Biden Administration Rescinds Sanctions Against International Criminal Court Officials

The states parties of the International Criminal Court (ICC) will meet from December 6-11, 2021, in The Hague for the annual session of the Assembly of States Parties (ASP). The annual session, at which states parties will hold elections for deputy prosecutor, caps a year of leadership change in the Office of the Prosecutor with the February 2021 election of the new prosecutor, Karim Khan. The court, states parties, and civil society also pressed forward in the initial stages of an ambitious process to assess the nearly 400 recommendations of last year’s Independent Expert Review (IER), aimed at strengthening the court’s delivery of justice. The IER, alongside broader review efforts within the ASP, should remain among the highest priorities of Assembly and court officials as the process of assessment and implementation continues next year.

Khan, who took office in June 2021, inherited a workload considerably expanded during the term of his predecessor, Fatou Bensouda. Under Bensouda, the Office of the Prosecutor (OTP) took forthright decisions to expand the court’s work beyond the African continent, opening investigations in Georgia, Bangladesh/Myanmar, Afghanistan, and Palestine, and seeking an investigation in the Philippines. Not only did these decisions expand the potential for justice, but the inclusion of crimes that otherwise might have been shielded by big power politics within the court’s docket advanced the equal application of the law, even as this attracted unprecedented punitive sanctions by the former US government. The precept that “no one is above the law” is at the heart of the highest aspirations for the role of the Rome Statute system, which aims to consolidate the rule of law in order to deter the most serious international crimes for the sake of “present and future generations.” 

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Seventeenth session of the International Criminal Court's Assembly of States Parties in The Hague, Netherlands, December 2018.  © 2018 Syd Boyd/Coalition for the International Criminal Court

With the authorization of the Philippines situation and the opening of an investigation by the prosecutor in October 2021 in Venezuela, the court now has 16 situations under investigation. Although some of these situations date to the court’s earliest years, there remains considerable work to be done to bring additional cases in them and lay the groundwork necessary for the court to maximize its impact and legacy for affected communities before it can conclude its work. In seven situations, there have yet to be any public charges laid. While the international community should do more to prevent atrocities and support national jurisdictions to carry out their primary responsibility for justice, given the alarming proliferation of Rome Statute crimes around the world, the ICC is too often the only meaningful avenue for justice. Despite Bensouda’s increasingly clear calls to states parties to address the gap between workload and budget, court leadership and states parties have yet to grapple with this challenge. Avoiding this issue risks compromising the progress and promise represented by the steps forward taken under Bensouda’s term in expanding the court’s reach, as well as the dedication of states parties, the court, and other stakeholders to follow through on the IER.   

At this year’s Assembly session, states parties have several opportunities to address these challenges and shore up other necessary support for the ICC’s critical mandate. Although in-person participation will be limited once again due to the Covid-19 pandemic, nongovernmental organizations (NGOs) from around the world will follow proceedings online. This briefing note sets out recommendations to states parties for the Assembly session in the following priority areas: 1) moving the review process forward; 2) bolstering political support for justice, building on lessons learned from efforts to press back against the Trump administration sanctions levied against court officials; 3) keeping civil society space open in Assembly proceedings; 4) the election of the deputy prosecutor and other steps to strengthen Assembly elections; and 5) ensuring adequate resources, including when it comes to protecting defense rights. 

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

I. Review of the International Criminal Court and the Rome Statute System

A. Looking back at the review process in 2021

Since the last Assembly session and pursuant to a resolution, the Assembly’s Bureau appointed Review Mechanism representatives and ad-country focal points in February 2021 to lead discussions around the assessment of recommendations of the Independent Expert Review.[1] The court submitted its overall response to the IER report on April 14, 2021.[2] These were initial reactions, given the significant changes in leadership at the court—both the president and the prosecutor—this past year.

The first task of the Review Mechanism was to propose a categorization of the IER recommendations as directed to the court, its specific organs, the Assembly (and its specific mandates), or jointly.[3] Several stakeholders, including the court, states parties, and civil society organizations, made comments on the Review Mechanism’s proposal.[4] The Bureau then adopted the proposed categorization.[5]

Next, the Review Mechanism submitted a proposed Comprehensive Action Plan (CAP), along with a first report on the progress of its work, based on stakeholder comments.[6] The CAP is meant to serve as a roadmap for the assessment of the IER recommendations. This includes their allocation to relevant court organs and ASP mandates, as well as the prioritization, timelines, and platforms for discussing these recommendations. The Bureau adopted a slightly revised CAP.[7]

Starting in September 2021, the Review Mechanism and relevant ASP mandates began discussing prioritized recommendations by cluster. They were required to report on those discussions by November 1. In the lead-up to this year’s Assembly, the Review Mechanism will facilitate a standalone resolution providing a global overview of the review process to date as well as plans for discussions next year. The Review Mechanism’s report will also be presented at the session. At the time of this writing, the draft text of the resolution has yet to be circulated.

