The ICC at 20: All Roads Lead away from Rome 

Matt Cannock, Head of Amnesty’s Centre for International Justice, calls for an honest appraisal of the Court and Rome Statute’s first 20 years, a reinvigoration of a collective and even more inclusive ‘Post-Rome generation’ and creative reengagement with the Court  – with a view to the ‘ICC@40’

ICC ROME STATUTE 20TH ANNIVERSARY
The adoption of the Rome Statute on 17 July 1998 was the ‘big-bang moment’ that created a permanent system of international criminal justice aimed at ending impunity for the most serious crimes of concern. The system has since expanded, with its fingerprints now found everywhere in international criminal justice mechanisms and initiatives. So, 20 years later, it is fitting that we commemorate the achievements of Rome that led to the establishment of the ICC in 2002. However, we must not ignore the serious shortcomings of efforts by states parties and the ICC to implement the Statute that today call the legitimacy of international justice into question. The onus is now on a new post-Rome generation to address these challenges with renewed enthusiasm and a shared vision for international justice. 

I was not at the Rome Conference, it does not have the same resonance for me as it does for those who were. I am most interested in what the Rome Statute system will look like at 40 – how can the complex existing and emerging challenges be addressed? What new ideas can strengthen international justice in the future? 

Elephants in the Rome Statute

In this vein, rose-tinted assessments of the ICC’s first 20 years do no favours to those who have to meet unprecedented challenges facing the ICC. The tendency to continue looking back at the ‘success’ of the Rome Conference as a victory for humanity, rather than a vital first step of a long and difficult effort to end impunity, is as pervasive as it is dangerous. Nostalgia softens the blow of honest appraisal, and time used reminiscing is at the expense of time for genuine evaluation and finding urgently needed solutions.

At this anniversary, we must recognize that honest evaluation or constructive criticism does not harm the ICC as much in the long-run, as avoiding any discussion regarding its inadequate, sometimes flawed and inconsistent efforts to deliver international justice and the woeful lack of support that it is receiving from the states that created it. 

20 years since Rome – 16 years after the ICC’s establishment – the ICC should be a robust just, fair and effective institution; well-placed to meet the challenges that will inevitably arise when it investigates allegations of crimes committed by powerful state and non-state actors. It should have sound strategic, policy, and operational foundations, which have been tried and tested over the Court’s first 16 years. It should have the unwavering support of its 123 states parties committed to ending impunity. The overriding feeling is that – on all of these points – it does not.

The ICC and supporters of international justice can only move forward if we confront these realities. So the principle recommendation I have for this anniversary is for the ICC to engage the goodwill of supporters of international justice, including new generations of international justice actors and advocates, to find a ‘safe space’ to discuss the most pressing issues. At the top of the agenda must be: for the OTP to do more to ensure access to international justice for victims in all situations under the jurisdiction of the Court; for the judiciary to establish greater legal certainty in its interpretation and application of the Statute, including ensuring that the rights of the accused, victims and witnesses are respected; for the Registry to operationalize the work of the ICC more effectively; and for ICC states parties to provide the Court with the cooperation, support and resources it needs to function effectively.

We don’t protest, we demand

We are often told ‘the Statute would not be adopted now’, which is a fair reflection of where we are, rather than a positive statement. States are retreating from a commitment to human rights, multilateralism and a rules-based international order. We are seeing a resurgence of nationalism and xenophobia, attacks on truth, the rule of law and judicial institutions, a shrinking space for civil society, and an increase in international crimes and impunity. All of these (to say the least) cause major threats to the international justice project and the reality of implementing the Rome Statute in this environment is complex and the challenges appear overwhelming. But – almost conversely – as the challenges and push-back increase, so demands on the ICC and the system of international justice are going up – not down.

Ordinary people, communities, victims of war and mass human rights violations are organizing in greater numbers – including through new technologies – to demand justice for crimes under international law, often in the face of grave repression and at great personal risk. The ICC and states parties would do well to pay attention to these movements of protest and collective action – and the hope they place in international justice – to ensure that it is relevant. The power of these movements should be harnessed towards meeting the challenges facing the Court; challenges which have the same underlying rationales as those being met by ordinary citizens all over the world.

These voices of protest demand the ICC to do better and pressure governments to meet their international justice obligations. As my colleagues at Journalists for Justice argue, we need ‘more robust engagement by victims and victims’ organizations, placing greater pressure on the court and its organs to account for their existence’.

States should strengthen and cooperate with the Court because ordinary people demand it. Protests in the DRC, Nigeria, Kenya – to name a few – at the travels of ICC indictee Omar Al-Bashir show this to be true. Similarly, withdrawals from the Court should be fiercely opposed because they remove the protections of the ICC and take away the chance for ordinary citizens to gain truth, justice and reparations. We can see the power of grass-roots activism, for example, in the determined efforts by Philippines civil society challenging the constitutionality of Duterte’s withdrawal – similar efforts took place in South Africa. Universality of the Rome statute should also not be forgotten – it is not acceptable that only certain global citizens benefit from the Rome Statute’s protections and we must never accept the selective coverage of the Rome Statute. We must continue to urge powerful states to join the Rome Statute because it is what their citizens increasingly want, and because the idea that those who commit crimes under international law should be held to account for them is growing at the national level, not diminishing – demonstrating the rationale behind complementarity.

The Post-Rome Generation

The Rome Statute was conceived by an ambitious movement of individual government representatives and civil society around the world – largely in response to the horrific crimes committed in the former Yugoslavia and Rwanda but also other situations. They shared a determination to ensure that such atrocities should never be committed again. Today, the world is a very different place and it is more difficult to achieve such a positive vision and enthusiasm for international justice, especially in light of the fact impunity remains as pervasive as ever.

