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The Law and Practice of the International Criminal Court edited by Stahn, Carsten (1st May 2015)

Part VI Impact, ‘Legacy’, and Lessons Learned, 50 A Look towards the Future—The ICC and ‘Lessons Learnt’

Philipp Ambach

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 February 2019

Subject(s):
International crimes — Universal international organizations — Regional organizations — NGOs (Non-Governmental Organizations) — Procedure

(p. 1277) 50  A Look towards the Future—The ICC and ‘Lessons Learnt’

50.1  Introduction

The establishment of the ICC in 2002 marks the hallmark of a dynamic process that had picked up pace in the early to mid-1990s with the inception of the ad hoc International Criminal Tribunals of the UN for the former Yugoslavia and Rwanda.1 However, the ICC was—and is—fundamentally distinct from the ad hoc Tribunals: while the latter started off as small pioneer units which grew successively over the years up to their completion in 2012 (ICTR) and 2013 (ICTY),2 the former was designed to become a global court from its inception.3 The Statute and Rules of Procedure and Evidence of the ICC4 are the result of a concerted thought process and valiant common effort of a great many states to create a court that could help ‘end impunity’.5

The present contribution focuses on some of the Court’s major future challenges, and initiatives to improve the efficient management of criminal proceedings. I will first address challenges and strategies in relation to macro issues in the ICC’s focus: (i) global membership; (ii) cooperation; (iii) complementarity; (iv) judicial integrity; and (v) efficiency of proceedings, before addressing specific features of the ‘Lessons Learnt’ initiative which was established in 2011 to assess the functioning of the ICC’s procedural framework and look into possible improvements.6 In conclusion, the lessons learnt initiative is brought into context with the Court’s other challenges.

(p. 1278) 50.2  Operational Challenges of the ICC

The main challenges of the ICC can be broadly subdivided into two clusters: (i) challenges of a heteronomous nature where the Court’s main stakeholders, the States Parties, are called upon in the first place to continue to put the ICC on the map and the ICC’s direct influence to meaningfully tackle these challenges on its own is limited; and (ii) challenges that lie more within the institution’s own risk and responsibility sphere. Both of them are discussed here.

50.2.1  Global membership

Increasing membership is crucial for the Rome Statute system to increase its jurisdictional reach and eventually achieve universal jurisdictional coverage.7 Failing broad membership, the Court’s territorial jurisdiction remains limited8 and a number of conflicts (and consequently perpetrators of the gravest crimes) remain outside the Court’s reach.9 Limited global reach and at times political rather than judicial dynamics in the Security Council leave room for accusations of selectivity in the Court’s operations.

With 123 States Parties to the Court after 12 years of operations, more than 70 states have yet to join, including the world’s most populous countries, such as China, India, the United States, Indonesia, and Russia. A majority of the world’s population therefore remains outside the Rome Statute’s legal protection and limits the reach and applicability of its provisions. In a geopolitical context where many states are facing economic challenges and, often coupled with that, internal political instability, the interest to engage in supranational justice efforts, which some view as further eroding the traditional image of state sovereignty,10 is limited. While the territorial coverage of the Rome Statute is fairly advanced on the European and American continents, approximately a third of African States and as many as two-thirds of Asia-Pacific states have yet to join the ICC. The slowing pace in ratifications in recent years11 can be explained by the fact that nearly all states that intended to join from the beginning have done so by now. However, ICC accession remains a challenge in (p. 1279) relation to the many non-States Parties that have not yet ratified the Rome Statute because of the sheer absence of lawmakers taking action and not for reasons of opposition to the ICC.

The ASP (Assembly)12 as the ‘parent body’ of the ICC engages, through its Bureau,13 in a variety of efforts with signatories and non-States Parties with a view to informing them, resolving misunderstandings, and overcoming institutional as well as political obstacles to joining the Rome Statute system.14 But efforts and initiatives by the Assembly and the Court, where appropriate, are insufficient. Increasing the universality of the Rome Statute in the future will require coordinated awareness-raising and advocacy from a wide range of other actors such as States Parties, civil society, regional and international organizations, and professional associations,15 especially at a time where political consensus is hard to find in the highest international echelons to provide immediate crisis relief and protection of civilians in ongoing armed conflicts.16

50.2.2  Cooperation

A second major challenge for the credibility and strength of the ICC in its operations is the cooperation of states with the Court and the enforcement of its orders through national authorities. In the absence of a police force of its own, the ICC is bound to rely on states to execute any judicial order that entails an enforcement-related function, most importantly its arrest warrants, but also measures to obtain evidence, the appearance of witnesses, and the freezing and seizing of assets.17 The Court is ever (p. 1280) more in need of state cooperation because its increasing number of cases generates a fast-growing number of witnesses requiring protection.18 While a number of framework agreements exist between the Court and States Parties on both the enforcement of sentences and the relocation of witnesses,19 cooperation efforts have to remain strong to cater for the expected growing needs in the future.

In the past few years, cooperation between the ICC and States Parties as well as non-States Parties20 has intensified. Yet, it is not unproblematic, particularly in situations where the OTP is investigating or prosecuting representatives of the very same regime from which cooperation is sought.21 At worst, cooperation is not forthcoming at all—several suspects subject to ICC arrest warrants in a number of situations have successfully evaded arrest for many years and continue to do so.22 In this regard, it is important that the States Parties collectively hold each other accountable for compliance with the ICC’s cooperation regime—a treaty obligation that applies to each of them in the same manner. Failure to cooperate should not pass without consequences and the Court’s jurisprudence provides the ground for subsequent actions amongst the States Parties.23 In this respect, the Assembly has created a means to encourage cooperation through the non-cooperation procedures adopted at its eleventh session.24 As for the cooperation duties of (non-Member) States in situations before the ICC through a UN Security Council referral, a more proactive role of the latter is needed to remind states of those duties which, in those cases, stem directly from the UN Charter.25

(p. 1281) 50.2.3  Complementarity

The primacy of national jurisdictions, and in consequence the complementary role of the ICC, is one of the core features of the Rome system that requires further attention. The first pillar of complementarity, i.e. the judicial pillar, relates to the choice of the proper forum of jurisdiction. According to Article 17 of the Rome Statute, a case is admissible before the ICC only when a state with jurisdiction over the crime(s) in question ‘is unwilling or unable genuinely to carry out the investigation or prosecution’.26 There was an initial fear that the Court would interpret the admissibility threshold overly restrictively in order to keep any case once received in its docket in an effort of self-preservation.27 But such tensions have been mitigated. In particular, the Libya cases have shown that the system works in both directions.28

The second pillar of complementarity is ‘positive’ partnership and mutual assistance between the Court and its stakeholders, as well as between stakeholders.29 A key element is the strengthening of national justice systems, including implementation of the Rome Statute in domestic jurisdictions. The role of the ICC itself in the strengthening and capacity building of national judiciaries is, however, very limited.30 While a substantial number of States Parties have taken action or are in the process of passing necessary legislation, more can and needs to be done. In order to safeguard a professional and independent national judiciary, a number of key elements are fundamental: investigators with skills and resources; functioning witness protection facilities; guarantees for a proper defence; financial resources; judges’ and prosecutors’ know-how; and finally, the political will to bring perpetrators to justice.31 This is where initiatives and efforts need to concentrate on strengthening national capacities and encouraging local ownership of domestic judicial proceedings.