B. Principles for the review process going forward

As this important process progresses, it is crucial to keep the focus on its ultimate goal: bringing about changes needed to strengthen the court’s performance and its effective delivery of justice. Based on our observation of the process thus far, we suggest the following guiding principles for discussions going forward. States parties should highlight these principles in statements during the Assembly session, including during a planned plenary session on the review:

  • Respect for the judicial and prosecutorial independence of the court. States parties have insisted that the review exercise be a state-led process, requiring their involvement in discussions on assessment and implementation of all recommendations, even those allocated to the court.[8] In our view, this approach opens the door for potential interference with the independence of the court, and, as discussed below, has led to procedural inefficiency.

While it is important to encourage the court to act transparently and to be open to dialogue with states parties and civil society on IER recommendations directed to its organs, the court should ultimately oversee the assessment and, where appropriate, implementation of these recommendations. It has been positive to hear states parties reiterate the need to respect the court’s judicial and prosecutorial independence in discussions we have observed so far.

This is particularly important in the context of discussions within the complementarity facilitation regarding IER recommendations on complementarity and positive complementarity (IER Recommendations 262-265) and the “gravity threshold” (IER Recommendation 227).[9] These sets of recommendations were directed to the Office of the Prosecutor, and not to states parties, and concern issues that go to the heart of prosecutorial independence. We had previously recommended that the recommendations on complementarity and positive complementarity be allocated to the court, a position shared by the court.[10] They were instead allocated to both the complementarity facilitation and the court, making it particularly important that discussions are conducted with a view toward respecting prosecutorial independence. As these discussions resume in 2022, it will be important for states parties to continue to bear this in mind.

We will continue to closely monitor this issue across the review process as it moves forward.

  • Genuine dialogue among all stakeholders and transparency. Inclusivity and transparency are key elements for the quality and legitimacy of the review process. To date, the process has operated in a manner consistent with these principles, particularly through Review Mechanism meetings open to all relevant stakeholders, scheduled at times suitable for both The Hague and New York, with French interpretation. However, discussion of IER recommendations has taken place across several facilitations, not all of which benefited from these arrangements.

More can also be done next year to foster genuine engagement of civil society groups. In particular, NGOs from ICC situation countries should be included as early as possible in the assessment of recommendations that relate directly to their work. More concerted efforts could be made to include them in existing platforms through advance notice in scheduling and translation of key documents. Many of the recommendations on which NGOs have practical experience of the court’s performance are those directed to the court for assessment. Dedicated discussions with these groups on issues that would benefit from their expertise, including for example outreach and field presence, should be organized to help inform the court’s assessment of those recommendations.

  • Avoiding bureaucratization within Assembly discussions. In Human Rights Watch’s submission on the CAP, we warned against bureaucratization of the process.[11] The insistence on having states consider all recommendations, even when allocated for assessment to the court, generated a significant number of meetings in a very short time. This made it difficult for states parties and civil society organizations to follow and engage meaningfully in discussions due to capacity constraints. While assessment of the IER recommendations is an inherently complex exercise that requires adequate time and careful organization, it is important to ensure that processes that could already be initiated or advanced by both the court and states parties are not impeded. In structuring their discussions next year, states parties should ensure adequate time to assess together recommendations directed to the Assembly. When it comes to court-directed recommendations, states parties should limit their role to monitoring progress in the court’s assessment and, where appropriate, implementation.

Recommendations to the Assembly and ICC states parties

  • Affirm, in statements to the General Debate, the review plenary, and other appropriate agenda items, ongoing support for the review process as well as maintaining respect for the court’s judicial and prosecutorial independence during next year’s review process discussions;
  • Continue to improve inclusivity and transparency, including through attention to scheduling and interpretation, as well as encouraging the court to provide for early civil society engagement on court-facing recommendations of particular relevance to their expertise;
  • Take note, in statements to the General Debate, the resolution on the review process, and the review plenary, of the risk of bureaucratization of the process and call on court actors to continue to make progress in their assessment and implementation of recommendations to ensure the process does not impede progress; and
  • Prioritize recommendations in next year’s plans of work of the Review Mechanism and Working Group facilitations allocated to states parties for assessment, while giving the court the time and space to carry out in parallel its assessment of recommendations solely under its purview.

C. Unified governance

The IER made several recommendations on unified governance, including proposing a “three-layered governance model” (IER Recommendations 1-11). While the Review Mechanism began initial discussions on these issues, substantive discussion on these recommendations will most likely take place in the first half of 2022, as indicated in the CAP. This discussion also relates to other recommendations (for example, those on the election of the registrar, see below).  

As discussions begin next year, we urge states parties to carefully examine the three-layered governance model proposed by the IER, with a view towards safeguarding the judicial and prosecutorial independence of the court. Given the court’s mandate to hold even the most powerful to account, ICC states parties and stakeholders should be consistently alert to the risk of interference. Below we offer initial considerations on this important topic.

First, the IER based its proposed three-layered governance model on the dual nature of the court as both a judicial entity (“ICC/Court”) and as an international organization (“ICC/IO”).[12] While this distinction may be helpful to clearly separate the different functions of the institution, it may not accurately reflect its functioning. The court does not work in insulated silos and its operations involve interaction between the different layers identified by the IER. For example, the Office of the Prosecutor’s ability to recruit and retain suitably skilled staff has a direct impact on the realization of prosecutorial activity. As a result, the three-layered governance model may not contain adequate safeguards for the court’s prosecutorial and judicial independence.   

