The International Criminal Court: Contemporary Challenges and Reform Proposals

The International Criminal Court: Contemporary Challenges and
Reform Proposals
Richard H. Steinberg - 978-90-04-38409-5

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The International Criminal Court:
Contemporary Challenges and
Reform Proposals
Edited by
Richard H. Steinberg
Foreword by
Fatou B. Bensouda
leiden | boston

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Contents
Foreword ix
Fatou B. Bensouda
Preface XI
Acknowledgements Xiii
Abbreviations Xv
Contributors XVii
Part 1
Sexual and Gender-Based Violence: Cooperation in Obtaining
Evidence
Introduction to Part 1: The Challenge of Obtaining Evidence in SGBV

Cases 2
1 New Institutions to Support First Responders 5

Alex Whiting
2 Securing Cooperation by Redefining It 12

Christian De Vos and Betsy Apple
3 Improving NGO and IGO Capacity to Gather Evidence 22

Susana SaCouto
4 Securing Improved Cooperation 37

Kim Thuy Seelinger
Part 2
Outreach: Challenges Communicating with Victims, Witnesses,
and Other Stakeholders
Introduction to Part 2: The Outreach Challenge 48


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vi Contents
5 States Must Support the ICC’s Use of Technology for Outreach 51

Alison Cole
6 Formal and Informal Human Rights Communication and

Teaching 60
Francisco O. Ramirez
7 Localizing Outreach 65
Patrick Vinck and Phuong N. Pham
8 Practical Strategies 71
Christopher and Olga Werby
Part 3
The ICC Withdrawal Issue
Introduction to Part 3: The Issue of State Party Withdrawal 112

9 Concerning the ICC Withdrawal Problem 115

M. Cherif Bassiouni
10 African Withdrawals and Structural Inequities 120

Kamari Maxine Clarke
11 A Court Worth Having: Defending the Integrity of the Rome

Statute 125
Richard Dicker
12 Three Realities about the Africa Situation at the ICC 128

David Scheffer
Part 4
Measuring Success: The Performance Issue
Introduction to Part 4: The Performance Issue and Metrics of

Success 136

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Contents vii
13 Methodologies and Design of Performance Indicators 139

Geoff Dancy
14 Empirical Analysis of the Tradeoff between Conflict Termination and

Atrocity Deterrence 152
Daniel Krcmaric
15 Assessing Performance in Context 157

Gabrielle Louise McIntyre
16 The Limited Utility of the ICC’s Performance Indicators 180

Yuval Shany
17 Performance Indicators: A Double-Edged Sword 186

Carsten Stahn
Part 5
The Crime of Aggression Issue
Introduction to Part 5: The Crime of Aggression Issue 198

18 Understanding the Aggression Amendments 201

Dapo Akande
19 Difficulties Not to Be Underestimated 223

Benoit D’Aboville
20 Three Difficult Problems 228

Yoram Dinstein
21 The Crime of Aggression: Definition, Jurisdiction, and Scope of

Application 235
Donald M. Ferencz
22 Reflections on the ICC’s Role in Prosecuting Aggression 259

Tom Ruys
23 The Crime of Aggression and the Responsibility to Protect 270

Sarah Sewall

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viii Contents
Part 6
The Rome Statute 20th Anniversary Issue: Imagining the ICC’s
Future
Introduction to Part 6: Reform Proposals 280

24 Reforms to Reduce Costs and Increase Efficiency 283

William Schabas
25 Building Support through Enhanced Cooperation, Outreach,

and Knowledge-Sharing 293
Adama Dieng
26 Returning to Customary Law 298

Fausto Pocar
27 Reforms to Enhance State Cooperation and Address Witness

Interference 303
Goran Sluiter
28 Improving Investigative, Arrest, and Prosecution Strategies 314

Richard Dicker
29 Meeting Challenges: Politics, Trial Processes, and Early Judicial

Work 319
Leila Sadat
30 Focusing on Core Messages and Human Rights 335

Carla Ferstman
31 Peace Negotiations as “Interests of Justice” 344

Talita de Souza Dias and Dapo Akande
32 Reflections on the ICC’s Relationship with the United Nations and

Regional Courts 358
Bing Bing Jia
33 Improving Communication with States 367

David Scheffer
Index 371
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Foreword
Since its creation in 2010, the International Criminal Court Online Forum (“ICC
Forum”) has provided a virtual platform where experts, scholars, and social sci-
entists can offer analysis on legal issues of importance to the International
Criminal Court (“ICC” or the “Court”), and the Office of the Prosecutor (“OTP”),
in particular. The International Criminal Court: Contemporary Challenges and
Reform Proposals is a product borne out of such discussions. This book pro-
vides expert opinions from 16 countries on six continents, offering real value
and perspective to practitioners and academics alike. For this reason, it is a
welcomed contribution to the field of international criminal law.
The ICC Forum operates under the editorial direction of Professor Richard
H. Steinberg at the UCLA School of Law and with the generous support of the
Promise Institute for Human Rights. While my Office neither assumes responsi-
bility for nor necessarily endorses the content that appears on the ICC Forum,
we are delighted that the highlighting of issues of particular interest to the OTP
has generated such rich discussions.
Since 2015, the topics that have generated the most visits are the Africa, Ar-
rest, Withdrawal, and sexual and gender-based crimes debates, the Anniver-
sary question of visions for the Court’s future, and the debate analysing the
crime of aggression. As we contemplate and address these issues, it is impera-
tive that we continue to learn from one another and inform our work as need-
ed. As such, discussions much like those on the ICC Forum and reflected in this
publication are helpful to my Office and equally, I would say, to those interest-
ed in the work of and issues surrounding the Court.
Since its establishment, the ICC Forum has been viewed by more than
200,000 people from 192 countries, and the website regularly receives referrals
from many of the world’s top universities, including Harvard, Stanford, St. An-
drews, Leiden, the University of Amsterdam, The University of Sao Paolo, the
United States International University-Africa in Nairobi, and the University of
Tokyo, demonstrating the reach of this initiative and the weight that it carries
globally.
Debates that take place on the ICC Forum are not only academic reference
points, but have, as I understand, inspired humanitarian support for UCLA-led
medical, psychosocial, microfinance, and ecumenical interventions to help
survivors in situation countries. Important field research by UCLA researchers
has been prompted, including on motivations for mass rape attacks, their con-
sequences on the social, economic, political, and psychological fabric of vic-
timized villages, and the relative effectiveness of post-attack psychosocial,

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x Foreword
microfinance, ecumenical, and medical interventions in those villages. UCLA-

led research initiatives have also been undertaken on issues including how ar-
rests pursuant to an international warrant affect the demobilisation of militias
under the command of those arrested, and how survivors in situation coun-
tries view both the ICC and those who have been convicted of crimes by the
Court. Ongoing projects continue to produce insightful findings, which we
duly note and consider.
A new selection of debates that have appeared in the ICC Forum has been
reproduced in The International Court: Contemporary Challenges and Reform
Proposals, offering a thorough compilation of analyses by leading commenta-
tors in the field. As of the date of publication of this book, the ICC Forum itself
contains more than 80,000 pages of content, constituting a significant reposi-
tory of ICC-related analysis. I hope that this volume continues to inspire vital
discourse necessary for the advancement of international criminal justice.
Fatou B. Bensouda
Prosecutor of the International Criminal Court
The Hague, The Netherlands

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Preface
The International Criminal Court (ICC) has faced serious challenges in efforts
to advance international justice and human rights. Starting with only a set of
constitutive instruments, the first Prosecutor, judges, and Registrar had to build
an institution—create a physical office, hire staff, work out modes of coopera-
tion with each other, and establish complex information systems. Substantial
gaps and ambiguities in the Rome Statute and other constitutive instruments
required fundamental interpretations that defined basic procedural and sub-
stantive rules. And the relationship between Organs of the Court, States Par-
ties, the Assembly of States Parties, the United Nations Security Council, and
Non-States Parties needed definition.
Subsequent to the establishment of these fundamental features, the ICC has
faced additional challenges—and attitudes toward it have evolved. The out-
break of new conflicts and situations, sometimes in states not easily subject to
ICC jurisdiction, strategic behavior by political leaders accused of perpetrating
crimes, judicial decisions that took many by surprise, the high cost of Court
operations, and changing stances of UN Security Council permanent mem-
bers have introduced new complexities. Difficulties obtaining evidence and
communicating effectively with stakeholders, and perceptions by many that
the ICC is biased against Africa, have led some commentators and politicians
to challenge the feasibility of the international justice project or the legitimacy
of the Court. Disagreements have emerged over the performance of the Court,
with no consensus about how best to assess it. Each of these developments has
raised important challenges, requiring decisions by the ICC principals and
staff.
As with any evolving international institution or body of law, it is important
for decision-makers to garner as much insight as possible on highly contested
issues. The International Criminal Court: Contemporary Challenges and Reform
Proposals is a collection of analyses and reform proposals written by leading
commentators in the field of international criminal law on several of those
contested issues.
The contributions are drawn from the ICC Forum, www.iccforum.com, es-
tablished in 2010 by the University of California, Los Angeles (UCLA) School of
Law, with the support of the Office of the Prosecutor (OTP) of the ICC. Accord-
ingly, the official seal of the ICC OTP appears on the homepage of the ICC Fo-
rum and on the cover of this book. The ICC Forum’s main purpose has been to
serve as a global online venue to engage members of the legal community, gov-
ernments, academics, and others, to debate complex issues of international

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xii Preface
criminal law faced by the Office of the Prosecutor in the course of its work. The
hope is that this has helped the OTP and other ICC decision-makers to under-
stand more fully the range of views and arguments pertaining to the important
issues they face. In addition, the ICC Forum has become the most widely visited
online international criminal law forum in the world, making it one of the
world’s biggest online communities of those interested in the ICC. And, as of
the date of publication of this book, the ICC Forum contains more than 80,000
pages of content, constituting an important repository of information and
analysis of the ICC.
The collection of opinions by international legal experts in this volume ad-
dresses six important questions raised on the ICC Forum in the 2016–2018 pe-
riod. Each of the six sets of opinions responds to a carefully framed question
that has been a matter of specific concern to the ICC Office of the Prosecutor;
each framing was developed in cooperation with the Office of the Prosecutor
to ensure that the opinions were responsive to the concrete, real-life issues fac-
ing the Court and the Prosecutor; and each opinion is republished here pre-
cisely as it appeared on the ICC Forum when it was originally published. Each
question is illustrative of a broader issue facing the ICC, such as difficulties
with evidence collection, outreach and communication with stakeholders,
claims of bias, and means of assessing the ICC’s performance. So, while each
question and analysis is framed in a particular context, the underlying issue is
sure to persist and reemerge in newer contexts as the Court develops. The final
Part of the book presents reform proposals by leading commentators, offered
around the time of the twentieth anniversary of adoption of the Rome Statute.
While most of the contributors are law scholars, some are social scientists,
eminent international criminal law practitioners, or leaders of nongovern-
mental organizations concerned with the ICC.
Ultimately, all of the questions posed on the ICC Forum and in this volume
concern international justice and how best to achieve it. The concept of inter-
national justice, and what it should be expected to achieve, are themselves
contested, but almost all analysts agree that the most important objective of
international justice should be to help those who are victims of gross injustice,
particularly mass atrocities. In that light, all royalties from this book are being
paid into the ICC Trust Fund for Victims.
Los Angeles, California
July 2019

