{"id":139020,"date":"2024-12-02T10:44:56","date_gmt":"2024-12-02T09:44:56","guid":{"rendered":"https:\/\/www.justiceinfo.net\/139020-ciel-nuageux-pour-la-cpi.html"},"modified":"2025-04-01T15:39:07","modified_gmt":"2025-04-01T13:39:07","slug":"clouded-skies-over-the-icc","status":"publish","type":"post","link":"https:\/\/www.justiceinfo.net\/en\/139020-clouded-skies-over-the-icc.html","title":{"rendered":"The clouded skies over the ICC"},"content":{"rendered":"\n

The annual Assembly of States Parties of the International Criminal Court takes place in The Hague from December 2-7. Against the prospect of a hostile Trump administration in the U.S., an investigation on alleged misconduct of the ICC prosecutor, and a dearth of trials, clouds are gathering over the court.<\/strong><\/p>\n\n\n\n\n\n\n\n

As the International Criminal Court\u2019s prosecutor pushes on with arrest warrants against leaders of Israel and Myanmar, the court\u2019s supporters meet in The Hague this week to decide on the regular knotty problem of how much states are willing to pay for justice for atrocity crimes. <\/p>\n\n\n\n

Every year the representatives of the now 124 member states (Ukraine will join officially in January) that fund the ICC meet in the Hague or New York to discuss the budget. This year prosecutor Karim Khan has provided a welcome fillip to the mood by announcing last week his intention to seek an arrest warrant against Myanmar\u2019s military ruler, in relation to the alleged crimes against the Rohingya and their deportation over the border into Bangladesh, which is an ICC member state. <\/p>\n\n\n\n

But this year\u2019s context looks particularly strained. The ICC states parties face a decision on how to investigate the prosecutor\u2019s alleged sexual misconduct.\u00a0And, come January, when Donald Trump<\/a> becomes the US president again, the court is likely to face sanctions \u2013 in retaliation against the arrest warrant for Benjamin Netanyahu, a staunch ally of the coming US administration \u2013 that will pose an even greater challenge. \u201cThey have the potential to sanction the actual institution, which would be an absolute disaster. It is an existential threat for the court,\u201d says Maria Elena Vignoli of Human Rights Watch. \u201cWe don't know what ultimately will come down,\u201d says James Goldston, the head of Open Society Justice Initiative, an NGO, \u201cbut they are potentially devastating. No question about that.\u201d\u00a0<\/p>\n\n\n\n

Growing outside pressure<\/strong><\/strong><\/h2>\n\n\n\n

The court was long criticised for its focus on Africa. All the individuals who have been tried since 2002, when the court became active, are Africans. Its six successful prosecutions have all been for medium-level rebel commanders across that continent. Now the court has been able to break out into Asia, Europe and the Middle East and challenge some of their heads of state or governments for their alleged responsibility in crimes against humanity. But 2025 also looks set to be the year when the states finally have to decide where they stand on implementing international justice rules and how they can fix some of the flaws in the body they built. <\/p>\n\n\n\n

The vulnerabilities of the international criminal court have been visible on several fronts. After Putin\u2019s indictment by the court a cyber-attack in 2023 caused a return to paper binders and USB flash drives<\/a> to run cases. A whopping 4.3 million Euros is still needed to fix those systems and restore security<\/a>. Russia has opened criminal cases against elected officials<\/a>. Former prosecutor Fatou Bensouda has also spoken of the bullying tactics<\/a> she says were employed against the court\u2019s officials by Israel. And Israel continues to be suspected of targeting the court. <\/p>\n\n\n\n

Meanwhile, the office of the prosecutor is being asked to do more and more. States continue to refer situations. Last week Chile<\/a> along with Costa Rica, Spain, France, Luxembourg and Mexico called on the prosecutor to focus on women in Afghanistan, and earlier this year Lithuania pointed to crimes against humanity in neighbouring Belarus<\/a>. This year the Office of the Prosecutor requested an additional \u20ac9.31 million (a 15.4 per cent increase) on last year. But the committee on budget and finance admonished<\/a> the prosecutor\u2019s office for over-reliance on external contractors and urged it to get its human resources recruitment system in order.<\/p>\n\n\n\n

