Human Rights Watch Briefing Note for the Nineteenth Session of the International Criminal Court Assembly of States Parties
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Human Rights Watch Briefing Note for the Nineteenth Session of the International Criminal Court Assembly of States Parties

Human Rights Watch Briefing Note for the Nineteenth Session of the International Criminal Court Assembly of States Parties

The states parties of the International Criminal Court (ICC) will meet from December 14 to 16, 2020 in The Hague for the annual session of the Assembly of States Parties (ASP) and, tentatively, from December 17 to 23, 2020 in New York in a resume session. Although the session was originally scheduled to take place in New York, public health restrictions in place for the ongoing Covid-19 pandemic necessitated dividing the sessions between The Hague and New York, with some participants taking part remotely. In the context of this unprecedented global health crisis, states parties have crucial work to do, including electing the next generation of court leadership, furthering steps to strengthen the court’s delivery of justice, and renewing support for the court. This is a decisive moment for the ICC.

The court’s mandate has been under extreme pressure from the United States and, at the same time, a number of ongoing processes offer important opportunities to strengthen the court’s performance.

These processes are crucial as a strengthened ICC firmly supported by its states parties will be more resilient to efforts to derail its mandate. States parties have the opportunity to significantly advance the court’s work through the Assembly.

The Assembly is due to elect the next prosecutor and six new judges—a third of the ICC’s 18-member bench. At the same time, states parties are designing the framework to follow-up on the findings and recommendations by the independent experts tasked by the Assembly at its last session to carry out a review of the court and the Rome Statute system.

They are also laying out their plans to advance parallel initiatives to strengthen the system. This briefing note sets out recommendations to states parties for the Assembly session in the following priority areas: 1) enhancing the ICC’s delivery of justice through a process of review and bolstering political and diplomatic support to the court; 2) electing the best possible leadership for the court; and 3) ensuring adequate resources. At the last Assembly session, states parties decided to establish “a transparent, inclusive State-Party driven process for identifying and implementing measures to strengthen the Court and improve its performance.”[1] This was the culmination of discussions among different stakeholders about the need to initiate change processes to address some of the court’s shortcomings, which had become apparent in recent years.[2] The Assembly resolution launching the “Review of the International Criminal Court and the Rome Statute system” outlined two main tracks for this process: a review carried out by a panel of nine independent experts (Independent Expert Review or IER) and parallel initiatives by the court and states parties.[3] The Independent Expert Review was tasked with assessing the work of the court to make “concrete, achievable, actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole.”[4] The experts focused on different sets of issues related to the governance of the court, the judiciary, and the work of the Office of the Prosecutor.[5] They began their work in January and, despite the challenges posed by the Covid-19 pandemic, they were able to conduct more than 270 interviews and review thousands of pages of documents.[6] In addition to court officials and staff, the experts heard the views of other stakeholders, including through written submissions from civil society groups[7] and states parties.[8] The final report of the Independent Expert Review was published on September 30.[9] The Assembly resolution on the “Review of the International Criminal Court and the Rome Statute system” also identified four priority areas for the work of states parties, on the second track, through the relevant working groups and facilitations of the Bureau: The Covid-19 pandemic has affected states parties’ efforts in these areas, but the relevant mandates of the Bureau were able to carry out consultations on their plans of work for next year, which will be reflected in their reports to the Bureau at this year’s Assembly session.

The final report of the Independent Expert Review contains 384 recommendations addressing court-wide matters, organ specific matters, and issues related to the role of states parties, the Assembly, and other oversight bodies in the governance of the court.

The extensive and comprehensive report offers an invaluable common framework for discussions between the court, states parties, and other relevant stakeholders about needed change at the court. At this writing, states parties—in consultation with court officials and civil society—are negotiating an Assembly resolution to establish a framework to assess the IER recommendations and ensure appropriate follow-up. This framework includes the creation of an Assembly mechanism tasked with planning, coordinating, monitoring, and reporting on the assessment and implementation of the IER recommendations. As these discussions continue, it is important that the focus be on the ultimate goal of the review process: strengthening the court’s performance and delivery of justice. In addition, certain principles are essential to a successful follow-up to the IER report: The IER recommendations vary greatly in nature and purpose; many are directed at the court, while others require Assembly action or reflect a shared responsibility between the court and the Assembly. In line with the principles outlined above, it is important for the framework established by the Assembly resolution to reflect those differences. To that effect, any follow-up mechanism created within the Assembly should address only recommendations that are directed by the IER to the Assembly or allocate them to the existing Assembly or Bureau working groups and their facilitations. At the same time, the court should consider recommendations directed at it by the IER and regularly report to the Assembly on its progress. Those occasions would allow states parties and civil society to pose questions and discuss the court’s plans and recommendations under its purview.

These two parallel but distinct processes for the court and states parties are needed to ensure respect for the judicial and prosecutorial independence of the court as well as efficiency in the consideration of the IER recommendations.

The framework for follow-up established by the Assembly should also recognize the different steps states parties and the court will take to address the IER recommendations. In particular, it is important to avoid language that may imply that all the recommendations of the Independent Experts Review will be implemented. A crucial part of the follow-up process to the IER report will be the assessment of each recommendation, which will necessarily include a determination on implementation. Finally, discussions around IER recommendations requiring Assembly action or reflecting a shared responsibility between the court and the Assembly should take place in inclusive and transparent fora—depending on the recommendation—either through an Assembly mechanism or in existing working groups and facilitations.

They should be open to all states parties, with full participation of the court and civil society, as well as the support of the IER experts.

The ICC’s success is directly related to the will of states parties and intergovernmental organizations that support it. Indeed, without its own police force to facilitate investigations, to locate witnesses, and to apprehend suspects, the ICC must rely on the cooperation of states parties in order to fulfill its mandate. It is crucial that states parties view their responsibility to cooperate with the court as substantially more far reaching than responding to the court’s targeted demands for assistance.