(p. 1282) Capacity-building programmes supported by States Parties, United Nations bodies, and civil society32 are instrumental in building a solid network of states that can help each other strengthen and, where necessary, reform their national judicial systems.33

50.2.4  Judicial integrity

A fourth critical challenge for the Court is to maintain judicial integrity in the geopolitical environment it operates. The Court is part of a broader institutional landscape, including international and national political actors, such as the UN Security Council and other UN bodies, the AU, regional organizations, and national governments. The ICC must establish its place amongst these bodies while preserving its independence from the influence of national and international political actors around it. This is not always simple, as the Court’s options to respond to politically motivated attempts to undermine its institutional legitimacy are limited: in its ongoing proceedings the ICC is restricted to providing factual information only.34 In addition, the prosecutor, while having slightly more liberty to publicly comment upon current issues of relevance, needs to be reflective of her statutory mandate as an independent and impartial organ of justice.35 In its existing operations, the Court has countered external political pressure, including from the US Administration in the ICC’s earlier days36 and regarding proceedings against African heads of states.37 If and where changes of the ICC’s legal framework are postulated in order to adapt the Court’s operations to political realities, caution is warranted. Any such change needs to be properly reflected in an abstract manner and should not merely serve as a response to what is perceived as a concrete dilemma, possibly flanked by political pressure.38

(p. 1283) 50.2.5  Efficient management of judicial proceedings

A fifth challenge relates to the management of proceedings. International trials are, and will always be, comparatively slow in relation to ordinary national trials; the sheer size of international trials with multiple crime sites, a high number of distinct charges, often more than 50 witnesses per case, and thousands of pages of documentation submitted as evidence requires significant time and resources. This is exacerbated by the high complexity of these proceedings with perpetrators often far detached from the actual crimes on the ground, leading to a high degree of legal and factual complication. These factors have led to trial phases in international criminal tribunals that lasted for years.39 The ICC is no exception in this regard.40

Another factor adding to the length of proceedings is the fact that the ICC operates in areas of conflict, which generates security obstacles for investigators and other ICC personnel in the field. Carrying investigations against all parties to a conflict in which atrocities have been committed41 may lead to decreased cooperation by state authorities implicated in crimes.42 Another factor adding to the complexity of proceedings is the ICC’s victim participation regime.43 Participation is only vaguely defined in the Statute and has created a great amount of diverse jurisprudence by the Chambers as to its handling.44 On the technical level, both the Court’s Registry and Chambers are exploring ways to optimize the participation procedure in the different stages of proceedings.45

In addition, the ICC procedural regime contains a number of unresolved issues. Uncertainties remain in relation to the standard of evidence used in the pre-trial phase prior to submitting the case to trial;46 the general treatment of evidence;47 the (p. 1284) issue of in situ trials pursuant to Rule 100 of the Rules;48 the modification of the legal characterization of facts pursuant to Regulation 55 of the Regulations of the Court;49 and the application of Article 75 of the Rome Statute on reparations to victims;50 but also the fundamental question regarding the procedural relationship between the pre-trial and trial phases—just to name a few.

Increasing the efficiency of the criminal process requires a number of measures. Inefficient and/or repetitive processes have to be identified, relevant statutory provisions have to be assessed, and solutions have to be formulated. Some problems may be solved through a simple change or streamlining of procedural practice between the chambers and judicial divisions.51 Others may require a change of a Rule or even a provision of the Rome Statute.

50.3  The ICC’s ‘Lessons Learnt’ Initiative to Increase the Efficiency of its Criminal Process

The ICC’s Principals have made it clear to their stakeholders—most prominently at the twelfth session of the Assembly in December 201352—that enhancing the efficiency of its operations is a major priority of the Court. Towards the end of the judicial cycle on trial of the first case before the Court in the Lubanga case,53 the Court embarked on a ‘lessons learnt’ process regarding the efficiency of judicial proceedings, in close cooperation with States Parties.54

(p. 1285) 50.3.1  Initial States Parties initiatives to increase the efficiency of Court operations

In 2010 dialogue started between the Court and States Parties in light of the perceived need to take stock of the institutional framework of the Rome Statute system, focusing on the efficiency and effectiveness of the Court in its operations.

As a result of these informal discussions between the Court and States Parties, the Assembly issued a resolution at its ninth session in December 2010 in which it emphasized that enhancing the efficiency and effectiveness of the Court is of a ‘common interest both for the Assembly … and the Court’.55 The Assembly stressed the ‘need to conduct a structured dialogue between States Parties and the Court with a view to strengthening the institutional framework of the Rome Statute system and enhancing the efficiency and effectiveness of the Court while fully preserving its judicial independence’, and asked the Court to engage in such a dialogue with States Parties.56

The Assembly then established a study group on governance issues (Study Group)57 within its ‘Hague Working Group’58 to facilitate the aforementioned dialogue with a view to ‘identifying issues where further action is required’ in consultation with the Court, and formulating recommendations to the Assembly through its Bureau.59 The Assembly initially gave a mandate to this Study Group for a period of one year.60 The Study Group consists of representatives of States Parties; representatives of the organs of the Court are regularly invited. Court-external stakeholders such as representatives of Counsel and the NGO-community may also take part as appropriate.

As a result of the Study Group’s first year of work, the first amendment of the Court’s regulatory framework was proposed to the Assembly pursuant to Article 51(2) of the Rome Statute:61 the amendment of Rule 4 and the addition of Rule 4bis to the Rules, transferring the decision on the assignment of judges to the judicial divisions from the plenary of judges to the Presidency.62 At the same time, the focus of the Study Group was trained on the issue of expediting the criminal process.63

(p. 1286) 50.3.2  The ICC’s ‘lessons learnt’ exercise

Further to the initial discussions in the Study Group in 2011, the Presidency of the Court decided to tackle the issue of increasing the efficiency of the criminal process in a systematic and sustainable fashion. As a first step, it communicated to states the Court’s intention to conduct a thorough ‘lessons learnt’ exercise during 2012 in light of the experience of the first trials once a judicial cycle has been finished (at least for the trial phase), with a view to identifying potential improvements in current procedures. This initiative was endorsed by states as well as subsequently by the Assembly.64 It was agreed that such a mechanism would become a channel between the Court and States Parties to achieve appropriate changes, where necessary, to the legal framework of the Court.65 The Presidency indicated that the Advisory Committee of Legal Texts (ACLT), established pursuant to Regulation 4 of Regulations of the Court,66 would be the proper body to address such issues, as it comprises all parties concerned, including representatives of the OTP and Counsel before the Court.67

50.3.2.1  Identification of legal issues

Throughout 2012 the Court and States Parties agreed that with the conclusion of the Lubanga case before Trial Chamber I,68 sufficient courtroom practice had developed to conduct a substantive review of the Court’s criminal process. It was agreed that as a starting point, the Court would identify areas of importance requiring further consideration;69 it was further agreed to focus on the ICC Rules of Procedure and Evidence.70

In order to identify such issues, judges were invited by the Presidency to submit their individual ideas and suggestions, together with proposed solutions. In response, several judges identified issues and recommended solutions, either by suggesting the standardization of best practices or proposing amendments to the legal framework.71 (p. 1287) This list was discussed and revised with input from all organs of the Court and a representative of defence/victims’ counsel. As a result, a list of legal/institutional issues to expedite proceedings and enhance their quality (List) was finalized.72 The List does not contain any concrete proposals regarding Rule changes, but rather provides topical areas where it was considered by the Court that a Rule amendment would in all likelihood be required in order to meaningfully affect proceedings for the better.73 The List outlines 9 clusters and 24 sub-clusters of distinct issues. The nine clusters identified are as follows:74

