Critics of the ICC have long questioned the extent to which the institution has lived up to its ideals. These criticisms have intensified in recent years as the ICC has amassed a record that can be described as mixed, at best. States, commentators, and the Independent Expert Review have all identified a range of causal factors and potential solutions. To a certain degree, some of these solutions could implicate issues that have already been the subject of ICC jurisprudence, which may need to be revisited; others, however, may be addressed through other means, including the exercise of sound prosecutorial discretion or rules changes.
For its part, the OTP has achieved just five convictions for core crimes in the fifteen years since the first arrest warrants were issued. A number of other prosecutions have resulted in dismissals or controversial acquittals—including the high-profile termination of the two cases against Kenyan President Uhuru Kenyatta and Vice President William Ruto, the dismissal of the case mid-trial against former Côte d’Ivoire President Laurent Gbagbo and an associate on a no case to answer motion, and the dramatic acquittal on appeal of former DRC Vice President Jean-Pierre Bemba —suggesting problems with the OTP’s investigative methods but also generating academic criticism of the judicial reasoning. This record has led numerous states and commentators to criticize the OTP for investigations that are both too broad and too shallow, for litigating cases only against the most senior leaders without adequately laying the foundation for those cases by “building up” from investigations and convictions of lower-level perpetrators, for not spending sufficient time in country or developing situation-specific expertise, and for failing to secure sufficient concrete evidence to link those senior leaders to the crimes committed. At the same time, the impact of the institution should not be measured by convictions alone, and the Court stands to make significant contributions through the catalyzation of domestic accountability processes, its enunciation of jurisprudential norms, its interactions with affected communities and empowerment of civil society justice advocates, and deterrence.
Concerns regarding the working methods of the Office of the Prosecutor are not limited to the outcomes of specific cases. An early focus on African situations generated complaints that the OTP was “targeting” African suspects. Several states threatened to withdraw from the Rome Statute, often after coming under scrutiny from the Prosecutor, although only two (Burundi and the Philippines) have followed through. The large number of situations that the Prosecutor is investigating or that are under preliminary examination, as well as the length of time taken by the Prosecutor before concluding her preliminary examinations, has also drawn criticism. Specifically, the Prosecutor currently has investigations ongoing in fourteen situations, including the DRC, Northern Uganda, Darfur, two separate investigations in the Central African Republic, Kenya, Libya, Côte d’Ivoire, Mali, Georgia, Burundi, Afghanistan, Palestine and Bangladesh/Myanmar. At the same time, the Prosecutor is conducting substantive (Phase 2 and 3) preliminary examinations in six situations, and has recently concluded that the criteria for commencing an investigation had been met to open new investigations in a further two (Ukraine and Nigeria). Many of these situations have indeed seen massive atrocities and limited, if any, justice at the domestic level. But the existence of such a large number of ongoing prosecutions, investigations, and preliminary examinations in multiple regions of the world has led to criticism that the OTP is simply spread too thin. It also calls into question whether conducting simultaneous investigations in so many situations is consistent with the Court’s mandate to focus on “the most serious crimes of concern to the international community as a whole.”
For her part, the Prosecutor has acknowledged the imbalance between the scope of the situations on which the OTP is working and the availability of resources to conduct this work, stating in December 2020 that “in the immediate period ahead, we will need to take several strategic and operational decisions on the prioritisation of the Office’s workload…” Indeed, as a result of this, the Prosecutor indicated that she will not yet take steps to open investigations in Ukraine and Nigeria until she has consulted with the incoming Prosecutor “on the strategic and operational issues related to the prioritisation of the Office’s workload…” The Prosecutor is also seeking input on criteria for closing investigations. Remarkably, despite concerns over how thinly resources are spread, and how long the Prosecutor takes to conduct preliminary examinations, no investigation has yet been formally closed in the sixteen years since the OTP opened its first investigation in 2004, although some investigations technically remain open despite a lack of active investigatory measures and a number of preliminary examinations have concluded with a decision not to proceed.
Criticism has not been limited to the Office of the Prosecutor. The quality of the judicial reasoning has varied considerably, and the Court has issued a number of fractured opinions that suggest a high degree of institutional discord. Questions have been raised about the independence, collegiality, and professionalism of some of the judges, including an attempt by one judge to continue sitting in a trial while she simultaneously took up a post as Ambassador to a third state; litigation by some of the judges against the Court seeking increased salaries notwithstanding a zero-growth budget and resource constraints; statements by a judge that suggested he would ignore a procedural rule with which he disagreed; and criticism by judges of the quality of their brethren’s judicial reasoning. Meanwhile, the capacity of the Registry to appropriately manage victim participation, witness intimidation, and the frozen assets of suspects has been questioned.