The court simply cannot succeed without active engagement by states parties in facilitating achievement of the ICC’s objectives, as well as determined public and private diplomacy on behalf of the fight against impunity. Through concerted efforts to enhance cooperation in all its forms, states parties can improve victims’ access to justice and signal their undeterred support for the court, particularly in the face of threats to its mission. As part of carrying forward their mandates as well as the cooperation and non-cooperation review priorities cited above, the Assembly’s co-facilitators on cooperation and co-focal points on non-cooperation held a first-ever joint panel discussion.[11] The cooperation co-facilitators also launched an online, secure platform aimed at facilitating lessons-learned and the exchange of best practices among states parties, based, in part, on replies to a questionnaire issued to states parties.

The co-facilitators aim to further develop the tool next year.[12] In addition, the cooperation co-facilitators propose including “[c]onsultations on the recommendations of the independent experts on the review of the Court relating to the strengthening of cooperation” in their 2021 program of work, as well as holding consultations on the advisability of developing regional and thematic focal points on cooperation, creating a permanent structure for a network of national practitioners and focal points on cooperation, and guidelines on how best to deepen the relationship between the UN and its agencies, the court and states parties.[13] The Independent Expert Review also made recommendations to the court and to the Assembly relevant to cooperation.[14] In addition, this year’s “Report of the Court on Cooperation” contains detailed recommendations for future action in several priority areas.[15] As set out above, an Assembly mechanism for follow-up to the IER should address recommendations, including on cooperation, where they are directed at the Assembly. This may be done by allocating recommendations to relevant existing facilitations or focal points, including on cooperation and non-cooperation. Given limitations in the meeting’s format, it is unclear, at this writing, whether the Assembly session will include a plenary discussion on cooperation. We highlight below topics we recommend states parties include should they hold a plenary discussion or in other appropriate agenda items.

The Assembly should revisit establishing a coordination mechanism of national focal points and practitioners, as proposed by the cooperation co-facilitators. In 2014, the Assembly, through its cooperation facilitation in The Hague Working Group, reported on the feasibility of establishing a coordinating mechanism of national authorities dealing with cooperation with the court.[16] Since that time, the Assembly’s annual resolution on cooperation has encouraged continued exploration of this proposal.[17] Such a coordination mechanism, particularly with the involvement of authorities from ministries of justice, could be an important means to strengthen cooperation. Cooperation challenges are inevitable, given the complexity of the court’s mandate, the array of partners on which it depends for support, and its work across multiple country situations and regions, simultaneously.

The Assembly’s work through the cooperation facilitation has maintained attention on many different dimensions of cooperation and has convened important seminars with the participation of national authorities, but discussions within the Bureau’s working groups do not directly benefit on a regular basis from the expertise of national authorities.

The court has organized annual seminars for several years to bring together national focal points from situation countries and other relevant jurisdictions. According to the court, “[t]hese gatherings provide a unique platform to enhance dialogue and cooperation between the Court and States, including on new developments in terms of technical areas of cooperation (such as witness protection, disclosure, cooperation with the Defence, financial investigations and asset recovery, implementation of arrest warrants); they also have contributed to the development of an informal network of national experts on cooperation with the Court that can share and learn from each other’s’ experiences.”[18] Building on this experience, a standing network could facilitate exchange on a more frequent basis on topics of specific interest to those making use of the network. Through exchange of experiences and best practices, a network could translate into more effective responses to cooperation requests, particularly where that mechanism includes national central authorities or focal points. It could also facilitate bilateral contacts between national authorities on specific issues of mutual interest.

There has been value in the engagement of national experts in such networks in other, similar contexts, including the European Network of contact points in respect of persons responsible for genocide, crimes against humanity, and war crimes. In the context of the Assembly, such a coordination mechanism would not require its own secretariat. Exchanges could be supported through the recently launched online platform. Such a network would act as a supplement to the Assembly’s facilitation on cooperation and focal points on non-cooperation.[19] The cooperation facilitation is likely to remain best placed to advance discussions of the court’s cooperation needs in the area of diplomatic and political support. Exchange within the network could yield suggestions as well for areas where further, in-depth study in other areas of cooperation is needed and could be carried out within the facilitation. A permanent coordinating mechanism is thus likely to add in important ways to the tools available to the Assembly to enhance cooperation and address non-cooperation, rather than duplicating or making redundant existing measures. On June 11, 2020, US President Donald Trump issued Executive Order 13928, authorizing asset freezes and family entry bans against certain ICC officials.[20] On September 2, Fatou Bensouda, the ICC prosecutor, and Phakiso Mochochoko, the head of the Office of the Prosecutor’s Jurisdiction, Complementarity, and Cooperation Division were designated for sanctions pursuant to that order.[21] The executive order followed nearly two years of escalating threats and the revocation in 2019 of the prosecutor’s US visa. US action is aimed at thwarting ICC investigations in Afghanistan and Palestine that could scrutinize the conduct of US and Israeli nationals.[22] Under the executive order, US persons or entities located anywhere in the world, as well as non-US persons in the US, are prohibited from transacting with or providing services to designated persons or entities. In addition, the importance of the US dollar means that most major financial institutions around the globe regularly refuse to conduct transactions with or for US-sanctioned individuals or entities. This is so even in transactions in which there is no connection to US dollars, US persons, or US jurisdiction. This broadens the reach of US sanctions far beyond simply blocking assets like bank accounts or property physically located in the US.

