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International rule of law: review aims to strengthen ICC’s ability to deliver justice

Ruth Green, IBA Multimedia JournalistWednesday 4 March 2020

Justice Richard Goldstone, the former Chief Prosecutor of the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) and Honorary President of the IBA’s Human Rights Institute, has been appointed to chair an independent review of the International Criminal Court (ICC or the ‘Court’) two decades after the Court was created.

The independent review chaired by Justice Goldstone forms part of a broader review being carried out by the ICC’s States Parties and will make ‘concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole,’ according to the ICC.

Justice Goldstone and eight other experts on international criminal justice will focus their attention on three distinct areas: governance; judiciary and the judicial process; and investigations and prosecutions at the Court. Following consultations with States Parties, Court officials and civil society, the expert group is due to submit a final report, including recommendations, to the Bureau of the Assembly, the Assembly of States Parties (ASP) and the Court by the end of September 2020.

With over 70 million people around the world currently displaced by persecution, conflict and atrocities, we need the ICC now more than ever

Dr Simon Adams
Executive Director, Global Centre for the Responsibility to Protect

The review comes at an ‘auspicious’ time as the ICC continues to face substantial criticism, says Sternford Moyo, former President of the Law Society of Zimbabwe and a member of the IBA African Regional Forum Advisory Board. ‘It is our hope and expectation that the panel of experts will identify those areas in the ICC’s work that require attention and the ways in which the ICC’s work and credibility can be strengthened,’ says Moyo. As is the case with any project, after running for some time, it is important to review operations and benefit from practical implementation of the project in order to strengthen it.’

The Rome Statute was adopted in 1998 and entered into force in 2002, formally establishing the ICC as a permanent, autonomous court in The Hague. The Court has received ten referrals from States Parties since its inception, but has issued only nine convictions and four acquittals over this period and faced continual criticism for alleged ‘bias’ against Africa. It ended 2019 on a high with the sentencing of former Congolese general Bosco Ntaganda, who was given 30 years for war crimes and crimes against humanity in the Democratic Republic of the Congo – the longest sentence in the ICC’s history.

Dr Simon Adams, Executive Director at the Global Centre for the Responsibility to Protect, believes the time is right for an independent body to take stock of the Court’s role and function and identify ways to address any concerns. ‘Those who want to return to a global climate of total impunity for atrocities would like nothing better than for the ICC to fail,’ he says. ‘But despite its past shortcomings and mistakes, the ICC is still the only truly internationally legitimate place where those who commit war crimes, genocide and crimes against humanity can be brought to justice. My hope is that this review process will strengthen and reinvigorate the Court. With over 70 million people around the world currently displaced by persecution, conflict and atrocities we need the ICC now more than ever.’

Seven of the ten referrals received by the Prosecutor’s Office since 2002 have related to African territories, but the ICC is also conducting investigations in Georgia, Myanmar, as well as preliminary examinations in Colombia, Iraq/UK, the Philippines, Ukraine and Venezuela. In December 2019, the Court heard oral arguments for its investigation into alleged war crimes related to the armed conflict in Afghanistan.

That same month the ICC Prosecutor, Fatou Bensouda, took the unprecedented step of announcing that she was ‘satisfied’ there was ‘a reasonable basis to proceed’ with investigations into alleged war crimes in the West Bank, including East Jerusalem, and the Gaza Strip. Bensouda, who has been in the role since June 2012, is due to step down in June 2021. The Prosecutor’s Office confirmed to Global Insight that her successor will be elected at the 19th session of the ASP, which will take place at the UN’s headquarters in New York in December this year.

The expert group undertaking the review process will act in an independent capacity and will not take instructions from States Parties or the Court itself. In addition to Justice Goldstone, the group comprises: Nicolas Guillou, a French judge who currently sits at the Kosovo Specialist Chambers; Argentine judge Mónica Pinto, the incumbent UN Special Rapporteur on the independence of judges and lawyers; Australia’s Mike Smith, the former Assistant Secretary-General at the UN and former Chair of the UN Commission on Human Rights; Anna Bednarek, a Polish judge of the second Trial Chamber of the Special Tribunal for Lebanon; Lord Iain Bonomy, a Scottish judge who served at the ICTY; Mohamed Chande Othman, the former Chief Justice of Tanzania; Hassan Bubacar Jallow, the current Chief Justice of the Gambia and former Prosecutor of the International Criminal Tribunal for Rwanda, and Brazilian Federal Circuit Prosecutor Cristina Romano.

Moyo believes the review will help strengthen the Court’s mandate to bring justice to victims worldwide. ‘As lawyers, we naturally look forward to assisting wherever we can to ensure that when crimes against humanity are committed, there should be no impunity,’ he says. ‘We see the appointment of the Expert Review Group by the ASP as a measure whose spirit and objective is to strengthen the role of international criminal justice.’