Human Rights Watch Briefing Note for Twenty-First Session of International Criminal Court Assembly of States Parties

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Human Rights Watch

The states parties to the Rome Statute of the International Criminal Court (ICC) will meet from December 5-10, 2022, in The Hague for the annual session of the Assembly of States Parties (ASP).

This July marked the 20th anniversary of the entry into force of the Rome Statute, the ICC’s founding treaty. The Assembly session takes place at a moment of renewed attention on the role of the court. The expansion of the conflict in Ukraine in February 2022 has generated a strong response from the international community, including through the swift activation of several mechanisms that could contribute to delivering justice for victims of serious international crimes. On March 2, the ICC prosecutor announced the opening of an investigation into the situation of Ukraine, following a referral by an unprecedented number of states parties.

The horrific situation in Ukraine offers opportunities as well as challenges for the court and the international justice project more broadly. On the one hand, the referral to the ICC has generated unprecedented support for accountability for grave international crimes and put into sharp focus the relevance of the ICC as the cornerstone of a broad system for justice envisioned by the Rome Statue. On the other hand, Ukraine has highlighted the unevenness in victims’ access to justice. For example, states parties have been slow to address a growing gap in the resources available to the court even after the previous prosecutor clearly indicated that the court’s limited budget was a factor in limiting the access of victims to justice. By contrast, after the opening of the Ukraine investigation, some states parties responded with enthusiasm to the prosecutor’s call for voluntary contributions to support the office’s work, at times explicitly linking their contributions to political support for the Ukraine investigation.

To build on the current momentum, while advancing support for the international justice system worldwide, Human Rights Watch has set out a “checklist” of five areas for action that all governments can take. These are:

  1. Support courts tackling grave international crimes;
  2. Expand ICC membership;
  3. Criminalize and prosecute grave international crimes domestically;
  4. Give all victims of grave international crimes equal access to justice and,
  5. Restrain United Nations Security Council vetoes in situations of grave international crimes.

Human Rights Watch calls on justice-supporting governments to refer to this checklist of actions in considering where they could bolster their commitment. At the upcoming Assembly session, states parties will have the opportunity to advance a number of these areas as they relate to the work of the ICC, particularly by ensuring that the court has the support it needs to carry out its mandate effectively and consistently across all situations under its jurisdiction. The renewed political commitment to the ICC that has derived from the interest by a substantial number of states parties in addressing the expanded conflict in Ukraine needs to translate into robust financial, political, and practical support for the court’s global mandate. This year alone, in addition to Ukraine, the prosecutor has sought to move forward investigations in the Philippines and Venezuela and has received authorization to resume the paused Afghanistan investigation. The Office of the Prosecutor (OTP) has formally closed preliminary examinations in Colombia and Guinea in deference to national proceedings, but has indicated its determination to continue to monitor progress with a view toward reopening examinations in the absence of credible proceedings. And while the OTP has signaled that it may seek to finalize its investigative activities in some of its longstanding investigations, there remains important work to be done across the court’s situations to contribute to comprehensive accountability and to ensure a lasting legacy of national rule of law.

This briefing note sets out recommendations to states parties for the Assembly session in the following priority areas: 1) ensuring support for the court’s global mandate, including by changing the terms of the discussion around adequate financial investment in the court’s regular budget; 2) moving the ongoing review process anchored in the Independent Expert Review (IER) forward and holding a stakeholder conference on the occasion of the 25th anniversary of the adoption of the Rome Statute; 3) the election of the registrar and other steps to strengthen ICC elections; and 4) addressing threats and obstruction to justice before the ICC.

Between March and April 2022, the situation in Ukraine was referred to the court by the largest group of states parties by far to take this step to date. On March 7, soon after his decision to open the investigation, the ICC prosecutor called on states parties to provide his office with additional resources to support its work across all situations through voluntary contributions and gratis personnel. To this end, the court established a dedicated Trust Fund to bolster the work of the OTP in three specific areas: the use of advanced technological tools and equipment in the collection, analysis, and processing of evidence; the provision of psychosocial support to witnesses and survivors; and the investigation of crimes involving sexual and gender-based violence and crimes against children. The Trust Fund has a notional level of €15 million and a limited duration of three years.

The Assembly’s Committee on Budget and Finance, a technical body charged with reviewing the court’s proposed annual budget and making relevant recommendations to the Assembly, reported that several states parties have since committed about €8.6 million to the Trust Fund and the European Union offered an additional €7.25 million to enhance the technological tools used by the office for the collection, processing, and storage of evidence. In addition, as of October 15, “a total of 74 national experts from judicial, law, military and law enforcement agencies were committed by State Parties on a secondment basis for all situations.”

