(Editor’s Note: This is the first of a three-part series regarding the ICC’s Independent Expert Review, the crossroads at which the ICC finds itself, and issues that lie ahead for the Court.)

The press for months has carried stories about the sanctions imposed on International Criminal Court (ICC) officials under President Trump’s Executive Order of June 11, and the crossroads they represented in the relationship of the United States with the Court. But the ICC is at a crossroads of its own that may have more lasting importance. Even the Court’s most passionate supporters have raised questions about the Court’s performance. Thoughtful critiques by both governments and experts abound, although stakeholders have divergent perspectives on how the Court might right itself. These discussions reached an important landmark on September 30 with the release of an extensive report as part of the “Independent Expert Review” commissioned under a resolution adopted by the ICC Assembly of States Parties in December 2019. I will focus in this series on possible implications of one important element of the report, which is the recommendation that the Prosecutor and the Court need to focus on a narrower range of situations if their work is to be successful.

Concerns About the Court

The roots of the Review trace to a letter by the four former Presidents of the ICC Assembly of States Parties (ASP) published by the Atlantic Council in April 2019. The letter was a quite remarkable reaction to what the four Presidents described as disappointment with the Court’s performance as a judicial institution. It called for clarification of the legal standards the Court applies and its prosecutorial strategies and policies, and it highlighted the need for the Court to “end its internal squabbles, and address its management issues head on.”

The letter also reflects more broad-based dissatisfaction with the Court’s performance expressed by a growing number of ICC member states and other ICC stakeholders. Indeed, sharp critiques of the Court’s record had become commonplace. They typically began with criticism of the dearth of convictions for atrocity crimes (four) that the Court had produced in the eighteen years since it began operations in 2002. And they went on from there. In the General Debate at the ASP meeting in December 2018, the United Kingdom (UK) Legal Director made a particularly strong intervention, stating that – although the UK continues to be a supporter of the Court – the ICC has undeniably fallen short of the expectations of its progenitors and “we cannot bury our heads in the sand and pretend everything is fine when it isn’t.” The time has come, he said “for States to take a fundamental look at how the Court is operating. We need to work together to address the challenges, for the future health of the Court, a Court that we care about deeply.”

Civil society has criticized the Court as well. The Open Society Justice Initiative undertook a project, including a two-day expert workshop in March, focused on improving the work of the ICC Prosecutor’s Office, and published a critical report in April entitled “Improving the Work of the ICC Prosecutor Office of the Prosecutor: Reappraisal of Structures, Norms and Practices.” Some groups have been frank in saying that “tinkering” will be insufficient and that major changes [are] necessary to affirm and strengthen the ICC’s legitimacy and ability to fulfill its mandate.”

The Independent Expert Review

In the wake of the many concerns, the ICC Assembly of States Parties adopted a resolution that established the “Independent Expert Review.” The Assembly selected nine eminent individuals to carry out the project, which was chaired by the widely-respected South African judge Richard Goldstone. The Resolution aimed to walk a line between the more technical issues that the Experts should address and more political issues from which they were steered away. In truth, the line between the technical and the political is not all that sharp, with many of the issues facing the Court not falling neatly on one side or the other. In any case, the Review was to be without prejudice to ongoing conversations on issues that were taking place elsewhere and was recognized to be only “part of a wider State Party-driven review process with the Court.”

Over the course of its work, the Independent Experts received input from current and former Court officials and staff, States Parties, ASP bodies (such as the Working Group on Complementarity), academics, and members of civil society (including for example recommendations that were collected and published here). The Experts further elaborated the issues that needed to be addressed, divided them into clusters, submitted an interim report in June, and then continued their work throughout the summer. The final report was published on September 30.

And quite a report it is. It is a massive endeavor, produced in a serious way by serious people, an it warrants far more extensive consideration than I can give it in this brief three-part series. It covers 348 pages, sets out extensive findings, makes a total of 384 recommendations, and helpfully contains a much shorter list of recommendations that the Experts believe should be implemented on a priority basis.