Slow internal reforms<\/strong><\/strong><\/h2>\n\n\n\n

It was in 2019<\/a> that states decided that a root and branch review of the court was needed. The Independent Expert Review led by South African Justice Richard Goldstone exposed some ugly truths about the failures of parts of the Rome Statute system to operate effectively in dealing with atrocity crimes and poor morale in key areas like the Prosecutor\u2019s office. The reform process has been implemented by states, with reports to the Assembly of States Parties (ASP) every year. OSJI Goldston (no relation) notes that some reforms are trickling through \u2013 there\u2019s now a process of vetting for candidates for senior roles and judges have recently changed certain rules which now allow them to \u201cmove at a pace that at least more approximates the expectations of various stakeholders\u201d than before. <\/p>\n\n\n\n

But, he says, \u201cat the same time, I think there has not been sufficient progress in addressing what the independent expert review identified as a really challenging, very toxic environment internally for many staff of the court when it came to their work environment and the lack of trust that was exhibited apparently by many members of the staff, of the internal disciplinary processes and review processes that ostensibly existed to address concerns about harassment and hostility in the workplace. I just don't think we've seen enough progress in respect of that.\u201d<\/p>\n\n\n\n

Should Karim Khan step aside?<\/strong><\/strong><\/h2>\n\n\n\n

That continued poor work environment and the mistrust in the internal disciplinary procedures embodied in the court's own Independent Oversight Mechanism publicly erupted via a sexual misconduct allegation against the prosecutor himself. The alleged victim refused to cooperate with the court\u2019s investigators. Instead, members of Khan\u2019s office have leaked alleged elements of the situation to members of the media. The prosecutor has now agreed that an investigation is needed<\/a>. How independent it will be of the court and what it would cover, including any allegations of a smear campaign against him, are still unclear. <\/p>\n\n\n\n

Against that backdrop, several senior NGO figures have called for the prosecutor to temporarily step aside \u201cwhile such an investigation is proceeding without prejudice, of course, to his right to be presumed innocent and without taking any sides about the allegations that have emerged,\u201d says Goldston. \u201cThere's no reason why stepping aside and leaving it in the hands of his capable either one or both deputies and the staff that support them should in any way prejudice the progress of any continuing investigation or prosecution.\u201d<\/p>\n\n\n\n

Alix Vuillemin of Women\u2019s Initiatives for Gender Justice, whose organisation wrote jointly with FIDH<\/a> on this matter, agrees that \u201cthe best, perhaps the most gracious thing to happen would be for him to step aside for the moment. He's clearly indicated he won't. Perhaps we can help change his mind, since he took a very strict zero tolerance approach with his own staff, that could be a measure of fairness.\u201d<\/p>\n\n\n\n

\"\"
ICC prosecutor Karim Khan is facing allegations of sexual harassment; several NGO activists want him to step aside for the duration of the investigation. \u00a9 Shutterstock \/ Bumble Dee<\/figcaption><\/figure>\n\n\n\n

Vuillemin though points out the bigger picture \u2013 that \u201cthe rules around this issue are very vague\u201d. She recalls how the first ICC prosecutor Luis Moreno Ocampo advocated hard for the independence of his office from potential state interference and the court ended with a relatively weak internal oversight mechanism: \u201cAnd now we see the consequences of that\u201d. (Allegations of misconduct against Moreno Ocampo<\/a> were subject to an internal investigation whose conclusions were never disclosed.) It is also hard to see how a prosecutor would not be automatically weakened by having to step aside, and with him the whole institution.<\/p>\n\n\n\n

Victim\u2019s interest and outside influence<\/strong><\/strong><\/h2>\n\n\n\n

So what is the solution? \u201cIt's a very tricky question,\u201d says Vuillemin, because of the precedents that this may create, \u201cparticularly because, of course, of potential for politicisation and the risks that could come in in future\u201d.<\/p>\n\n\n\n

Under the Rome Statute<\/a>, states can remove a prosecutor by a majority secret ballot if they are \u201cfound to have committed serious misconduct or a serious breach of his or her duties\u201d. Instead of anything like such a drastic step, Vuillemin is \u201casking the states to focus on the allegations, and particularly being survivor-centred in all of this, not to be distracted by the politics around this, but to focus first on this particular situation. The system at the ICC to address these sorts of allegations may not be broken, but [it is] insufficient\u201d. <\/p>\n\n\n\n

As states are absorbing the flurry of judicial activity in the last few months at the court and especially the issuance of an arrest warrant against Netanyahu, there is a risk that any investigation into the man pressing for that arrest warrant, Karim Khan, could be politicised. At the moment observers say that the ASP\u2019s president P\u00e4ivi Kaukoranta is playing her cards close to her chest. <\/p>\n\n\n\n