Although the Committee did not include a list of contributing states, based on Human Rights Watch’s monitoring of publicly available information, the vast majority of the state contributors to date appear to be from the Western European and other states and the Eastern European states regional groups. This is also true for 38 out of the 43 states parties that have referred the situation of Ukraine to the ICC. While the positive response of ICC states parties to the prosecutor’s request signals a strong commitment to justice, it should also serve as an acknowledgment that the court does not have the resources necessary to fulfill its mandate. This is a concern that has been consistently raised by court officials long before the expansion of the Ukraine conflict. Furthermore, the making of these contributions in close proximity to the opening of the investigation in Ukraine has raised perceptions of politicization in the court’s work as it appeared that they were directed to support the work of the OTP solely in that situation. Although voluntary contributions to the court cannot be earmarked to a specific situation and the prosecutor has repeatedly emphasized that these additional resources are going to support the work of his office across all situations, several states parties linked their contributions to Ukraine in their public messaging. This could undermine the ICC’s legitimacy, including in the Ukraine investigation itself.

The upcoming Assembly session is a crucial opportunity for states parties to dispel perceptions of politicization of the court’s work. This year, states parties should back up their stated commitments to justice with the resources the court needs to do its job. Indeed, states parties can send the strongest possible political signal of support for the ICC, its global mandate, and the right of victims of serious crimes to access justice, by strengthening the court’s regular budget to ensure that all the court’s organs can robustly and consistently execute their work across all situations.

Recommendations to the Assembly and ICC states parties

  • Express, in General Debate statements and other relevant opportunities, including any public information efforts undertaken by individual governments, support for the ICC’s global mandate and commit to providing the court with the financial, political, and practical support it needs to robustly and consistently deliver on its mandate across all situations;
  • Include language in the Omnibus resolution highlighting the importance of the court’s equal and consistent application of its mandate and committing to providing the court with the multifaceted support it needs to achieve this goal.
  • Attend the side event co-organized by Human Rights Watch, No Peace Without Justice, Belgium, Chile, Ireland, and Mexico, on “Strengthening Accountability Globally: Concrete steps to bolster the international justice ecosystem.”

Related Human Rights Watch materials

A. Ensuring adequate investment and resetting the terms of the debate around the court’s resources

ICC states parties will decide the court’s budget for the coming year during this Assembly session. For 2023, excluding payment on the host state loan, the ICC has requested €183.24 million or an increase of 21.1 percent above its €151.26 million budget approved for 2022. 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 €176 million, or an increase of 16.3 percent from last year.

For more than a decade, an insistence by some states parties on a strict, zero nominal growth approach to setting the court’s budget has been a key factor in distorting budget negotiations away from discussion of the real investment needed at the court. Shortfalls in the court’s resources have become increasingly evident. Some states parties adopting a zero-nominal growth position have previously linked their approach to a call to improve the court’s efficiency and effectiveness. A multi-year review process, discussed below, has provided a common framework within which the court, states parties, civil society, and other stakeholders to better able to evaluate where change is needed, including with regard to increased resources.

Against this backdrop, states parties should seize the opportunity to change the terms of this debate away from a race to hold down the bottom line arbitrarily, with a view to longer-term planning and sustainability. In budget negotiations and at the Assembly session, states parties should highlight the need to ensure equal access to justice to victims across and within all ICC situations, building on momentum generated by the attention to the work of the ICC in Ukraine, and expressing a willingness to consider this year, and in coming years, the investment in the court’s regular budget that will be necessary to realize this goal.

In addition to the natural effects of inflation worldwide, the court’s request for a substantial increase is the product of its substantial workload across organs. This includes 10 active investigations and at least three simultaneous trials in 2023. The court has requested additional resources in a number of key areas such as victim and witness protection, outreach, and country presence, as well as for the implementation of several IER recommendations. The latter include additional personnel in the prosecutor’s Public Information Unit, and the further institutionalization of the positions of Focal Point for Gender Equality and Ombudsperson.

Despite these positive trends, the budget proposal also reveals ongoing resource constraints that stem from years of underfunding and could severely affect the court’s delivery of justice:

  • The preliminary examination in Nigeria, which was concluded by the previous prosecutor who decided not to proceed with a request to open an investigation due in part to the limited resources at her disposal, risks remaining in limbo; the current budget proposal does not signal any further developments in this situation. Notably, the situation in Ukraine, currently the biggest investigation on the prosecutor’s docket, was in the same position before the expansion of the conflict in February.
  • The deprioritization of the investigation of crimes allegedly committed by US forces and the former Afghan government in the context of the situation in Afghanistan, which the prosecutor cited as driven in part by managing limited resources, persists according to the budget proposal, significantly impacting victims’ access to justice.
  • In addition, while the court is planning to open new country offices in Ukraine, Sudan, Bangladesh, and Venezuela, the reduction in the court’s presence in other countries – Georgia and Côte d’Ivoire in particular – raises concerns in terms of the already limited outreach to affected communities; there are pending arrest warrants in Georgia and the prosecutor expects to make a decision in relation to potential further prosecutions in Côte d’Ivoire. More generally, the expected finalization of the OTP’s investigative activities in some situations does not equate to the end of the work of the office and the court more broadly in these situations, which still needs to be supported by adequate resources.