Nevertheless, it is clear that at the 20th anniversary we need to re-invigorate an inclusive ‘post-Rome generation’ of young, forward looking and motivated activists, prosecutors, investigators, jurists, diplomats and academics. This generation can of course learn from those who were so instrumental in Rome, and I am sure that the knowledge and expertise of the Court’s first champions will be warmly passed-on.

With this ‘knowledge transfer’ in mind, more young people should be mobilised to fight for international criminal justice, and in the same vein, those working in the field of international criminal law should benefit from professional mobility within the ICC and international justice mechanisms. New heads can offer fresh ideas, and we should welcome younger – even iconoclastic – thinkers who are more willing to offer critical thinking to meet the existential challenges facing the ICC. The Post-Rome generation also needs to be more geographically representative – reflecting voices and views of people and organisations in particular from the global south. Last, but certainly not least, the Post-Rome generation needs to put great store into ensuring that women’s voices aren’t just heard, but are leading the movement. Women are powerful actors in their communities and nations and the quality of justice for everyone improves when women are not only consumers of justice, but also justice providers.

From the ICC to the Rome Statute System

So we have to mobilise the ‘Post-Rome generation’. But that is not enough. We also need to reinvigorate engagement on the ICC. In this spirit, the following are a few recommendations to address some of the most pressing challenges and to strengthen the Rome Statute system in the next 20 years:

i. The OTP should report publicly on the implementation of its policies and strategies, and in particular consider a mechanism of regular – perhaps public – review for its case-selection policy and other policies it has drafted

The OTP has developed a number of important policies and strategies that if fully implemented, would go a long way to addressing serious criticisms of its work. It is therefore essential that transparent and effective mechanisms are put in place to ensure that the policies are fully implemented, evaluated and, where necessary, reviewed. Transparency regarding policy implementation and review will reinforce the independence of the OTP and protect the Office from undue influence and allegations of bias. Of course the OTP cannot do everything, but transparent information on the implementation of its policies has many advantages: it would ensure consistency and equality in their application; build Support, trust and faith in the ICC; counter accusations of political interference: improve the perceptions of the ICC; demonstrate the legitimacy of the OTP’s decision making; counter accusations of instrumentalisation; manage expectations and; lead to a greater understanding of the work of the Court. Furthermore, transparent information on the implementation of its policies (particularly its preliminary examination and case-selection policies) is important for the OTP’s long-term strategy regarding its resource needs as it allows for a proper forecast of the OTP’s capacity requirements in the coming years.

ii. More transparency in efforts to promote complementarity 

It is time for the Court to clarify what role it believes it should play in the system of international criminal justice the Rome Statute created. The OTP’s and the Court’s strategies, policies and resource allocation decisions should reflect how the Court will work with national proceedings and other international justice actors. If ‘complementarity’ activities and goals will form a larger part of the Court’s and the Assembly’s work going forward, that should be debated and reflected – in particular the impact that such an approach may have on victims’ rights. In this regard, the OTP should clarify how its ‘positive complementarity’ role in preliminary examinations and its newer focus on ‘contributing to coordinated investigative and prosecutorial strategies to close the impunity gap for ICC crimes’ fit in with its Prosecutorial strategy and with the role the Court perceives for itself. The Office will need to transparently and consistently demonstrate what it means by ‘positive complementarity’.

iii. Better safeguards to ensure human rights compliance

The ICC cannot be just, fair and effective (and therefore a model for national courts) unless it ensures that the rights of the accused, victims and witnesses are fully respected. While these rights are firmly enshrined in the Rome Statute and the Court is required to apply and interpret the law consistent with internationally recognized human rights, too many concerns regarding human rights compliance have emerged in its first cases and states parties have failed to provide the ICC with sufficient cooperation and resources to meet its human rights obligations. Further safeguards in the ICC’s processes, amendments to the Rules of Procedure and Evidence and mechanisms in the Assembly to ensure effective cooperation must be developed to strengthen the ICC’s human rights record.

iv. Periodic review of states parties’ engagement with the ICC, as well as the cooperation and ‘non-cooperation’ regimes in the Statute

Ultimately states parties need to do much better in meeting their obligations under the Rome Statute. The Statute’s cooperation and other obligations are moving ever-more towards becoming diplomatic negotiations rather than – as their name suggests – obligations. Of course, the obligation to cooperate fully with the Court is not a diplomatic exercise. This is true especially for non-cooperation, which is increasingly not addressed at all by the Assembly. In discussions amongst NGOs, a proposal is emerging for a periodic review system, similar to that at the UN Human Rights Council, in order to propose peer-to-peer ways to significantly improve states parties’ engagement with the ICC; to improve cooperation and; to address non-compliance with the Statute’s obligations.

Of course, the suggestions above relate to reinvigorated engagement very specifically on the ICC. Space does not allow me to discuss bigger-picture and fundamental questions posed to the Post-Rome generation: do we need to start thinking more in terms of the system than the institution? Indeed, if the ‘knock-on’ effect of states enacting Rome Statute laws and obligations domestically is the biggest success of Rome, how can new generations ensure national governments fulfil their obligations to investigate and prosecute crimes under international law rather than merely legislate them?

My hope is that in 20 years’ time the discussions surrounding the ICC@40 will be more focussed on the Rome Statute system than the ICC institution – that is not to say that I hope that the Court will be in any way less important or diminished, but if we want to meet the demands for international justice, we have to harness the Rome Statute as completely as we can – all roads lead away from Rome.