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Acknowledgements
This book is a collection of analyses by legal experts and social scientists on

crucial issues that faced the International Criminal Court (ICC) from 2015–2018
and that are likely to persist or re-emerge in different forms throughout the
life of the Court. Each of the issues and analyses has been posted on www.
ICCforum.com (ICC Forum), a global online venue for debating issues of im-
portance to the Office of the Prosecutor (OTP) of the ICC. The ICC Forum was
established in 2010 at the University of California, Los Angeles (UCLA) School
of Law, with the support of the ICC OTP.
As founding Editor-in-Chief of the ICC Forum, and Editor of this volume,
I am indebted to the Prosecutor of the International Criminal Court, Fatou
Bensouda, and her staff for their ongoing support for the Forum. Shamila Ba-
tohi, formerly Senior Legal Advisor to the Prosecutor and for several years
my day-to-day interlocutor on the Forum, was an indispensable partner. Her
successor, Legal Advisor Hans Bevers, has been equally indispensable. The
ICC Legal Advisory Section’s Legal Assistant Sarah Hishan has helped coordi-
nate the Forum’s work with the OTP, suggesting issues of interest and ways to
frame questions so as to generate a dialogue that could be useful to the Office.
While the final selection of issues and their framing have been the responsibil-
ity of the ICC Forum’s editorial team, I am grateful for the OTP’s partnership.
The Forum website was built and has been maintained by Christopher and
Olga Werby of Pipsqueak Productions LLC, from San Francisco, without whom
this project would have been impossible. Their creativity, sensibilities about
the subject of the site, understanding of the internet and what it takes to create
and maintain an online community, technical skill, capacity to fight endless
hacker attacks, patience, and passion have driven the success of the project.
Pipsqueak was there from the beginning, helping to crystalize the concept,
then designing, building, and refining it. Their work is responsible for the pop-
ularity of the Forum and for the awards it has received, including as one of the
top three justice innovations in the world in 2012 from the Hague Institute for
the Internationalization of Law, and the Gold Medal Laureate award for World
Good from Computerworld magazine.
Many others have been instrumental in making this book possible. Dozens
of UCLA law students have assisted with the Forum, helping to edit the contri-
butions, including all of those contained in this volume, and assisting in com-
munications with the contributors and the OTP. UCLA law student So Jin Kim
served as a dedicated copy editor of the manuscript. Brill’s Lindy Melman and
her assistant, Bea Timmer, provided fast and useful guidance for this book.

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xiv Acknowledgements
Finally, this project would not be possible without the generous support of
the Promise Institute for Human Rights at UCLA School of Law. Its Executive
Director, Kate Mackintosh, has provided wise and judicious advice on the di-
rection of the Forum, and her palpable passion for international justice con-
tributes to the inspiration that drives all those who work on the Forum at UCLA
School of Law.
Los Angeles, California
July 2019

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Abbreviations
ADS Atrocity Documentation Survey

AFRICOM African Command
ARCYBER US Army Cybercommand
ASP Assembly of States Parties
ASPA American Servicemembers’ Protection Act
AU African Union
AU-RTF African Union Regional Task Force
CAR Central African Republic
CBF Committee on Budget and Finance
CEDAW Convention to Eliminate All Forms of Discrimination Against Women
CICC Coalition for the International Criminal Court
CIPEV Commission of Inquiry on Post-Election Violence
CMS Content Management System
COMESA Common Market for Eastern and Southern Africa
DoD Department of Defense
DOJ Department of Justice
DDPD Doha Document for Peace in Darfur
DDRRR Disarmament, Demobilization, Repatriation, Reintegration and
Resettlement
DRC Democratic Republic of the Congo
ECCC Extraordinary Chambers in the Courts of Cambodia
ECHR European Court of Human Rights
ECOWAS Economic Community of West African States
ELN National Liberation Army
EU European Union
FARC Revolutionary Armed Forces of Columbia
FARDC Forces Armées de la République Démocratique de Congo
FDLR Forces Démocratiques pour la Libération du Rwanda
FIDH International Federation for Human Rights
FRY Federal Republic of Yugoslavia
GAOR General Assembly Official Records
HIV Human Immunodeficiency Virus
HLM Hierarchical Linear Modeling
HRW Human Rights Watch
ICC International Criminal Court
ICJ International Court of Justice
ICTJ International Center for Transitional Justice
ICTY International Criminal Tribunal for the former Yugoslavia

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xvi Abbreviations
ICTR International Criminal Tribunal for Rwanda

IGO Intergovernmental Organization
ILC International Law Commission
IMT International Military Tribunal
IMTFE International Military Tribunal for the Far East
IOM Independent Oversight Mechanism
ISIL Islamic State of Iraq and the Levant
IWC International Whaling Convention
MCC Millennium Challenge Corporation
MICT Mechanism for International Criminal Tribunals
MLC Movement for the Liberation of Congo
MONUC UN Organization Mission in the DRC
MONUSCO UN Stabilization Mission in the DRC
NATO North Atlantic Treaty Organization
NGO Non-governmental Organization
OTP Office of the Prosecutor
PCIJ Permanent Court of International Justice
PIDS Public Information and Documentation Section
RPE Rules of Procedure and Evidence
RPF Rwandan Patriotic Front
R2P Responsibility to Protect
SADC Southern African Development Community
SC UN Security Council
SCSL Special Court for Sierra Leone
SGBC Sexual and Gender-Based Crimes
SGBV Sexual and Gender-Based Violence
TFV Trust Fund for Victims
UDHR Universal Declaration of Human Rights
UN United Nations
UNGA UN General Assembly
UNHCR UN High Commission for Refugees
UNSC United Nations Security Council
UNESCO United Nations Educational, Scientific and Cultural Organization
URL Uniform Resource Locator
UK United Kingdom
US United States
USSR Union of Soviet Socialist Republics
VCLT Vienna Convention on the Law of Treaties
VWU Victims and Witness Unit
WWII World War II

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Contributors
Dapo Akande
is Yamani Fellow at St. Peter’s College, Professor of Public International Law
and Co-Director of the Oxford Institute for Ethics, Law, and Armed Conflict at
the University of Oxford, Oxford, England.
Betsy Apple
is Adjunct Professor of International and Public Affairs at School of Interna-
tional and Public Affairs, Columbia University, New York, New York, and Advo-
cacy Director for the Open Society Justice Initiative, New York, New York.
M. Cherif Bassiounz
was Emeritus Distinguished Research Professor of Law at DePaul University
College of Law, Chicago, Illinois, President at the International Institute of
Higher Studies in Criminal Sciences, Siracusa, Italy, and Honorary President at
the International Association of Penal Law in Paris, France.

is Professor of Anthropology at the University of California, Los Angeles, Los
Angeles, California.
Alison Cole
is Adjunct Professor at New York University School of Law, New York, New
York, and Legal Officer for Open Society Justice Initiative, New York, New York.
Benoit D’Aboville
is Vice President of the Fondation pour les Etudes Stratégiques and Associate
Professor at Sciences-Po Paris School of International Affairs.
Geoff Dancy
is Associate Professor of Political Science at Tulane University, New Orleans,
Louisiana.
Christian De Vos
is a senior advocacy officer with the Open Society Justice Initiative and author
of Complementarity, Catalysts, Compliance: The International Criminal Court
in Uganda, Kenya, and the Democratic Republic of Congo (Cambridge Univer-
sity Press, 2020).

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xviii Contributors
Richard Dicker
is Director of Human Rights Watch International Justice Program, New York,
New York.
Adama Dieng
is United Nations Special Advisor of the Secretary-General on the Prevention
of Genocide, New York, New York.
Yoram Dinstein
is Professor Emeritus at Tel Aviv University, Buchmann Faculty of Law, Tel Aviv,
Israel.
Donald M. Ferencz
is Professor at Middlesex University School of Law, London, England, and
Founder of the Global Institute for the Prevention of Aggression, London,
England.
Carla Ferstman
is Senior Lecturer at University of Essex School, Faculty of Law, Colchester,
England.
Bing Bing Jia

is Professor of International Law at Tsinghua Law School, Beijing, China.
Daniel Krcmaric
is Assistant Professor of Political Science at Northwestern University, Evan-
ston, Illinois.
Gabrielle Louise McIntyre

is Chairperson of the Seychelles’ Truth, Reconciliation and National Unity
Commission.
Phuong N. Pham
is Assistant Professor at the Harvard Medical School and Harvard T.H. Chan
School of Public Health, Boston, Massachusetts.
Fausto Pocar
is Professor Emeritus of International Law at the University of Milan, Mi-
lan, Italy and Judge ad hoc of the International Court of Justice, The Hague,
Netherlands.

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Contributors xix
Sarah Sewall
is Executive Vice President for Policy at In-Q-Tel, a strategic investor for the
national security community.
Yuval Shany
is Professor of International Law at Hebrew University, Jerusalem, Israel and
Researcher at Israel Democracy Institute, Jerusalem, Israel.
Goran Sluiter
is Professor of International Criminal Law at the University of Amsterdam,
Amsterdam, Netherlands.
Carsten Stahn
is Professor of International Criminal Law and Global Justice and Programme
Director of the Grotius Center (The Hauge) at the Leiden Law School, Leiden,
Netherlands.
is the Jonathan D. Varat Professor of Law and Professor of Political Science at
the University of California, Los Angeles. He is also Counsellor to the American
Society of International Law, a Member of the Council on Foreign Relations,
and the founding Editor-in-Chief of www.ICCforum.com.
Patrick Vinck
is Assistant Professor at the Harvard Medical School and Harvard T.H. Chan
School of Public Health, Research Director of the Harvard Humanitarian Ini-
tiative, and Lead Investigator at the Brigham and Women’s Hospital, Boston,
Massachusetts.
Christopher Werby
is CEO of Pipsqueak Productions, San Francisco, California.
Olga Werby
is President of Pipsqueak Productions, San Francisco, California, Extension In-
structor at UC Berkeley, Berkeley, California, and Chair of the Board of Direc-
tors of The Golden Gate STEM Fair, San Francisco, California.
Alex Whiting
is Professor of Practice at Harvard Law School, Cambridge, Massachusetts.

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xx Contributors
is Professor of Education at Stanford University, Stanford, California.
Tom Ruys
is Professor of International Law at Ghent University, Ghent, Belgium and
Vice-President of the Belgian Society of International Law and of the United
Nations Association Flanders.
Susana SaCouto
is Professorial Lecturer-in-Residence and Director of War Crimes Research Of-
fice at American University Washington College of Law, Washington, D.C.
Leila Sadat
is James Carr Professor of International Criminal Law and Director of the
Whitney R. Harris World Law Institute at Washington University School of
Law, St. Louis, Missouri.
William Schabas
is Professor of International Law at Middlesex University, London, England,
Professor of International Human Law and Human Rights at Leiden Univer-
sity, Leiden, Netherlands, and Emeritus Professor of Human Rights Law and
Honorary Chairman of the Irish Centre for Human Rights at the National
University of Ireland Galway, Galway, Republic of Ireland. He is also Invited
Visiting Professor at the Paris School of International Affairs, Paris, France,
Honorary Professor at the Chinese Academy of Social Sciences, Beijing, Chi-
na, Visiting Fellow of Kellogg College of the University of Oxford, Oxford,
England, Visiting Fellow of Northumbria University, New Castle, England,
and Professeur Associé at the Université du Québec à Montréal, Quebec,
Canada.
David Scheffer
is Mayer Brown/Robert A. Helman Professor of Law at Northwestern Univer-
sity Pritzker School of Law and Visiting Senior Fellow at Council on Foreign
Relations.
Kim Thuy Seelinger

is Research Associate Professor, Brown School of Social Work, Public Health,
and Social Policy; Visiting Professor of Law, School of Law; Director, Center for
Human Rights, Gender and Migration (Institute for Public Health) at Washing-
ton University in St. Louis.