One significant challenge in this year’s budget negotiations seems to be the ongoing lack of clarity among states parties regarding the relationship between the voluntary contributions made following the prosecutor’s request earlier this year and the court’s proposed budget. While it is important for states parties to better understand how these relate to each other and, in particular, the concrete effect that these financial and personnel contributions have on the budget, states parties should not conflate the two and distill the different purposes they serve.

Voluntary contributions are not a sustainable funding model, and their use is highly regulated, while the general budget supports the work of the court across organs, providing predictability and sustainability.

States parties that in the past have taken a strict, zero nominal growth approach to negotiations over the court’s budget have also been among the contributors to the Trust Fund. One-time voluntary contributions geared towards supporting the work of the Office of the Prosecutor in specific areas do not dispense with the obligation to provide the court with the resources it needs as part of its regular budget to sustain its core activities across organs. States parties should avoid language suggesting that any budget increase, if agreed this year, is exceptional; instead, the focus should be on insisting on a dialogue and budget negotiations that provide space for the court to bring forward its full resource needs and for states to respond accordingly, without reference to arbitrary limits, including strict zero-nominal growth approaches or budgetary envelopes.

Finally, in addition to adopting an annual budget that will ensure that all organs of the court have sufficient resources to execute their respective roles across situations, states parties should consider increasing the contingency fund. This fund is meant to cover any unexpected expenditure, and therefore is not included in the court’s proposed annual budget, such as those deriving from the execution of an arrest warrant or the opening of a new investigation.

While it is positive that the Committee on Budget and Finance recommended replenishing the fund’s notional level of €7 million, the notional level itself should be increased to put the court in a position to respond to major developments and sustain its activities across all situations. This would also be in line with IER Recommendation 141.

The Committee on Budget and Finance also recommended replenishing the working capital fund, which was established to meet the court’s short-term liquidity problems pending receipt of assessed contributions by states parties.

Recommendations to the Assembly and ICC states parties

  • In statements during the General Debate, during budget negotiations, and at other relevant moments during the Assembly session, acknowledge the current mismatch between the court’s workload and it resources, firmly reject arbitrary approaches, including a strict zero-nominal growth approach to setting the ICC’s budget and the use of voluntary contributions as an ongoing funding model, in favor of open dialogue between the court and states parties as to what adequate investment looks like to permit the court to fulfill its mandate robustly and consistently across situations, and signal that this year’s budget discussion is not a one-off occurrence but a conscious move by the Assembly toward longer-term sustainability for the court’s work;
  • Scrutinize the Committee on Budget and Finance’s recommendations and adopt a 2023 budget for the court adequate to ensure the effective implementation of its mandate;
  • Replenish the working capital fund and consider raising the notional level of the contingency fund, or, at a minimum, replenish it; and
  • Begin discussions to prepare for a stakeholder conference in 2023 on the occasion of the 25th anniversary of the adoption of the Rome Statute and, in accordance with IER recommendation 363, for the development of a 10-year strategic vision for the court that can support long-term financial planning.

Related Human Rights Watch materials

B. Trust Fund for Family Visits

International law recognizes the right of all detained persons to family visits. 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.” 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.

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. Voluntary funding for any court activity raises significant concerns, including in terms of sustainability, and allowing defense rights to turn on voluntary funding is an abdication of state party responsibility.

At the time of writing, states parties, in the context of the Assembly’s cooperation facilitation, agreed to allow the court to exceptionally use its regular budget to subsidize family visits for indigent detainees. This would be an important development to ensure the rights of detained individuals; however, the agreed language raises concerns as it limits the ability of the court to provide such subsidy “within existing resources” and it “recalls that the Trust Fund for Family Visits shall continue to be administered on a cost neutral basis.” This is incompatible with the already strained budgetary context in which the court operates, and states parties should account for the resources necessary for this subsidy in the regular budget.

Recommendation to the Assembly

  • Move the funding for family visits for indigent detainees into the court’s regular budget and ensure that, within the budget, there are adequate resources allocated.