The report is no whitewash, with extensive and often biting criticism of the prevailing work culture at the Court. It makes, in the trenchant words of one commentator, for “surprising, bleak and often depressing reading, depicting a large and expensive international organisation where dysfunction is rife, deep-rooted and frequently inexcusable.” Professor Douglas Guilfoyle captured the report well in an article on EJIL:Talk! that is well worth reading:

[The report] is frank and forthright in setting down in black and white what many insiders or court-watchers knew. It will have made for very uncomfortable reading in most quarters. Nonetheless, it appears a scrupulously fair and extraordinarily detailed account of the Court’s operations and internal problems. For all its length, its style is admirably lucid and to-the-point.

For purposes of this series, the recommendations can be divided into two broad categories. The first category is aimed at recommendations for steps that could enhance the Court’s ability to execute its work successfully by improving the efficiency and effectiveness of the Court’s operations. For example, with respect to the Office of the Prosecutor (OTP), the Experts made recommendations on the need for stronger cooperation agreements with national authorities, streamlining the process for submitting requests for assistance, retaining more personnel with demonstrated technical expertise in such areas as financial investigations and fugitive tracking, establishing more robust field presences in situation countries, and improving evidence assessment and analysis capabilities. It also presents recommendations aimed at improving the troubled work atmosphere that apparently afflicts the Court.

The second category of recommendations is aimed at strategy and design issues: how should the Court and other stakeholders conceive of and define the Court’s mission so as to improve its prospects for success? Numerous recommendations fall into this category. I will focus here on a subset that relate to the issue of how broad the “aperture” should be as Court actors filter the situations that the Court should consider and treat as within, and those that it should consider and treat as outside, its responsibility to address. The fundamental question is this: to what situations and cases should Court actors apply their energy and resources?

The Issue of Aperture

The importance of this “aperture issue” finds voice in this centrally-important observation by the Experts:

The Experts repeatedly heard concerns that the Court should focus on a narrower range of situations, and limit its interventions to the extent possible, focusing on situations of the highest gravity and on those most responsible for the crimes. While it is a prospect that would be disappointing for many, and further restrict the already limited jurisdiction of the Court, the current situation is unsustainable having regard to the limited resources available.

The basic concern is self-evident. The organs of the Court, like those of all international institutions, have finite resources. Indeed, the state parties that fund and support the Court operate under their own constraints. They are called upon to support other international priorities – global health, environmental, and development agendas, just to name a few – that compete for those same resources, and of course compete against pressing domestic priorities as well. It may be unfortunate that the Court will never have the resources needed to pursue prosecution of all of the otherwise-unpunished atrocity crimes that deserve attention, but it is at the same time inevitable.

Importantly, the Court is fundamentally unlike the international tribunals that preceded it – Nuremberg, Tokyo, and the ad hoc tribunals for Rwanda and the former Yugoslavia – in a critical way: others selected the countries on which those tribunals would focus. By contrast, actors within the Court must themselves make the politically-fraught decisions about the countries in which to focus their limited prosecutorial and adjudicative powers. Only then, within those situation countries, does the Prosecutor select the particular cases that it will pursue. Even after the countries are selected, the Prosecutor must make decisions about balancing the desirability of applying her finite resources to pursue particular cases in one situation against applying those resources to cases in others.

The concerns articulated by the Experts reflect a strong recognition that the Court is over-extended – that it has involved itself in too many countries and is spread too thin to operate successfully. The Experts’ point of departure for thinking about this issue is clear: “The Court is a Court of last resort, and thus it cannot, and should not, be expected to prosecute each individual responsible for the commission of Rome Statute crimes.” This truism might be taken a step further: as a court of last resort, the Court cannot realistically be expected to pursue investigations in all countries where crimes that we may think worthy of prosecution have taken place.

Herein lies the central paradox that the Court faces. Article 5 of the Rome Statute speaks of the crimes within the Court’s jurisdiction as “the most serious crimes of concern to the international community as a whole” and the very preamble of the Rome Statute affirms that such crimes “must not go unpunished.” In some – ideally most – cases, investigation and prosecution within national jurisdictions will ensure that the relevant crimes are pursued without need to invoke the ICC.