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Part 1
Sexual and Gender-Based Violence: Cooperation in
Obtaining Evidence

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Introduction to Part 1
The Challenge of Obtaining Evidence in

sgbv Cases
The collection of evidence poses challenging problems for the otp, particu-
larly in the context of sexual and gender-based crimes. It is difficult, if not im-
possible, for otp investigators to be present at an alleged crime scene in the
hours, days, weeks, or sometimes even months or years after events take place.
Before otp investigators may appear on the scene, the otp must overcome
formal hurdles, such as securing permission from state authorities to gain ac-
cess to the situation. Perhaps more importantly, sexual and gender-based vio-
lence (sgbv) on a scale that warrants otp investigation typically takes place in
the midst of conflict, raising serious concern for the safety and security of in-
vestigators who might otherwise access the situation.
By the time otp investigators arrive on a scene where sgbv has taken place,
good evidence may be hard to obtain. Much physical evidence of sgbv will
have disappeared: a rape kit, for example, must be used within 72 hours of
the act, and physical injuries may be fully healed. Witness memories fade or
become clouded. Moreover, due to stigma or other social, cultural, religious, or
psychological reasons, victims and witnesses may be reluctant to speak. And
victims and witnesses—sometimes entire villages—may have been displaced.
Hence, the otp must rely on others to obtain the best evidence of sgbv. In
particular, first responders—those at the alleged crime scene either concur-
rent with or shortly after the crimes have taken place—can provide important
evidence. These first responders may be local or international, from humani-
tarian organizations (non-governmental, governmental, or intergovernmen-
tal), human rights organizations, the media, or others. They could provide a
wealth of evidence.
However, cooperation between the otp and first responders has been lim-
ited. Many ngos and igos are reluctant to cooperate with the otp for fear
of reprisals; some that work frequently in conflict zones make known to
all their standing policy not to provide information to courts or authorities
so that they are never perceived as a threat to any armed group. Some are
concerned that providing evidence to the icc may jeopardize the safety of
the victims, witnesses, or their communities, particularly since the otp is
© koninklijke brill nv, leiden, �� | doi:10.1163/9789004384095_002Richard H. Steinberg - 978-90-04-38409-5

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The Challenge of Obtaining Evidence in sgbv Cases 3
r equired to disclose certain information to the defense. Most first responders

are not trained to know what evidence might be useful, or how to collect,
secure, and transmit evidence so that it can be useful in icc proceedings.
More broadly, first responders do not have the same primary objectives as the
otp, so they are reluctant to use their resources to engage more cooperatively
with the otp.
The questions raised here, in Part 1, ask how to better facilitate cooperation
between the otp and first responders so that better evidence of sgbv crimes
can be obtained. A range of solutions is offered. SaCouto and Seelinger each
propose changes in otp practice, suggesting that investigators should better
understand the varying reliability, interests, and capacity-related challenges of
local actors; encourage first responders’ cooperation; and educate them about
evidence and evidence collection. Whiting goes further, suggesting that new
institutions must be built to transmit knowledge, preserve evidence, exchange
confidential information, and build capacity. And DeVos and Apple suggest
nothing less than reconstructing otp’s conceptions of “cooperation” and its
relation to first responders and intermediaries from an instrumentalist notion
to one of substantive equality.
The following question was featured on www.ICCForum.com from April
2016 through November 2016:
How can the Office of the Prosecutor (“otp” or “Office”) of the Interna-
tional Criminal Court (“icc” or the “Court”) secure better cooperation
from those individuals and organizations on the ground responding to
Sexual and Gender-based Violence (“sgbv”), in order to facilitate its in-
dependent investigations and gain access to reliable evidence necessary
to effectively investigate and prosecute such crimes?
Over the past few decades, the international community has taken sig-
nificant steps towards closing the impunity gap for Sexual and Gender-
based Violence. After assuming her mandate as Prosecutor of the icc,
Mrs. Fatou Bensouda set a priority for her Office to give particular atten-
tion to the investigation and prosecution of sgbv. This priority was incor-
porated into the Office’s Strategic Plan (2012–2015). In its latest Strategic
Plan (2016–2018), the Office also prioritized the establishment of con-
tacts and networks within the community, to the extent possible, to sup-
port the operational activities of the Office, particularly with regard to
augmenting its access to information and evidence. Following extensive
consultations, in June 2014, the otp adopted its Policy Paper on Sexual
and Gender-Based Crimes, and formally launched the policy in Decem-
ber of the same year.

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4 Steinberg
In addition to general challenges to investigations of atrocity crimes

conducted by the otp, such as security issues in situations of ongoing
conflict, or lack of full cooperation in certain instances, the investigation
of sgbv presents its own specific challenges. It is often the case that, not-
withstanding reports of the commission of widespread sgbv in a given
situation, there is difficulty in collecting the evidence required to prove
the charges in Court. These challenges include, inter alia, the under—or
non—reporting of sgbv owing to societal, cultural, or religious factors;
stigma for victims; limited domestic investigations and the associated
lack of readily available evidence; lack of forensic or other documentary
evidence, owing, inter alia, to the passage of time; and inadequate or lim-
ited support services at national level. A further challenge is reluctance
by some in possession of useful evidence, to share it or testify regarding
sgbv, due to various reasons such as the need to preserve independence,
confidentiality of sources, security issues, etc.
otp investigators often arrive on the scene of alleged crimes much
later than when the crimes actually occurred, and thus often have to seek
potential evidence from so-called first responders already on the ground,
who may have collected relevant information.
What types of on-the-ground entities would be able to provide the
otp with reliable information and evidence related to sgbv, and be will-
ing to do so? Given the importance that the information collected is done
in a manner and form useful to both domestic and international investi-
gations and possible prosecutions, how can one enhance the ability or
capacity of first responders to obtain reliable information that might be
used as leads or as evidence for investigations, or in judicial proceedings?
Similarly, what can the otp and other stakeholders do to enhance the
quality of the information or potential evidence collected by first
responders? Is there a heightened reluctance on the part of certain enti-
ties to cooperate with the otp, including by sharing information in rela-
tion to sgbv as opposed to others? If so, why this is the case and how can
the concerns of such entities be addressed? What can be done to encour-
age the willingness of entities, including first responders, to cooperate
with the otp to assist effective investigation and prosecution of sgbv
before the icc? What are the risks associated with the otp making use of
the information or potential evidence generated by first responders, and
how can such risks be mitigated?

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Chapter 1
New Institutions to Support First Responders

Alex Whiting
1 Summary
First responders are critical to the work of the icc otp, but there are barriers
that impede greater cooperation between the otp and those who may be in
a position to collect valuable evidence of icc crimes. The mission of the otp
is distinct from that of most first responders and imposes duties on the
otp—in particular, disclosure and ensuring the safety of witnesses—that
constrain the Office’s ability to cooperate with outside investigators and hu-
man rights bodies. While the icc otp can take certain important steps to
improve its relationship with first responders and thereby benefit from work
of outside actors, more ambitious solutions are required. The icc otp and
the international community should design and support new institutions
that can coordinate and support first responders and facilitate interactions
with the Court.
2 Argument
First responders are essential to the success of the icc. Given the limited pow-
ers and resources of the Court, and the difficulties that international investiga-
tors often face getting access to the “scene of the crime,” first responders will
often be the only actors with the opportunity to gather evidence that may only
be available while or just after crimes are being committed. As the Office of the
Prosecutor explained in its Strategic Plan for 2016–2018:
The time gap between events on the ground and the moment when the
Office can investigate can result in loss of evidence. This is contrary to
the “golden hour” principle which recognizes that the sooner one can be
at a crime scene, the higher the chances are that better quality evidence
and leads will be discovered. If the Office can ensure—with the assis-
tance of partners—that evidence is preserved without doing harm, it will

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6 Whiting
increase the chance of having efficient and effective investigations and

prosecutions.1
This dependence on first responders will be particularly acute when the al-
leged crimes include sexual and gender-based violence (sgbv). These cases are
among the most challenging to investigate because victims are typically iso-
lated, often face enormous social barriers to coming forward, and can be par-
ticularly susceptible to intimidation. First responders will have opportunities
in the early days to secure physical, forensic and witness evidence, and can
later help steer investigators to the most fruitful areas of inquiry.
It would seem then that the otp at the icc would be committed to assisting
and collaborating with first responders. And in many ways, it is. In the otp’s
Policy Paper on Sexual and Gender-Based Crimes, the Office recognizes the
critical role of first responders and pledges to support their work:
The Office also recognizes the crucial role that civil society plays in pre-
venting and addressing sexual and gender-based crimes. International
and local non-governmental organizations are often the first to respond
to incidents of sexual and gender-based crimes, undertaking documenta-
tion of such crimes, and providing significant medical, psychosocial, ma-
terial, and legal support to victims. The Office will seek to support and
strengthen cooperation with these organizations, particularly those
which have experience in documenting sexual and gender-based sexual
and gender-based crimes and working with victims of these crimes.2
But aside from adding that the Office will build “networks,” the policy is nota-
bly short on details. The reality is that while the otp can take some steps to
support the work of first responders, the mission and design of the Court pose
significant, and often insurmountable, challenges to greater cooperation. The
real solution lies not so much in direct steps that the otp can take in its inter-
actions with first responders, but rather in a more dramatic proposal: the cre-
ation, with the support of the otp, of new institutions to promote and coordi-
nate the work of first responders and to serve as a bridge between the icc and
those first responders.
1 Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018, ¶ 24 (Jul. 6,
2015) [hereinafter Strategic Plan 2016–2018], https://www.icc-cpi.int/iccdocs/otp/EN-OTP_
Strategic_Plan_2016-2018.pdf (last visited June 12, 2018).
2 Office of the Prosecutor, International Criminal Court, Policy Paper on Sexual and
Gender Based Crimes, ¶ 107 (June 2014) [hereinafter sgbc Policy Paper], https://www.icc-
cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes--June-2014.pdf
(last visited June 12, 2018).