  • Pre-Trial, including issues such as the format and content of the confirmation of charges decision; the necessary degree of precision of the legal characterization of facts and modes of liability; and the question of hearing witnesses during the confirmation hearing;

  • The relationship between pre-trial and trial, including the issue of standardization of processes between the divisions (disclosure, redactions, a common case record, etc.); a common approach on the relevance and admissibility of evidence, including its format of presentation; and a trial chamber’s possibility to introduce previously recorded reliable testimony;75

  • Specifically in relation to trial, the possibility to have a single judge handling the preparatory stages of the trial up to the beginning of the hearings;76

  • On victim participation and reparations, the general need to streamline and harmonize the system (both regarding the application and participation) across all phases of the proceedings was identified; and whether principles on reparations should be addressed in a court-wide document or should be further developed on a case-by-case basis; and whether reparation proceedings may be dealt with by a single judge;

  • On appeals, issues of streamlining/simplifying processes were raised, e.g. the current certification procedure for certain interlocutory appeals77 as well as the general processing of interlocutory appeals;

  • On interim release, the question of alternative options to the requirement to consult relevant states before granting interim release to an accused;

  • The possibility of simplifying the procedure for designating an alternative seat of the Court for the proceedings;78

  • (p. 1288) On language issues, the extent to which witness statements and other documents need to be translated; a possible simplification of the transcription system79 as well as measures to streamline the transcript review system; and finally,

  • Organizational matters, including options to facilitate the movement of judges between all three divisions within the remit of Article 39 of the Rome Statute; the possibility for a chamber to sit temporarily with only two judges (e.g. in the case of illness or temporary unavailability); and issues regarding judges’ mandate extensions under Article 36(10) of the Rome Statute.80

In order to facilitate internal discussions regarding possible Rule amendments based on the List, the Court established its ‘Working Group on Lessons Learnt’ (‘WGLL’), comprising a number of interested judges under the leadership of Vice-President Sanji Monageng. The WGLL is designed to determine whether amendments to the Rules are required for a particular issue and to elaborate concrete proposals to the ACLT and the Study Group as a primary source of recommendations. At the start of 2013 the WGLL decided, on the basis of the judicial experience of the Court at that stage, to focus on three of the clusters identified in the List: Pre-trial; Pre-trial and trial relationship; and the seat of the Court.81 The amended Rules 68 and 100 of the Rules82 are a direct result of this prioritization.83

50.3.2.2  The Roadmap

Upon creation of the WGLL and the finalization of the List in mid-2012, States Parties indicated that they also expected to receive a minimum number of detailed amendment proposals to the Rules, as well as an outline of the procedure the Court intends to follow during the lessons learnt process.84

Some might have expected that the Court would soon be in a position to provide periodic suggestions for Rule amendments, following the example of the UN ad hoc Tribunals where multiple provisions of the Tribunals’ Rules of Procedure and Evidence were amended on a rolling basis throughout the year. However, it is evident from the Court’s institutional framework that there are considerable institutional obstacles to changes to either the Rules or the Statute, as both instruments were drafted and adopted by the States Parties and any amendment requires their approval and adoption.85 To begin with, the ICC Statute and Rules are considerably more detailed than the regulatory framework of the UN ad hoc Tribunals,86 due to the desire of states to (p. 1289) create a comprehensive, stable, and sufficiently rigid legal framework from the very start.87 While in the context of the UN ad hoc Tribunals, the Security Council left the judges with a considerable amount of legislative freedom and authority in that it was conferred upon the judges to adopt—and amend—their respective rules of procedure and evidence,88 no such liberty was given to the ICC judges: pursuant to Article 51 of the Rome Statute, the adoption as well as any amendments to the Rules are within the remit of the Assembly. This means that amendments to the Rules in the same volume and frequency as carried out by the UN ad hoc Tribunals was not foreseen by the founding fathers of the Rome Statute.

Regarding amendments to the Rome Statute, the procedure, governed by Articles 121 and 122 of the Rome Statute, is even more difficult. Article 121 as the default provision for Statute amendments stipulates a very high threshold for any amendment, requiring the ratification or acceptance by seven-eighths of all States Parties for an amendment to enter into force.89 For any amendments to the crimes themselves, the regime is even more restrictive.90 Only regarding amendments to a predefined set of provisions of an institutional nature can a mere two-thirds majority suffice (Article 122 of the Rome Statute).91 It follows that any change of the ICC regulatory framework regarding the Statute or Rules is by definition a lengthy process necessarily involving rounds of consultations not only amongst the organs of the Court internally but also amongst the Court’s constituency, comprised of no less than 122 states at present.

Mindful of these statutory obstacles to amendments to the framework, the Assembly noted in 2012 that amendments to the Statute did not constitute a feasible means, at this stage, to provide timely redress to any problems relating to criminal procedure. The Assembly also noted that states, as the custodians of the Rome Statute, had a privileged role, both directly and indirectly under Article 51 of the Statute, in ensuring that any proposals were in accordance with the overarching strategic and policy considerations of the Rome Statute.92

During the Court’s prioritization exercise of legal items warranting institutional amendment, it transpired, however, that the Court’s statutory and regulatory framework did not provide an appropriate platform for the Court and States Parties to have a structured dialogue on possible recommendations to amend the Rules.93 The Court therefore drew up a roadmap (Roadmap) of steps to be taken to ensure timely discussions and actions to bring any such proposal to the attention of States Parties for a possible adoption at the ASP at year-end. The Roadmap tasked the WGLL to assess (p. 1290) from the issues identified in the List whether amendments to the Rules are required.94 If a need to amend a Rule is identified, the WGLL drafts necessary proposals for amendments, including an explanatory note, and transmits it to the ACLT for further consultation.95 If accepted by the ACLT, the proposal is transmitted to states in the Study Group and from there eventually to the Assembly.96

In reaction to this, the Assembly held that, without prejudice to Article 51 of the Statute, states ‘were encouraged to engage via the Roadmap, so as to avoid a disparate and unstructured approach to any proposals on amending the Rules’.97 It was understood that this process was long term in outlook and that if the need arose over time, the Roadmap could be amended.98 Consequently, the Roadmap and its implementation remained under review throughout 2013; by the end of that year, an amended, more flexible Roadmap was adopted by the Assembly.99

As a concrete example of an amendment proposal following the procedure established through the Roadmap, the Court proposed the addition of Rule 132bis to the Rules enabling the Court to designate a single judge for the preparation of trial.100 Further amendment proposals that had been established through the Roadmap followed in 2013, regarding Rule 68 (Prior Recorded Testimony)101 and Rule 100 of the Rules (Place of the Proceedings).102 The proposals were subsequently adopted by the Assembly.103