But the Experts are saying something else: even in situations and cases where national jurisdictions are not stepping up, the Court will not always be able to supply justice. The Experts are thus effectively conceding that many international crimes may – in fact almost certainly will – go unpunished. Given this reality, how should Court actors go about figuring out where to direct, and where not to direct, the Court’s limited resources? In other words, how should they set the Court’s aperture?

Various provisions of the Rome Statute address the need for filtering in different ways.  The Rome Statute first screens situations on the basis of jurisdiction, and thus excludes consideration of those crimes that do not amount to genocide, crimes against humanity, or war crimes under its definitions. It further filters out conduct that occurs outside the territory of a state that is party to the Rome Statute, unless the accused is a national of such a state party.

Each of these rules protects Court actors from overextending themselves in certain ways. For example, under these provisions, Court actors do not need to consider how to balance the importance of pursuing a war crimes investigation as opposed to a narcotics-trafficking case, or whether to pursue cases involving the conduct of a state within its own borders that has not become a party to the Rome Statute. At the same time, each of these rules carries a potential cost, such as in the risk that crimes that fall outside these strictures will go unpunished and individuals who are acting in such situations will not be subject to any deterrent effect that the possibility of ICC action might exert, even for crimes that might in fact be quite horrible.

The Rome Statute’s Admissibility Rules

Beyond the filtering done by these jurisdictional rules, the Rome Statute provides an additional level of filtering through its admissibility rules, which govern which situations and cases the Prosecutor may pursue. Thus, even where the Court has jurisdiction with respect to an alleged crime, a case is inadmissible if—

(1) the case is not “of sufficient gravity” (the “Gravity” test);

(2) the case has been investigated or prosecuted in a genuine manner (the “Complementarity” test); or

(3) with respect to the decision whether to commence an investigation, there are substantial reasons to believe that an investigation would not serve “the interests of justice” (the “Interests of Justice” test).

The report of the Independent Experts includes recommendations that touched on all three of these categories. I will address them out of order because the complementarity discussion warrants more extended discussion that will be the focus of part two of this series.

Gravity. First, with respect to the Gravity test, the Rome Statute provides that the Court should not proceed with a case, even when the criteria for ICC jurisdiction under the Rome Statute are met, if “the case is not of a sufficient gravity to justify further action by the Court.” A separate provision makes this gravity rule equally applicable when the Prosecutor is making decisions to commence, and when the judges are making decisions to authorize, an investigation in the first place. But while the Rome Statute says that “sufficient gravity” must exist, it nowhere specifies what level or kind of gravity qualifies as “sufficient” or how gravity should be measured.

For their part, the Experts say in their summary of recommendations that:

The OTP should focus on a narrower range of situations, and limit their interventions to the extent possible, focusing on situations of the highest gravity and on those most responsible for the crimes, which may well include mid-level perpetrators. The Prosecutor should adopt a higher threshold for the gravity of the crimes alleged to have been perpetrated. Gravity should also be taken into account at Phase 1 of [preliminary examinations].

This statement in the summary of recommendations is actually stronger than the language that appears in the main report that it purports to be summarizing (the main report says only that “the Prosecutor should consider adopting a higher threshold for the gravity of the crimes” in selecting which situations to pursue). Left unaddressed in either formulation, however, is how this recommendation would or should be operationalized. For example, what should be the methodology for comparing the gravity of one situation to the gravity in another?

As David Bosco has reported, the Prosecutor in the Court’s early days focused on the number of violent deaths as its key metric. Today, many agree that gravity is more than just numbers but there is considerable debate about what else it entails. In November 2013, OTP published a policy paper on preliminary examinations that contains qualitative and quantitative factors that it says it assesses in determining whether sufficient gravity exists. In practice, however, the criteria are not easy to apply, do little to explain how heavily to weigh each of the factors as compared to the others, and provide scant insight into how one might, in a tangible way, compare two situations to determine which is of greater gravity.