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New Institutions to Support First Responders 7
Before turning to this idea, it is worth pausing on the challenges that im-
pede collaboration as too often they are underestimated. In fact, there are at
least five interrelated reasons why it is difficult for the otp to work more close-
ly with first responders: mandate, resources, disclosure, protection of victims
and witnesses, and the rights of the accused.
The icc has a very specific mandate—the investigation and prosecution
of individuals for violations of the three crimes within the Court’s jurisdiction
(war crimes, crimes against humanity, and genocide)—whereas first respond-
ers often have (and should have) broader goals, including advocating for sys-
temic change as well as fighting for assistance to and reparations for victims.
Criminal and non-criminal inquiries require approaches that overlap but are
nonetheless distinct and can sometimes even clash. A criminal investigation
requires a deep and extremely detailed inquiry focused on the actions of spe-
cific individuals, as well as evidence that can satisfy the most rigorous stan-
dard of proof beyond a reasonable doubt. Non-criminal investigations will
be broader, focusing on systems of power and obligations towards victims.
Moreover, the icc will investigate only its specific crimes, and not other forms
of criminality that are commonly associated with mass atrocity, such as cor-
ruption, arms trafficking, and organized crime.
First responders will therefore need to make choices: to focus on icc crimes,
other crimes, individual liability, systemic forces, or broader wrongdoing?
Some investigation will be relevant to all areas, but inevitably, there will be di-
vergence. Investigations require focus, and the methods of investigation and
types of proof required will be different depending on the goals of the inquiry.
Advocacy campaigns can benefit from information derived from broad sur-
veys, whereas criminal investigations must be founded on detailed interviews
with individual witnesses. From the beginning, therefore, it can be difficult to
align the work of first responders and the icc. If first responders wish to pur-
sue objectives that are broader than an icc investigation, they may very well
collect information that is useful to those goals, but not sufficiently reliable for
a subsequent criminal case.
Second, there is the question of resources. The icc has an extremely limited
budget and the Assembly of States Parties has made it clear that the Court’s
mandate will not include capacity building. That does not mean it will have no
role in supporting first responders—it can share expertise and give guidance
and participate in trainings—but the availability of personnel to participate in
these activities will be limited. There is, in addition, a timing problem. The
Court will ordinarily not commit resources to a situation until it begins its in-
vestigation, which is usually long after first responders need support. The
Court can provide some standard guidance to first responders, but often it
must be tailored to the specific aspects of each situation.

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8 Whiting
Third and fourth, even if first responders choose to focus on icc crimes
from the beginning, the related problems of disclosure and witness/victim
protection arise. Article 67 of the Rome Statute3 obligates the Prosecutor to
disclose to the defense all evidence that is potentially exculpatory, and Rule 77
of the icc Rules of Procedure and Evidence4 requires the prosecution to dis-
close information that is “material to the preparation of the defense.” These
rules have been interpreted broadly (overly so in my view) and that has very
important implications for the investigative phase. icc investigators must as-
sume from the start of their inquiry that everything they collect, everything,
will be disclosed to the accused. Moreover, the investigators must anticipate in
advance how the Court will protect witnesses who will be put into jeopardy by
disclosure. Article 68 of the Rome Statute,5 as interpreted by the icc Appeals
Chamber, requires the Court to protect all those who are put into danger as a
result of their interactions with the Court. These dual obligations of disclosure
and witness security are particular to criminal investigations and are stringent-
ly applied at the icc, presenting significant constraints not faced by those con-
ducting non-criminal inquiries. Furthermore, they create barriers to greater
cooperation between the icc and first responders. First responders have an
interest in gathering information quickly for advocacy or relief purposes and
will often be willing to protect the anonymity of witnesses. This means that the
icc cannot accept the work of first responders unless it is first satisfied that the
questions of disclosure and security have been considered and addressed with
respect to each witness.
Finally, the icc has a duty to protect the rights of suspects. Article 54 re-
quires the Prosecutor to “investigate incriminating and exonerating circum-
stances equally,”6 and persons cannot be charged by the Court without due
process, meaning that the judges must find that sufficient evidence has been
presented to the requisite standard according to the procedures established in
the Statute. Moreover, to preserve the integrity of the investigation, the prose-
cution ordinarily cannot share details of its inquiry or the potential targets un-
til it presents its case in court. To do otherwise would be unfair to the suspects
and could give those who are hostile to the work of the icc opportunities to
disrupt the investigation. But these realities complicate cooperation between
the icc and first responders. The icc is often willing to receive information,
3 International Criminal Court, Rome Statute of the International Criminal Court, U.N. Doc.
A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute].
4 International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, r. 63(2) (2013).
5 International Criminal Court, Rome Statute, supra note 1, art. 68.
6 International Criminal Court, Rome Statute, supra note 1, art. 54(1).

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with the limitations described above, but it will not share information, a stance
that can be difficult for some first responders to accept.
Given these barriers to full cooperation between the icc and first respond-
ers, what is the way forward? To be sure, there are some concrete steps that the
Office of the Prosecutor at the icc can take to secure better cooperation from
first responders, particularly in sgbv investigations. First, the icc must con-
tinue to educate those who might support the work of the Court about the
functioning of the icc and the features of the Court that can constrain coop-
eration. To that end, it is laudable that the otp aims to be transparent about its
work, issuing policy papers about its approach to sgbv crimes,7 preliminary
examinations,8 interests of justice,9 victim participation,10 and a draft paper
on case selection and prioritization.11 It is institutionally impossible to have
complete cooperation between first responders and the Court, but if both
sides understand the work of the other and the limitations on cooperation,
then the relationship can be better managed.
Second, the otp should continue to contribute to projects that seek to pro-
vide guidelines or recommendations of best practices to first responders. There
are steps that first responders can take that will maximize the chances that
they will collect evidence that could be used for later criminal inquiries. For
example, they can routinely ask witnesses if they consent to their statements
being provided to the icc. They can also ask questions to determine if wit-
nesses are in possession of valuable physical or forensic evidence (photos,
video, diaries, phone records, etc.) and take steps to ensure that this evidence
is preserved.
Third, the otp should explore ways that it can guide first responders as situ-
ations unfold. While it cannot share the details of its own investigations, there
7 Office of the Prosecutor, International Criminal Court, sgbc Policy Paper, supra note 2.
8 Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Ex-
aminations (Nov. 2013), https://www.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_Prelimi-
nary_Examinations_2013-ENG.pdf (last visited June 12, 2018).
9 Office of the Prosecutor, International Criminal Court, Policy Paper on the Interests of
Justice (Sep. 2007), https://www.icc-cpi.int/NR/rdonlyres/772C95C9-F54D-4321-BF09-
73422BB23528/143640/ICCOTPInterestsOfJustice.pdf (last visited June 12, 208).
10 Office of the Prosecutor, International Criminal Court, Policy Paper on Victims’ Participa-
tion (Apr. 2010), https://www.icc-cpi.int/NR/rdonlyres/9FF1EAA1-41C4-4A30-A202-
174B18DA923C/281751/PolicyPaperonVictimsParticipationApril2010.pdf (last visited June
12, 2018).
11 Office of the Prosecutor, International Criminal Court, Draft Policy Paper on Case Selec-
tion and Prioritisation (Feb. 29, 2016), https://www.icc-cpi.int/iccdocs/otp/29.02.16_
Draft_Policy-Paper-on-Case-Selection-and-Prioritisation_ENG.pdf (last visited June 12,
2018).

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10 Whiting
is often no reason it could not provide broad guidance to first responders about
the alleged crimes or events that might be of most interest to the otp. This
would allow first responders to focus their efforts and make better decisions
about how they collect information.
These steps are important but are ultimately limited. A bolder step is re-
quired: the creation of new institutions to coordinate and guide the work of
first responders. In a little-discussed part of its Strategic Plan for 2016–2018,12
the otp embraces precisely this idea. The last of the otp’s nine strategic goals
is to “develop with partners a coordinated investigative and prosecutorial
strategy to close the impunity gap.”13 To this end, the otp proposes that institu-
tions be established to perform five essential functions: a knowledge center,
evidence preservation center, open source crime database, a platform for the
exchange of confidential information, and a capacity building center.14
These institutions would operate as both horizontal and vertical bridges.
Horizontally, they would coordinate and maximize investigative efforts across
various organizations responding to crisis situations. At present, when atroci-
ties occur, various groups (both international and local) rush in to investigate
and collect information. There is enormous duplication in efforts. Multiple or-
ganizations investigate the same events, collect similar evidence, and inter-
view the same witnesses several times. In addition, groups mobilize to begin
trainings for local actors, often offered in an ad hoc fashion. Finally, much of
the evidence that pours out of the area of crisis is disorganized and unana-
lyzed. For example, it is quite common now, after episodes of atrocity and civil
unrest, to see massive numbers of videos posted online.
All of these disparate efforts could be better organized and coordinated if
there were institutions dedicated to supporting and managing the efforts of
international and local organizations in crisis situations. Of course, some insti-
tutional competition is healthy, and there will never be perfect coordination,
but many groups would welcome the opportunity to benefit from the work of
other bodies and to contribute their efforts only to those areas where there
existed a genuine need. These centralized institutions could also develop train-
ing programs that could be adjusted to new situations and could assist in the
storage and processing of evidence.
Vertically, these institutions could connect the Court to first responders.
They could guide the first responders in their work and help filter evidence
12 Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018, supra
note 1.
13 Id. at 31.
14 Id. at 32–33.

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from the ground to the Court. They could help process, analyze, and store evi-
dence (for example, videos) and help manage the transfer of relevant evidence.
These institutions would not address all of the challenges that prevent perfect
coordination between the icc and first responders, because at bottom, these
challenges are grounded in the differing missions of the Court and most first
responders. However, they could go a long way toward bringing the different
actors together and making the work of the first responders more productive.
The otp should make it a priority to promote the creation of these institu-
tions, and states and organizations interested in ending impunity and promot-
ing justice should give them serious consideration. There is an enormous need
to be filled and a tremendous opportunity to maximize the work of diverse
international and local actors in times of crisis. The work of the icc depends
on the work of first responders, first responders need support and coordina-
tion, the icc is institutionally limited in its ability to perform these functions,
and therefore new institutions are required to fill the gap. By creating efficien-
cies and eliminating duplication, these institutions might even save resources
in some instances. What is clear is that international criminal justice requires
a more concerted and organized effort to collect valuable evidence in the
“golden hour” after atrocities occur. Who is going to do it?