50.3.3  Activities

50.3.3.1  Rule changes at the twelfth ASP

The Assembly of 2013 has demonstrated that the Roadmap still remains only one of many possible ways to put forward and bring to adoption amendment proposals for (p. 1291) the Rules. To be sure, Article 51(2) of the Statute foresees that amendments to the Rules may be brought forward by any State Party, the judges acting by an absolute majority, or the prosecutor. States’ rationale to engage via the Roadmap so as to avoid a ‘disparate and unstructured approach to any proposals on amending the Rules’104 was only partly followed in 2013. While amendments of Rules 68 and 100 were brought before the Assembly following the Roadmap,105 proposals regarding Rules 134bis, 134ter, and 134quater regarding an accused’s presence at trial were brought before the Assembly by States Parties without any meaningful involvement of the Study Group, let alone the Court. It is noteworthy that the latter amendment proposals were the reaction of states to the Situation in the Republic of Kenya before the ICC.106 Previous judicial developments in ongoing cases in this Situation had brought up the issue of the accused’s presence at trial and the interpretation of Article 63(1) of the Statute,107 in particular with regard to persons ‘mandated to fulfill extraordinary public duties at the highest national level’.108

The problem would appear to lie in the fact that there is a general rule for law-makers not to devise an abstract-general legal provision in order to fit the circumstances of a specific case. Such a procedure generally entails many risks, including fragmentation of the relevant legal text, possibly even its incoherence, as well as a loss of the abstract-general character constitutive of a law that is meant to apply to any situation regardless of specifics which have consciously been considered irrelevant for its application. It remains to be hoped that developments at the 12th ASP in November 2013 have not created a precedent devaluing the Roadmap in its revised form as it was adopted by States Parties during that very same Assembly meeting.109

50.3.3.2  Other initiatives

The revised Roadmap foresees interaction between the Court and states to thoroughly reflect upon every proposal prior to submission for adoption by the Assembly at year-end. Further, the Study Group expressed an interest to take note, where appropriate, of the relevant work by external stakeholders.110

(p. 1292) In 2014 the WGLL has prepared and submitted to the Study Group a new cycle of proposals to amend the Rules with a view to achieving efficiency gains. Thus far, it has proposed an amendment permitting a trial chamber to continue carrying out its functions, under limited circumstances, if a judge of the chamber is temporarily absent for unforeseen urgent personal reasons.111 The WGLL has simultaneously expanded its focus to an examination of translation issues under the ‘language issues’ cluster and proposed a series of amendments.112

Concomitantly, the Court has intensified efforts to analyse and identify key issues under the ‘Pre-trial’ cluster and the ‘Pre-trial and trial relationship and common issues’ cluster. These issues are not only highly technical but also result from the combination of the common law and Romano-Germanic legal traditions which form the basis of the judicial procedures established by the Rome Statute. Discussions between Pre-Trial and Trial Division judges have focused on issues of disclosure, additional evidence at trial, presentation of evidence, the record of proceedings, and witness protection.113 In this process, the ICC is well advised to take a conservative approach—only where a Rule change is considered indispensable should the Court propose an amendment. In some instances, a technical solution can be found short of changing the written procedural framework.114 An all too ambitious approach of changing Rules may deprive this legal instrument of the stability that Article 51 of the Rome Statute meant to confer upon it.115

Finally, the WGLL has been coordinating an initial series of consultations, beginning with the Registry, related to the Victim Participation and Reparations cluster. Issues are being identified regarding the Court’s regime of victim participation in the proceedings, including with respect to the use of application forms. It is understood that the different prevailing victim participation regimes across the chambers and divisions116 should ideally be harmonized, mindful, however, of the conditions specific to each and every case. Victim participation in the proceedings (p. 1293) is a highly sensitive issue, as it contains fundamental elements of the ICC’s restorative justice function. It is therefore imperative to consult extensively and thoroughly with all major stakeholders to the proceedings with a view to determining whether amendments to the Rules may be warranted in order to harmonize the system.

50.4  Conclusion

The ICC has come a long way in the past decade, but a number of major challenges will have to be vigorously tackled in order to make headway. Challenges are heavily shaped by external factors and players, particularly in the areas of universality, cooperation, and complementarity. A number of measures can be taken to improve the status quo.

In order to increase membership and improve the relationship to non-States Parties, the Assembly, as well as States Parties, could intensify their dialogue with major non-States Parties, encouraging the latter to identify reasons for non-ratification so that misunderstandings and administrative obstacles can be addressed. States Parties who are in regional partnerships could use these political fora to encourage ratification, be that vis-à-vis members of the regional group which are non-States Parties, or initiatives as a regional group directed at third states (e.g. the European Union).117 In the UN system, the UPR process at the UN Human Rights Council could be used as a platform for States Parties to issue periodic recommendations to others to join the Rome Statute. Finally, the Assembly, through its President,118 in addition to being an active focal point,119 could take further action to encourage States Parties, international/regional organizations, as well as NGOs to organize targeted workshops and conferences with a view to informing and engaging non-States Parties that are considering ratification.120

Additional steps can be taken to enhance cooperation. One measure is the establishment of a standard operating procedure (on technical details, logistics, lines of communication, specificity of cooperation requests, country-related specifics, etc.), (p. 1294) in cooperation between the ICC and the Assembly focal point. State-to-state assistance by States Parties could be enhanced through regular interaction with the Court and other states as to the logistics and structural issues of cooperation under Part IX and X of the Rome Statute. Moreover, incentives for compliance might be strengthened through organized and targeted (political and diplomatic) pressure by supportive States Parties on States (Parties) who fail to cooperate, and strict application of the Assembly’s non-cooperation procedure121 and continuous assessment of its effectiveness.

Domestic implementation of the Rome Statute can be enhanced through further technical assistance. For instance, States Parties who have successfully enacted Rome Statute provisions in their national legislation can actively assist other States Parties in need. The Assembly could strengthen the role of its focal point and enhance its assistance portfolio. Useful measures might include the creation of databases including pertinent documentation and the issuance of a handbook on steps and legal guidelines on how best to enact Rome Statute provisions into national legislation and strengthen the local judicial infrastructure.

In relation to the efficiency of the ICC’s criminal process, the Court together with States Parties have created a useful mechanism to tackle some of the most relevant challenges in an efficient manner. The Roadmap is based on two premises that are fundamental to a meaningful process and results:

  1. i.  First, that generally states prefer to reach agreement on the amendment of Rules: (i) based on the expertise and wisdom of the principal user, the Court itself; (ii) in an orderly and formalized process, including the consultation of all relevant stakeholders; and (iii) at a pace that provides for due reflection and assures that no hasty fixes are inserted into the Rules for a concrete situation at hand.122

  2. ii.  Second, that Rome Statute amendments are not being discussed at this stage.123 To achieve a sustainable streamlining of the criminal process in a reasonable time frame, it is—for the time being—most conducive to focus on the assessment of current procedural practices and regulations and, as the next higher set of norms in the Court’s regulatory framework, its Rules of Procedure and Evidence, while leaving out Rome Statute provisions for the time being. Discussing Rome Statute provisions bears risks. Apart from re-assessing Rome Statute provisions which may in hindsight benefit from some clarifying language, many other provisions can be expected to be brought back to the discussion table—provisions like Article 27 of the Rome Statute on the absence of head-of-state immunity for (p. 1295) international crimes before an international court which contains established wisdom and an agreed legal standard since Nuremberg.124

The Study Group’s operations have illustrated that the call by some for quick results in the shape of multiple amendments of the Rules on a rolling basis throughout a year proved overly ambitious. The preparatory involvement of all essential stakeholders dictates a certain—slow—speed at which results can be achieved. From the standpoint of those who wanted to create a rather rigid, solid Rome Statute system not subject to hasty changes in its procedural framework, this is a welcome feature.

