Looking Forward and Looking Back: How Can the International Criminal Court (icc) Navigate in a Complicated and Largely Hostile World?

• Publication year: 2019
• Citation: Vol. 47 No. 3

LOOKING FORWARD AND LOOKING BACK: HOW CAN THE INTERNATIONAL CRIMINAL COURT (ICC) NAVIGATE IN A COMPLICATED AND LARGELY HOSTILE WORLD?

David Tolbert^*

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University of Georgia
Law School
8 March 2019

Thank you for the kind introduction. I am glad to be back at the law school and thanks to Diane Amann and the Dean Rusk Center at the University of Georgia Law School for putting together such an interesting program with so many distinguished participants.

My focus today will be on some of the challenges facing the International Criminal Court ("ICC" or "the Court"), in particular, the Office of the Prosecutor ("OTP"), and to reflect on how other international¹ and "hybrid"² tribunals and courts have dealt with related issues. I do this with a background

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of working in, or on, a number of international or "hybrid" tribunals/courts. These tribunals include the United Nations International Criminal Tribunal for the former Yugoslavia ("ICTY") where I served as, e.g., Deputy Chief Prosecutor, Deputy Registrar, and Chef de Cabinet to the President, and the Special Tribunal for Lebanon ("STL"), where I held the post of Registrar. Moreover, I was the UN Secretary-General's Special Expert on the Extraordinary Chambers in the Courts of Cambodia ("ECCC"). I also worked extensively on setting up the Bosnia State Court ("BiH State Court"),³ and served as an expert to the ICC discussions and negotiations in New York, The Hague and Rome.⁴

As we think about the ICC, it is important to be specific about which part or organ of the Court (i.e., Presidency, Chambers, Prosecutor or Registry) we are discussing or examining. While the ICC has a mantra of the "One Court Principle",⁵ we must recognize that the various ICC organs face very different challenges.

I will make some comparisons and a few suggestions based on the experiences of other tribunals and courts, but I do so with several caveats. The most significant challenge facing the ICC, and in particular its OTP, is that it is working in very adverse circumstances. There are two distinct elements that should be taken into account in this regard. First, the ICC has a much broader geographical mandate than the other international criminal courts/tribunals, as it is currently composed of 122 states parties⁶ and the possibility of UN Security Council ("UNSC") referrals.⁷ UNSC referrals have included the situations in Sudan and Libya-where the Court has been stymied by lack of cooperation and thus has had little impact.⁸ In any event, additional UNSC referrals

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appear very unlikely in the near term.⁹ There have also been several situations where states parties, on their own volition, requested the ICC to exercise jurisdiction over Rome Statute crimes in their territory. These situations or "self-referrals" have occurred in the Democratic Republic of Congo, Uganda, Mali, and Central Africa Republic II.¹⁰ Moreover, the ICC's processes, which were hammered out in a diplomatic conference, are for the most part considerably more complex and demanding than in the ad hoc or hybrid tribunals.¹¹ In my view, an even more important issue for the ICC, and particularly for its Prosecutor, is the dramatic shift in the global context since the Rome Conference of 1998, challenging not only the Court and accountability efforts writ large, but also more broadly, the human rights movement.¹² The current geopolitical climate is much more difficult for human rights generally, and international justice specifically, than when I entered this emerging field in the mid-1990's.¹³ There are various origins of this blowback against human rights and accountability,¹⁴ including in my view a failure to address economic rights seriously, which I have addressed elsewhere.¹⁵ While there are steps the human rights movement writ large can take to try to address the move towards reaction, the Court is a judicial actor and has to be careful about putting its toe into advocacy and activism. Thus, the fight against impunity in an age of reaction rests primarily with civil society activists. So, while we tend to think of the Court as a number of organs (such as Chambers, Presidency, Prosecution, Registry), we must bear in mind that without the energy and activism of civil society and some committed governments the ICC would not exist.¹⁶

In my view, in thinking about the Court and other accountability efforts in these difficult circumstances, it is clear the ICC faces very different problems and challenges than those faced by the ICTY, or any of the other courts or tribunals that have preceded the ICC. Unlike the ICTY (and to a somewhat lesser extent the International Criminal Tribunal for Rwanda ("ICTR"), the

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SCSL and some national prosecutions of atrocity crimes), the ICC is operating on a much more difficult terrain and faces a very challenging swirl of headwinds. Over the last several years, the rise of authoritarianism, populism and forces of reaction have created significant challenges for international criminal courts and other accountability efforts. These external forces are creating serious challenges for the Prosecutor and the Court for the foreseeable future.¹⁷

As noted, the current context certainly contrasts with the experience of the ICTY and, to a greater or lesser degree the experiences faced by the ICTR, STL, the BiH State Court¹⁸ and the ECCC (the latter "takes the cake" in terms of difficult externalities and a willfully absurd design).¹⁹ These courts arose during the wake of the fall of the Berlin Wall and seismic changes of the post 1989 period, and during the momentary lessening of tensions on the UNSC. The ICTY in particular benefited from generally strong support (or in some cases benign neglect) from the UNSC in its early days and for some time afterwards.²⁰

The ICTY, and to a lesser extent the ICTR and the hybrid courts, also received strong political support from the European Union (EU) and the United States through most of their existence.²¹ The European Union, in particular, played a crucial role in creating the conditions for arresting fugitives by tying the carrot of EU accession-with its significant economic and political benefits-to the ICTY Prosecutor's determination that the respective states of the former Yugoslavia were fully cooperating with the OTP. This was a strong inducement for those states to cooperate with the ICTY.²² I would underline that this was part of a concerted strategy by the ICTY's OTP.²³

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We had diplomats on our team in the OTP, and we worked hard to develop a strategy to tie EU accession, or at least progress towards EU accession, for Balkan states to cooperation with the OTP with considerable success.²⁴ The ICC Prosecutor simply does not have any such tools at hand.

I do think it is important for the Court, and particularly the OTP, to have a strong relationship with victims and with national civil society. One has to be careful in this regard, but at the ICTY and in the other courts I have worked in, civil society groups have provided some of the best sources of information, evidence and advocacy.²⁵ Thus, having an open dialogue with victims and affected communities is critically important for the OTP and for the institution as a whole.

One aspect of engaging with victims and other supporters is through Outreach Programmes, which were established to communicate the work of the tribunal or court to affected communities.²⁶ I worked extensively with President McDonald at the ICTY in establishing the first Outreach Programme,²⁷ which met some resistance from judges and prosecutors. Over time, outreach activities at the ICTY and the SCSL became more effective, and Outreach Programmes are now an almost universal feature of all international and hybrid criminal courts.²⁸ In one sense, this is a positive development, in that a court such as the ICC needs to connect with victims and other citizens.²⁹ Not only is engaging with victims and affected communities important as a matter of principle, Outreach Programmes may also help address and get ahead of propaganda and distortions by explaining the work the Court is actually doing as well as the impact it is having on affected communities. At the ICTY, the Outreach Programme's "Bridging the Gap" events took actual cases that had been fully litigated and explained to victims and affected communities in situ what the organs of the ICTY...