Second, according to the proposed three-layered governance model, for matters related to the “ICC/IO,” the registrar would be responsible for the development and implementation of all administrative processes and policies. While the registrar would need to consult other principals, the registrar would remain the ultimate decision-maker on all administrative services (IER Recommendations 4, 9), and would seemingly be accountable to the Assembly in performing these activities.[13] For other functions, the registrar would remain accountable to the president.

In our view, states parties should proceed very cautiously in taking any measures that would reconsider the Assembly’s relationship to the registrar. Notably, the court’s external auditor deviated from the IER recommendations, following the principle that it should keep unchanged the respective roles of the principals.[14] Without sufficient safeguards, Assembly oversight could lead to eroding the essential independence needed for the court to discharge its mandate effectively and credibly.

Third, the IER also recommended that the OTP delegate matters related to the court’s organizational administration to the registry to enable a more efficient management of resources and to avoid duplication or overlap with activities already performed by the registry (IER Recommendation 6). While we agree with the need to streamline certain administrative activities, we are concerned that centralizing certain services in the registry (such as the OTP’s human resources), without ensuring adequate safeguards, could widen opportunities for interference.

In sum, the compound effect of centralizing administrative functions in the registrar, while simultaneously giving the Assembly oversight over the registrar in these functions, could potentially give the Assembly undue influence over the OTP and judiciary. It would also be inconsistent with both the letter and spirit of the Rome Statute, where states parties intentionally departed from ad hoc precedents, investing the prosecutor with “full authority” in managing his or her office (art. 42(2)) and the president with oversight authority over the registrar (inter alia, arts. 38 and 43(2)).[15] While the IER has raised valid concerns about internal coordination at the court, we believe that many of those concerns can be addressed through the court’s implementation of specific recommendations, short of a governance overhaul and a possible Rome Statute amendment.

II. Political Support

The last several years have seen several policies of active opposition to the court. US sanctions targeting court officials were just one example of overt and nefarious attacks on the court.[16] While US President Joe Biden’s cancellation of these punitive sanctions was a welcome development in the last year in easing tensions around the court,[17] the court and its supporters continue to face threats (both overt and implicit). For as long as the ICC does its job, it will attract politicized opposition from multiple sources that can only be overcome through the determined and creative backing of states parties. 

There are important lessons to learn in how states parties rallied around the court to mount a defense, including through their joint statements.[18] Notably, the language in the Omnibus resolution reiterating the Assembly’s commitment to preserve the Rome Statute’s integrity, undeterred by threats and measures against the court, served as an important model for these statements. The IER report recognizes these realities 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. This recommendation (IER Recommendation 169) was discussed within the Review Mechanism in October and was strongly endorsed by Assembly President Silvia Fernández di Gurmendi. States parties should seize momentum by promptly implementing this recommendation by calling on the Bureau to task the non-cooperation focal points to further explore and develop a process to address crises next year in time for its presentation to the Assembly’s twenty-first session.

Recommendations to ICC states parties

  • Express, in General Debate statements, firm support for the critical mandate of the ICC as an essential court of last resort, charged with ensuring the equal application of the law;
  • Call attention, in General Debate statements and the cooperation plenary, to the importance of all victims having access to justice and the need to strengthen the court’s capacity through increased practical and political support, as well as to invest in positive complementarity;
  • Retain and strengthen existing language in the Omnibus resolution reiterating the Assembly’s commitment to preserve the Rome Statute’s integrity undeterred by threats and measures against the court, its officials and those cooperating with it;
  • Call, in General Debate statements and interventions during the plenary on cooperation, for swift implementation of IER Recommendation 169 through early Bureau action next year to task the non-cooperation focal points to explore a process and “strategy for responding to attacks on the Court … and … be prepared to speak up in the Court’s defence;” and
  • Make pledges of concrete support to the court during the General Debate or the cooperation plenary session, including the conclusion of framework agreements.

III. Protecting Civil Society Space

It is important to recognize, as the existing Omnibus resolution language referenced above does, that not only the court and its officials, but also those cooperating (or perceived to be cooperating) with it face threats.

The Assembly has long recognized that the unique partnership between states and NGOs is fundamental to the success of the Rome Statute system. NGOs were crucial to the court’s establishment, and within their respective mandates, continue to play multifaceted roles within the Rome Statute system. These include advocating for the treaty’s ratification and implementation; pressing the court’s officials and its Assembly of States Parties to take sound policy, budgetary, and legislative decisions to ensure a fair, effective, and independent court; supporting victims and defendants in accessing their rights before the court; promoting political support for and practical cooperation with the court; and defending the court’s judicial and prosecutorial independence from the pressure it will invariably face from interests opposed to accountability. NGOs frequently face pressure and threats precisely because of these roles in standing up for justice before this court. The Israeli government recently designated prominent Palestinian civil society groups as “terrorist organizations” in a bid to shut down their human rights work. Some of these organizations have campaigned for an ICC investigation in Palestine.[19]  

Given that threats to human rights defenders for their advocacy on behalf of justice may be aimed at derailing the court’s mandate, the Assembly and states parties should integrate responses to attacks on civil society into their broader strategies for confronting obstruction of the ICC’s work.