The executive order also provides for sanctions with regard to those who assist certain court investigations, adding to the risk of a broad chilling effect on cooperation with the ICC.[23] In October, the US Ambassador-at-Large for Global Criminal Justice Morse Tan stated that the United States intends to “seek the dissolution of the [ICC] itself” if the court does not “change course and amend the Rome Statute so that it will not be possible for American personnel to be hauled before it.”[24] The US government has shown contempt for victims and for the global rule of law by perverting US sanctions authorities—which were intended to curtail human rights violations—into broadsides against the ICC. States parties have been increasingly vigilant in making clear their opposition to US bullying. Among other steps, cross-regional groupings of states parties issued joint statements in June and November, as did ICC states parties on the UN Security Council.[25] US measures have also been met by statements of the ASP president, the EU, national governments, and non-governmental organizations.[26] Several US lawmakers also spoke out against the sanctions.[27] At the November review of the US human rights record in the context of the Universal Periodic Review before the UN Human Rights Council, nine ICC states parties called on the US to rescind the executive order, creating an important track record of recommendations on which the Council should follow up.[28] Important decisions remain pending with the prosecutor and the judges in both the Afghanistan and Palestine situations, decisions that respond to the very real needs of victims to see justice. For as long as the ICC does its job, it will face politicized opposition from multiple sources that can only be overcome through the determined, creative backing of states parties.

The IER report recognizes this reality in its recommendation that “[t]he ASP and States Parties ... develop a strategy for responding to attacks on the Court by non-States Parties,” although past experience shows that opposition may also come from states parties.[29] With regard to current threats facing the court, the change in the US administration provides a window of opportunity for states parties to engage the US in a manner that seeks to bring about an approach that respects the Rome Statute, the global rule of law, and centers victims’ access to justice. With the prospect of investigations in Afghanistan and Palestine, the US relationship with the ICC in regard to these country situations may remain contentious. States parties should reflect on past experience with the Clinton, Bush, and Obama administrations in encouraging a positive approach to the court overall and engagement with the Assembly. While interacting with the US will need to be done on a bilateral and multilateral basis, the upcoming Assembly session provides an important collective platform to signal expectations of a change in US approach.

The incoming US administration has not yet pledged to rescind the executive order. In addition to identifying “[c]omplementarity, and the relationship between national jurisdictions and the Court” as a priority topic as part of the broader review, at last year’s session, the Assembly also renewed its general mandate of the Bureau to continue dialogue with the court and other stakeholders, with a focus on “complementarity-related capacity-building activities by the international community to assist national jurisdictions, on possible situation-specific completion strategies of the Court and the role of partnerships with national authorities and other actors in this regard; and also including to assist on issues such as witness and victims protection and sexual and gender-based crimes.” [30] Complementarity is a bedrock principle of the Rome Statute, ensuring the primary responsibility for investigating Rome Statute crimes remains with national governments.

The Assembly’s discussions on complementarity, leading up to and following the Kampala review conference in 2010, focused on “positive complementarity.” That is, the concerted international and domestic efforts to strengthen and better enable national jurisdictions to conduct credible and effective national investigations and trials of Rome Statute crimes. Positive complementarity was the focus of the “complementarity” element of the broader stocktaking exercise of international criminal justice at Kampala.[31] In a resolution adopted in Kampala, the Assembly tasked its secretariat, “within existing resources, to facilitate the exchange of information between the Court, States Parties and other stakeholders, including international organizations and civil society, aimed at strengthening domestic jurisdictions.”[32] The Assembly has renewed this mandate annually.[33] In more recent years, as well as in a meeting held pursuant to the review process this year, discussions led by the Assembly’s ad country co-focal points have also aimed at clarifying the operation of the complementarity principle with regard to the exercise of the court’s jurisdiction, as well as aspects of the Office of the Prosecutor’s preliminary examination practice and development of situation-specific completion strategies.[34] The Bureau also mandated the complementarity co-focal points to explore support for the court’s prosecution of sexual and gender-based crimes.[35] State party discussions on complementarity this year recognized the relevance of the work of the IER and the need for a “staged approach to consultations so as to avoid overlap and seek synergies.”[36] Consistent with the flexible mandate provided by the Assembly, in its interim report, the Independent Expert Review identified “[c]omplementarity, to the extent that it is relevant to preliminary examinations, prosecutorial and completion strategies,” as an additional topic of focus of its work.[37] The final IER report makes recommendations to the Office of the Prosecutor regarding its assessment of complementarity during preliminary examinations and the mainstreaming of positive complementarity approaches across all phases of its work, including completion strategies (alongside other court actors).[38] These recommendations are not addressed to states parties.

The IER did recommend that the Assembly consider its role in facilitating positive complementarity partnerships, including to support the prosecution’s situation completion strategies.[39] The IER also notes that promoting a shared vision of the court’s approach to positive complementarity could feature as part of a discussion convened among the court, states parties, and civil society on a 10-year strategic vision for the court.[40] The complementarity co-focal points solicited input on several possible streams of concurrent work for next year and noted support by some states parties for an Assembly “position statement or resolution on the principle of complementarity, drafted on the basis of a broader stocktaking exercise. This exercise could draw together the discussions held already this year with an opportunity for States Parties, the Court, and other stakeholders to engage in dialogue on relevant aspects and recommendations of the IER Report, where appropriate. As some have pointed out, consultations and coordination with whatever mechanism takes forward the IER Report will be needed to demarcate clear parameters for such an exercise.”[41] The IER recommendations relevant to complementarity and positive complementarity touch on areas that go to the heart of prosecutorial independence, including the conduct of preliminary examinations and completion strategies. Consistent with the overall approach to IER follow-up set out above, recommendations directed to the Office of the Prosecutor should be dealt with by that organ, rather than addressed by the Assembly mechanism or complementarity facilitation. While it will be important as part of the IER review follow-up to create fora for dialogue on these issues with states parties and civil society, policy decisions are for the court, consistent with respect for judicial and prosecutorial independence, as well as policy expertise. Beyond the IER’s specific recommendations, Human Rights Watch is concerned that without sufficient safeguards, a stocktaking exercise and Assembly position statement or resolution on the principle of complementarity could result in inappropriate pressure on court actors. States parties identified “strengthen[ing] the ongoing dialogue on the implementation and application of the principle of complementarity, providing further clarity and predictability, while respecting prosecutorial and judicial independence,” as a potential area of focus during the discussions that led to the launch of the review process.[42] Judicial and prosecutorial decision-making on complementarity, however, defines certain aspects of the exercise of the court’s jurisdiction, and as a result, it will inevitably attract scrutiny. It is precisely for that reason that states parties should scrupulously avoid actions that, individually or collectively within the Assembly, exert pressure that gives rise to the appearance of interference with that independence. Assembly discussions on complementarity are needed to assess its role in positive complementarity initiatives, as proposed by the co-focal points as one stream of work and also referenced in the IER recommendations. Although, as indicated above, the Assembly has provided a limited mandate to its secretariat to broker assistance between states parties and other international actors to support capacity-building efforts, more robust approaches should be explored. At the upcoming Assembly session, states parties face crucial decisions in the election of the next prosecutor and six new judges.