Questions also linger about the factors that some commentators think should, and others think should not, be included as part of the assessment of gravity. For instance, the measurement of gravity could take into account the extent to which the ICC’s action could be expected to set an example that would deter others from committing similar crimes in other circumstances, or the desirability of holding mature legal systems to a higher standard. On the one hand, it is not hard to see the appeal of including such considerations in the assessment of gravity. On the other hand, one could also expect that powerful states — like the one that for many years employed me — might worry that such an approach would tilt the decision-making against them: what better way to set an example, it might be argued, than to demonstrate that even the world’s most powerful states will be held to account?

Recommendations to raise the gravity threshold are also complicated by some of the Court’s existing jurisprudence. In the Comoros cases, for example,  a Pre-Trial Chamber seemed remarkably resistant to the Prosecutor’s contention that the relevant conduct – which resulted in the death of nine persons on the vessel Mavi Marmara – lacked sufficient gravity to warrant the commencement of an investigation, with an ICC Appeals Chamber saying that the purpose of the gravity test is to exclude only “rather unusual cases” from the Court’s purview and that the cases that it excludes “are limited.”

It was not the job of the Independent Experts to unpack the details of all these issues but they make an important contribution by bringing to the fore the basic idea that the gravity test should be applied in a way that reflects the need for greater filtering, and essentially calling for the relevant stakeholders to figure out how to take this idea forward.

Interests of Justice. The interests of justice test may or may not technically constitute an admissibility criterion, but it lies in the same cluster of issues described in Article 53 of the Rome Statute that is supposed to be taken into account by the OTP in deciding whether to proceed with an investigation and by the Pre-Trial Chamber in deciding whether to authorize that investigation if called to do so. Specifically, Article 53 provides for the possibility of not proceeding with an otherwise appropriate investigation or prosecution when doing so would not serve the interests of justice.

The Experts do not explicitly say that they are addressing the Interests of Justice, but they implicate the concept in their discussion of the question of feasibility. In the Experts’ description of it, the issue “is whether feasibility, especially the likelihood of arrests, should be taken into account” when the Prosecutor is analyzing whether an investigation should be commenced. The basic idea – which is that the Court should not “divert” its resources to situations and cases that are unlikely to produce successful investigations and prosecutions – is one that came up in the decision of the ICC Pre-Trial Chamber in April 2019 that denied the Prosecutor’s request for authorization to commence a formal investigation of the situation in Afghanistan. In their decision, the judges reasoned that they should decline to authorize the investigation because the prospects for success were too dim, even though they concluded that there was a sufficient basis for concluding that crimes within the jurisdiction of the Court had been committed and that the matter was otherwise admissible. Reasoning that pursuit of such an investigation would divert resources and therefore not serve the interests of justice, the Pre-Trial Chamber said:

The Chamber must therefore analyse whether, in light of the specific features of the situation in Afghanistan, it is likely, or at all possible, that authorising an investigation would result in favouring those objectives. An investigation can hardly be said to be in the interests of justice if the relevant circumstances are such as to make such investigation not feasible and inevitably doomed to failure. In making any investigation or prosecution only worth doing if and to the extent that it can be considered as genuinely instrumental to those objectives, the Statute reiterates the idea that the Court is not meant – or equipped – to address any and all scenarios where the most serious international crimes might have been committed; therefore, focusing on those scenarios where the prospects for successful and meaningful investigations are serious and substantive is key to its ultimate success.

Particularly because it came in the wake of strident U.S. attacks on the Court, the decision led to a storm of criticism that the judges had caved to U.S. pressure. Predictably, in March 2020, an ICC Appeals Chamber overturned the decision, reasoning that the Statute did not grant a role for the Pre-Trial Chamber to evaluate these issues and that the Pre-Trial Chamber should have deferred to the Prosecutor’s assessment that interests-of-justice considerations should not block her from moving forward.

This Appeals Chamber’s reasoning was of a procedural type, turning on questions of who within the world of ICC actors – the Prosecutor or the Pre-Trial Chamber – is responsible for making conclusions about the interests of justice test.  The Appeals Chamber noted that, because of its procedural conclusion, it “sees no need” to address the content of the interests of justice test but proceeded to say that it would do so anyway because of the great interest in the issue. Even then, however, the Appeals Chamber did not say that “feasibility” should not be considered, only that the Pre-Trial Chamber’s consideration had proceeded in a faulty way. Thus, while its reasoning seemed plainly resistant to the Pre-Trial Chamber’s ideas on interests of justice, the Appeals Chamber’s decision did not, on its face, purport to take the issue of feasibility off the table.