The Assembly should also serve as a model for supporting civil society space.

Adaptations in the Assembly’s working methods given limitations on in-person meetings during the Covid-19 pandemic has, in some respects, enlarged civil society space. NGOs around the world have been able to participate in virtual meetings of the New York and Hague Working Groups, as well as the Review Mechanism.

At the same time, however, we are concerned by what appears to be some erosion in Assembly practice when it comes to transparency and civil society participation. Important discussions are increasingly taking place in the Assembly’s Bureau, which, traditionally has not been open to either states parties or observers. Additionally, the development of the “due diligence” process for the deputy prosecutor election was done in the absence of any consultation with NGOs, despite the concerted campaign by groups to raise the profile of this issue during the election of the prosecutor. Initial decisions about arrangements for this year’s Assembly session, which have imposed severe constraints on civil society participation and in turn will affect the publicity of the session, were taken without first consulting NGOs. For several years, the Assembly’s budget facilitation has been closed to NGO participation, excluding them from this year’s consideration of IER recommendations on the budget process.

Recommendations to ICC states parties

  • Recognize, in General Debate statements and other opportunities during the Assembly session, the critical role of civil society organizations in relation to the court and broader efforts to secure justice for victims, and condemn efforts by other actors to shut down the human rights work or muffle the voices of NGOs; and  
  • Call, in General Debate statements and other opportunities during the Assembly session, for increasing civil society space in Assembly procedures.

IV. Elections

Ensuring the court benefits from the highest quality leadership in its elected officials is one of the key responsibilities of ICC states parties. Over the past year, states parties have undertaken efforts to enhance election procedures, including when it comes to the deputy prosecutor and registrar. In addition to the developments addressed below, the Assembly’s Bureau has progressed an Assembly-mandated lessons-learned exercise regarding the February 2021 prosecutor’s election. States parties have also continued discussions, including as to relevant IER recommendations, in the facilitation on the review of the procedure for the nomination and election of judges. These two processes are essential to improving future elections and will continue in 2022. 

A. Deputy prosecutor election and the need for a permanent vetting mechanism

At the upcoming Assembly session, ICC states parties will elect the court’s deputy prosecutor or prosecutors. The prosecutor has requested that the Assembly elect two deputy prosecutors and has presented two separate lists of candidates for the consideration of states parties.[20] Although states parties will only take a formal decision on the election of two deputy prosecutors once they conclude negotiations on the court’s 2022 program budget during the Assembly session, it is widely expected that states parties will approve the resources necessary to support two deputy prosecutor positions.

This will be the first time the court has had two deputy prosecutors since 2007. Under a reorganization plan presented by the prosecutor, each deputy prosecutor will head a separate pillar within the Office of the Prosecutor. These pillars will integrate the Office’s functions in each situation, from preliminary examination to appeals rather than dividing these functions between separate cooperation, investigation, and prosecution divisions.[21] It will be important to ensure consistency between the work of the two pillars and limit competition between the pillars for resources, given the wide gap between its workload and the budget provided by states parties.

While the prosecutor has presented two separate lists of candidates—one comprised of all women and a second featuring francophone lawyers or lawyers with civil law experience—it is unclear at this writing whether states parties will elect one candidate from each list or will elect two candidates taking both lists together. Public roundtables with the candidates, co-moderated by Assembly and civil society representatives, were held on November 15, 2021.[22]

For these elections, the Assembly’s Bureau has sought to fill in some respects a notable gap in the 2020-2021 election of the prosecutor. That is, the absence of professional vetting to assess candidates’ “high moral character,” a requirement for the prosecutor mandated by the ICC’s Rome Statute that deputy prosecutors also must fulfill. In the absence of a comprehensive approach to vetting in the recent prosecutor’s election, information about candidates’ qualifications circulated in social and mainstream media, but without a process to receive and assess any complaints of misconduct.[23]

This year, the Assembly’s Bureau approved a “due diligence” process agreed upon by the president of the court’s Assembly of States Parties and the prosecutor. The process consisted of a candidate questionnaire, background checks overseen by the prosecutor, and the availability of the court’s Independent Oversight Mechanism to assess any allegations of misconduct against shortlisted candidates submitted through a confidential channel.[24]

While a step forward, this due diligence process was established quickly and without civil society consultation. States parties should now take the opportunity to develop, through thorough consultations, including with experts in vetting processes, a permanent vetting mechanism for the elections of all ICC and ASP officials. A permanent process—rather than the continued development of ad hoc procedures—will offer certainty for candidates and states parties and increase transparency and confidence in ICC election processes. The development of a permanent process could account for different vetting approaches that may be appropriate for different elections. For example, the process could distinguish between the election of ICC officials, including the prosecutor, judges, and registrar, and those of the ASP, including the Committee on Budget and Finance, the Board of Directors of the Trust Fund for Victims, and the Advisory Committee on Nominations.