The merit-based election of highly qualified court officials is among the most important elements of state party stewardship of the Rome Statute system.

The prosecutor, serving for a nine-year term, drives the work of the ICC through decisions about what cases to bring and how.

The ICC’s ability to effectively try cases, including ensuring scrupulous respect for fair trial rights, meanwhile, rests on the quality of its judges. ICC judges hand down judgments that significantly influence international criminal law jurisprudence and deeply impact the lives of victims and survivors and affected communities. With the final report of the Independent Expert Review, it is also clear that the incoming prosecutor and the court’s bench will have critical roles to play in following up on its recommendations.

The review highlights the need for significant improvement to remedy a culture of fear and distrust at the court, including to address accounts of bullying and harassment.[43] States parties are also due to elect a new Bureau, along with the president and two vice-presidents of the Assembly. Filling these important leadership posts in the ASP merit careful thought given the prominent role the Bureau has played as the Assembly’s intersessional work has increased. In the election of the prosecutor, the Assembly approved an unprecedented mechanism and set of steps. This includes the creation of a Committee on the Election of the Prosecutor (CEP) to assess applications, establish and interview a longlist of candidates, and produce a shortlist of candidates.

The Committee also tasked a specialized ICC section to independently vet all longlisted candidates with regard to the Rome Statute criteria of “high moral character.” The committee’s methodology, and the fact that it was assisted by a panel of independent experts, represent an important, albeit imperfect innovation. As the Committee itself recognized in offering to conduct a lessons-learned exercise, future election processes can be yet further strengthened.

The Committee noted in particular that while it strived to conduct due diligence with regard to vetting candidates for prior records of workplace and/or sexual harassment, including its own questioning in addition to the work of the specialized ICC section, it lacked the mandate and capacity to carry out a comprehensive approach.[44] The committee’s work—resulting in a shortlist of four candidates—was paired for the first time with public roundtables with shortlisted candidates.[45] There are significant warning signs, however, that considerations beyond merit could dominate the prosecutor’s election. Following the roundtables, states parties began a consultation process aimed at identifying a consensus candidate and avoiding national nominations.[46] The CEP’s shortlist, however, stirred controversy from the outset and nearly immediate calls for it to be set aside. In Human Rights Watch’s assessment, state party consultations on these candidates was unnecessarily truncated, including as some governments sought the inclusion of their preferred candidates who did not appear on the shortlist. More than two months before the election, the Assembly’s Bureau concluded that consensus was not possible, leading to protracted negotiations over next steps.[47] In mid-November, the Bureau agreed to amend the terms of reference for the election to extend consideration to additional candidates drawn from the longlist of those interviewed by the CEP, with the consent of those candidates, while continuing to strive for a consensus candidate.[48] At this writing, it appears that a total of nine candidates are now under consideration, the four initially shortlisted by the Committee and five additional candidates following the procedure to ascertain their consent.[49] The necessary lessons-learned process on this year’s election should include the Assembly’s reaction to and its handling of the initial shortlist. Efforts to reach consensus are important. National nominations will enlarge even further the space for political manipulation of this critical decision. But it remains to be seen whether the amended process can be carried out in the time remaining in a manner that ensures fairness, transparency, and rigorous assessment of the candidates, as NGOs have repeatedly stressed.[50] A key element will be further vetting of all candidates for “high moral character.” The Committee considered it lacked a mandate to investigate claims of misconduct by potential candidates.[51] Regrettably, ICC judicial elections in particular have been marked in the past by vote-trading, in which states agree to support one another’s candidates with minimal regard to the individual’s qualifications.

The IER found that “it is disturbing to discover that the practice of trading votes out of political self-interest, unrelated to the calibre of the candidate for election to a leading, international judicial post, is so well-entrenched that some States Parties still to this day find it politically expedient and acceptable to adhere to it,” and that there is “currently no appetite to abandon this practice and elect Judges solely on merit.” This led the experts to prioritize recommendations mainly to the preceding nomination process, rather than election itself.[52] In the judicial elections, states parties last year significantly strengthened the mandate of the Assembly’s Advisory Committee on Nominations (ACN), a body tasked to “facilitate that the highest-qualified individuals are appointed as judges of the International Criminal Court.”[53] Amendments to the ACN’s terms of reference set out with unprecedented specificity the tools and elements that could contribute to a rigorous assessment by the committee of each candidate.[54] The ACN reported in detail on its efforts to implement its revised mandate. This included its approach to reference checks in which, among other steps, it made use of the same procedure adopted by the CEP of using a specialized ICC section to assess high moral character, a Rome Statute requirement for judges in article 36(3)(a) parallel to that required of the prosecutor and deputy prosecutor under article 42(3).