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Chapter 2
Securing Cooperation by Redefining It

Christian De Vos and Betsy Apple
1 Summary
The relationship between the icc’s Office of the Prosecutor (otp) and those
who serve to connect the Office to victims, witnesses, beneficiaries, or affected
communities is burdened by a fraught history. While somewhat improved
since the icc adopted its 2014 Guidelines Governing the Relations between the
Court and Intermediaries (“Guidelines”),1 this relationship is particularly chal-
lenging in sexual and gender-based crime (sgbc) cases because it is premised
on the (at least implicit) notion that first responders and others acting at the
national and local level are instruments of the otp. This power imbalance risks
re-inscribing the very same dynamic giving rise to and enabling sexual and
gender-based crimes. In order to achieve meaningful accountability for sgbc,
the otp must shift its conception of its relation to first responders and inter-
mediaries from an instrumentalist notion to one of substantive equality.
2 Argument
The investigation and prosecution of sexual and gender-based crimes is one of

the International Criminal Court’s most important tasks. Its founding docu-
ment, the Rome Statute, enumerates a broad range of sgbc as war crimes and
crimes against humanity, and contains specific provisions that reflect the draft-
ers’ intention to give special attention to their prosecution.2 The Office of the
Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, released in June
2014, further affirms that, “[it] pays particular attention to the commission of
sexual and gender-based crimes,” and seeks to “enhance the integration of a
gender perspective and analysis in all stages of its work.”3 Moreover, as a court
1 International Criminal Court, Guidelines Governing the Relations Be-

tween the Court and Intermediaries (Mar. 2014) [hereinafter Guidelines], https://
www.icc-cpi.int/iccdocs/lt/GRCI-Eng.pdf (last visited June 14, 2018).
2 See, e.g., International Criminal Court, Rome Statute of the International Criminal Court,
arts. 54(1)(b), 42(9), 68(1), U.N. Doc. A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute]
3 Office of the Prosecutor, International Criminal Court, Policy Paper on Sexual and
Gender Based Crimes, ¶ 14 (June 2014) [hereinafter sgbc Policy Paper], https://www.icc-cpi

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Securing Cooperation by Redefining It 13
that is meant to serve as a complement to—and an example for—national ju-

risdictions, attention to sgbc forms an important part of the icc’s purported
“demonstration effect.”4 In the long shadow cast by years of neglect at the glob-
al level to rape and other forms of sexual violence, the icc was meant to signal
a change in the policy and practice of international criminal tribunals.
Yet nearly fifteen years on, the icc’s record of successful prosecution of
sgbc remains decidedly mixed. Despite the historic conviction of former Con-
golese Vice-President Jean-Pierre Bemba Gombo—the icc’s first for crimes of
sexual violence—and the successful confirmation of sgbc charges in two re-
cent confirmation decisions (Laurent Gbagbo and Bosco Ntaganda), the Wom-
en’s Initiatives for Gender Justice has noted that, historically, sgbc crimes have
been the “most vulnerable category” to failing judicial scrutiny, with more than
50 per cent of such charges dismissed before trial.5 It has also become increas-
ingly clear that the otp has an evidence problem not limited to sgbc alone. To
date, nearly one-third of those individuals who have undergone the confirma-
tion of charges process before the icc have had the charges against them dis-
missed or withdrawn in their entirety.6 One report notes that this is “a substan-
tially higher rate of dismissal than the acquittal rate seen at other international
criminal bodies following a full trial, even though the standard at trial—
beyond a reasonable doubt—is higher than the burden at the confirmation
stage.”7 Judges have also raised pointed criticisms, noting “grave problems in
the Prosecution’s system of evidence review, as well as a serious lack of proper
oversight by senior Prosecution staff.”8
.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes--June-2014.pdf
4 On “demonstration effect,” see Jane Stromseth, David Wippman and Rosa Brooks, Can Might
Make Rights? Building the Rule of Law After Military Interventions (Cambridge: Cambridge
University Press, 2006).
5 Women’s Initiatives for Gender Justice, Legal Eye on the icc (Mar. 2012), https://4genderjustice
.org/publications/eletters/legal-eye-on-the-icc-march-2012/ (last visited June 13, 2018). See
Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Judgment Pursuant to Article 74 of
the Statute (Mar. 21, 2016) [hereinafter Bemba Judgment]. (The Bemba Judgment was particu-
larly notable for its affirmation of rape as both a war crime and crime against humanity).
6 Susana SáCouto, et al., Am. U. Wash. C.L. War Crimes Research Office, Investigative Manage-
ment, Strategies, and Techniques of the International Criminal Court’s Office of the Prosecu-
tor 9 (Oct. 2012), http://www.webcitation.org/6gPNuaE0t (last visited June 12, 2018) (The
burden of proof during the icc confirmation of charges stage is “substantial grounds to be-
lieve,” International Criminal Court, Rome Statute, supra note 1, art. 61(7)).
7 SáCouto, “Investigative Management” 341–42.
8 Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, Decision on Defence Application Pur-
suant to Article 64(4) and Related Requests, Concurring Opinion of Judge Christine Van den
Wyngaert, ¶¶ 1, 4–5 (Apr. 26, 2013).

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14 De Vos and Apple
In light of these challenges, this question invites us to consider how the icc
otp can “secure better cooperation” from first responders and those individu-
als and organizations working on the ground who are often closest to the site
where grave crimes are committed, to assist in the investigation and prosecu-
tion of sgbc. The Oxford English Dictionary defines “cooperation” as “(1) the
process of working together to the same end, and (2) assistance, especially by
ready compliance with requests.”9 Unfortunately, the history of the relationship
between the otp and those working on the ground—or at least one compelling
version of it—suggests that the Office has too often adopted the latter defini-
tion at the expense of the former. Indeed, the very framing of this online Forum
is telling insofar as it rests upon a problematic dynamic between the Court as
an institution and the individuals with whom it necessarily engages to fulfill its
mandate. Put differently: who should be “securing” whom, and to what end?
This dynamic is particularly troubling in the context of sgbc cases, which
are characterized by—and indeed result from—inequalities of power as be-
tween perpetrator and victim. It is well settled that sgbc, whose primary
(although not exclusive) targets are women and girls, emanates from, and is
enabled by, unequal power relationships.10 These inequalities exacerbate the
already monumental impact of the violence itself, rendering sgbc victims and
survivors with “fewer options and less resources at their disposal to avoid or
escape abusive situations and to seek justice.”11 Because sgbc is fundamentally
premised on the relative imbalance of power between perpetrator and victim,
any efforts to promote justice and accountability for it must be constructed
upon the opposite: a clear and unequivocal equality of power. While the icc’s
ultimate goal of investigating and prosecuting sgbc is crucial, it must do so
without re-inscribing those power asymmetries that enabled the crimes in the
first place. This requires a delicate balancing act on the part of the otp: it must
both ensure the credibility and reliability of the information and evidence
gained as a result of the relationship between the Office and first responders,
but it must refrain from treating those who connect it to victims, witnesses,
and beneficiaries as mere instruments.
An added challenge is that the label of “first responder” summons anoth-
er critical actor in icc interventions: the “intermediary.” While the role of
9 Cooperation, Oxford English Dictionary [hereinafter Cooperation Definition], http://www

.oxforddictionaries.com/us/definition/american_english/cooperation (last visited Apr. 5,
2016).
10 See, e.g., Lori Heise, et al., “A Global Overview of Gender-Based Violence” (2002) 78 Int’l J.
Gynecology Obstetrics S5, https://www.researchgate.net/publication/11038601_A_global_
overview_of_gender-based_violence (last visited June 12, 2018).
11 United Nations Population Fund, Strategy and Framework for Action to Addressing Gen-
der-based Violence, 2008–2011, at 7 (2008), https://www.unfpa.org/sites/default/files/
pub-pdf/2009_add_gen_vio.pdf (last visited June 12, 2018).

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intermediaries was not “explicitly envisaged” in the Rome Statute, the Court
has defined an intermediary as:
[S]omeone who comes between one person and another; who facilitates
contact or provides a link between one of the organs or units of the Court
or Counsel on the one hand, and victims, witnesses, beneficiaries of repa-
rations and/or affected communities more broadly on the other.12
As summarized by the Trial Chamber in Lubanga:
[Intermediaries] undertake tasks in the field that staff members cannot

fulfil without creating suspicion; they know members of the community,
and they have access to information and places that are otherwise un-
available to the prosecution.13
In short, like first responders, intermediaries are locally based actors who, “[b]
ecause of their long-term presence,” can carry out important functions that
assist the Court.14 Although not all first responders are intermediaries, if a re-
sponder’s cooperation is enlisted in order to assist the otp with sgbc investi-
gations, then arguably they too would occupy this role. Indeed, according to
the otp, obligations toward a designated “intermediary” are triggered “as soon
as they engage with that entity.” This can take place either “when the otp
reaches out to a first responder,” or when the Office “decides to use information
provided by a first responder.”15
But what exactly is the relationship of these individuals (or institutions) to
the otp?
This question goes to the heart of a long-running debate before the Court,
one that played out painfully and near disastrously in the first trial of Thomas
Lubanga and has emerged in other proceedings as well. While the issue in
12 International Criminal Court, ICC Adopts Guidelines on Intermediaries, https://www.icc-

cpi.int/ iccdocs/PIDS/wu/ED207_ENG.pdf (last visited Apr. 5, 2016).
13 Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Redacted Decision on Intermediar-
ies, ¶ 88 (May 31, 2010).
14 Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment Pursuant to Article
74 of the Statute, ¶ 167 (Mar. 14, 2010) [hereinafter Lubanga Judgment].
15 Stephen Smith Cody, Alexa Koenig, Andrea Lampros & Julia Rayner, UC Berkeley Human
Rights Center (hrc), First Responders: An International Workshop on Collecting and
Analyzing Evidence of International Crimes 6 (Sep. 2014) [hereinafter First Responders],
https://www.law.berkeley.edu/files/HRC/First_Responders_final_with_cover4.pdf
(last visited June 12, 2018). See also Office of the Prosecutor, International Criminal Court,
sgbc Policy Paper, supra note 2, at ¶ 56 (“The Office will identify individuals who may be
selected as intermediaries in order to support the conduct of effective investigations.”).

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16 De Vos and Apple
Lubanga concerned the otp inappropriately “delegating” its investigative re-

sponsibilities to intermediaries—relying on them, in some cases, not only to
contact but also to propose potential witnesses16—those proceedings should
not overlook a broader concern about the power dynamics that inform the
Court’s relationships with local actors, and how “cooperation” can obscure
their coercive effects. As Déirdre Clancy, who worked with icc intermediaries
for a number of years, has noted:
[T]here is often a tension in the intermediary relationship between the

Court’s desire to benefit from local perspectives, access and expertise and
its concerns that local interests, whether political, financial, security-
related or opportunistic, will tarnish the products of that relationship.
The idea that local interlocutors should function as mere volunteers of
the Court divested of their own politics or interests is prevalent.17
In the context of sgbc cases, this tension is particularly significant—and par-

ticularly challenging to navigate—because local interlocutors may encompass
an even broader category of actors than usually serve as intermediaries. Vic-
tims and survivors of sgbc during Kenya’s post-election violence in 2007/2008,
for instance, were often unwilling or unable to report crimes to the police or
other authorities due to shame, stigma, fear of reprisals, inaccessibility, or oth-
er factors. Consequently, for some sgbc victims, the first point of contact was
local chiefs,18 community elders,19 community health workers,20 and victims’
services ngos.21
16 See, e.g., Elena Baylis, “Outsourcing Investigations” (2009) 14 ucla J. Int’l L. & Foreign Aff.
121; Carole Buisman, “Delegating Investigations: Lessons to be Learned from the Lubanga
Judgment” (2013) 11 Nw. J. Int’l Hum. Rts. 30.
17 Déirdre Clancy, “‘They Told Us We Would Be Part of History’: Reflections on the Civil So-
ciety Intermediary Experience in the Great Lakes Region,” in Christian De Vos, Sara Ken-
dall and Carsten Stahn (eds.), Contested Justice: The Politics and Practice of International
Criminal Court Interventions (Cambridge: Cambridge University Press, 2015), p. 219, 248.
On the “depoliticization” of victims, see also Sara Kendall and Sarah Nouwen, “Represen-
tational Practices at the International Criminal Court: The Gap Between Juridified and
Abstract Victimhood” (2013) 76 Law & Contemp. Probs. 235.
18 Kim Thuy Seelinger & Alexa Koenig, et al., UC Berkeley hrc, Sexual Offences Act Imple-
mentation Workshop Comprehensive Report 27 (May 2011) [hereinafter soa Report],
https://www.law.berkeley.edu/files/HRC/Publications_SOA_Comprehensive_04-2012.pdf
19 Id. at 37.
20 Health Rights Advocacy Forum, Report on the Effects of 2007 Post Election Violence on
Health Workers and the Preparedness of the Health Care System in Kenya (2008), http://
www.asclibrary.nl/docs/380698714.pdf (last visited June 13, 2018).
21 Seelinger & Koenig, soa Report, supra note 18, at 42.