A. Looking back at the review process

In December 2019, the Assembly commissioned a group of nine independent experts (the IER) 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.” In September 2020, the IER issued its final report with nearly 400 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. In the last two years, states parties and the court, in discussions with other relevant stakeholders, including civil society and the experts, have been assessing those recommendations with a view toward their implementation.

Since the last Assembly session, pursuant to a resolution and a proposed Comprehensive Action Plan (CAP), a Review Mechanism (consisting of two state party representatives and ad-country focal points) as well as relevant ASP mandates continued their assessment of recommendations of the IER by cluster. In June and August respectively, the Review Mechanism provided a report on its work along with an updated Matrix tracking the progress made in different forums during this assessment phase. The CAP anticipates that some recommendations will be assessed in the first semester of 2023. However, Human Rights Watch’s understanding is that the Review Mechanism intends for the bulk of the assessment phase to be completed ahead of the upcoming Assembly session, notwithstanding some delays in the assessment of recommendations assigned to some facilitations. The Review Mechanism has also convened two roundtables to discuss the implementation of recommendations that were positively assessed.

As the IER’s assessment phase seemingly nears “completion” it is crucial to recognize the ultimate goal of the overarching review process: bringing about changes needed to strengthen the court’s performance and its effective delivery of justice. While the Review Mechanism’s mandate should not last indefinitely and may come to a formal endpoint, the implementation of the recommendations will continue, likely for several years. Moreover, efforts to improve the court’s performance should remain part of the court’s regular work, in partnership with the Assembly and other stakeholders, including civil society within the international justice movement.

As the assessment phase approaches completion, some lessons can already be drawn from progress to date.

  • Respect for the judicial and prosecutorial independence of the court. States parties’ insistence on a state-led process-requiring their involvement in discussions on the assessment of all recommendations, including those allocated exclusively to the court-raised concerns for Human Rights Watch that this approach could undermine the court’s independence. However, Human Rights Watch’s monitoring found that state party discussions before the Review Mechanism and other Assembly facilitations and forums have consistently been marked by insistence on respect for the court’s judicial and prosecutorial independence. States parties also showed deference to the court’s expertise on specific topics under its purview, such as IER recommendations related to complementarity and positive complementarity, which had been allocated to both the complementarity facilitation and the court for assessment, but whose implementation is reserved to the court. The attendance of relevant experts from the IER during discussions also helped clarify their intentions behind their recommendations, for example in connection with recommendations related to unified governance.
  • Genuine dialogue among all stakeholders and transparency. The IER process provided stakeholders with a common framework for discussing how to improve the court’s delivery of justice. The court has overall engaged constructively in the process, actively participating in discussions around different sets of recommendations, and often providing detailed reporting. There were some delays in the OTP providing its assessment on some of the recommendations directed to it given the change in leadership, and those updates were usually made at a higher level of generality. The OTP should seek out future opportunities to benefit from consultation with civil society as it completes its assessments, particularly in key areas like complementarity and positive complementarity, the gravity threshold, hibernation, completion, case selection and prioritization, and preliminary examinations. But from discussions with court officials and states parties, Human Rights Watch’s assessment is that open engagement has contributed to addressing some of the trust deficit that has plagued the relationship between the court and states parties in the past. For the most part, the process has operated with respect to the principles of inclusivity and transparency, in particular through Review Mechanism meetings open to all relevant stakeholders, scheduled at times suitable for both The Hague and New York, with French interpretation, which have enabled genuine civil society engagement. However, this approach was not always consistent across facilitations or issues, for example, when meetings were often scheduled with little advance notice.
  • Bureaucratization within Assembly discussions. Unfortunately, the ambitious assessment of all recommendations regardless of allocation led to the bureaucratization of the process. Assessment discussions so far have often remained at a high-level of generality, with very few states parties sharing their views. While this deferential approach is merited in the context of court-facing recommendations that bear on prosecutorial and judicial independence, it suggests a failure to engage on ASP-facing recommendations. The significant number of technical meetings in a compressed timeframe often made it difficult for states parties and civil society organizations to follow and engage meaningfully in discussions due to capacity constraints or lack of expertise. While the court provided detailed reporting, many stakeholders could not digest all the available information in time to meaningfully engage in discussions. This led to the assessment phase often looking like a box-ticking exercise, and “review fatigue” being reported to Human Rights Watch by many.
  • A need to refocus on state party responsibilities. While states parties appropriately grappled with some recommendations that bear on their responsibilities, such as recommendations that relate to governance and elections, there is a need to go further and refocus on ASP-directed recommendations, such as those related to cooperation.

