Towards an independent effective and accountable Court
Posted: Mon Feb 17, 2025 9:19 am
Defenders of the Court commonly claim it cannot win. There are too many potential criteria for success and it will always be found to fail on at least one. As Phil Clark has noted, however, the proliferation of norms which the Court is said to uphold – not least by the Court itself – also makes it impossible for the Court to lose. A favoured argument made is of the type deployed by the authors here: even where the court has no jurisdiction, it inspires; even where it never gets beyond a preliminary investigation, it has a decisive influence on peace; for victims, it is often their best and only hope. Claims that the Court changes the world simply by existing are a useful to the extent they are impossible to disprove. They become the means by which the Court can fail its way to success.
This rhetoric also invites a correlation/causation confusion. Former Prosecutor Moreno-Ocampo was fond of claiming anything positive which happened in a state where the court had an active situation must be the result of the Court’s intervention. The cases in Kenya might have collapsed, but election violence was not repeated – so the actors must have changed their behaviour because the Court was watching. As Clark notes, this vision of states under investigation, particularly African states, as passive objects affected only by external interventions is both profoundly patronising and leaves the Court blind to the extent to which its actions can be manipulated or politicised by local actors for local ends.
The assertion that the Court has had decisive impact where it either lacks the ability to act or has done nothing concrete also creates high expectations for the Court’s effectiveness more widely. To paraphrase Kersten: if the credibility of an institution is at least in part a function of the gap between its ideals and what it is able to deliver in practice, then widening that gap is unwise. Again, some modesty would be advisable.
… by means of an expert enquiry and some new blood in 2021
The proposed inquiry
It is certainly important that four “elders” of the ASP have decided that the Court is in need of reform, have recommended a process, and that such a report be delivered in time for the election of “the next employment database generation of [ICC] leadership”. However, it is worrying that at such a galvanising moment for change, the limits of political imagination appear to be an expert report.
Certainly, such reports have played a role in the past: most notably, the 2006 report of the late Antonio Cassese into the Special Court for Sierra Leone’s functioning. There has also recently been a special investigation and report by a single expert into deaths in ICTY custody. Technical improvements could certainly be identified through an expert inquiry into the ICC. The labour-intensive process by which victims must have their applications individually assessed under Rule 89 is an obvious candidate.
The suggestion, however, is that a thorough stocktaking of internal management structures coupled with an infusion of new blood will transform the Court. In this vein the authors note they have been “disappointed by the quality of some of [the ICC’s] judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the court from living up to its full potential.” The problem, it would seem, is largely internal court management and legal standards (presumably regarding evidence and its evaluation and the standard of review on appeal).
This rhetoric also invites a correlation/causation confusion. Former Prosecutor Moreno-Ocampo was fond of claiming anything positive which happened in a state where the court had an active situation must be the result of the Court’s intervention. The cases in Kenya might have collapsed, but election violence was not repeated – so the actors must have changed their behaviour because the Court was watching. As Clark notes, this vision of states under investigation, particularly African states, as passive objects affected only by external interventions is both profoundly patronising and leaves the Court blind to the extent to which its actions can be manipulated or politicised by local actors for local ends.
The assertion that the Court has had decisive impact where it either lacks the ability to act or has done nothing concrete also creates high expectations for the Court’s effectiveness more widely. To paraphrase Kersten: if the credibility of an institution is at least in part a function of the gap between its ideals and what it is able to deliver in practice, then widening that gap is unwise. Again, some modesty would be advisable.
… by means of an expert enquiry and some new blood in 2021
The proposed inquiry
It is certainly important that four “elders” of the ASP have decided that the Court is in need of reform, have recommended a process, and that such a report be delivered in time for the election of “the next employment database generation of [ICC] leadership”. However, it is worrying that at such a galvanising moment for change, the limits of political imagination appear to be an expert report.
Certainly, such reports have played a role in the past: most notably, the 2006 report of the late Antonio Cassese into the Special Court for Sierra Leone’s functioning. There has also recently been a special investigation and report by a single expert into deaths in ICTY custody. Technical improvements could certainly be identified through an expert inquiry into the ICC. The labour-intensive process by which victims must have their applications individually assessed under Rule 89 is an obvious candidate.
The suggestion, however, is that a thorough stocktaking of internal management structures coupled with an infusion of new blood will transform the Court. In this vein the authors note they have been “disappointed by the quality of some of [the ICC’s] judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the court from living up to its full potential.” The problem, it would seem, is largely internal court management and legal standards (presumably regarding evidence and its evaluation and the standard of review on appeal).