The ACN further nuanced its assessment of candidates, sorting qualified candidates as “only formally qualified,” “qualified,” and “highly qualified.” To merit “highly qualified” and “qualified” designations the committee required knowledge of the ICC, a criterion not contained on the face of the Rome Statute.[55] This year for the first time, and pursuant to changes adopted at last year’s Assembly session, states parties hosted public roundtables with judicial candidates, taking on a tradition of such roundtables convened in prior elections by the Coalition for the ICC.[56] The importance of these changes should not be judged by the outcome of this year’s election alone.

Their effect can only be judged in the long view as to whether they contribute bringing about a critical change in the culture that ensures merit is the decisive criterion, from nomination at the national level right through to election within the Assembly. Over time, the ACN’s assessments can play an important role in identifying, with increased specificity, what it means to be “highly qualified,” restricting the space for states parties to nominate and vote for less qualified candidates. The Assembly should strive to set the highest standards in the election of the ICC’s officials, as part of improving the court’s performance and establishing the court as a standard bearer in the administration of justice. Women’s Initiatives for Gender Justice and the Open Society Justice Initiative have set out detailed recommendations regarding options for a professional vetting process in the context of the election of the prosecutor, but which may have relevance for other elections as well.[57] The choice of the next prosecutor, who will be only the third in the court’s history and who will serve a term of nine years, will be the most consequential decision ICC states parties will make for some time.

The next prosecutor will need to manage complex cooperation challenges, investigations, and prosecutions in a large number of situations.

The next prosecutor will once again inherit a significant backlog of open situations in which there are outstanding investigation and prosecution needs, as well as a number of preliminary examinations that may yield new investigations. Clearly, to be successful, the next prosecutor should be of high moral character and have demonstrated excellence in conducting complex, international criminal proceedings. With the IER report in hand, they should also be committed to seeing through needed changes in policy and practice. But the next prosecutor will also need significant vision and determination to ensure the Rome Statute’s objectives are translated into reality. Challenges to these goals have been accumulating for many years—driven by a mix of internal and external factors, including the court’s performance shortcomings, politicized opposition to certain investigations, and the reality that the court’s workload is far outstripping available resources, as Rome Statute crimes continue to be committed around the globe. While these challenges have been apparent for some time, the context of weakened commitment to the global rule of law and pressures asserted by the Covid-19 pandemic have translated into competing visions as to the court’s role. It is precisely because of this difficult landscape, however, that the court—and its prosecutor—need to remain true to the underlying vision that led to its founding.

The vision that animated like-minded states and human rights organizations to come together and create the ICC was of that of a court that could hold even the most powerful people to account. This is the vision that continues to inspire those who advocate for its essential role, especially in these difficult times. To be up to the task, the next prosecutor will need to be relentless in defending the Office of the Prosecutor against pressure to compromise on the mandate set by the court’s founders. Given the current composition of the bench and consistent with the Rome Statute’s requirements of “equitable geographic representation” and a “fair representation of female and male judges,” this year, minimum voting requirements are in effect for the Eastern European (1) and Latin American and Caribbean (2) states and for one female judge. In addition, the Rome Statute requires that the court’s bench consist of at least nine “List A” judges—that is, judges with established competence and experience in criminal law, procedure, and proceedings—and at least five “List B” judges—that is, judges with established competence in relevant areas of international law such as international humanitarian law and the law of human rights, as well as extensive experience in a relevant professional legal capacity. At this election, minimum voting requirements are in place with regard to one “List A” judge and one “List B” judge. ICC states parties will decide during the Assembly session on the court’s budget for the coming year. For 2021, excluding interest on the host state loan, the ICC has requested €144.92 million or a decrease of 0.5 percent below its €145.62 million budget approved for 2020.[58] The Committee on Budget and Finance has recommended further cuts, which if adopted, would leave the court’s budget at €144.67 million, or a decrease of 0.7 percent from last year.[59] The Committee repeated concerns that the failure of states parties to pay their assessed contributions on time could pose liquidity issues, jeopardizing court operations.[60] The court justified its budget request with reference to the “exceptional circumstances presented by COVID-19” and the need to “demonstrate due sensitivity to the pressure on the global economy caused by COVID-19, balanced by the need to maintain the minimum resources necessary for the Court to conduct its essential operations and discharge its important mandate in 2021.”[61] The court projected a baseline budget of €152.82 million for 2021 (excluding the host state loan), but arrived at its more limited budget request through a series of reductions, included delayed recruitment, postponed infrastructure investment, and anticipated COVID-19 related travel restrictions.[62] As the Committee observed, some of these are unlikely to be sustainable, “mean[ing] that pressure to increase the budget remains strong in future years.”[63] As the Committee on Budget and Finance noted, in fact, the court’s budget has more or less been held to zero growth since 2017.[64] This is demonstrative of a punitive approach to the court’s mission, with the result a protracted situation in which the ICC’s resources are demonstrably lagging behind its workload. While this is by no means limited to the Office of the Prosecutor, its resource constraints have been repeatedly highlighted. Although in 2020 two suspects were surrendered to the court and a second arrest warrant unsealed against one of them, no public arrest warrants were issued in any other active investigations.[65] The Office of the Prosecutor acknowledges that the pandemic has affected the pace of activities, even as it has adapted its methodologies through remote interviewing and online investigations, and that there will be a need to catch up.[66] It projects seeking arrest warrants, likely sealed, or wrapping up investigative activities in three investigations in 2021, compensating for delays due to the pandemic.[67] These investigations have been open before the court for several years.