Vuillemin says it should be up to external independent investigators as to where their inquiry leads. \u201cAny, good proper investigator or team of investigators will necessarily judge the credibility of the allegations,\u201d she says. \u201cThey will over the course of their work find out quickly enough if there's any reason to broaden the scope of their mandate. I cannot imagine that it would not be part of their terms to investigate potential outside influences,\u201d as Khan has suggested. <\/p>\n\n\n\n

Two separate issues<\/strong><\/strong><\/h2>\n\n\n\n

Stephen Rapp is the former US ambassador at large for war crimes, and a former chief prosecutor at UN tribunals. He sees the dangers of how the sexual misconduct allegations can be weaponised against the court\u2019s most sensitive investigation. \u201cThese are entirely separate issues,\u201d he emphasises. \u201cThe cases that the court pursues on every front should continue to be pursued at the same time as there is an appropriate investigation of alleged misconduct by Khan or if there are allegations against other persons.\u201d  <\/p>\n\n\n\n

But Goldston notes that the allegations are \u201calready are being used or misused in ways that are not helpful to the court\u201d. Nevertheless, he says, \u201cthe fact that enemies of the court are willing to misuse these kinds of allegations for their own purposes doesn't, in my view, mean that the prosecutor or the court itself should forgo what is the professionally and ethically responsible thing to do,\u201d which is, in his view, to step aside temporarily.<\/p>\n\n\n\n

Which budget for 2025?<\/strong><\/strong><\/h2>\n\n\n\n

Eventually the meat of the debates will be around the threats to the court and its functioning, and the budget needed for its work. <\/p>\n\n\n\n

\u201cThe baseline problem is that the court is operating in a situation of chronic underfunding,\u201d says Vignoli. After several years of a group of countries pushing for zero nominal growth, \u201cwhich was completely arbitrary,\u201d she says, since 2022 there's been \u201can acknowledgement that the workload of the court has increased. Some of the states that in the past were more stingy, less progressive in terms of the court's budget like France, Canada, the U.K., Japan, and Germany were being much more progressive. There have been budget increases over the past three years, but they have been overall minimal and they have not solved the underlying problem of chronic underfunding.\u201d<\/p>\n\n\n\n

This year, the Court has proposed an annual budget of 202,612,400 euros, representing an increase for 2025 of 19,113,200 (or 10.4 per cent) over the approved budget for 2024. But the Budget and Finance Committee concluded that a total increase of 6.6 per cent should be sufficient. <\/p>\n\n\n\n

The proliferation of special funds<\/strong><\/strong><\/h2>\n\n\n\n

A notable feature of the last couple of years has been the proliferation of special funds to support specific aspects of the court\u2019s work. \u201cWe are very wary about voluntary contributions overall,\u201d says Vignoli. \u201cTo start with there is a lack of transparency.\u201d When states decided to give some extras for the Ukraine investigation, the Office of the Prosecutor established a special trust fund and designated three areas to which the 33 million euros now raised is going<\/a>: improving the analysis of information, sexual and gender-based crimes along with those against children, and psychological support. But Vignoli is concerned there's little public information about \u201chow that money is used besides the three main buckets\u201d. A separate Trust Fund for cooperation was also established of some 125,000 euros for working with local justice actors in the Democratic Republic of Congo and capacity building at the Central African Republic special court. \u201cWe're not saying they shouldn't be there,\u201d says Vignoli. \u201cBut they have been used over the past few years to fill gaps that were left in the regular budget. And that is a problem because voluntary contributions are not meant to cover the core activities of the court.\u201d<\/p>\n\n\n\n

\u201cThere's also the issue of politicisation, when a minister of foreign affairs of State X makes a contribution and then says, we just gave X million for Ukraine or for Palestine. It's problematic in terms of perception.\u201d <\/p>\n\n\n\n

And there's an issue of sustainability. \u201cStates use this as an excuse to keep the general budget down. It creates this vicious cycle, where the court doesn't have enough, so asks for voluntary contributions. And then states say, look, we've given you voluntary contributions so we don't need to raise the budget. It's hard to break this cycle.\u201d<\/p>\n\n\n\n

US sanctions<\/strong><\/strong><\/h2>\n\n\n\n

With the arrest warrants announcement by ICC judges in the Palestine situation, the court now faces political fractures in the system. France has declared that it is not obliged to follow the ICC rulings on head of state immunity, and would not arrest Netanyahu if he visited Paris. There is also direct fire from across the US political spectrum, in defence of Israel\u2019s war. When Donald Trump was last in power in Washington between 2016 and 2020, his administration froze the assets<\/a> of the then-prosecutor Bensouda and a member of her staff.<\/p>\n\n\n\n