Looking ahead, as the IER assessment process seemingly nears completion, the court, states parties, and civil society should create further opportunities to reflect on the review process and take stock of what tangible results have been achieved, prior to the formal conclusion of the Review Mechanism’s mandate. With more time, this should include assessing whether the key objective of strengthening the court’s delivery of justice has progressed and what concrete outcomes have been achieved. It should also include what gaps remain for future work, including because they were not addressed by the IER or the broader review process. For example, some issues that relate to the responsibilities of states parties and the ASP or victims’ related issues that were discussed by the IER’s analysis but were not included in their express recommendations.

B. “Transition” and implementation phases of the IER

As the assessment phase, according to the CAP, approaches its conclusion, the key question is what comes next to consolidate progress and advance further improvement, while avoiding any backsliding. While the court has indicated in its reporting that many of the recommendations have been implemented (or are in the process of being implemented), the implementation by both the court and states parties of all the recommendations that were positively assessed will take time. There is a need to ensure that progress achieved by the review exercise is not lost and that the court, supported by the Assembly and other stakeholders, continues to work toward the goal of progressively strengthening its delivery of justice.

Over the past two years, the Review Mechanism has provided an important platform for discussion on a variety of topics and the centralized coordination of a complex and multifaceted process. Despite the ambitious goal to conclude the bulk of the assessment phase this year, states parties should consider a limited renewal of the Mechanism’s mandate as part of a “transition” phase, both to finish any outstanding assessments as well as to provide guidance on the best way forward for the implementation phase.

With an extended mandate, the Review Mechanism should present states parties with a plan for the implementation phase, taking into account the following principles:

  • Balancing independence and accountability. It will be important to find a balance between protecting the court’s independence, while ensuring that it remains accountable to the Assembly and other stakeholders in its implementation of IER recommendations. While monitoring and reporting to the Assembly should be preserved during the implementation phase, reporting requirements should not place additional burdens on the court or open the door to micro-management. A balance could be achieved through a calendar of quarterly inter-sessional reporting to the Assembly and a standing review agenda item at each Assembly session, under the leadership of the Assembly president.
  • Clusters of recommendations. Reporting should be streamlined and focused on buckets or clusters of key recommendations and larger topics (e.g., working culture, communications and outreach, victims’ issues), so as not to overwhelm the agenda. While there has already been an effort in this direction before, some related recommendations were sometimes split across different Review Mechanism meetings (notably those relating to communication and outreach), and discussions were narrowly focused on the text of specific recommendations rather than taking a more holistic approach to topics. The process must be manageable, so that it can truly be inclusive and allow meaningful engagement of all stakeholders, avoiding pitfalls in the process to date (see above). A key cluster to consider could be all ASP-directed recommendations where there has been a positive assessment.
  • Assessing budgetary implications. A premise of the IER was that most of the experts’ recommendations would have no budgetary impact. However, there are a number of recommendations that were positively assessed and have budgetary implications. Their implementation should not be hindered by a lack of adequate resources.
  • Ongoing civil society access and transparency. Civil society has been a key stakeholder in the review process since its inception and its participation continues to be essential in this next phase. Good practices of interpretation and advance notice in the scheduling of meetings should continue and be improved so as to better engage organizations from ICC situation countries.
  • Revisiting assessments. As part of the reflection on the way forward, the Review Mechanism should consider whether there should be a process by which to revisit assessments, for example, where there was only partial agreement or where a recommendation was assessed with some modification.

Recommendations to the Assembly and ICC states parties

  • Affirm, in General Debate statements, during the review plenary session, and other appropriate moments during the Assembly session, ongoing support for the review process;
  • Reiterate, in the cooperation plenary, the need to focus on state party obligations as they relate to cooperation and IER-relevant recommendations that have been positively assessed or whose assessment is ongoing, such as designating a focal point for arrests (IER Recommendation 284), improving the tracking of suspects (IER Recommendation 285), developing a rewards program (IER Recommendation 289), and a special operations fund (IER Recommendation 290);
  • Adopt a resolution with a partial renewal of the Review Mechanism’s mandate for a “transition” phase to finish any outstanding assessments as well as to provide guidance on the best way forward in the IER’s implementation phase, reflecting the need to balance the court’s independence and accountability; and
  • Take note, in General Debate statements, the resolution on the review process, and the review plenary session, of essential principles that should guide the IER’s implementation phase, including: maintaining respect for the court’s judicial and prosecutorial independence; calling on court actors to continue to make progress in their implementation of recommendations; indicating a shared commitment to continue the process of reflection in ongoing improvement in the court’s performance, including the role of states parties in providing financial, political, and practical support; avoiding bureaucratization of the implementation phase; and ensuring early and meaningful civil society engagement.