Against this backdrop, the United Kingdom delivered a strongly worded intervention at the 2018 Assembly of States Parties, stating bluntly that the Court has fallen short of expectations and that “we cannot bury our heads in the sand and pretend everything is fine when it isn’t.” Over the following year, more traditional supporters of the Court voiced similar concerns. In April 2019, four former Presidents of the ICC Assembly of States Parties issued a critical letter that lamented the “growing gap between the unique vision captured in the Rome Statute…and some of the daily work of the Court,” and stated that the authors were “disappointed by the quality of some of its judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies…” The four former Presidents concluded that it was time to “make a new deal between the ICC and its states parties” and called for “an independent assessment of the Court’s functioning…”
ICC states parties heeded this call by commissioning an Independent Expert Review (IER) to be carried out by a group of nine eminent experts chaired by Justice Richard Goldstone. The Independent Experts issued an extensive report in September 2020 containing searching critiques of how the Court has functioned and putting forward 384 recommendations aimed at states parties and all organs of the Court. The Report catalogues a range of observations, including about the Court’s workplace culture (referring to fear, bullying, and harassment among the staff), organizational structure, the quality and consistency of judicial reasoning, and the lack of strategic planning. Of particular relevance for this Report, the Independent Experts noted that
“concern has been rising regarding the way in which the OTP handles the high volume of potential situations and cases, taking into account its limited resources…with regard to the selection or prioritisation of situations and cases, there is insufficient consideration given to the prospects of investigative and prosecutorial success…Likewise, there is concern that the threshold of sufficient gravity is pitched too low. Furthermore, the Experts observed a lack of long-term planning for the life-cycle of PEs [preliminary examinations] and investigations, including their (de)prioritisation and eventual closure.”
The Experts proposed that the OTP investigate fewer situations, given that “the current situation is unsustainable,” by raising the threshold of gravity in her operations. The Experts also emphasized the need to prioritize between investigations, given the limited resources, and to prepare guidelines (in consultations with states) about when and on what basis the OTP would deprioritize, hibernate, or close investigations.
In establishing the mandate of the IER, states had requested that the Assembly of States Parties (rather than the Independent Experts) address a handful of issues pertaining directly to the relationship between state parties and the Court, including “[c]omplementarity, and the relationship between national jurisdictions and the Court.” Through these discussions, states parties are pursuing a number of streams of work, including dialogue with the OTP on its existing and forthcoming policy papers on complementarity and completion strategies; “a possible ASP or States Parties' statement or resolution on the principle of complementarity;” and developing “the structural role of the ASP as a forum for dialogue and cooperation on complementarity issues between the Court” and others, including non-party states.
Meanwhile, states (and the Court) are continuing discussions of how to implement the recommendations of the IER Report. These discussions reflect a greater openness by states (and to some extent the Court itself) to consider critiques that might in previous years have been reflexively rejected: that the Court is currently trying to do too much; that it needs to focus more on its core mandate of addressing the most serious crimes of concern to the international community as a whole; that it should apply a higher threshold of gravity; that it should conduct deeper investigations into a smaller number of situations; that to do so it should take a more strategic approach to the cases that it selects within situations and should “hibernate” investigations that show low prospects for success, and be more willing to close investigations; and that the Court should give greater deference to good-faith, even if imperfect, efforts to pursue accountability and transitional justice under domestic law, particularly when it comes to non-party states. States are also exploring a range of ways to signal to the Court their expectations and the ways in which its various organs should revise their working methods, including through ASP resolutions, interpretative guidance, and amendments to the Rules of Procedure and Evidence and other instruments.
The increased openness to these kinds of discussions presents a clear opportunity for the United States to influence the manner in which states and the Court think about key issues that affect U.S. interests. Many of our consultations affirmed that states would welcome constructive engagement by the United States. The fact that a new Prosecutor—Karim Khan, a British barrister with extensive experience in international criminal proceedings who currently serves as Special Adviser and Head of UNITAD—was elected in February 2021 and will be assuming office in June underscores that this is an opportune moment to review, and provide input on, existing prosecutorial policies, strategies, and decisions on which investigations or cases to prioritize with the Office’s limited resources. If nothing else, the new Prosecutor may be more willing to revisit past decisions with a fresh eye if provided with persuasive arguments or compelling evidence of the wisdom of reconsidering these prior approaches.