should approve, as a minimum, the budget requested by the ICC, and the minimal requested increase made by the OTP to support its work on ongoing and upcoming preliminary examinations, investigations and prosecutions, and that the Court should be provided with all the necessary resources for it to fulfil its mandate, rather than its mandate being compromised to fit a limited budget.
2. On Preliminary Examinations
It was stressed that Palestine has been subject to two Preliminary Investigations, from 2009-12, which was closed without the opening of a formal investigation, and since 2015, which was closed in December 2019, but which has yet to see a formal investigation opened. This delay is damaging both to the Court and to the people of Palestine.
Despite the Office of the Prosecutor’s conclusion that there was reason and justification to open such an investigation, the Article 19(3) process of putting a request for an opinion on jurisdiction to the Pre-Trial Chamber has caused significant delay. The Expert review notes that Pre-Trial Chamber in Myanmar, and in Comoros, emphasised that ‘preliminary examinations must be concluded within a reasonable time’.
Although the Pre-Trial Chamber in the situation in Bangladesh/Myanmar was split 2:1 as to the very appropriateness of the Prosecutor’s use of the Article 19(3) process on jurisdiction, it has been turned to and utilised again in the situation Palestine. The appropriateness or otherwise of this process has not been addressed by the Expert Review.
This is problematic not merely in terms of time already past, but also since there is no clarity or certainty as to when, or even whether, the Pre-Trial Chamber will respond. Neither is there any clarity or certainty as to whether the Pre-Trial Chamber will address jurisdictional issues around, for example, Palestine’s Exclusive Economic Zone, or whether the Pre-Trial Chamber is bound to respond at all to the Prosecutor’s Request
It is problematic that Palestine remains excluded from the protection promised by the International Criminal Court even as war crimes and crimes against humanity, not least those related to the expansion and establishment of unlawful settlements, continue.
It is necessary now, given the delays, for the Office of the Prosecutor to immediately open a formal investigation in the Situation in Palestine, with almost a year having passed since having closed the second Preliminary Examination.
Positive recommendations from the Independent Experts Review include: ‘that the OTP should adopt transparent criteria for opening a preliminary examination’, that ‘the OTP should establish a strategy plan for each preliminary examination opened, including timelines and benchmarks’, and that ‘outreach should start at the opening of a preliminary examination.’
However, it was again emphasised that the function of the Court should not be reduced to purely economic consideration, and that States Parties should support the institution in achieving the necessary capacity to meet its promise of contributing to the protection and promotion of human rights.
Violations of human rights, whether atrocity crimes or sustained discrimination and persecution, cannot be reduced to merely economic considerations. In the grand scheme of international relations and of international law, the Court is an institution which is struggling to operate with a lack of necessary political and financial support, and renewed emphasis need be given to ensuring the institution has all the necessary resources to hand in order to fulfil its mandate internationally.
This lack of resources is also a factor around the recommendation to hibernate investigations. Even if this is already happening in practice, and as such a policy as to the process would be useful, it is nonetheless a further reminder of the resource problems facing the Court.
That resource limitations can cause further problems is also perceptible in the Review’s general suggestion that the Office of the Prosecutor, given lack of resources, could rely on local civil society support for outreach activities during Preliminary Examinations. Although this was not made a formal recommendation in the Expert Review, this is not a convincing approach, since while civil society does support the Court and its work, it is a critical friend and should not be subsumed into or conflated with the Court or its organs.
Finally, it was noted that it is clear that the outreach is needed in the Preliminary Examination phase, as well as during the Article 19 Pre-Trial Chamber process. There are a lack of resources in facilitating legal representation for victims before the Court as seen recently in the Situation in the State of Palestine, that are available at later stages during the Investigation. This needs to be addressed.