Contributing to the Ongoing ICC Reform Process

Judge Kwon receiving the IER report by ICC-CPI

Against the backdrop of its particular concerns about the OTP’s investigations into the situations in Afghanistan and Palestine, the United States should view the ongoing discussions about reform of the Court as an opening. Although this process commenced independent of U.S. concerns, Secretary Blinken has already expressed the Administration’s encouragement that Rome Statute parties are considering a broad range of reforms, recognizing this as a worthwhile effort and underscoring the importance of “engagement with all stakeholders in the ICC process” as a better path for addressing U.S. concerns. 

More specifically, the ongoing discussions around the recently completed Independent Expert Review provide an opportunity to propose and implement changes that could both put the Court on firmer footing—a goal that the current administration appears to have recognized as desirable by indicating support for reforms “to help the court better achieve its core mission of punishing and deterring atrocity crimes” —and to reduce the prospect of future clashes between the ICC and the United States. In short, these discussions present an opportunity to put forward credible arguments regarding how the various admissibility criteria should be interpreted and applied under the Rome Statute that differ from the way they have been applied until now, and to do so in a manner that echoes the reasons that the United States believes pursuing an investigation of U.S. personnel in Afghanistan would be inappropriate.

Numerous interlocutors from foreign states emphasized that they would welcome U.S. engagement in these discussions, both to benefit from the United States' technical expertise and to incorporate its perspective. That said, they also cautioned that such engagement would be most effective if provided in a constructive manner and in the spirit of helping the Court to fulfill its core mandate; by contrast, any engagement that was perceived as undermining, strongarming, or instrumentalizing the Court could backfire and make desirable reforms harder to achieve. U.S. engagement in this regard could focus on three main areas: tightening the Court’s admissibility criteria; revitalizing the concept of the “interests of justice;” and disaggregating the consideration of situations involving multiple armed actors that are not all involved in serious or ongoing abuses.

a. Contribute to Work to Tighten the Court’s Admissibility Criteria #

The IER Report invites a conversation regarding ways in which the admissibility criteria could and should be applied more tightly. In particular, the Independent Experts identified the need for the Court to “focus on a narrower range of situations, and limit its interventions to the extent possible,” saying that the Court’s current approach “is unsustainable having regard to the limited resources” that the states parties make available to it in their annual decisions on the Court’s budget.  Further, the IER Report points to the need to resolve the different views between states parties, on the one hand, and the Prosecutor, on the other, as to the concrete expectations regarding what should be seen to be falling within the Court’s ambit. The Experts go on to highlight the need for “bringing all stakeholders on the same page on issues such as the type of cases the Court would look into…” 

The pressure on the Prosecutor to find ways to better identify the situations and cases to which she should channel her finite energy and resources broke further to the fore in connection with the release of the Prosecutor’s latest report on Preliminary Examinations, in which the Prosecutor conveyed her conclusion that the standards for initiating an investigation in two countries—Nigeria and Ukraine—had been met but forewent actually commencing the investigation in view of “strategic and operational issues related to the prioritization of the Office’s workload…” 

As an obvious example of a step in this direction, the Experts recommend that the Prosecutor consider a posture in which she would investigate only those situations where alleged atrocity crimes reach a threshold of gravity higher than the current standard and that she do so as part of a process of “allocating the limited resources of the OTP to the situations that are the most serious…”  Unavoidably, the ICC is an institution with finite resources and must inevitably make decisions about where to direct, and where not to direct, those resources. As set out in the recommendations of the Experts, a higher threshold is needed in view of their conclusion that “the current situation is unsustainable having regard to the limited resources available.” 

But a higher gravity threshold is not the only way that the Prosecutor could narrow her “aperture” in her decisions about which cases and situations to prioritize and pursue.  For example, separate and apart from the IER, there are ongoing, state-led discussions to take stock of, strengthen, and revise the principle of complementarity. States are exploring concrete options for how to assert greater oversight and ownership of this issue in their relations with the Court. This discussion is being conducted outside of the Assembly of States Parties itself, through a Working Group on Complementarity that makes it easier for non-party states such as the United States to engage. As such, a wide range of participants are providing input as states seek creative ideas on how to strike the appropriate balance between respecting the investigative efforts of states and preventing impunity.  The United States should contribute to this process and encourage states parties and the Court to reimagine the approach to complementarity so that, without conceding that it would be legally precluded from doing so, the Prosecutor would as a matter of prosecutorial discretion deprioritize investigations and prosecutions in situations in which the relevant state or states had pursued non-criminal forms of accountability, undertaken substantial efforts to bring abuses to light, or implemented genuine measures to prevent recurrence. Such a response might be particularly appropriate with respect to non-member states that are under no obligations to cooperate with the Court or submit their domestic policies to ICC scrutiny. U.S. officials would need to carefully think through the manner in which they may want to bring their points forward. Much of this could be done in bilateral consultations or the many ad hoc groupings in which U.S. Government lawyers and global criminal justice experts routinely meet with counterparts.