C. A stakeholder conference to implement IER Recommendation 363

IER Recommendation 363 refers to convening a stakeholder discussion with the aim of enabling the court and the Assembly to “focus their efforts of implementing the Rome Statute in the same direction.” The recommendation also refers to a 10-year strategic vision for the court backed by a shared understanding of the resources, cooperation, and institutional development necessary to achieve that vision.

The Assembly and the court positively assessed IER Recommendation 363, but without a detailed discussion of its content. This recommendation recognizes the existential crossroads at which the court finds itself. It intends to create a platform for constructive dialogue about the financial, political, and practical support required for the court to be able to meet multiplying demands. Such dialogue should then lead to a shared political commitment among ICC member countries to meeting the resources – through the court’s regular budget – cooperation, and institutional developments necessary to support the strategic vision the court might develop.

A stakeholder conference in July 2023, on the occasion of the 25th anniversary of the Rome Statute, as proposed by the Assembly president, can be a moment to focus on the first part of the recommendation by convening a discussion between the court, states parties, and civil society on aligning goals through strengthened state support.

The president of the Assembly, along with the Bureau, are taking the lead in organizing this stakeholder conference. Human Rights Watch believes that this conference is an opportunity for states parties to reflect on their own obligations and how they can best provide consistent and sustainable support to the court to achieve a 10-year strategic vision. The IER focused on strengthening the court’s performance and its effective delivery of justice. And while state support has been an element of the IER, as well as the broader review process and ongoing facilitations within the ASP, the stakeholder conference could push discussions about state party responsibilities forward with a view toward concrete outcomes in key areas and refocusing the Assembly’s agenda for the future by drawing attention to specific needs.

Specifically, it would be an opportune time for stakeholders to discuss how to make an adequate investment in international justice, both in providing sustainable and consistent funding as part of the court’s regular budget as well as support for other elements of the international justice system. Discussion could also focus on essential elements needed to strengthen the Rome Statute system, including on what meaningful cooperation means in practice (for example, developing context-specific arrest strategies and creating a network of cooperation focal points) and proactive political support even when there are no apparent threats or attacks.

Ultimately, the success of this discussion will heavily depend on the adequate preparations of the court itself, states parties, and stakeholders within civil society and the court’s international partners, including the UN system. Its viability will also depend on the willingness and ability of states parties to constructively participate, while respecting the court’s independence, and bring forward the discussion into the year-round workings of the Assembly.

Recommendation to ICC states parties

  • Welcome, in General Debate statements, and other appropriate moments during the session, the planning of a stakeholder conference to mark the 25th anniversary of the adoption of the Rome Statute, express support for the Assembly president’s efforts in this regard, and for framing the conference around state party obligations, and commit to actively engaging in those discussions in view of achieving concrete outcomes in full respect for the court’s independence.

A. Election of the next registrar

According to article 43(4), “[t]he judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties.” The next registrar of the court is scheduled to be elected in 2023. In June 2022, the ICC president submitted to the president of the Assembly as shortlist of 12 candidates; two of them have since withdrawn their candidature. In October, the remaining 10 candidates participated in public, Assembly roundtables, during which they were asked questions submitted by both states parties and civil society. This was the first time roundtables were organized in the context of the election of the registrar and is a welcome development that should be repeated in future elections. The candidates also provided responses to a written questionnaire prepared by the Coalition for the ICC.

Another important development was the establishment by the Bureau of a due diligence process for the election of the registrar in June 2022, as part of the broader efforts within the Assembly to develop vetting procedures for high moral character across ICC elections (discussed below).

At the upcoming Assembly session, states parties are also expected to provide recommendations to the judges, although it is still unclear what elements these will include. Regardless of what the final format of the recommendations will be, states parties should direct the judge’s attention strictly to merit.

Recommendation to the Assembly

  • Provide recommendations to the judges in the context of the election of the next ICC registrar that direct their attention strictly to the issue of merit.

B. Vetting in ICC Elections

The 2020-2021 election of the ICC prosecutor was marred by the absence of a comprehensive approach to vetting for “high moral character”; high moral character is a statutory requirement for the positions of judges, prosecutor and deputy prosecutors, and the registrar of the ICC. Since then, states parties have taken several steps to strengthen the ICC election processes and, in particular, to fill the “vetting gap”: two ad hoc procedures to assess the high moral character of candidates in the election of the deputy prosecutors in 2021 and the election for the registrar in 2022, and a lessons-learned exercise on the election of the third prosecutor, which included consideration of the vetting issue. Each of these steps represents an important building block towards strengthening ICC elections.