B. Role of the ASP in the election of the registrar

At the upcoming Assembly session, states parties are expected to adopt a decision regarding the election of the court’s next registrar in 2023. The IER recommended that the election of the registrar be more thorough and that states parties strengthen their role in the election (IER Recommendation 76). This recommendation is linked to the three-layer model of governance proposed by the review in which the registrar would be directly responsible to the ASP for functions associated with the “ICC/International Organization,” which is Layer 3 (see note 12 above).

The IER’s recommendation, if implemented, would render the Assembly responsible for voting to confirm a shortlist of registrar candidates developed with the assistance of an expert committee. The registrar would then be elected by the judges from this shortlist. Under the Rome Statute, there is presently no role for the Assembly in shortlisting registrar candidates, which is instead done by the court’s presidency. The Assembly does make recommendations on the list, although to date these recommendations have concerned general criteria.[25] As indicated above, the registrar reports to the court’s president, not the Assembly.

States parties have not yet concluded their assessment of this recommendation and will continue discussions in 2022. At the same time, however, the decision endorses the IER’s view that participation of states parties in the election of the registrar should indeed be strengthened. It calls for public roundtables with registrar candidates to be followed by a consideration of candidates in The Hague Working Group and adoption of a report and recommendations to be submitted to the next Assembly session. It also requests the Bureau to establish a “due diligence” process to vet candidates for the election.[26]

This decision to endorse a stronger role for states parties is premature. The election of the registrar should be done in a more thorough manner, including steps like public roundtables and vetting—albeit preferably through a permanent mechanism set up for this purpose, rather than through another ad hoc process may be helpful in that regard. But states parties should carefully consider whether changes to the ASP’s relationship with the registrar could imperil the court’s judicial and prosecutorial independence (especially if combined with the recommendation of having a direct reporting line from the registrar to the Assembly). States parties should first assess the IER’s recommendations on “unified governance” before enhancing their role in the process for the election of the registrar. In addition, any decisions regarding adaptations of the election process could benefit from the lessons learned exercise currently under way regarding the 2020-2021 election of the prosecutor.

Recommendations to the Assembly and ICC states parties

  • Ensure that election of the deputy prosecutor or prosecutors is strictly merit-based, bearing in mind the following criteria:
    • Commitment to the ICC and its mission as an institution that transcends any particular state, political, or professional interest;
    • Demonstrated excellence in conducting complex, international criminal proceedings;
    • Proven track record of principled independence, fairness, and impartiality in applying the law, particularly in the face of political pressure;
    • High moral character;
    • Mastery of the Rome Statute and international criminal law;
    • Manifest managerial ability to direct a large and diverse staff;
    • Increasing gender diversity in the senior leadership of the Office of the Prosecutor; and
    • Experience in implementing changes in institutional culture;
  • Pledge, in General Debate statements, to avoid vote-trading in ICC elections; and
  • Mandate the Bureau through the Omnibus resolution to develop, in consultation with experts and all stakeholders, a proposal for the establishment of a permanent vetting mechanism for elected ICC and ASP officials, to be adopted at the Assembly’s twenty-first session.

V. Ensuring Adequate Resources and Setting Strategic Vision

A.  Transforming the dialogue on investment in international justice

ICC states parties will decide during the Assembly session on the court’s budget for the coming year. For 2022, excluding payment on the host state loan, the ICC has requested €158.81 million or an increase of 9.7 percent above its €144.67 million budget approved for 2020.[27]

The Committee on Budget and Finance has recommended a number of cuts to the court’s proposal, which if adopted, would leave the court’s budget at €152 million, or an increase of 5 percent from last year.[28] Throughout the year, states parties have grappled with potential liquidity issues that could jeopardize court operations due to the failure of some states parties to pay their assessed contributions.[29] The Committee on Budget and Finance has termed this issue to now be of “strategic concern.” Given these arrears, and despite the necessity of increased resources it acknowledged are necessary for “additional trials, the implementation of the Independent Expert Review’s recommendations and the Office of the Prosecutor’s restructuring,” the Committee indicated that “budgetary increases will be restricted to what is essential only and, in the first instance, internal savings, efficiencies and prioritization will be used to meet those essential requirements.”[30]

While additional efforts on an ongoing basis will be needed to address arrears through strengthened measures within the Assembly to ensure timely payments, once again, 2021 has demonstrated that the court’s approved budget remains far from adequate to address its workload. The former prosecutor, Fatou Bensouda, essentially shelved two potential investigations in the situations of Nigeria and Ukraine citing resource constraints.[31] The current prosecutor, Karim Khan, cited the office’s limited resources “relative to the scale and nature of crimes within the jurisdiction of the Court” in his decision to prioritize crimes by the Taliban and the Islamic State should he resume investigations in Afghanistan, while deprioritizing crimes by other actors.[32] In order for justice to be impartial, it is also important that its delivery not be constrained by resources. States parties are the ones who can create the conditions for the court to fully realize its ambitious mandate and to avoid overly selective approaches.