Ultimately, when considering the future of the ICC, it is important to keep in mind what Chief Prosecutor Robert Jackson said in 1946 in his opening statement before the IMT in Nuremberg: ‘The usefulness of this effort to do justice is not to be measured by considering the law or your judgment in isolation. This trial is part of the great effort to make the peace more secure.’125(p. 1296)

Footnotes:

Dr Philipp Ambach is Special Assistant to the President of the ICC. Previously, he worked as an Associate Legal Officer in the Appeals Chamber of the ICTY and ICTR, after having been admitted as Prosecutor in the OTP of Cologne, Germany.

1  ICTY, under <http://www.icty.org>; and ICTR, under <http://www.ictr.org>; in the following when mentioned together: ad hoc Tribunals.

2  Operations of ICTY and ICTR are gradually being transferred to the United Nations Mechanism for International Criminal Tribunals (MICT), which has been established to carry out a number of essential functions of the ICTR and ICTY after the completion of their respective mandates. The MICT is tasked with (i) continuing the ‘jurisdiction, rights and obligations and essential functions’ (UNSC Res 1966 (22 December 2010) UN Doc S/RES/1966) of the ICTR and the ICTY, and (ii) maintaining the legacy of both institutions. See under <http://www.unmict.org/index.html>.

3  See for instance the Draft Programme Budget for 2005, ICC-ASP/3/2, 26 July 2004 (Third Session of the ASP), paras 100 and 141.

4  Rome Statute of the ICC (signed 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (‘ICC Statute’); Rules of Procedure and Evidence, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–10 September 2002 (ICC-ASP/1/3 and Corr.1), part II.A (adopted and entered into force 9 September 2002) (‘ICC RPE’).

5  See Preamble ICC Statute.

6  Study Group on Governance: Lessons learnt: First report of the Court to the Assembly of States Parties, ICC-ASP/11/31/Add.1, 23 October 2012 (Eleventh Session of the ASP) (‘First Report’), para. 13.

7  Preamble ICC Statute, paras 3 and 5: ‘Recognizing that such grave crimes threaten the peace, security and well-being of the world’; ‘Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’ (emphasis added).

8  Art 12(2) ICC Statute.

9  While the UN Security Council can—in theory—override concerns of the ICC’s limited jurisdiction through its referral power under Art 13(b) ICC Statute, the Security Council remains a political body and its decisions (or, at times, the absence thereof) consequently risk bearing political impetus. Most illustratively, the question has been asked repeatedly why the Security Council—unanimously—referred the situation in Libya which led to the fall of the Gaddafi regime without much ado to the ICC, whereas hundreds of thousands of Syrian victims are waiting for a similar resolution of the Security Council to the present day.

10  G Werle, Principles of International Criminal Law 2nd edn (The Hague: T M C Asser Press 2009) , Part One, paras 2 ff, 90, and 126.

11  This development is reflected in the accessions to the Rome Statute: from four in 2010 and six in 2011 to only one State joining in 2012 and another in 2013; 2014 has seen no accession to date; see <http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the% 20rome%20statute.aspx> accessed 13 August 2014.

12  The Assembly is the collective body of the ICC’s States Parties and the governing body of the ICC with a number of management oversight functions; see Art 112 ICC Statute. It is also the Assembly that decides on amendments to the Rome Statute, see Arts 121 and 122.

13  The Bureau is established pursuant to Art 112(3) ICC Statute. As for its work on universality see Report of the Bureau on the Plan of Action for Achieving Universality and Full Implementation of the Rome Statute of the International Criminal Court, ICC-ASP/11/26, 9 November 2012 (Eleventh Session of the ASP).

14  Recent initiatives include the appointment of several States Parties as co-focal points for the ‘Plan of action of the Assembly of States Parties for achieving universality and full implementation of the Rome Statute of the International Criminal Court’. See Report of the Bureau on the Plan of Action for Achieving Universality and Full Implementation of the Rome Statute of the International Criminal Court, ICC-ASP/12/26, 15 November 2013 (Twelfth Session of the ASP).

15  See e.g. the Universal Periodic Review (UPR) at the UN Human Rights Council, which also provides a platform for States Parties to make recommendations to other States regarding the ratification or implementation of the Rome Statute: Universal Periodic Review provides opportunity to promote ICC, Coalition for the ICC (20 May 2014) <http://ciccglobaljustice.wordpress.com/2014/05/20/universal-periodic-review-provides-opportunity-to-promote-icc/> accessed 13 August 2008.

16  A very blatant example is the inaction of the UNSC during a long period of reported massive human rights abuses and attacks on civilians in the ongoing armed conflict in Syria. See UNSC Res 2043 (21 April 2012) UN Doc S/RES/2043, establishing a United Nations Supervision Mission in Syria (UNSMIS) deploying unarmed military observers; and UNSC Res 2118 (27 September 2013) UN Doc S/RES/2118 on the destruction of Syrian chemical weapons; see generally at <http://www.securitycouncilreport.org/syria/> accessed 13 August 2014.

17  Fundamentally, Art 86 ICC Statute stipulates a general obligation of States Parties to cooperate with the Court in its investigative and prosecutorial activities. Arts 89 and 92 ICC Statute govern the arrest warrant-related cooperation. See further Arts 15(2), 54(3)(c), 93, 96, and 99. See also C Kress et al., ‘Part 9—International Cooperation and Judicial Assistance—Preliminary Remarks’ in O Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court—Observers’ Notes, Article by Article 2nd edn (München: C H Beck 2008) 1.

18  Issues such as the enforcement of sentences and the relocation of witnesses are subject to voluntary cooperation of States and the ICC needs to establish cooperation through framework agreements with states that are willing.

19  The last agreement on the enforcement of sentences dates from July 2012 (Agreement between the Kingdom of Denmark and the International Criminal Court on the Enforcement of Sentences of the International Criminal Court (adopted 1 June 2010, entered into force 5 July 2012) Official Journal of the International Court, ICC-PRES/12-02-12). See the Official Journal of the International Criminal Court for the current number of agreements <http://www.icc-cpi.int/en_menus/icc/legal%20texts%20and%20tools/official%20journal/Pages/index.aspx>. Agreements on witness protection remain confidential.

20  See Art 87(5) ICC Statute. See also Z Wenqi, ‘On Co-operation by States Not Party to the International Criminal Court’ (2006) 88 International Review of the Red Cross 87, 88f.

21  See only Decision on Prosecution’s Applications for a Finding of Non-Compliance Pursuant to Art 87(7) and for an Adjournment of the Provisional Trial Date, Kenyatta, Situation in the Republic of Kenya, ICC-01/09-02/11-908, TC V(B), ICC, 31 March 2014, paras 92–5.

22  At present, as many as 12 suspects sought with a warrant of arrest remain in abeyance. See <http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx> accessed 13 August 2014.

23  Decision Pursuant to Art 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Al Bashir, Situation in Darfur, Sudan, ICC-02/05-01/09-139, PTC I, ICC, 12 December 2011; and Decision Pursuant to Art 87(7) of the Rome Statute on the Refusal of the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Al Bashir, Situation in Darfur, Sudan, ICC-02/05-01/09-140, PTC I, ICC, 13 December 2011.

24  Assembly Procedures Relating to Non-Cooperation, ICC-ASP/10/Res.5, Annex, 21 December 2011 (Ninth Plenary Meeting of the ASP), 420. See also Report of the Bureau on Non-Cooperation, ICC-ASP/11/29, 1 November 2012 (Eleventh Session of the ASP). See for both <http://www.icc-cpi.int/en_menus/asp/non-cooperation/Pages/default.aspx> accessed 13 August 2014.