The Experts’ report captures the risks of adopting an approach that would emphasize feasibility. Among other things, the Experts note that decisions not to pursue investigations because they are unlikely to lead to successful prosecutions would incentivize obstructionism and weaken the Prosecutor’s ability to pursue powerful targets. In reacting to the Pre-Trial Chamber’s original Afghanistan decision, I outlined some of the important questions that would be raised by adopting such a feasibility test:

Does such an approach not embody, some may ask, a kind of succumbing to the odds that are not in fact in the best interests of justice (think for example of what the odds of successfully prosecuting Chadian dictator Hissène Habré may have been twenty years before his May 2016 conviction before the Extraordinary African Chambers in Dakar)? What message would such an approach have sent to victims of a decision not to pursue those responsible for mass atrocities in Darfur on similar grounds? Does this kind of approach not formalize an incentive structure that rewards non-cooperation? How can the Court both prioritize proceeding against the most severe examples of states refusing to pursue accountability and, at the same time, bow to states that put up stiff resistance to cooperating with the Court?

Based on concerns of this type, the Experts conclude categorically that “[f]easibility should not be taken into account” when the Prosecutor is conducting preliminary examinations and assessing whether a formal investigation should be commenced.

Yet notwithstanding the very important concerns described above, it is hard to just ignore the idea that the Court should not divert energy and resources to efforts that are unlikely to succeed. Indeed, the difficulty of disregarding the issue of feasibility is reflected in a later portion of the Experts’ report when they consider the extent to which the Prosecutor should assess feasibility in deciding which investigations to pursue actively and which to put on the backburner. Given that the OTP is over-extended – the Report indicates for example that the OTP’s Investigation Division currently has 12 situations under investigation but resources sufficient for pursuing only eight – the Experts recommend that feasibility-related factors “should be seriously considered” in decisions to “de-prioritize” or “hibernate” investigations.

The issue is a hard one but the logic of distinguishing so categorically between disregarding feasibility when deciding whether to formally commence an investigation in the first place and taking it into account when deciding whether actually to pursue the investigation is not altogether clear. For example, if we are concerned that having these decisions turn on the likelihood of success will incentivize “obstructionism,” that obstructionism may just as readily be encouraged by a desire to dissuade the OTP from actively pursuing an investigation (or prosecution) as by a desire to dissuade the OTP from commencing one. At the end of the day, this is a very difficult issue on which the final word may not yet have been said.

Finally, it should be noted that, whether or not one views feasibility as a relevant factor, there are other considerations that could appropriately play a role in an “interests of justice” analysis. As is well-known, there was in fact little agreementamong the negotiators in Rome about the meaning to be given to the phrase “interests of justice.” For example, there was no meeting of the minds on whether it might be considered not to be in the interests of justice to pursue investigations and prosecutions in situations where – as in the then-recent case of the truth and reconciliation commissions in South Africa – a society had made a conscious decision to utilize alternatives to traditional modes of criminal accountability in order to come to terms with its past. Then-Prosecutor Luis Moreno Ocampo gave what, at least to this point, has been the final word on this when OTP published a policy paper in 2007 that vastly limited – some might say eliminated – the role that the interests of justice test might thereafter play in limiting the Court’s aperture. Whether there is potential for this to gain traction as an issue at some future point remains to be seen. In broad terms, however, there seems to be greater receptivity in at least some quarters to taking greater account of surrounding and other political considerations that could be incorporated into an interests of justice analysis when making decisions whether to investigate or prosecute.

I will continue this discussion in Part 2 of this series, in which I will address ways in which the issue of complementarity fits into all this.

IMAGE:  Exterior View of new International Criminal Court building in The Hague on July 30, 2016. (Photo by Michel Porro/Getty Images)