\"\"
Many observers expect the new Donald Trump administration, which takes office on January 20, 2025, and the Republican-majority US Congress to adopt sanctions against the International Criminal Court or its staff. \u00a9 AFP \/ Allison Robbert<\/figcaption><\/figure>\n\n\n\n

then-prosecutor Bensouda and a member of her staff.<\/p>\n\n\n\n

\u201cIt's a very fraught situation,\u201d says Goldston, who points out that \u201cthe incoming Senate majority leader has made clear his desire that the Congress act on that threat of sanctions as soon as it comes into being in January\u201d. And that \u201cthe Trump administration itself has the power to impose sanctions, by executive order, in addition to anything Congress does\u201d.<\/p>\n\n\n\n

Goldston warns of the potential consequences of sanctions: \u201cThe sanctions could be really a devastating blow to the court, simply because such sanctions in principle can essentially cut off the court's ability to function, its ability to retain and command and preserve the services of a variety of vendors, of banking services, of all kinds of things, or IT services, which are likely to have dollar components that run through the U.S.\u201d In addition, he says the court\u2019s cooperation agreements with a number of other states would be likely to suffer. <\/p>\n\n\n\n

\u201cWhen I was [U.S.] ambassador at large for six years [under Obama\u2019s administration], we worked very hard to become a \u2018non-party partner\u2019, and to work with the court on a case-by-case basis as our law allows,\u201d recalls Rapp. \u201cThat provided very specific assistance in bringing the two fugitives Bosco Ntaganda and Dominic Ongwen to the court. They surrendered to our officers, and we worked very hard to get them to the ICC, where to date they're the two strongest cases with the longest sentences of any of the six cases that have gone through trial and sentenced at the court. Frankly, these courts need that kind of assistance from states if they're going to be successful. Their own warrants, and their own orders are, in the end, meaningless without state cooperation, and that includes the cooperation of non-parties. And obviously, any effort to go after the court and to sanction its prosecutor or his staff or other arms of the court or the court itself would necessarily undermine that effort to achieve accountability for the crimes being committed in Ukraine.\u201d<\/p>\n\n\n\n

Other clouds on the horizon<\/strong><\/strong><\/h2>\n\n\n\n

Double standards are clear, Goldston stresses. \u201cIt was not long ago that some of the same people calling for sanctions [against the ICC] now in respect of Israel and Palestine were going out of their way to applaud the court for its work in respect of Ukraine and support charges against President Vladimir Putin of Russia. I think it is worth underscoring the fact that even in the narrower view of certain elected officials, this court serves an interest of addressing serious crimes in certain situations.\u201d<\/p>\n\n\n\n

What will the ASP actually do though? \u201cThe ASP is a very important platform and forum for states to express support for the work of the court, and explicitly condemn these threats, especially sanctions. But that's not enough. It will also be an opportunity to have conversations with EU countries to see where they are with active preparation and support,\u201d says Vignoli. <\/p>\n\n\n\n

Meanwhile, the court is also gearing up for a special review meeting on the fourth crime in the Rome Statute - that of aggression<\/a>. And Vanuatu along with other states wants to change the court\u2019s statute with a new crime of ecocide to be added. \u201cDefinitely we are going to talk about it and build support\u201d at the ASP, Vanuatu\u2019s special envoy on climate change Ralph Regenvanu told Justice Info. But he was not sure if now would be the best time to put the issue to a vote.<\/p>\n\n\n\n

Other huge clouds on the ICC\u2019s horizon include the limited functioning of the Trust Fund for Victims, the reparations arm of the Court. The Budget and Finance Committee complains that the Trust Fund still has not put a transparent fundraising strategy together. That is despite the awards made by the court\u2019s judges of more than 86 million euros for reparations in the cases of Ntaganda in the Democratic Republic of Congo and Ongwen in Uganda. <\/p>\n\n\n\n

And then there is concern that the courtrooms in The Hague are going to look growingly empty, even though the Prosecutor has been busy applying for arrest warrants, with arrests not happening (see our article tomorrow). <\/p>\n\n\n

\r\n\t\t\t\t\t\r\n\t\t\t
Recommended reading<\/div>\r\n\t\t\t
\"Karim<\/div><\/a>\r\n\t\t\t\r\n\t\t\tPressure mounts on the ICC\r\n\t\t<\/a>\r\n\t\t\r\n\t\t\t\t<\/div>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

The annual Assembly of States Parties of the International Criminal Court takes place in The Hague from December 2-7. 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