25  Decision Regarding the Visit of Omar Hassan Ahmad Al Bashir to the Federal Republic of Ethiopia, Al Bashir, Situation in Darfur, Sudan, ICC-02/05-01/09-199, PTC II, ICC, 29 April 2014, para. 12. See also D Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’ (2009) 7 Journal of International Criminal 335.

26  Art 17(1)(a) ICC Statute.

27  See P Bernhard Jr., ‘The Paradox of Institutional Conversion: The Evolution of Complementarity in the International Criminal Court’ (2011) 1 International Journal of Humanities and Social Science 203.

28  The Appeals Chamber confirmed a decision of the Pre-Trial Chamber in the Libya situation declaring the case of Mr Abdullah Al-Senussi inadmissible before the ICC on the grounds that domestic proceedings are under way and that Libya was willing and able genuinely to carry out such proceedings. Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the Admissibility of the Case against Abdullah Al-Senussi’, Gaddafi and Al-Senussi, Situation in Libya, ICC-01/11-01/11-565, AC, ICC, 24 July 2014; Judges Sang-Hyun Song and Judge Anita Ušacka appended two separate opinions.

29  W Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum 59–85 ; C Stahn, ‘Complementarity: A Tale of two Notions’ (2008) 19 Criminal Law Forum 87–113.

30  The ICC is a criminal court whose focus lies in rendering justice through fair and expeditious criminal proceedings. It is not a capacity-building agency or provider of rule of law training and general judicial assistance in nation-building settings. See Report of the Court on Complementarity, ICC-ASP/11/39, 16 October 2012 (Eleventh Session of the ASP), para. 59.

31  See the elements proposed by the ICC for States to assist others in need as part of a more technical approach to complementarity: ibid., Section III—Thematic areas for the attention of other complementarity actors, 4 f.

32  Resolution on Complementarity, ICC-ASP/11/Res.6, 21 November 2012 (Eighth Plenary Meeting of the ASP), paras 3 and 8; Resolution on Complementarity, ICC-ASP/12/Res.4, 27 November 2013 (Twelfth Plenary Meeting of the ASP), paras 3 and 5. See also the ASP Bureau Report on Complementarity ‘Taking stock of the principle of complementarity—Bridging the impunity gap’, ICC-ASP/8/51 (Eighth Session of the ASP).

33  Note in this regard efforts on the part of the Assembly to provide a platform for exchanging information between the Court, States Parties, and other stakeholders, including international organizations and civil society, aimed at strengthening domestic jurisdictions; see Resolution on Complementarity, ICC-ASP/12/Res.4, 27 November 2013 (Twelfth Plenary Meeting of the ASP), para. 6; Report of the Secretariat on Complementarity, ICC-ASP/12/33, 15 October (Twelfth Session of the ASP).

34  For the judges of the Court this is stipulated in Art 9(2) of the Code of Judicial Ethics, ICC-BD/02-01-05.

35  Art 54(1) ICC Statute; Code of Conduct for the OTP, 5 September 2013, OTP2013/024322, Section 8.

36  See UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593; C Heyder, ‘The U.N. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status’ (2006) 24 Berkeley Journal of International Law 650f.

37  Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Al Bashir, Situation in Darfur, Sudan, ICC-02/05-01/09-1, PTC I, ICC, 4 March 2009, amended by Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Al Bashir, Situation in Darfur, Sudan, ICC-02/05-01/09-95, PTC I, ICC, 12 July 2010; proceedings before Trial Chamber V(b) in the case of Kenyatta, Situation in the Republic of Kenya, ICC-01/09-02/11.

38  The Assembly, in collaboration with the ICC, has established a formalized and consultative process for the amendment of the ICC’s Rules of Procedure and Evidence. The process will be discussed in detail infra. Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/11/Res.8, 21 November 2012 (Eighth Plenary Meeting of the ASP), para. 41, Annex II, Terms of reference of the Working Group on Amendments; and ICC-ASP/12/Res.8, 27 November 2013 (Twelfth Plenary Meeting of the ASP), para. 39.

39  There are many examples at both ICTR and ICTY of trial phases that lasted years and generated relevant litigation (see only Judgment, Gatete, ICTR-00-61-A, AC, ICTR, 9 October 2012, para. 45; Décision Relative à la Requête de l’Accusé aux Fins de Mettre un Terme à son Procès, Šešelj, IT-03-67-T, TC III, ICTY, 29 September 2011, with Separate Individual Opinion of the Presiding Judge Jean-Claude Antonetti).

40  See only the length of the Lubanga and Katanga trials as well as the Bemba trial proceedings to date before the ICC <http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/cases/Pages/cases%20index.aspx> accessed 18 August 2014.

41  The Prosecutor may use a staggered approach in her investigations; see Strategic plan June 2012–15, OTP, 11 October 2013, para. 22.

42  This may be exacerbated in cases where the cooperation obligation is generated not by virtue of the Rome Statute but through a UNSC Resolution in accordance with Art 13(b) of the Rome Statute. See Public Document informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan, Ahmad HarunAli Kushayb, Situation in Darfur, Sudan, ICC-02/05-01/07-57, PTC I, ICC, 26 May 2010.

43  Of note, the Statute also provides for the possibility of reparations in case of a conviction. Art 75 ICC Statute; Rules 94-98 ICC RPE.

44  See REDRESS, ‘The Participation of Victims in International Criminal Court Proceedings—A Review of the Practice and Consideration of Options for the Future’, October 2012 <http://www.redress.org/downloads/publications/121030participation_report.pdf> accessed 18 August 2014.

45  See the Court’s Guide for the Participation of Victims in the Proceedings of the Court <http://www.icc-cpi.int/NR/rdonlyres/8FF91A2C-5274-4DCB-9CCE-37273C5E9AB4/282477/160910VPRSBookletEnglish.pdf> accessed 18 August 2014.

46  See Art 61(7) ICC Statute (‘substantial grounds to believe that the person committed each of the crimes charged’); see Decision adjourning the hearing on the confirmation of charges pursuant to Art 61(7)(c)(i) of the Rome Statute, L Gbagbo, Situation in the Republic of Côte d’Ivoire, ICC-02/11-01/11-432, PTC I, ICC, 3 June 2013, as well as the Dissenting opinion of Judge Silvia Fernandez de Gurmendi, ICC-02/11-01/11-432-Anx.

47  For example, regarding the handling of prior recorded testimony, Rule 68 of the Rules was introduced only recently through Resolution ICC-ASP/12/Res.7 of 27 November 203.

48  Notification of the Decision of the Plenary of Judges on the ‘Joint Defence Application for a Change of Place where the Court Shall Sit for Trial’, Ruto and Sang, Situation in the Republic of Kenya, ICC-01/09-01/11-875, Presidency, ICC, 26 August 2013, plus Annex.

49  See, for example, Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons, Katanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/07-3319, TC II, ICC 21 November 2012.

50  See only Report of the Court on Principles Relating to Victims’ Reparations, ICC-ASP/12/39, 8 October 2013 (Twelfth Session of the ASP); Report of the Court on the Criteria for the Determination of Disposable Means Relating to Reparations, ICC-ASP/12/40, 8 October 2013 (Twelfth Session of the ASP).