The Office of the Prosecutor also indicates that there are several preliminary examinations that may move to open investigations, but limited resources in 2021 will also mean further prioritization between situations and among investigations.[68] The Independent Expert Review strived for recommendations in its final report that did not, for the most part, require budget increases.[69] Nonetheless, the report itself makes clear that there are significant resource gaps, noting understaffing across the Office of the Prosecutor, as well as a “liquidity crisis” due to delayed or missing contributions.[70] When it comes to a lack of resources to deal with the court’s workload, the experts recommend a number of steps that require further consideration, including the Office of the Prosecutor’s application of a higher gravity threshold in filtering situations for investigation and, in the context of greater strategic planning, hibernation of situations to balance scarce resources.[71] The IER recommends changes to the annual budget process, including to promote increased trust between the court and states parties.[72] More fundamentally, it also recommends that the court, states parties, and civil society engage in a discussion “on the strategic vision for the Court for the next ten years,” with “an outcome of the discussion ... agreeing on the level of activity that the Court is expected and desired to reach in ten years’ time and the steps (resources, cooperation and institutional development) that need to gradually occur for the organisation to reach that point.”[73] The court and states parties should consider this recommendation as a matter of priority, and the court should lead in setting the vision.

The articulation of such a vision could provide a platform to renew state party consideration of how budgetary resources could be made available and on what timeframe.[74] [1] Assembly of States Parties (ASP), “Review of the International Criminal Court and the Rome Statute System,” Resolution ICC-ASP/18/Res.7, December 6, 2019, (accessed November 24, 2020), para. 4. [2] See Bureau of the ASP, “Agenda and Decisions,” 5th Meeting, June 7, 2019, (accessed November 24, 2020), p. 3; “Agenda and Decisions,” 6th Meeting, June 14, 2019, (accessed November 24, 2020), pp. 1-2; “Agenda and Decisions,” 7th Meeting, July 17, 2019, (accessed November 24, 2020), pp. 1-2; [Draft Working Paper] “Meeting the challenges of today for a stronger Court tomorrow; Matrix over possible areas of strengthening the Court and Rome Statute System,” November 27, 2019, (accessed November 24, 2020). [3] See ASP, “Review of the International Criminal Court and the Rome Statute System,” Resolution ICC-ASP/18/Res.7, section A, “Independent Expert Review,” and section B, “Assembly of States Parties and Court.” [4] Ibid., annex I, “Terms of Reference for the Independent Expert Review of the International Criminal Court,” para. 1. [5] Ibid., annex I, “Terms of Reference for the Independent Expert Review of the International Criminal Court,” paras. 2-3 and appendix 1, “List of legal and technical issues to be covered in each cluster.” In line with the provisions of the Terms of Reference of the Independent Experts Review (IER), the experts decided to look into additional issues to those initially listed in the Terms of Reference. See IER, “Interim Report,” June 30, 2020, (accessed November 25, 2020), para. 30. [6] IER, “Interim Report,” appendix, “Consultations in numbers,”; IER, “Final Report,” September 30, 2020, (accessed November 30, 2020), annex II, “Consultations in numbers.” [7] See, e.g., Women’s Initiatives for Gender Justice, “Women’s Initiatives’ submission to the Group of Independent Experts,” March 12, 2020, (accessed November 30, 2020); Journalists for Justice, Letter to Independent Expert Review, April 12, 2020, (accessed November 30, 2020); Georgian Coalition for the International Criminal Court, “Written Submissions of the Georgian Coalition for the ICC on the ‘Matrix over possible areas of strengthening the Court and the Rome Statute System’,” April 14, 2020,,%2014.04.2020.pdf (accessed November 30, 2020); Human Rights Watch, “Human Rights Watch Submission to the Independent Expert Review of the International Criminal Court,” April 15, 2020, (accessed December 7, 2020); American Bar Association’s Criminal Justice Section, “Comments of the ABA’s Criminal Justice Section for the Independent Expert Review of the International Criminal Court,” April 15, 2020, (accessed November 30, 2020); International Bar Association, “ICC Independent Expert Review group called on to strengthen fair trials and equality of arms,” April 16, 2020, (accessed November 30, 2020); International Justice Monitor, “Open Society Justice Initiative Makes Recommendations to ICC Independent Expert Review,” May 18, 2020, (accessed November 30, 2020); International Federation for Human Rights and Kenya Human Rights Commission, “The victims’ mandate of the International Criminal Court: disappointments, concerns and options for the way forward. Observations and recommendations for the Independent Expert Review,” June 2020, (accessed November 30, 2020); The Arab Center for Independence of the Judiciary and the Legal Profession, “Proposals to the Commission of Independent Experts of the International Criminal Court,” (accessed November 30, 2020). [8] See, e.g., “Input by Denmark, Finland, Iceland, Norway and Sweden to the ongoing Independent Expert Review of the International Criminal Court,” (accessed November 30, 2020). [9] IER, “Final Report.” [10] In the discussions that led to the launch of the review process, states parties had already identified specific topics they would address in each of these priority areas. See [Draft Working Paper] “Meeting the challenges of today for a stronger Court tomorrow; Matrix over possible areas of strengthening the Court and Rome Statute System.” These are: for strengthening cooperation: 3.1. Strengthening cooperation in general, 3.2. Implementation of arrest warrants, 3.4. Cooperation with the UN and UNSC (including cases of non- cooperation); for non-cooperation: 3.2. Implementation of arrest warrants, 3.3. Noncooperation, 3.4. Cooperation with the UN and UNSC (including cases of non-cooperation); for complementarity and the relation between national jurisdictions and the Court: 2.2. Relationship between national jurisdictions and the ICC; and for equitable geographical representation and gender balance: 1.14. Gender and Geographical balance in recruitment. [11] See ASP, “Report of the Court on Cooperation,” ICC-ASP/19/25, October 28, 2020, (accessed December 7, 2020), para. 21. [12] ASP, “[Draft] Report of the Bureau on cooperation,” November 23, 2020, unpublished document on file with Human Rights Watch, paras. 