Due diligence process for the election of the ICC deputy prosecutor

The due diligence process for the election of the ICC deputy prosecutor was the first one of its kind and consisted of a candidate questionnaire, background checks overseen by the prosecutor, and use of the Independent Oversight Mechanism (IOM) to assess any allegations of misconduct against shortlisted candidates submitted through a confidential channel. Regrettably, information on the confidential channel was only available for 14 days on the Assembly webpage dedicated to the election of deputy prosecutors and was not broadly circulated.

Due diligence process for the election of the registrar

The due diligence process for the election of the registrar was based on a proposal by the IOM and the Assembly presidency, following consultations with states parties and civil society. The process for establishing this procedure represented a significant step forward from the process set up in 2021 for the election of the deputy prosecutor, which was established quickly and without civil society consultation.

The due diligence process for the election of the registrar was led by the IOM and comprised of two parts according to the approved procedure: a review of existing background information concerning the shortlisted candidates, which could include contacts with former employers and employees, and the receipt and review of allegations of misconduct made against them through a confidential channel, which was open for 45 days. According to the written procedure for the due diligence process, the IOM has to submit to the presidencies of the court and of the Assembly a report by no later than November 30 “regarding any concerns it may have identified with respect to the high moral character of any of the shortlisted candidates.”

While the procedure could have been further strengthened, it contained some important elements:

  • Clarity on what constitutes misconduct: “human rights violations, incidents of harassment, including sexual harassment, abuse of authority, discrimination and bullying in the workplace, as well as other ethical or legal breaches of a serious nature such as fraud or corruption”;
  • Express provision for background checks to be carried out by the IOM with the assistance of the relevant sections of the court’s Registry; and
  • Efforts toward better dissemination of information regarding the availability of a confidential channel for the receipt of allegations of misconduct.

Based on Human Rights Watch’s monitoring there is a clear need to improve efforts to disseminate information about the confidential channel. While steps were taken beyond those observed in the election of the deputy prosecutor, i.e., the publication of a press release outlining the details of the confidential channels, and “tweets” by the Assembly president in different languages, these were limited to the day of the opening of the channel. The Coalition for the ICC helpfully re-posted information about the confidential channel on social media every week. It is unclear what dissemination was carried out by states parties; this should be a shared responsibility among all stakeholders.

Lessons learned exercise for the election of the third prosecutor

At the beginning of 2022, the Bureau mandated the ambassador of Serbia to the Netherlands and the permanent representative of Austria to the United Nations to carry out the lessons learned exercise for the election of the third prosecutor. In the first half of 2022, the two co-facilitators analyzed written material, including the reports produced by the previous Assembly presidency, the Committee established for the Election of the Prosecutor, and the experts who assisted the Committee, and carried-out consultations with states parties, civil society, and “key individuals involved in the process.”

The co-facilitators’ final October report highlights the importance of vetting in ICC elections, and the support for the establishment of a permanent process. It further suggests the inclusion, in future vetting processes, on a permanent basis key elements such as background checks, reputational interviews, and a confidential channel; it is notable that all of these were in different degrees already present in the due diligence process for the election of the registrar. They had also already been highlighted by a number of civil society organizations, including through the Coalition for the ICC’s Elections Team.

The way forward

The intention of the Assembly to establish a permanent vetting process had already been memorialized in the Omnibus resolution adopted at the last Assembly session, which mandated the Bureau to continue consultations for developing a vetting process for all ICC officials, and to report to the Assembly ahead of its twenty-first session in December 2022, with a view to adoption as soon as feasible and no later than its twenty-second session in 2023.

The upcoming Assembly session is an opportunity to take further steps toward the development of such permanent process. Building on the ad hoc procedures established to date, states parties should agree that a permanent process should be comprised of:

  • A permanent set of baseline elements that should be the same for every election (e.g., background checks, reputational interviews, confidential channel to submit information about candidates); and, if needed
  • Additional elements and steps tailored to the different types of elections and respective requirements.

The Assembly presidency should take the process forward next year, ensuring consultations with all states parties, civil society, the IOM, and other relevant stakeholders – including experts on vetting.

At the same time, states parties should begin putting in place a dedicated vetting process for the upcoming judicial elections in 2023. Unfortunately, given the timing of those elections, this cannot wait for the finalization of the permanent process at the twenty-second Assembly session, but can be seen as an additional building block and incremental step toward that goal. To ensure consistency and avoid duplication, the Assembly presidency should take the lead on the development of this process, in consultation with all relevant stakeholders including the facilitator on the review of the procedure for the nomination and election of judges, given the parallel work of that facilitation.