51  The ICC consists of three judicial divisions: Pre-Trial, Trial, and Appeals. See Arts 34(b) and 39 ICC Statute.

52  Statement by Judge Sang-Hyun Song, President of the International Criminal Court, at the Opening of the Twelfth Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (20 November 2013) <http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ASP12-OP-Statement-ICCPRE-ENG.pdf> accessed 18 August 2014. Address by Fatou Bensouda, Chief Prosecutor of the International Criminal Court, to the Assembly of States Parties during their Twelfth Session (20 November 2013) <http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ASP12-OP-Statement-PROS-ENG-FRA.pdf> accessed 18 August 2014. Presentation of the 2014 Proposed Programme Budget by Herman von Hebel, Registrar of the International Criminal Court, during the Twelfth Session of the Assembly of States Parties (20 November 2013) <http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ASP12-Statement-REG-ENG.pdf> accessed 18 August 2014.

53  Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06.

54  The Court recognized that procedural efficiency of its judicial proceedings will remain a continuous challenge for the institution. Report of the Bureau on the Study Group on Governance, ICC-ASP/11/31, 23 October 2012 (Twelfth Session of the ASP), para. 12 f, as well as its Annex I Draft Roadmap on reviewing the criminal procedures of the ICC.

55  Establishment of a Study Group on Governance, ICC-ASP/9/Res.2, 10 December 2010 (Fifth Plenary Meeting of the ASP). Pursuant to Art 112 ICC Statute, the Assembly shall provide management oversight to the Presidency, the Prosecutor, and the Registrar regarding the administration of the Court.

56  Id.

57  Subsequently, the ‘Study Group on Governance’ took up its work in 2011, deriving its mandate from ICC-ASP/9/Res.2. For ease of reference, the abbreviation ‘Study Group’ shall be retained, as the group remained the same in its composition throughout the process of institutionalization.

58  The Hague Working Group of the Assembly is, alongside the New York Working Group and the Committee on Budget and Finance, one of its subsidiary bodies pursuant to Art 112(4) ICC Statute.

59  Establishment of a Study Group on Governance, ICC-ASP/9/Res.2, 10 December 2010 (Fifth Plenary Meeting of the ASP).

60  The Assembly decided that the issues to be dealt with by the Study Group ‘include, but are not limited to, matters pertaining to the strengthening of the institutional framework both within the Court and between the Court and the Assembly, as well as other relevant questions related to the operation of the Court’. Id.

61  Pursuant to Art 51(2) ICC Statute, amendments to the Rules may be proposed by any State Party, the Prosecutor, or the judges acting by an absolute majority. These amendment proposals enter into force upon adoption by a two-thirds majority of the members of the Assembly.

62  Report of the Bureau on the Study Group on Governance, ICC-ASP/10/30, 22 November 2011 (Tenth Session of the ASP), para. 21.

63  Ibid., para. 23.

64  Report of the Bureau on the Study Group on Governance, ICC-ASP/11/31, 23 October 2012 (Eleventh Session of the ASP), para. 10.

65  Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/10/Res.5, 21 December 2011 (Ninth Plenary Meeting of the ASP) paras 35–8.

66  Regulations of the Court, ICC-BD/01-01-04, 26 May 2004 (Fifth Plenary Session of the Judges of the Court) established pursuant to Art 52(1) of the Rome Statute. Pursuant to Regulation 4 of the Regulations of the Court, it is comprised of three judges elected from each division of the Court, as well as one representative from the OTP, one representative from the Registry, and one representative of Counsel included in the list of counsel pursuant to Rule 21(2) of the Rules.

67  The Assembly has since repeatedly extended the Study Group’s temporal mandate to accommodate for relevant discussions, see Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/10/Res.5, 21 December 2011 (Ninth Plenary Meeting of the ASP), paras 36–8; Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/12/Res.8, 27 November 2013 (Twelfth Plenary Meeting of the ASP), Annex I, para. 7 (extending the mandate to 2013 and later to 2014).

68  Judgment Pursuant to Art 74 of the Statute, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-2842, TC I, ICC, 14 March 2012.

69  First Report (n 6) para. 3.

70  Ibid., para. 6 ; Report of the Bureau on the Study Group on Governance, ICC-ASP/11/31, 23 October 2012 (Eleventh Session of the ASP), para. 11.

71  First Report (n 6) paras 2–5.

72  The List was subsequently shared with States Parties, see First Report (n 6).

73  Other issues identified by the organs of the Court and the representative of counsel in the course of establishing the List were not included, as they could be addressed internally through adoption of best practices or amendments to the Regulations of the Court and thus did not need to be submitted to the Assembly for adoption.

74  It bears noting that in the eyes of the Court, the List is not intended to be exhaustive.

75  This item has since been disposed of; see amended Rule 68 ICC RPE, as amended by resolution ICC-ASP/12/Res.7, 27 November 2013 (Twelfth Plenary Meeting of the ASP).

76  This item has since been disposed of; see Rule 132bis ICC RPE, as amended by resolution ICC/ASP/11/Res.2, 21 November 2012 (Eighth Plenary Meeting of the ASP).

77  See Arts 82(1)(d) and 82(2) ICC Statute; Rule 155 ICC RPE. C Staker, ‘Appeal and revision’ in Triffterer (n 17), Art 82, para. 11.

78  This item has since been disposed of; see amended Rule 100 of the Rules, as amended by resolution ICC-ASP/12/Res.7, 27 November 2013 (Twelfth Plenary Meeting of the ASP).

79  See Rules 111 and 112 ICC RPE.

80  Annex to First Report (n 6).

81  Study Group on Governance—Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties, ICC-ASP/12/37/Add.1, 31 October 2013 (Twelfth Session of the ASP) (‘Second Report’), para. 3. On 27 March 2013 the Study Group received the first version of a written report from the WGLL, indicating this prioritization notice, ICC-ASP/12/37, 15 October 2013, para. 12.

82  See Amendments to the Rules of Procedure and Evidence, ICC-ASP/12/Res.7, 27 November 2013 (Twelfth Plenary Meeting of the ASP).

83  See Second Report (n 81) paras 8–13, Annex I.A, Annex II.A.

84  First Report (n 6) paras 6 and 12.

85  Art 51(2) ICC Statute for the Rules; for the Statute, Arts 121 and 122 ICC Statute foresee an even more complicated regime.

86  ICC Statute: 128 articles; ICTY Statute: 34 articles; ICC Rules: 225 Rules; ICTY Rules: 127 Rules. See also B Broomhall, ‘Rules of Procedure and Evidence’ in Triffterer (n 17), Art 51, para. 47.

87  B. Broomhall, ibid., paras 8 and 47 ; R Clark, ‘Amendments’, ibid ., Art 121, para. 4.

88  For the adoption see Art 15 ICTY Statute; Art 14 ICTR Statute; Art 14 of the Statute of the SCSL. For amendments to the Rules of Procedure and Evidence, see Rule 6 of all respective Rules of Procedure and Evidence.

89  Art 121(4) ICC Statute.

90  Art 121(5) ICC Statute. In respect of a State Party that has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

91  The set of articles which can be amended through this procedure is defined in Art 122(1) ICC Statute.

92  Report of the Bureau on the Study Group on Governance, ICC-ASP/11/31, 23 October 2012 (Eleventh Session of the ASP), para. 11.