b. Encourage Court Actors to Revitalize the Interests of Justice Inquiry #

As another example, one might reimagine the way that the OTP analyzes the “interests of justice” test in making decisions—whether under Article 53 on commencing an investigation or in connection with decisions thereafter regarding prioritization—in situations in which societies have made decisions not to pursue criminal investigations that are reasonable under the circumstances even if, from the point of view of the ICC, less than ideal. For its part, the Office of the Prosecutor published a policy paper in 2007 on the “interests of justice.” The policy paper did recognize the role that a range of measures—including truth seeking, reparations programs, institutional reform, and traditional or community-based justice mechanisms—may play a role in a society’s overall efforts to deal with large numbers of offenders in addressing the impunity gap. However, by emphasizing the “exceptional nature” of any inquiry under the “interests of justice,” the paper takes a narrow view of what this phrase might cover that virtually eliminates it as a basis for a decision for it not to pursue a particular investigation. 

It is not at all clear that such an approach to the “interests of justice” test is in line with the understanding of the Rome Statute negotiators or best for the system as a whole. Thus, there appears to have been no meeting of the minds on whether it might be considered not to be in the interests of justice to pursue investigations and prosecutions in situations where—as in the then-recent case of the Truth and Reconciliation Commission (TRC) in South Africa—a society made a conscious decision to utilize alternatives to traditional modes of criminal accountability, such a truth-telling process or reparations, in order to come to terms with its past. Indeed, speaking in 1998, it seemed self-evident to then-UN Secretary-General Kofi Annan that “[i]t is inconceivable that, in such a case, the Court would seek to substitute its judgement for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future.”  The United States could well argue that genuine transitional justice measures undertaken by states to address the commission of international crimes should also be considered holistically as part of that determination of the adequacy of the state’s response.

c. Moving the Court Away from the “Situation as a Whole” Principle #

One of the most important possibilities for narrowing the aperture is related to the principle, adopted by both the OTP and the Court, that any investigation should be of the “situation as a whole.”  For example, when the Government of Uganda referred the situation “concerning the Lord’s Resistance Army” in northern Uganda to the ICC Prosecutor in 2003, the then-Prosecutor notified Uganda that the referral would be interpreted as covering “all crimes under the Statute committed in northern Uganda, and that [its] investigation would be impartial.”  This approach was intended to prevent a sitting government from instrumentalizing the OTP by empowering it to proceed only against the forces of the government’s adversaries and not those of the government.

While there is an undeniable logic to this principle, it is not the only defensible approach, particularly as it applies to proprio motu investigations in situations involving multiple armed actors. Normally in proprio motu situations, the Prosecutor must make a showing to persuade an ICC Pre-Trial Chamber that the jurisdictional requirements are met and that an evidentiary threshold has been reached. If the Prosecutor makes that showing with respect to the conduct of the forces of one of the parties, should the Prosecutor be authorized automatically to investigate the conduct of the other party’s forces, as to which no such showing has been made? Indeed, a state may consider it fundamentally unfair if it becomes subject to the burdens and possible political taint that often accompanies the commencement of a formal ICC investigation based solely on allegations about the conduct of an adversary. In the negotiations around the Rome Statute, at least some states relied on assurances that the treaty contained a built-in check that protected states from the risk of being subject to the burden of an investigation absent a conclusion that the standards set out in the Rome Statute had been met. The idea was that this would help protect states in situations where there was an insufficient basis to investigate the conduct of their personnel. At least arguably, the fact that a state can—under the “situation as a whole” principle—be enmeshed in an investigation based on the conduct of other parties erodes the value of such assurances. This issue is potentially important to the United States because, as the state with forces deployed in the largest number of states, the prospect of its forces being swept up in a “situation as a whole” is relatively high. In light of all this, the United States should look for opportunities to expand upon these arguments in its interactions with Court actors, ASP members, and others.