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In interrogating the prospects for bridging the gap between the two distinct
notions of cooperation identified above—a process of working together or of
compliance with requests—an examination of the otp’s practices thus far is
not particularly encouraging. First, the Office’s field presence in many situa-
tion countries has been minimal, with the composition of its staff predomi-
nantly (if not exclusively) international.22 Second, even as they have “shoul-
dered the greatest burdens,”23 responders and intermediaries have largely
remained at the margins of the otp’s decision-making process. As it was
explained to the Court in Lubanga, intermediaries “were not supposed to know
the objectives of the investigation team,” and their role was apparently “limit-
ed, in the sense that [they] were excluded from the decision-making process.”24
Pascal Kambale, a Congolese human rights lawyer, notes that local ngos and
activists “had more raw intelligence on the crimes than any other entity, [but]
were deliberately sidelined and their invaluable expertise not fully integrated
into the investigative process.”25 In a similar vein, Phil Clark has argued that,
“Evidence from the ground … suggests that the icc has … often perceived itself
as the lead organisation to which all others are answerable.”26
Some strides have been made on these issues, but more must be done. Draft
Guidelines Governing the Relations Between the Court and Intermediaries—
described as an attempt to “provide a framework with common standards and
procedures in areas where it is possible to standardize the Court’s relationship
with intermediaries”27—were first circulated in 2010 and later revised substan-
tially; they came into effect in April 2014. Importantly, the Guidelines clarify
22 Few to none of the otp’s investigators to date have been nationals of countries where
cases are under investigation. See Christian De Vos, “Investigating From Afar: The icc’s
Evidence Problem” (2013) 26(04) Leiden J. Int’l L. 1009.
23 Clancy, “They Told Us We Would Be Part of History,” p. 226.
24 Id. at p. 181.
25 Pascale Kambale, The icc and Lubanga: Missed Opportunities, African Futures (Mar. 16,
2012), http://forums.ssrc.org/african-futures/2012/03/16/african-futures-icc-missed-op-
portunities/ (last visited June 13, 2018) See also Olivia Bueno & Gilbert Angwandi, irri &
aprovdivi, Steps Towards Justice, Frustrated Hopes: Some Reflections on the Experi-
ence of the International Criminal Court in Ituri (Jan. 2012), https://reliefweb.int/sites/
reliefweb.int/files/resources/StepsTowardJusticeFinal.pdf (last visited June 12, 2018).
26 P. Clark, If Ocampo Indicts Bashir, Nothing May Happen, African Arguments, (Jul. 13, 2008),
http://africanarguments.org/2008/07/13/if-ocampo-indicts-bashir-nothing-may-happen/
27 Notably, while many organizations (for, instance local ngos) can also serve as intermedi-
aries, the Guidelines only govern the icc’s relationships with individuals. In addition to
the Guidelines, a draft Code of Conduct for Intermediaries, and a Model Contract for In-
termediaries have also been created. See International Criminal Court, icc Adopts Guide-
lines on Intermediaries [hereinafter icc Adopts Guidelines], https://www.icc-cpi.int/
iccdocs/PIDS/wu/ED207_ENG.pdf (last visited Apr. 5, 2016).

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18 De Vos and Apple
the existing legal and policy framework governing the icc’s relationship with
intermediaries and other responders that may seek to engage with the Court,
providing greater clarity as to what they may expect from the icc, including
payment (where appropriate) of their expenses and their protection when
placed at risk. Clancy notes that, “While a fiscally sensitive asp was clearly
wary of institutionalizing the intermediary role, reports by the Court to the
asp at the same time indicated that use of intermediaries was ‘ultimately cost
effective.’”28
However, although now formally in effect, the text accompanying the Guide-
lines (including a Model Contract and the Code of Conduct) on the icc’s web-
site notably describes them only as “standards” to which the organs of the
Court will “aspire.”29 Moreover, it is not clear that the broader concern here has
been remedied. The Guidelines warn, for instance, that an intermediary’s fail-
ure to “observe and comply with best/good practices while engaged with the
Court” will lead to their forfeiture from the agreed framework of security.
Equally, the Contract states explicitly that nothing “shall be construed as estab-
lishing … a partnership.”30
These provisions are a reminder that the Guidelines speak more in the lan-
guage of contract than cooperation; indeed, it is unclear that greater formal
clarity as to roles and responsibilities will do much to attract greater support
from local populations. Instead, we suggest that a more fundamental change in
both orientation and practice towards first responders/intermediaries is need-
ed. This orientation should not take as its departure point the “securing” of
cooperation by these actors, but rather a concerted effort to understand the
nature of their work, the challenges they face on the ground, and the assis-
tance they might seek.
Such an orientation would require, above all, the Office itself to develop a
more sustained on the ground presence, in order to develop the sort of produc-
tive relationships that would support greater cooperation with first r esponders.
28 Clancy, “They Told Us We Would Be Part of History,” p. 245. See Assembly of States Parties,
International Criminal Court, Second Report of the Court on the financial implications
of the draft Guidelines governing the relations between the Court and Intermediaries, ¶ 19,
ICC-ASP/12/53 (Oct. 30, 2013), https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-
12-53-ENG.pdf (last visited June 12, 2018). (“[W]hile there are unavoidable costs for the
Court in implementing the draft Intermediaries Guidelines … the use of intermediaries is
ultimately cost effective for the Court. Intermediaries undertake work that would be ex-
tremely costly for the Court to perform[.]”)
29 See icc Guidelines, supra note 27. (The icc’s webpage notes that, “With the exception of
the model contract, Intermediaries guidelines are not legally binding, but represent stan-
dards for the Organs of the Court to aspire to in their interactions with intermediaries.”).
30 ICC, Guidelines, supra note 12.

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This requires a more place-based Court (to date, no icc hearing has ever been
held outside of The Hague) but also a more placed-based otp. Indeed, accord-
ing to testimony, investigators working in the Democratic Republic of Congo
(“drc”) spent only an average of ten days in the field,31 making it difficult for
them to interview witnesses, much less develop the sort of long-term connec-
tions that a more sustained field presence would enable. In our view, the most
notable aspect of the Office’s approach to preliminary examinations and inves-
tigations has been its failure to locate any investigators or analysts in country
on a permanent (or semi-permanent) basis, or to engage on a more sustained
basis with national-level interlocutors.
Notably, there have been some promising policy changes under Prosecutor
Bensouda’s leadership. The Office’s 2012–2015 strategic plan announced a de-
parture from the otp’s earlier policy of “focused investigations” in favor of a
principle of “in-depth, open-ended investigations.”32 In line with this reorien-
tation, the Prosecutor promisingly noted in her inaugural speech to the asp
that the otp is “sending longer investigative missions with less frequent
travel.”33 The Office’s 2016–2018 strategic plan maintains this approach, while
also adopting a new strategic goal of developing “with partners a coordinated
investigative and prosecutorial strategy to close the impunity gap.”34 With no
new trial proceedings having yet been completed under Bensouda’s tenure,
however, the extent to which this reorientation has taken shape in practice
remains unclear. Moreover, continued pressure from members of the Assem-
bly of States Parties to maintain or even reduce the Court’s budget makes it
31 Lubanga Judgment, supra note 13, ¶ 165; Prosecutor v. Thomas Lubanga Dyilo, ICC-
01/04/01/06, Deposition of Bernard Lavigne, ¶ 75:7–8 (Nov. 16, 2010).
32 Office of the Prosecutor, International Criminal Court, Strategic Plan June 2012–2015 (Oct.
11, 2013), https://www.icc-cpi.int/iccdocs/otp/OTP-Strategic-Plan-2013.pdf (last visited
June 12, 2018). Perhaps drawing on the lessons of the Kenyan experience and the criti-
cisms of the Lubanga case, the Office also announced a departure from its previously
stated policy of prosecuting only those “most responsible” for crimes in favor of a strategy
of “gradually building upwards” wherein it “first investigates and prosecutes a limited
number of mid- and high-level perpetrators in order to ultimately have a reasonable pros-
pect of conviction for those most responsible.”
33 Fatou Bensouda, International Criminal Court, Address to the Assembly of States Par-
ties (Nov. 14, 2012), https://www.icc-cpi.int/NR/rdonlyres/3A2E6029-40FB-4BA8-B2D5-
D1489953050C/0/ASP11OpeningOTPBensoudaENGFRA.pdf (last visited June 12, 2018). In
the same speech, however, it was made clear that “there shall be no structural changes in
the Office, neither shall there be a departure from established policies and methods of
operation,” Id. at ¶¶ 3, 6.
34 Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018 (July 6,
2015), https://www.icc-cpi.int/iccdocs/otp/EN-OTP_Strategic_Plan_2016-2018.pdf (last
visited June 12, 2018).

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20 De Vos and Apple
difficult to contemplate such a significant restructuring of Office practice. To

her credit, the Prosecutor has pushed this issue far more than her predecessor;
she should continue to do so.
Another key element is review and refinement of the Guidelines, as well as
the development of additional legal frameworks that should guide otp en-
gagement with ngos. As noted, the Guidelines are a welcome development in
that they provide some measure of clarity on the responsibilities of the Office
to those on the ground. At the same time, there are risks: as Clancy notes,
“there is a danger that the process will impact intermediary independence and
freedom to act, as has been experienced by some … operating under contracts
to date.”35 A detailed review of the Guidelines is forthcoming, which should
provide an important opportunity to reflect on their operation to date, includ-
ing in the context of sgbc.36
Finally, the otp might also benefit by examining possible applications of
some of its victim and witness protection policies and practices to responders
and intermediaries in the sgbc context. A growing body of clinical and legal
literature has identified the phenomenon of “vicarious” or “secondary” trauma,
which has been described as:
the experience of having exhausted hearts, minds, bodies, and souls from
helping survivors through their painful experiences. Over the course of
months or years the effects of vicarious trauma can accumulate, and, if
left unaddressed, can do serious damage to the mental and emotional
wellbeing of providers and other who work to support survivors.37
To the extent sgbc intermediaries also function as service providers to victims

of sexual violence, they may experience vicarious trauma and require appro-
priate care. The icc’s experience in assessing the need for and providing neces-
sary psycho-social and other measures may be helpful in this regard.38
35 Clancy, “They Told Us We Would Be Part of History,” p. 246.