93  Ibid., para. 14.

94  First Report (n 6) para. 13.

95  Id.

96  Should the Study Group decide to endorse any proposals they are transmitted to the Assembly’s Working Group on Amendments for consideration at least 60 days prior to commencement of the next Assembly meeting at year-end. See Report of the Bureau on the Study Group on Governance, ICC-ASP/11/31, 23 October 2012 (Eleventh Session of the ASP), Annex I, Draft Roadmap on Reviewing the Criminal Procedures of the International Criminal Court.

97  In its Report of the Bureau on the Study Group on Governance, the Assembly however pointed out that States, Judges, or the Prosecutor could still put forward proposals outside the auspices of the Roadmap if they so desired. Ibid., para. 15.

98  Ibid., paras 15 and 17; Report of the Bureau on Study Group on Governance, ICC-ASP/12/37, 15 October 2013 (Twelfth Session of the ASP), para. 10.

99  Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/12/Res.8, 27 November 2013 (Twelfth Session of the ASP), para. 39. The amendments contained two proposals of the ICC regarding a more flexible exchange of views between the Court and the Study Group on amendment proposals, including more flexible timelines. Report of the Bureau on Study Group on Governance, ICC-ASP/12/37, 15 October 2013 (Twelfth Session of the ASP), Annex I.

100  Report of the Study Group on Governance on Rule 132bis of the Rules of Procedure and Evidence, ICC-ASP/11/41, 1 November 2012 (Eleventh Session of the ASP), its Annex I and the concrete proposal of the amendment in Annex II.

101  See First Report (n 6) Annex. The proposal thematically belonged to the ‘Pre-trial and trial relations and common issues’ cluster of the List.

102  Second Report (n 81) Annex, from the ‘Seat of the Court’ cluster of the List.

103  Amendments to the Rules of Procedure and Evidence, ICC-ASP/12/Res.7, 27 November 2013 (Twelfth Plenary Meeting of the ASP).

104  Report of the Bureau on Study Group on Governance, ICC-ASP/12/37, 15 October 2013 (Twelfth Session of the ASP), para. 10.

105  The Statutory trigger for the amendment proposals to be validly before the Assembly was a proposal by the judges to the Assembly by an absolute majority pursuant to Art 51(2)(b) ICC Statute. See Second Report (n 81) paras 10 and 13.

106  ICC-01/09.

107  See only Judgment on the appeal of the Prosecutor against the decision of Trial Chamber V(a) of 18 June 2013 entitled ‘Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial’, Ruto and Sang, Situation in the Republic of Kenya, ICC-01/09-01/11-1066, AC, ICC, 25 October 2013.

108  See Rule 134quater ICC RPE.

109  Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/12/Res.8, 27 November 2013 (Twelfth Session of the ASP), para. 39.

110  Report of the Bureau on Study Group on Governance, ICC-ASP/12/37, 15 October 2013 (Twelfth Session of the ASP), para. 15. For example, on 9 July 2014 the Hague Institute for Global Justice hosted a Seminar, ‘Increasing the Efficiency of the Criminal Process at the ICC, While Preserving Individual Rights’, at which a comprehensive research paper on the same topic by a group of practitioners and scholars in the field of international criminal law was announced for late 2014.

111  Cf. the corresponding Rule 15bis of the Rules of Procedure and Evidence of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (adopted 11 February 1994, as amended 8 December 2010) UN Doc IT/32/Rev. 45.

112  Second Report (n 81) para. 16. This work stems from an understanding that translation of witness statements and other important documents has proved extremely time-consuming at all stages of proceedings and poses a significant challenge to the Court’s resources.

113  Ibid., paras 14–15.

114  For example, regarding common organizational issues between pre-trial and trial, by adopting a standardized redaction protocol, or by altering the numbering system used for evidence.

116  See for pre-trial: Decision on Victims’ Participation and Victims’ Common Legal Representation at the Confirmation of Charges Hearing and in the Related Proceedings, L Gbagbo, Situation in the Republic of Côte d’Ivoire, ICC-02/11-01/11-138, PTC I, ICC, 4 June 2012, taking a simplified approach from previous pre-trial proceedings and introducing a shortened, simplified victim application form; for trial: Decision on Victims’ Participation, Lubanga, Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-1119, TC I, ICC, 18 January 2008; Decision on the Participation of Victims in the Trial and on 86 Applications by Victims to Participate in the Proceedings, Bemba, Situation in the Central African Republic, ICC-01/05-01/08-807, TC III, ICC 30 June 2010; in contrast, in its Decision on Victims’ Representation and Participation, Ruto and Sang, Situation in the Republic of Kenya, ICC-01/09-01/11-460, TC V, ICC, 3 October 2012, Trial Chamber V developed a new, simplified application and participation scheme. See also for questions on the content of participatory rights Judgment on the Appeal of Mr Katanga against the Decision of Trial Chamber II of 22 January 2010 entitled ‘Decision on the Modalities of Victim Participation at Trial’, Katanga and Chui, Situation in the Democratic Republic of the Congo, ICC-01/04-01/07-2288, AC, ICC, 16 July 2010.

117  See only the European Union’s ‘Council Common Position’, 2003/444/CFSP of 16 June 2003, Official Journal of the European Union L 150/67, and ‘Action Plan for the ICC’ <http://ec.europa.eu/external_relations/human_rights/icc/> accessed 18 August 2014.

118  For the Assembly President’s activities in this field see the Assembly Plan of Action for Achieving Universality and Full Implementation of the Rome Statute, Annex to ICC-ASP/5/Res.3, 1 December 2006 (Seventh Plenary Meeting of the ASP); Promotion by the President of the Universality of the Rome Statute, Office of the President of the Assembly of States Parties, 9 July 2014.

119  See Report of the Bureau on the Plan of Action for Achieving Universality and Full Implementation of the Rome Statute of the International Criminal Court, ICC-ASP/12/26, 15 November 2013 (Twelfth Session of the ASP), as well as the ad country focal points for the Plan of Action, ibid.

120  The focal point could bring civil society and other actors willing to organize activities promoting ratification of the Rome Statute together with possible funders in an organized fashion. For example, since 1995 the European Union has funded a large array of NGO activities and campaigns geared at promoting the ratification of the Rome Statute through its European Instrument for Democracy and Human Rights (EIDHR).

121  Assembly Procedures Relating to Non-Cooperation’, ICC-ASP/10/Res.5, Annex, 420.

122  It is hoped that the procedure leading to the introduction of Rules 134bis to quater in November 2013 (Amendments to the Rules of Procedure and Evidence, ICC-ASP/12/Res.7, 27 November 2013) remains an exception.

123  The Study Group considered a proposal to introduce into the Roadmap the possibility to consider proposals for amendments to the articles of the Rome Statute of an institutional nature. However, it decided not to amend the Roadmap in this regard but to keep the matter under review. Report of the Bureau on Study Group on Governance, ICC-ASP/12/37, 15 October 2013 (Twelfth Session of the ASP), paras 23–5.

124  N Musau and S Jennings, ‘Kenya Continues Push for ICC Changes’, Institute for War and Peace Reporting (4 June 2014) <http://iwpr.net/report-news/kenya-continues-push-icc-changes> accessed 18 August 2014.

125  R Jackson, ‘Opening Address for the United States at the International Military Tribunal’, Nazi Conspiracy & Aggression vol. I (Washington: Office of the United States Chief Counsel for Prosecution of Axis Criminality, United States Government Printing Office 1946), Chapter VII, 171 <http://fcit.usf.edu/holocaust/resource/document/DocJac17.htm> accessed 18 August 2014.