Recommendations to the Assembly and ICC states parties

  • Support, in General Debate statements and during other appropriate moments before and during the Assembly session, the establishment of a permanent vetting process consisting of a permanent set of baseline elements that should be the same for every election (e.g., background checks, reputational interviews, and a confidential channel to submit information about candidates) and, if needed, additional elements and steps tailored to the different types of elections and respective requirements; and the Assembly presidency taking the lead on developing both an ad hoc vetting process for the next judicial elections and, building on that, a permanent process for all ICC elections; and
  • Attend the side event co-organized by the Coalition for the International Criminal Court, Human Rights Watch, the Global Justice Center, Austria, Colombia, and Serbia, on “Vetting for all ICC elections: the essential elements unpacked.”

Related Human Rights Watch materials

While no longer under punitive United States sanctions, the court and those cooperating with it or working on related justice efforts continue to remain vulnerable to threats and attempted obstruction. 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 and other partners.

There are important lessons to learn in how states parties rallied around the court to mount a defense against US attacks, including through their joint statements. 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, has served as an important model for these statements. The IER report recognized these realities in its recommendation that “[the ASP and States Parties…develop a strategy for responding to attacks on the Court by non-States Parties” (IER Recommendation 169), although past experience shows that opposition may also come from states parties. This recommendation was positively assessed.

On that basis, in May, the president of the Assembly presented a proposed strategy to implement this recommendation based on thorough and inclusive consultations. The proposal was adopted by the Bureau by silence procedure in July.

The strategy reiterates the language from the Omnibus resolution and clarifies that the presidency of the ASP “bears the main responsibility for coordinating an appropriate response from the Assembly to any threat or attack against the Court, its officials and those cooperating with it, which has the potential to undermine the integrity, effectiveness or impartiality of the Court.” It further lists concrete steps that the Assembly can take to ensure an immediate response to such attacks, including, issuing a statement, convening an urgent meeting of the Bureau, and proposing additional measures to be adopted by the Bureau, which could include individual or joint statements and other forms of communication and outreach, and other private or public diplomacy initiatives.

To go further and as demonstrated by efforts in the context of US threats and sanctions, an effective response to threats or obstruction needs to include the coordinated and mutually supportive role of states parties, acting individually or collectively, privately, or publicly. A response by the presidency should be the floor and not the ceiling in responding to efforts to derail justice, and it should be carried out in tandem with parallel actions by states parties. The more complementary voices are heard, the better.

The strategy should be publicized more broadly. The Assembly president should also consult states parties on developing an annex with a non-exhaustive “menu of options” based on past successful practices that states parties and the presidency could draw on when trying to quickly respond to a threat or attack.

Importantly, this strategy should be put to use when “threats or attacks” (or other efforts to thwart or obstruct efforts at justice) are identified, in particular, an attack on “those who cooperate with” the court. 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 serve as a model for supporting civil society space.

Last year, the government of Israel designated six prominent Palestinian civil society organizations as “terrorist organizations” under Israeli law and as “unlawful associations” under military law, which is applicable in the occupied West Bank. These groups continue to face intimidation, most recently when Israeli authorities raided their offices and issued closure orders against them in a bid to shut down their human rights work. Several of those organizations have been submitting information to the OTP about alleged crimes committed by Israeli forces and have campaigned for an ICC investigation in Palestine. The designations have been internationally condemned by the European Union, several states parties, and UN Experts including the UN Special Rapporteur on counter terrorism, and the UN High Commissioner on Human Rights, among others. This is exactly the type of situation the strategy was intended to address. The ASP (through the president) should join in rejecting and condemning Israel’s designations and attacks, and states parties should consider making individual or joint statements, including in the General Debate at the upcoming Assembly session.

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.

Recommendations to the Assembly and ICC states parties

  • Welcome and affirm, in General Debate statements and interventions during the plenary on cooperation, the Bureau’s adoption of the strategy to implement IER Recommendation 169, and call for consultations and development of an annex that reflects a “menu of options” based on past successful practices;
  • Recognize, in General Debate statements and other relevant moments during the Assembly session, the critical role of civil society organizations in supporting the court and securing justice for victims, and condemn efforts to shut down their human rights work or muffle their voices;
  • 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;
  • Call, in bilateral discussions, in General Debate statements and other relevant moments during the Assembly session, for an official response by the ASP (through the president) rejecting and condemning Israel’s designations and attacks on six Palestinian civil society organizations; and
  • Attend the side event co-organized by Al-Haq, Coalition for the International Criminal Court, Open Society Foundations, Amnesty International, Human Rights Watch, International Federation for Human Rights (FIDH), Al Mezan Center for Human Rights, Palestinian Center for Human Rights, Women’s Initiatives for Gender Justice, Czech Republic, Finland, and Ireland, on “Countering the Global Crackdown on Human Rights Defenders and Civil Society: What Role for the ICC and States Parties.”
Public Release. More on this here.

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