36 A number of organisations have developed guidelines that seek to assist NGOs and inter-
mediaries to document human rights violations and other serious crimes. See, e.g., Public
International Law & Policy Group, "Handbook on Civil Society Documentation of Serious
Human Rights Violations: Principles & Best Practices" (2016), https://static1.squarespace
.com/static/5900b58e1b631bffa367167e/t/59dfab4480bd5ef9add73271/1507830600233/
Handbook-on-Civil-Society-Documentation-of-Serious-Human-Rights-Violations_c.pdf.
37 Office on Violence Against Women, u.s. Department of Justice, The Importance of Under-
standing Trauma-informed Care and Self-care for Victims Service Providers (Jul. 30, 2014),
https://www.justice.gov/archives/ovw/blog/importance-understanding-trauma-in-
formed-care-and-self-care-victim-service-providers (last visited June 13, 2018).
38 International Criminal Court, Protocol on the vulnerability assessment and support proce-
dure used to facilitate the testimony of vulnerable witnesses, ICC-02/11-01/11-93-Anx2

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Ultimately, however, the question should be less what those working on the
ground with victims and survivors can do to assist the otp than what the otp
can do to construct a relationship premised on the commonly held view that
they are “working together to the same end.”39 Such relationship building re-
quires an enhanced understanding of the power dynamic between the otp
and those based in its “situation countries,” as well as a shift from a transaction-
al to substantive relationship of equality and mutual respect. As emphasized
by several ngo participants at a workshop on first responders, there is a “need
for an ongoing dialogue”: they “should not only hear from the icc when the
icc needs something from them.”40 We would thus propose a different ques-
tion as the first step towards redefining cooperation: How can the otp better
orient its practices to meet first responders and those working with victims
and survivors on equal terms?
(April 16, 2012), https://www.icc-cpi.int/RelatedRecords/CR2015_05266.PDF (last visited

June 12, 2018).
39 Cooperation Definition, supra note 8.
40 Cody, et al., First Responders, supra note 15, at 5.

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Chapter 3
Improving ngo and igo Capacity to

Gather Evidence
Susana SáCouto
1 Summary
The International Criminal Court (icc) is a court of global jurisdiction.1 With-

out unlimited resources, the Court cannot be present in every place where
crimes within its jurisdiction may be committed. The Office of the Prosecutor
(otp) must, therefore, regularly rely on organizations on the ground that have
access to witnesses, contacts, and other information that may be crucial to its
investigations and/or prosecutions. The otp’s reliance on these organizations
is particularly pronounced in the context of situations or cases involving sexu-
al and gender-based crimes (sgbc), as these crimes are often under-reported
in situations of conflict or mass violence, making evidence collection of such
crimes particularly challenging for the Court. As the United Nations (un) Sec-
retary General reported to the un Security Council last year:
Sexual violence during and in the wake of conflict continues to be dra-

matically underreported because of the risks, threats and trauma faced by
those who come forward…. Despite the political momentum and visibility
gained in recent years, the reality on the ground is that many Govern-
ments have not been able to create an environment in which survivors feel
safe to report sexual violence. The fear of stigmatization and reprisals is
almost universal, and often compounded by a sense of futility stemming
from the limited services available and the painfully slow pace of justice….
In situations of live conflict, such as the Central African Republic, Iraq,
Somalia, South Sudan, the Sudan and the Syrian Arab Republic, service
provision is further impeded by access restrictions and a climate of fear.2
1 124 states are party to the Rome Statute establishing the icc. See, The States Parties to the
Rome Statute, International Criminal Court, https://asp.icc-cpi.int/en_menus/asp/
states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx
(last visited Apr. 2, 2016).
2 See U.N. Secretary-General, Conflict-Related Sexual Violence: Report of the Secretary-General,
¶ 5, U.N. Doc. S/2015/203 (March 23, 2015) [hereinafter unsc Report on Conflict-Related Sexual

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Improving ngo and igo Capacity to Gather Evidence 23
In light of these challenges, organizations already on the ground, such as

first responders, are often better suited than the otp to identify and gather
timely and relevant information about sgbc. These organizations can include
both international and local actors, such as international forces, non-govern-
mental organizations (ngos), humanitarian organizations, human rights orga-
nizations, and the media, among others. However, these organizations have
different mandates and serve different functions than a prosecutor. None oper-
ates under the same standards of proof as a criminal court, and none aims to
convince judges of the guilt of particular suspects. Rather, their mandates vary,
from providing security, humanitarian or other assistance, to advocating for
political, military or other action, to informing the public of the situation on
the ground, to promoting human rights more generally. Thus, some of these
organizations view the collection of information for purposes of potential fu-
ture prosecution either as beyond their mandate or as a potential threat to
their efforts, independence or security. Not surprisingly, few organizations are
trained in evidence collection techniques that would allow information to be
used in criminal proceedings. Nevertheless, there are ways in which first re-
sponders and the otp can work together to enhance the investigation and
prosecution of sgbc before the icc. In this brief note, I will reflect on two
principal issues: i. how to encourage organizations to collaborate with the otp
and ii. how to help first responders obtain reliable and high-quality informa-
tion or evidence in a way that might be used for investigations or in judicial
proceedings involving sgbc.
2 Argument
I Encouraging First Responders to Collaborate with Court

As mentioned above, organizations on the ground may be reluctant to collabo-
rate with a criminal tribunal. Some are particularly resistant to assisting the
icc. There are a variety of reasons for this. Some organizations worry, for in-
stance, that assisting international justice efforts might make them vulnerable
to retaliation by government authorities. Staff of humanitarian organizations
advocating against cooperation with the icc point to the reaction of Sudanese
authorities to the arrest warrant issued by the icc for President Omar al-Bashir
Violence], http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF
6E4FF96FF9%7D/s_2015_203.pdf (last visited June 12, 2018).

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24 SaCouto
in March of 20093 as a cautionary tale. Shortly after the arrest warrant was is-
sued, not only did the Sudanese government expel thirteen foreign aid groups
and dissolve two local ngos,4 but it also “committed a new series of war crimes,
ranging from blocking humanitarian aid to kidnapping humanitarian workers,
including the looting and use by Sudanese security forces of [Médecins Sans
Frontières’s] vehicles, communications devices, and personal identification.”5
While such an extreme reaction might be unique to the situation in Sudan,
other organizations have also expressed a broader concern that assisting
international criminal justice efforts might significantly detract from their pri-
mary or overarching mandate. As commentator David Kaye has noted in dis-
cussing the role of the Office of the High Commissioner for Human Rights in
international justice efforts, “[t]here is a risk that crisis—in particular the kinds
of crises that consume an icc focused on ongoing conflict—will inexorably
pull the High Commissioner away from her core mandate of universal promo-
tion and protection [of all civil, cultural, economic, political, and social rights].”6
Related to this concern is the perception by some organizations that the
focus of the icc on prosecuting a few, often high-level, perpetrators in a distant
forum can overshadow other, often more far-reaching, post-conflict efforts,
3 Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Warrant of Arrest for Omar
Hassan Ahmad Al Bashir (Mar. 4, 2009).
4 “Sudan says decision to expel aid groups is irrevocable,” Sudan Tribune, 8 March 2009, http://
www.sudantribune.com/spip.php?article30414 (last visited June 12, 2018).
5 Fabrice Weissman, Centre de Reflexion sur l’Action et les Saviors Humanitaires (crash), Hu-
manitarian Aid and the International Criminal Court: Grounds for Divorce 6 (2009), https://
www.msf-crash.org/sites/default/files/2017-06/7d9b-fw-2009-humanitarian-aid-and-inter-
national-criminal-court-grounds-for-divorce.-_fr-art-p._.pdf (last visited June 12, 2018). See
also Stephen Smith Cody, Alexa Koenig, Andrea Lampros & Julia Rayner, UC Berkeley hrc,
First Responders: An International Workshop on Collecting and Analyzing Evidence of Inter-
national Crimes 6 (Sep. 2014), [hereinafter First Responders], https://www.law.berkeley.edu/
files/HRC/First_Responders_final_with_cover4.pdf (last visited June 12, 2018) (noting Côte
d’Ivoire as another example “where local human rights defenders were reportedly endan-
gered because of their assumed involvement in an icc investigation”).
6 David Kaye, Human Rights Prosecutors? The United Nations High Commissioner for Human
Rights, International Justice, and the Example of Syria 14 (UC Irvine Sch. Of L., Research Paper
No. 2013–83, Jan. 4, 2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2196550 (last
visited June 12, 2018). Similar sentiments have been expressed by civil society organizations
involved in documenting human rights abuses. See Open Society Justice Initiative, Civil Soci-
ety Perspectives on Fact-finding and the International Criminal Court 3 (Nov. 2015) [herein-
after osji Civil Society Perspectives], https://www.opensocietyfoundations.org/sites/de-
fault/files/briefing-ngo-guidelines-asp-20151117_0.pdf (last visited June 13, 2018) (noting that
civil society actors involved in documentation “expressed the need for the icc to recognize
that ngos have mandates which are broader than cooperation with the icc”).

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such as community reconciliation, domestic trials, or other rule of law efforts.7

They “perceive [international justice practitioners as] generalists trampling
through places that require specialist knowledge.”8 That frustration is shared
by those who see a need not just to punish perpetrators of mass crimes, but
also to get at and address the root causes that lead to the commission of such
crimes in the first place.9 The result is, as David Kaye suggests, that “ international
justice and human rights communities do not necessarily perceive one anoth-
er as natural allies.”10
Encouraging first responders to collaborate with the otp requires that it rec-
ognize and address these concerns. In particular, it requires that the otp iden-
tify and pursue opportunities to foster mutual respect and understanding, and
build trust, with first responders. This, in turn, requires that the otp recognize
not only that first responders have different mandates and capacities,11 but
also that assisting the otp may put their staff at risk and/or undermine their
efforts.12 While recognition of these concerns might be done in a variety of
different ways, ongoing communication and dialogue between the otp and
7 See, e.g., Kaye, Human Rights Prosecutors, supra note 6, at 2 (noting that many human
rights and humanitarian assistance professionals “privately express misgivings about an
approach that privileges criminal accountability over other forms of post-conflict transi-
tional justice”).
8 Id. at 2. This can be particularly irksome for first responders that understand the specific
expertise needed to encourage survivors of sgbc within a particular community to come
forward and report such crimes.
9 See Weissman, supra note 5, at 7 (arguing that “[t]he brutality of the Khartoum elite’s
domination over Sudan’s outlying regions, the racism of a post-slavery society that dares
not confront its past, the truly existential struggles between nomadic and agrarian societ-
ies for access to land and political representation, and the ties of hostility, cooperation
and dependence between Sudan and its neighbors (Chad, Libya, Eritrea, etc.) and the rest
of the international community are just some of the elements at the root of the extreme
violence that the language of the criminal court is incapable of grasping.” Weissman goes
on to note that “[t]he discourse of criminal justice understands historical events strictly
in terms of the crimes they have engendered. Its view of conflicts is that of chaos and
generalized crime. It offers no analysis of the causes of violence, but only judgment and
condemnation of its perpetrators.”). Id.
10 Kaye, Human Rights Prosecutors?, supra note 6, at 3. Indeed, Kaye goes further, suggesting
that “one detects an undercurrent of superiority felt by one’s practitioners over the oth-
er’s.” Kaye, supra note 6, at 2.
11 See Open Society Justice Initiative, osji Civil Society Perspectives, supra note 6, at 3 (not-
ing that “[a]lthough the [icc] and civil society groups may share the objective of seeking
accountability, it must be recognized and respected that ngos are committed to their
own mandates and responsibilities towards their communities.”).
12 Id. (noting that the “challenges faced by ngos must be acknowledged and addressed by
the icc, particularly in relation to security, protection, and financial costs of documenta-
tion, within the parameters of independence and neutrality.”).