Despite these issues, some states parties continue to insist on “zero growth” approaches. The United Kingdom, Germany, France, Spain, Italy, and Japan introduced language, subsequently adopted in the legal aid facilitation of The Hague Working Group for the omnibus resolution, seeking to limit the review of the court’s legal aid policy to proposals that can be funded “within existing resources”[33]; this expressly contradicts IER Recommendation 328.

It is clear that annual budget negotiations alone will not support the dialogue necessary to assess what resources are required to allow the court to more adequately deliver on its mandate. The IER recommended 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” (IER Recommendation 363).

Inspired by this recommendation—which will be assessed by the Review Mechanism in the first half of 2022 according to the CAP—the Assembly should convene a stakeholder conference aimed at supporting the court’s development of this strategic vision, to coincide with the Rome Statute’s twenty-fifth anniversary in 2023. This conference could be modeled on the successful stocktaking exercise carried out during the 2010 Kampala review conference, which was prepared by Bureau-appointed focal points, in close coordination with the court and civil society.[34] The articulation of such a vision could provide a platform to renew state party consideration of what budgetary resources are needed, how those resources could be made available, and on what timeframe. Discussion could also explore the relationship between funding for the ICC and other elements of the Rome Statute system, including rule of law assistance to support national authorities through positive complementarity and funding of UN mechanisms that are increasingly playing an important role in evidence collection and preparation for future investigations and prosecutions. To ensure sufficient preparation, the Bureau should act in early 2022 to appoint focal points. 

Recommendations to the Assembly and ICC states parties

  • Mandate the Bureau, through the Omnibus resolution, to appoint focal points to prioritize in follow-up to the IER report consideration of a court-led process to set a 10-year strategic vision for the court, including the level of resources required;
  • Scrutinize the Committee on Budget and Finance’s recommendations, adopt a 2022 budget for the court adequate to ensure the effective implementation of its mandate, and replenish the Working Capital and Contingency Funds; and
  • Affirm, in statements to the General Debate, during budget negotiations, and at other relevant moments during the Assembly session, the importance of ensuring the court has adequate resources to cope with increased demand for accountability and call for improvements to the current budgeting process to that end, while rejecting a zero-nominal growth approach to the ICC’s budget.

B. Trust Fund for Family Visits

International law recognizes the right of all detained persons to family visits.[35] The ICC presidency, in a March 2009 judicial decision, held that the ICC has a positive obligation to fund family visits of indigent persons in order to give effect to their right to family visits. In November 2009, however, the Assembly passed a resolution reaffirming many states parties’ position “that according to existing law and standards, the right to family visits does not comprise a co-relative legal right to have such visits paid for by the detaining authority or any authority.”[36] In 2010, the Assembly established a Trust Fund for family visits for indigent detainees to ensure that family visits are now funded entirely through voluntary contributions.[37]

Unfortunately, since then, states parties have not followed through on the creation of the Trust Fund, which at times has dipped to a zero balance. This year, an NGO supported by the European Union made a voluntary contribution to the fund.[38] Voluntary funding for any court activity raises significant concerns, given the challenges other tribunals dependent on voluntary funding have faced in sustaining their activities. Allowing defense rights to turn on voluntary funding is an abdication of state party responsibility.

Recommendation to ICC states parties

  • Express concern, in General Debate statements, budget negotiations, and other opportunities during the Assembly session about the existing funding mechanism for family visits for indigent detainees and call for appointment of a dedicated facilitation within the Bureau’s working groups to consider this issue next year.
 

[1] Bureau of the Assembly of States Parties (ASP), “Agenda and decisions,” Twentieth Meeting, February 5, 2021,  https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19R/Bureau20.agenda%20and%20decisions-ENG.pdf (accessed  November 16, 2021), p.1.

[2] International Criminal Court (ICC), “Overall Response of the International Criminal Court to the ‘Independent Expert Review of the International Criminal Court and the Rome Statute System – Final Report,’” April 14, 2021,  https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Overall%20Response%20of%20the%20ICC%20to%20the%20IER%20Final%20Report%20-%20ENG%20-%2014April21.pdf(accessed November 16, 2021).

[3] Review Mechanism, “Categorization of Recommendations and Remaining Issues,” April 29, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Categorization%20of%20the%20IER%20Recommendations-final.29Apr21.1945.pdf (accessed November 16, 2021).

[4] See “Comments on categorization submitted to the Review Mechanism,” ASP website, https://asp.icc-cpi.int/en_menus/asp/Review-Court/Pages/Comments-Categorization.aspx (accessed November 16, 2021).

[5] Bureau of the ASP, “Decision of the Bureau: Categorization of recommendations and remaining issues,” May 31, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Bureau%20decision-Categorization.31May21.2400.docx.pdf (accessed November 16, 2021).

[6] See ASP, “Comments on the comprehensive action plan submitted to the Review Mechanism,” https://asp.icc-cpi.int/en_menus/asp/Review-Court/Pages/Action-Plan-Comments.aspx (accessed November 22, 2021); Review Mechanism, “Comprehensive Action Plan for the Assessment of the Recommendations of the Group of Independent Experts, including Requirements for Possible Further Action,” June 30, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/RM-Comprehensive%20Action%20Plan-ENG.pdf (accessed November 16, 2021); Review Mechanism, “Report of the Review Mechanism on the overall progress of its work,” June 30, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/RM.Overall-progress.30Jun21.1950-ENG.pdf (November 16, 2021).