12-16, 26. [13] Ibid., para. 26. [14] See, e.g., IER, “Final Report,” R272-80, 284, 289. In a submission to the IER, Human Rights Watch recommended the Assembly resume consideration of some previous initiatives, including establishing a coordination mechanism of national focal points; advancing specific recommendations in the draft Action Plan on arrest strategies; and further development and implementation of the Assembly’s procedures on non-cooperation to ensure these procedures are mandatory and provide for more specific sanctions to bring about cooperation. See Human Rights Watch, “Submission to the Independent Expert Review of the International Criminal Court,” p. 17. [15] See ASP, “Report of the Court on Cooperation.” [16] See ASP, “Report of the Bureau on cooperation,” ICC-ASP/13/29, November 21, 2014, (accessed November 25, 2020), annex II, “Report of the Feasibility study on the establishment of a coordinating mechanism of national authorities dealing with cooperation.” [17] See, e.g., ASP, “Resolution on cooperation,” Resolution ICC-ASP-13-Res3, December 17, 2014, (accessed November 30, 2020), para. 16. [18] ASP, “Report of the Court on Cooperation,” para. 42. [19] Human Rights Watch had previously recommended that the Assembly establish a working group on cooperation to augment the capacity of the cooperation facilitation. Following the proposed creation of a coordinating mechanism of national focal points, we similarly maintained that there could be scope for a working group alongside such a network. See Human Rights Watch, “Memorandum for the Tenth Session of the International Criminal Court Assembly of States Parties,” November 2011,, pp. 28-29; “Memorandum for the Twelfth Session of the International Criminal Court Assembly of States Parties,” November 2013,, part IV.C (“Intersessional work on cooperation”). [20] See “US Sets Sanctions Against International Criminal Court,” Human Rights Watch news release, June 11, 2020, [21] See “US Sanctions International Criminal Court Prosecutor,” Human Rights Watch news release, September 2, 2020, [22] Secretary Michael R. Pompeo At a Press Availability with Secretary of Defense Mark Esper, Attorney General William Barr, and National Security Advisor Robert O’Brien, Remarks to the Press, June 11, 2020, (accessed December 3, 2020). [23] See Adam Smith, “Dissecting the Executive Order on Int’l Criminal Court Sanctions: Scope, Effectiveness, and Tradeoffs,” Just Security (blog), June 15, 2020, (accessed November 22, 2020). [24] “The International Criminal Court and global criminal justice: A conversation with Amb. Morse H. Tan,” video, October 26, 2020, (accessed November 25, 2020). [25] “ICC: Member Countries Rally Around Court,” Human Rights Watch news release, June 23, 2020,; Edith M. Lederer, “Over 70 ICC nations support court and oppose US sanctions,” Associated Press, November 2, 2020, (accessed November 22, 2020); Joint Statement by UN Security Council Members that are States Parties to the Rome Statute of the International Criminal Court (Belgium, the Dominican Republic, Estonia, France, Germany, Niger, Saint Vincent and the Grenadines, South Africa, Tunisia, and the United Kingdom), June 10, 2020, (accessed November 22, 2020); Joint stakeout by Belgium, the Dominican Republic, Estonia, France, Germany, Niger, Saint Vincent and The Grenadines, South Africa, Tunisia, The United Kingdom, Ireland, Mexico, Norway and Kenya, United Nations, Situation in Libya, ICC referral pursuant to resolution 1970, November 10, 2020, (accessed November 22, 2020). [26] See, e.g., “ICC: Member Countries Rally Around Court,” Human Rights Watch news release; “ASP President, O-Gon Kwon, rejects US measures against ICC,” ASP press release, ICC-ASP-20200902-PR1534, September 2, 2020, (accessed November 22, 2020); Non-Governmental Organizations, Faith-Based Groups, Legal Professionals, Experts, and Former Government Officials Unequivocally Oppose U.S. Sanctions Against the International Criminal Court, September 21, 2020,; “US sanctions on ICC prosecutor unacceptable, says EU,” Reuters, September 2, 2020, (accessed November 22, 2020). [27] Elisa Epstein, Twitter, @elisacepstein, “My colleague @me_vignoli is covering global responses to the US' unprecedented step last week to impose sanctions on two #ICC officials. A thread below on responses from US lawmakers.” 10:48 a.m., September 8, 2020, (accessed November 30, 2020). [28] “United States of America Review - 36th Session of Universal Periodic Review,” UN Web TV, November 9, 2020, (accessed November 30, 2020). [29] IER, “Final Report,” R169. [30] ASP, “Strengthening the International Criminal Court and the Assembly of States Parties,” Resolution ICC-ASP/18/Res.6, December 6, 2019, (accessed November 30, 2020), para. 132. [31] ASP, “Stocktaking of international criminal justice, Taking stock of the principle of complementarity: bridging the impunity gap,” annex V(c), (accessed November 30, 2020). [32] ASP, “Complementarity,” Resolution RC/Res.1, June 8, 2010, (accessed November 30, 2020), para. 9. [33] See, e.g., ASP, “Strengthening the International Criminal Court and the Assembly of States Parties,” Resolution ICC-ASP/18/Res.6, para. 133. [34] See ASP, “[Draft] Report of the Bureau on complementarity,” November 25, 2020, unpublished document on file with Human Rights Watch, paras. 22-30; Secretariat of the ASP, Summary, February 22, 2019, (accessed November 30, 2020); ASP, “Report of the Bureau on complementarity,” ICC-ASP/17/34, November 29, 2018, (accessed November 22, 2020), paras. 8-9, 11; ASP, “Report of the Bureau on Complementarity,” ICC-ASP/18/25, November 29, 2019, (accessed December 3, 2020), paras. 7-11. [35] ASP, “[Draft] Report of the Bureau on complementarity,” paras. 14-15. [36] Ibid., para. 16. [37] IER, “Interim Report,” para. 30. [38] IER, “Final Report,” R256, 262-265. [39] Ibid., paras. 693, 736; R247. [40] Ibid., para. 953; R363. [41] ASP, “[Draft] Report of the Bureau on complementarity,” para. 50.

