[Stakeholder report] More attention needed to local stakeholders’ and affected communities’ engagement with the ICC

Today, the T.M.C. Asser Instituut and Amnesty International release their report entitled ‘The Rome Statute at 40’

Based on an expert meeting organised end of 2020, the report contains key findings and recommendations by expert stakeholders on the future of the International Criminal Court (ICC) and the ‘system’ of international justice created by the Rome Statute, the treaty that established the Court. To improve the effectiveness of the ICC, the report notes that it is vital, among other things, that serious consideration is given by the ICC and all stakeholders as to how more ‘local stakeholders’ and ‘affected communities’ can better engage with the Court. It is therefore critical to consider who has access to spaces of engagement with the ICC and to consider who sets the agenda of those interactions. Further reflection on whose voices are included (and if included, heard) and whose voices are excluded from the interactions is also needed. Another concern identified is that the ‘post-Rome generation’ – the current group of stakeholders – is not representative in terms of gender, national and cultural diversity and intersectionality. Participants in discussions, panels, and workshops around the ICC should hence also be considered based on the ‘connection’ that they may have to affected communities in situation countries and first-hand lived experiences that they have of engaging with the ICC. At the same time, it was concluded that expectations on the ICC will nearly always be higher than what the Court can achieve in practice and thus that these expectations need to be carefully managed, and not only by the Court.

‘Rome Statute at 40’
In November 2020, Amnesty International and the T.M.C. Asser Instituut co-organised an expert meeting with thirty-seven experts and moderators to discuss the functioning and future of the ICC, and the Rome Statute system more generally. The experts were asked to consider the question: what might the ICC and the Rome Statute system look like at the 40^th anniversary of the Rome Statute, in 2038?

The ICC is an international tribunal that was created in 1998 to investigate and prosecute individuals accused of genocide, war crimes, and crimes against humanity. It was established by the Rome Statute of the International Criminal Court, a treaty which obliges states to cooperate with the court in the investigation and prosecution of crimes, including in the arrest and surrender of suspects. The ICC is a court of last resort, and intended to complement rather than replace national courts; it can only act when national courts have been found unable or unwilling to try a case. The Hague-based court opened its doors in 2002, after sixty countries had ratified the Rome Statute. It exercises jurisdiction over crimes that occurred after its statute took effect in 2002.

Background
Since its inception, which was widely seen as a decisive milestone in the emergence of a system and culture of accountability for international crimes, the ICC has faced numerous setbacks. The ICC has also faced criticisms from many different stakeholders within the Rome Statute system, including from states parties, academics, and NGOs. Criticisms include the Court’s early focus on investigations in the Africa region, the length and cost of the Court’s cases, and the inability or unwillingness of the Court to investigate crimes committed by the Major Powers, or in situations like Syria (which falls outside of the Court’s jurisdiction). In particular, the Court has been criticised for its inability to meet expectations placed in it by its stakeholders, including states parties, as well as – perhaps most importantly – those most affected by international crimes.

Looking within the Rome Statute ‘system’, diverse ‘stakeholders’ – including states, victim communities, NGOs, academics – engage with the ICC in order for it to function well. Unquestionably, a variety of stakeholders are central to the Court’s (future) success or failure. How have these different stakeholders engaged with the Court to the present, and how might this engagement be improved for the future? Have certain stakeholders been unfairly critical, or not critical enough? If those engaging with the ICC are doing so with the aim for the Court to be more effective, what should that engagement look like? Perhaps most critically, if the Court exists to provide redress to victims on the national level, has the participation of those most affected by war crimes and crimes against humanity been central to the Rome Statute system in the ICC’s first two decades? Or, does more need to be done to make sure that these stakeholders are able to engage with the ICC and international justice efforts more broadly?

Answers to these questions, amongst others, were discussed during the Amnesty International and T.M.C. Asser Instituut expert-meeting on the ICC’s future in 2020. In the meeting, experts from academia and civil society as well as current and former staff from the ICC and other international criminal tribunals, counsel, diplomats and other international justice practitioners addressed the role and impact of NGOs and academic circles in engaging with the ICC. In three sessions, and under Chatham House rules, the experts discussed the following topics:

• stakeholder engagement and impact on the ICC;
• the perspective of the ‘post-Rome generation’;
• the Rome Statute system.

A selection of the findings and recommendations

On stakeholder engagement and impact on the ICC:

• Further reflection by all stakeholders on whose voices are heard, whose voices are included, and whose voices are excluded from interactions with and on the ICC is necessary.

• Serious consideration should be given by the ICC and all stakeholders as to how more ‘local stakeholders’ can engage with the ICC , including in The Hague.

On the ‘post-Rome generation’:

• The ‘post-Rome generation’ is not representative in terms of gender; national and cultural diversity; and intersectionality.
• Current stakeholders in the ‘post-Rome generation’ should ensure that affected communities can ‘speak for themselves’ and should urgently consider how spaces can be opened or provided for affected communities to engage directly and more assertively with the Court and in the field of international justice.

On the Rome Statute system:

• There is an increasing understanding that the ICC ‘cannot do everything’. This means that it may be time to move ‘beyond the ICC’ and identify different justice options and avenues within the Rome Statute system in order to meet stakeholders’ aspirations and international justice needs.

• Expectations in the ICC will nearly always be higher than what the ICC can achieve in practice. Therefore, improving the management of expectations of the public and media in the ICC is the responsibility of all stakeholders.