[7] Bureau of the ASP, “Decision of the Bureau: Comprehensive action plan for the assessment of the recommendations of the Group of Independent Experts, including requirements for possible further action, as appropriate,” July 28, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/ICC-ASP20-BD-CPA-ENG.pdf(accessed November 16, 2021).

[8] See Review Mechanism, “Proposal for categorization of the Independent Experts Review Recommendations and remaining Review issues: Introductory note,” April 28, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Proposal%20for%20categorization.final.28Apr21.1845b.pdf (accessed November 20, 2021), para. 9; Bureau of the ASP, “Decision of the Bureau: Categorization of recommendations and remaining issues,” https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Bureau%20decision-Categorization.31May21.2400.docx.pdf, para. 2.

[9] Human Rights Watch participated as a panelist in this session and shared its analysis of the critical role of the Office of the Prosecutor as a catalyst for national justice across its work, including during the preliminary examination phase. We recommended interpreting some of the IER’s recommendations with a certain nuance to support the OTP’s efforts in positive complementarity and to avoid allowing national authorities to manipulate the principle of complementarity and obstruct justice. See Secretariat of the ASP, “Complementarity: Summary, 1 October 2021,” October 25, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Compl.%204%20summary.pdf (accessed November 20, 2021). Our presentation drew on a four-country case study of the Office’s practice in preliminary examinations. See Human Rights Watch, Pressure Point: The ICC’s Impact on National Justice, May 2018, https://www.hrw.org/report/2018/05/03/pressure-point-iccs-impact-national-justice/lessons-colombia-georgia-guinea-and.

[10] “Court comments on categorization submitted to the Review Mechanism,” https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/RM-AP-Comments-Court-2.pdf(accessed on November 16, 2021). IER Recommendation 227 was allocated to the Office of the Prosecutor.

[11] “Human Rights Watch’s comments for the proposal of an action plan for the assessment of the Independent Expert Review recommendations,” June 10, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/RM-AP-Comments-HRW.pdf, p. 2.

[12] The “ICC/Court” encompasses two layers. Layer 1 relates to judicial and prosecutorial activity, where the presidency, judges, and the prosecutor require absolute independence (IER Recommendation 2); Layer 2 relates to the administration of justice, of which the presidency and prosecutor are the leaders, and the president holds ultimate authority (IER Recommendation 2). The registry supports Layers 1 and 2 by cooperating with the prosecutor and reporting to the presidency, and states parties’ involvement is limited to the legislative function and judicial cooperation. The “ICC/International Organization” consists of Layer 3, relating to the administration of an international organization and encompassing administrative services such as human resources, budget and finance, procurement, facilities management, and general services. States parties play a key role in the ICC/IO, including by electing its officials, financing its expenses, and overseeing its functioning. The registrar is in charge of the work of the ICC/IO. According to the IER, the registrar consults other principals but remains the final decision-maker and is accountable to the ASP (IER Recommendation 4). See IER, “Final Report,” September 30, 2020, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/IER-Final-Report-ENG.pdf, paras. 26-50.

[13] Ibid., paras. 36, 45.

[14] ASP, “External Auditor: Final Report on the International Criminal Court Governance Oversight,” ICC-ASP/20/6, October 13, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/ICC-ASP-20-6-ENG.pdf (accessed November 16, 2021), paras. 41-44.

[15] See, e.g., ICC, “Overall Response of the International Criminal Court to the ‘Independent Expert Review of the International Criminal Court and the Rome Statute System – Final Report,” https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Overall%20Response%20of%20the%20ICC%20to%20the%20IER%20Final%20Report%20-%20ENG%20-%2014April21.pdf, annex 1, part C.

[16] “US Sets Sanctions Against International Criminal Court,” Human Rights Watch news release, June 11, 2020, https://www.hrw.org/news/2020/06/11/us-sets-sanctions-against-international-criminal-court.

[17] “US Rescinds ICC Sanctions,” Human Rights Watch news release, April 2, 2021, https://www.hrw.org/news/2021/04/02/us-rescinds-icc-sanctions.

[18] See, e.g., Permanent Mission of France to the United Nations in New York, “Statement in support of the International Criminal Court (ICC) following the release of the US Executive Order of 11 June 2020,” December 12, 2020, https://onu.delegfrance.org/We-remain-committed-to-an-international-rules-based-order (accessed November 16, 2021).

[19] “Israel/Palestine: Designation of Palestinian Rights Groups as Terrorists,” Human Rights Watch news release, October 22, 2021, https://www.hrw.org/news/2021/10/22/israel/palestine-designation-palestinian-rights-groups-terrorists.

[20] ICC Office of the Prosecutor, Letter to the President of the ASP on candidate nominations for Deputy Prosecutor, October 10, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/Elections/DPROS2021/ICC-ASP20-DPROS-Shortlist-ENG.pdf (accessed November 16, 2021).