They also include other follow-up as needed to the IER report; dialogue with the Office of the Prosecutor on relevant forthcoming policy papers; further attention to the role of the Assembly as “a forum for dialogue and cooperation on complementarity issues between the Court and States Parties, non-States Parties, civil society and other organisations, with due regard for any operational confidentialities;” continued consultations on sexual and gender-based crimes; and exploring further the relationship between the Assembly’s work on complementarity, cooperation, and universality. Ibid., paras. 41; 51-53. [42] See [Draft Working Paper] “Meeting the challenges of today for a stronger Court tomorrow; Matrix over possible areas of strengthening the Court and Rome Statute System,” p. 11. [43] See, e.g., IER, “Final Report,” paras. 62-76, 82, 138, 205-214, 237. [44] ASP, “Report of the Committee on the Election of the Prosecutor,” ICC-ASP/19/INF.2, June 30, 2020, (accessed November 22, 2020), paras. 24-32, 58. [45] “Hearing with shortlisted prosecutor candidates,” webcast, July 29, 2020, (accessed November 30, 2020); “Hearing with shortlisted prosecutor candidates,” webcast, July 30, 2020, (accessed November 30, 2020). [46] Letter of O-Gon Kwon, ASP President to ICC States Parties, “Consultations on a consensus candidate for Prosecutor,” ASP/2020/31, August 7, 2020, (accessed November 30, 2020). [47] Bureau of the ASP, “Agenda and Decisions,” Ninth Meeting, October 9, 2020, (accessed November 30, 2020). [48] Bureau of the ASP, “Election of the Prosecutor –Way Forward,” November 13, 2020, (accessed November 30, 2020). [49] ASP, “Report of the Committee on the Election of the Prosecutor;” ASP, “Report of the Committee on the Election of the Prosecutor, Addendum,” ICC-ASP/19/INF.2/Add.3, November 25, 2020, (accessed November 30, 2020). [50] Joint NGO Open Letter to ICC States Parties on the Election of the Next Prosecutor, October 23, 2020, [51] See Mariana Pena, “Grave Concerns about the ICC Prosecutor Election and the Urgent Need for Vetting,” International Justice Monitor (blog), November 10, 2020, (accessed November 22, 2020); Open Society Justice Initiative and Women’s Initiative for Gender Justice, “Open Letter on the Need for Additional Vetting for ICC Prosecutor Nominees to the Bureau of the Assembly of ICC States Parties,” September 10, 2020, (accessed November 22, 2020). [52] IER, “Final Report,” paras. 963-64. [53] ASP, “Terms of reference of the Advisory Committee on nominations of judges of the International Criminal Court,” March 6, 2020, (accessed November 30, 2020), para. 5. [54] These include the use of a questionnaire, requesting evidence of legal knowledge, reference checks, a standard declaration for all candidates to sign regarding allegations of misconduct, an explicit assessment of “practical skills such as the ability to work collegially; knowledge of different legal systems; and exposure to and understanding of regional and sub-regional political, social, and cultural environments;” and documenting the national-level nomination processes. Ibid. [55] ASP, “Report of the Advisory Committee on Nominations of Judges on the work of its seventh session,” ICC-ASP/19/11, September 30, 2020, (accessed November 30, 2020), paras. 13-25, 27, 32. [56] ASP, “Public Roundtables with Judicial Candidates,” November 3-6, 2020, (accessed November 30, 2020). [57] Open Society Justice Initiative and Women’s Initiative for Gender Justice, “Open Letter on the Need for Additional Vetting for ICC Prosecutor Nominees to the Bureau of the Assembly of ICC States Parties.” [58] ASP, “Proposed Programme Budget for 2021 of the International Criminal Court,” ICC-ASP/19/10, September 10, 2020, (accessed November 30, 2020), table 1. [59] ASP, “Report of the Committee on Budget and Finance on the work of its thirty-fifth session,” ICC-ASP/19/15, November 17, 2020, (accessed November 30, 2020), para. 36. [60] Ibid., paras. 152-53. [61] ASP, “Proposed Programme Budget for 2021 of the International Criminal Court,” para. 6. [62] Ibid., annex X, table 1; ASP, “Report of the Committee on Budget and Finance on the work of its thirty-fifth session,” para. 27. [63] ASP, “Report of the Committee on Budget and Finance on the work of its thirty-fifth session,” para. 28. [64] Ibid., para. 11. [65] Report of the International Criminal Court to the UN General Assembly, A/75/324, August 24, 2020, (accessed November 30, 2020), paras. 2-46. [66] ASP, “Proposed Programme Budget for 2021 of the International Criminal Court,” paras. 117, 307. [67] These are investigations into groups linked to the Seleka in the Central African Republic; the Georgia situation; and crimes committed during the 2011 post-election violence in Cote d’Ivoire by the side opposed to former President Laurent Gbagbo. Ibid., paras. 142, 146, 153. [68] Ibid., paras. 23-24. [69] IER, “Final Report,” para. 17. [70] See, e.g., ibid., paras. 176 et seq. (“Quantity of Staff”); 350. [71] Ibid., R71, R227, R243. [72] Ibid., R132-143. [73] Ibid., R363. [74] See further discussion in Human Rights Watch, “Submission to the Independent Expert Review of the International Criminal Court,” pp. 14-17.

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