[21] ASP, “Proposed Programme Budget for 2022 of the International Criminal Court,” ICC-ASP/20/10, August 16, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/ICC-ASP-20-10-ENG.pdf (accessed November 16, 2021), paras. 232-86.

[22] ASP, “Roundtable with shortlisted candidates for Deputy Prosecutor held on 15 November 2021,” videos, https://asp.icc-cpi.int/EN_Menus/asp/elections/prosecutor/pages/deputyprosecutor2021.aspx (accessed November 20, 2021).

[23] See Open Society Justice Initiative, “2020-2021 International Criminal Court Prosecutor Election Process: Insights and Recommendations for Future Elections,” November 10, 2021, https://www.#/uploads/fad4ffa4-3697-471a-8878-3a62656ca559/icc-prosecutor-election-process_insights-and-recommendations-for-future-elections_112021.pdf (accessed November 20, 2021), pp. 24-26.

[24] “Agreement by the Presidency of the Assembly and the Prosecutor on Due Diligence Process for Candidates for Deputy Prosecutor,” https://asp.icc-cpi.int/iccdocs/asp_docs/Elections/DPROS2021/DP-Due-Diligence.pdf (accessed November 16, 2021) (adopted by the Bureau of the ASP on July 6, 2021).

[25] Secretariat of the ASP, “Note for the file: Election of the Registrar of the ICC,” May 20, 2021, unpublished document on file with Human Rights Watch, annex II.

[26] ASP, “Draft Report of the Bureau on the Study Group on Governance,” November 1, 2021, unpublished document on file with Human Rights Watch, pp. 15-16.

[27] ASP, “Proposed Programme Budget for 2022 of the International Criminal Court,” https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/ICC-ASP-20-10-ENG.pdf, table 1.

[28] ASP, “Report of the Committee on Budget and Finance on the work of its thirty-seventh session,” ICC-ASP/20/15, November 8, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/ICC-ASP-20-15-RE-ENG.pdf (accessed November 16, 2021), para. 12.

[29] See, e.g., Bureau of the ASP, “Agenda and Decisions,” Sixth Meeting, September 8, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Bureau6.agenda%20and%20decisions.ENG.pdf (accessed November 16, 2021), pp. 5-6.

[30] ASP, “Report of the Committee on Budget and Finance on the work of its thirty-seventh session,” https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/ICC-ASP-20-15-RE-ENG.pdf, paras. 3, 6.,

[31] Fatou Bensouda, Prosecutor, ICC, “‘Without Fear or Favour: Reflections on my term as Prosecutor of the International Criminal Court,” June 15, 2021, https://www.icc-cpi.int/itemsDocuments/20210615-prosecutor-fatou-bensouda-end-of-term-farewell-statement.pdf (accessed November 16, 2021), p. 8.

[32] “Statement of the Prosecutor of the International Criminal Court, Karim A.A. Khan QC, following the application for an expedited order under article 18(2) seeking authorization to resume investigations in the Situation in Afghanistan,” September 27, 2021, https://www.icc-cpi.int/Pages/item.aspx?name=2021-09-27-otp-statement-afghanistan (accessed November 16, 2021).

[33] “Comments received on the draft resolution text proposed by the facilitator for Legal aid, Ambassador Carmen Maria Gallardo (El Salvador),” October 29, 2021, unpublished document on file with Human Rights Watch.

[34] See generally Human Rights Watch, Making Kampala Count: Advancing the Global Fight against Impunity at the ICC Review Conference, May 2010, https://www.hrw.org/reports/ij0510webwcover.pdf.

[35]  See, e.g., Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), https://www.ohchr.org/Documents/ProfessionalInterest/bodyprinciples.pdf (accessed November 20, 2021), principle 19 (“A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.”). Regulation of the Court 100 states that “[a] detained person shall be entitled to receive visits.” ICC, “Regulations of the Court,” May 26, 2004, https://www.icc-cpi.int/Publications/Regulations-of-the-Court.pdf (accessed November 20, 2021), Reg. 100. Regulation of the Registry 179 provides that the “Registrar shall give specific attention to visits by family of the detained persons with a view to maintaining such links.” ICC, “Regulations of the Registry,” March 6, 2006, https://www.icc-cpi.int/resource-library/Documents/RegulationsRegistryEng.pdf (accessed November 20, 2021), reg. 179.

[36] See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Decision on Mr. Mathieu Ngudjolo's Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008,” ICC, Case No. ICC-01/04-01/07, March 10, 2009, https://www.icc-cpi.int/CourtRecords/CR2009_02787.PDF (accessed November 20, 2021).

[37] See ASP, “Family visits for indigent detainees,” Resolution ICC-ASP/8/Res.4, November 26, 2009, https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.4-ENG.pdf (accessed November 20, 2021), preambular para. 2.

[38] See ASP, “Report of the Court on cooperation,” ICC-ASP/20/25, October 29, 2021, unpublished document on file with Human Rights Watch, para. 17.

Source : https://www.hrw.org/news/2021/11/24/human-rights-watch-briefing-note-twentieth-session-international-criminal-court

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