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26 SaCouto
first responders is an essential first step.13 One way the otp might increase op-
portunities for such dialogue is to increase its field presence on the ground, not
just in places where it is investigating crimes, but even before it launches an of-
ficial investigation, that is, during its preliminary examination of a situation.14
Although the otp cannot feasibly have a presence in every conflict zone, a
more robust field presence in situations under examination would allow it to
more easily identify organizations that may come into contact with informa-
tion, witnesses, or other evidence that may be useful in its own investigations,
and to begin a discussion with such organizations about whether and how best
to work together.
It is worth noting that there are organizations—in particular, those that
offer direct services to sgbc survivors—that not only encourage survivors to
access their services but do so in a way that promotes the collection of in-
formation that could be used in subsequent investigations or judicial pro-
ceedings. For instance, some jurisdictions have “one-stop” centers or multi-
purpose clinics that are set up to deliver a variety of services to survivors of
sgbc through the same facility. A good example is the Seruka Health Center,
set up in r esponse to conflict-related sexual violence by the international ngo
Médecins Sans Frontières in Bujumbura, Burundi. The Center offers medical
and psychosocial services for sgbc survivors as well as a range of health care
services for women more broadly, including family planning and treatment for
sexually transmitted diseases.15 By offering a variety of services—and thereby
allowing survivors of sgbc to avoid the stigma often associated with attending
a clinic that only treats survivors of sgbv—this multi-purpose clinic has not
only encouraged survivors to access medical and psychosocial assistance, but
13 This is one of the conclusions participants emphasized in the workshop hosted by UC

Berkeley School of Law’s Human Rights Center with first responders on collecting and
analyzing evidence of international crimes. See Cody, et al., First Responders, supra note
5, at 5.
14 According to a 2011 report published by the otp, “the Office conducts a preliminary ex-
amination of all situations brought to its attention based on statutory criteria and the in-
formation available.” Office of the Prosecutor, International Criminal Court, Report on
Preliminary Examination Activities ¶ 1 (Dec. 13, 2011) [hereinafter 2011 icc otp Report].
Pursuant to Article 53(1) of the Rome Statute, factors considered by the otp during a
preliminary investigation include whether a crime or crimes falling within the jurisdic-
tion of the Court have been committed, the admissibility of the situation, and the inter-
ests of justice. See International Criminal Court, Rome Statute of the International Crimi-
nal Court, arts. 53(1), U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute]. See also 2011 icc
otp Report, ¶¶ 3–8.
15 Christine Lebrun and Katharine Derderian, “Creating Safe Spaces: Lessons from South
Africa and Burundi” (2007) 27 Forced Migration Rev. 50–51.

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also been able to connect those who come through their door with other ngos
and local community groups that “guide survivors through legal proceedings
and contacts with the authorities.”16 Although not all countries where the otp
is active will have the benefit of such clinics or centers, an increased field pres-
ence would allow the otp to identify and begin to build relationships with or-
ganizations that might be best suited to provide the otp with reliable informa-
tion about sgbc. Importantly, increasing the otp’s field presence is consistent
not only with recommendations made by outside observers in the context of
improving otp’s investigations overall,17 but also with the otp’s own Strategic
Plan for 2016–2018.18
Finally, those who worry that privileging international criminal account-
ability may detract from other, more local, justice efforts might be heartened
by new research which finds that “countries under investigation by the icc try
roughly three times as many state agents per year for physical integrity abuses
like torture and sexual violence, compared to averages in other conflicted
states in Africa.”19 The research suggests that the onset of icc investigations
“sets into motion strategic interactions among members of ruling groups,
domestic courts, and local civil society organizations” that result in in-
creased domestic prosecution of such crimes.20 While the authors of this re-
search acknowledge that it is difficult to know whether this process “can be
sustained and converted into long-lasting reform,”21 they point out that in-
creased domestic prosecutions of such crimes “portend unfolding long-term
16 Id.
17 See, e.g., Susana SáCouto and Katherine Cleary, Am. U. Wash. C.L. wcro, Investigative
Management, Strategies, and Techniques of the International Criminal Court’s Office
of the Prosecutor 40–43 (Oct. 2012) [hereinafter wcro Investigations Report], https://
www.wcl.american.edu/impact/initiatives-programs/warcrimes/our-projects/icc-legal-
analysis-and-education-project/reports/report-16-investigative-management-strategies-
and-techniques-of-the-international-criminal-courts-office-of-the-prosecutor/ (last vis-
ited June 13, 2018) (recommending that the otp send investigators to the country under
examination for an extended period of time prior to the formal opening of an investiga-
tion in order to improve the otp’s understanding of the context in which the crimes took
place and its ability to gain the trust of those who may be in a position to provide useful
information).
18 Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018 ¶ 55 (Jul.
6, 2015), https://www.icc-cpi.int/iccdocs/otp/EN-OTP_Strategic_Plan_2016-2018.pdf (last
visited June 13, 2018) (noting goal of increasing the otp’s “investigative field presence”).
19 Geoff Dancy & Florencia Montal, “Unintended Positive Complementarity: Why Interna-
tional Criminal Court Investigations Increase Domestic Human Rights Prosecutions”
(2017) 111(3) American Journal of International Law 5.
20 Id. at 6.
21 Id. at 74.

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28 SaCouto
trends like enhanced concern for rule of law, and improved human rights
protections.”22 Although disseminating such research among first responders
may be beyond the scope of the otp’s official functions, ongoing communica-
tion and dialogue between the otp and first responders may offer opportuni-
ties to raise and discuss new research findings of this type, which may help
counter the sense that international justice practitioners and first responders
are not “natural allies.”
II Helping First Responders Obtain Reliable Information So That

It Can Be Used for Investigations or in Judicial Proceedings
Involving sgbc
Even if first responders are persuaded to cooperate with the icc, few first re-
sponders know the types of information that may be most helpful to investiga-
tors and/or prosecutors trying icc crimes, in particular, sgbc crimes.23 Thus,
the next question is how the icc and other stakeholders might help first re-
sponders gather information in a way that might be used for investigations or
in judicial proceedings in cases involving sgbc. There are at least three specific
areas about which the icc could help first responders increase their knowl-
edge, which would likely enhance the quality of the information or potential
evidence collected by first responders in cases involving sgbc:
1. the legal framework governing types of crimes and modes of liability;
2. the basic rules and jurisprudence governing the way in which icc admits,
weighs, and assesses evidence; and
3. the challenges that often arise in the investigation of Rome Statute
crimes, particularly sgbc, which may discourage survivors from coming
forward.24
22 Id. at 5 (citing Hunjoon Kim and Kathryn Sikkink, “Explaining the Deterrence Effect of
Human Rights Prosecutions for Transitional Countries” (2010) 54 Int. Stud. Q. 939–963,
https://research-repository.griffith.edu.au/bitstream/handle/10072/35696/65819_1.pdf
(last visited June 12, 2018); Kathryn Sikkink, The Justice Cascade: How Human Rights Pros-
ecutions are Changing World Politics (New York: W.W. Norton & Company, 2011)).
23 See Richard Sollom, fxb Center for Health and Hum. Rts., Investigative Best Practices to
Document International Crimes, Safeguard Secure Court-Admissible Evidence: Results
from a Global ngo Survey (Sep. 2014) (noting the vast majority of ngos “remain unfamil-
iar with the workings of the Court and are uninformed of what information would be of
use to the otp, how such data would be used, and how to collect, store and transmit it
more effectively to the Court.”). See also osji Civil Society Perspectives, osji Civil Society
Perspectives, supra note 6, at 4 (noting, for instance, that civil society groups in the Asia-
Pacific region working on documentation “lacked awareness of international criminal
law”).
24 See unsc Report on Conflict-Related Sexual Violence, supra note 2, ¶ 5.

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Thus, yet another goal of an ongoing dialogue between the otp and first re-
sponders is to provide opportunities for the otp and other stakeholders to dis-
cuss these issues with first responders.
As an initial matter, it is important that first responders have at least a basic
understanding of the legal framework and jurisprudence of the icc, in particu-
lar, regarding the specific types and elements of sgbc under the Rome Statute,
the contextual elements of the crimes, the threshold requirements—such as
the gravity threshold—that must be met for all icc crimes, and the modes of
liability most often used in the prosecution of sgbc before international crim-
inal courts.25 Moreover, examples of the types of evidence used to prove the
elements of these crimes, the threshold requirements, and modes of liability
would give first responders a clearer idea of the specific types of information
investigators would be looking for when investigating sgbc under the Rome
Statute.26
Second, first responders should be aware of the basic rules and jurispru-
dence governing the way in which icc admits, weighs, and assesses evidence
in judicial proceedings. Knowing this will help first responders develop
practices that will increase the likelihood that information they gather will be
useful in judicial proceedings, or at the very least, as leads for investigators. For
instance, evidence must be relevant,27 meaning it must “make the existence of
a fact at issue more or less probable.”28 Thus, to be relevant, evidence must be
detailed and connected to the violations allegedly committed by the perpetra-
tor. While first responders may not know the precise nature of any charges that
may ultimately be supported by the evidence at the time that they are collect-
ing that evidence, or the identity of the accused against whom the evidence
25 See osji Civil Society Perspectives, supra note 6, at 4 (noting civil society groups ex-
pressed “a need for guidance on the gravity threshold of crimes under the Court’s jurisdic-
tion, and on icc evidence standards, as well as specific training in the fields of interna-
tional criminal law and international humanitarian law.”).
26 The in-depth evidence analysis charts available through the icc Case Matrix is a particu-
larly useful tool for training first responders on this. See icc Case Matrix, Center for
International Law Research and Policy, https://www.casematrixnetwork.org/icc-case-ma
trix/ (last visited Apr. 2, 2016).
27 See, e.g., International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, r.
63(2) (2013) (referring to “the Chamber’s authority to assess freely all evidence submitted
in order to determine its relevance or admissibility”). In assessing admissibility, the icc
considers whether the probative value of the evidence is substantially outweighed by the
need to ensure a fair trial. See, e.g., Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-
2595-Red-Corr., Corrigendum to Redacted Decision on the Defence Request for the Ad-
mission of 422 Documents, ¶ 39 (Mar. 8, 2011).
28 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-2635, Deci-
sion on the Prosecutor’s Bar Motion, ¶ 16 (Dec. 17, 2010).

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30 SaCouto
may be used, the likelihood that the evidence will be deemed relevant in a fu-
ture prosecution will increase if the evidence is as detailed as possible. Evi-
dence must also be reliable, meaning it is “voluntary, truthful and trustworthy.”29
In assessing the reliability of evidence, courts examine the source of the infor-
mation, in particular, “the place in which the document was seized, in con-
junction with testimony describing the chain of custody [30] since the seizure
of the document; corroboration of the contents of the document with other
evidence; and the nature of the document itself, such as signatures, stamps, or
even the form of the handwriting.”31 With this information, first responders
can take specific steps, such as making regular use of chain-of-custody forms,32
to increase the future reliability of evidence they gather.
Third, in addition to understanding the general rules governing admissibil-
ity of evidence, first responders should be aware that there are a number of
challenges that often arise in the investigation of sgbc. Among them is the fact
that survivors of such crimes are often interviewed by different first respond-
ers, often with different mandates and/or different functions. This can result
not only in secondary traumatization for survivors,33 but also in conflicting or
impeachable statements that the defense may use to discredit witnesses during
29 Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1, Decision on Prosecutor’s Appeal on

Admissibility of Evidence, ¶ 15 (Feb. 16, 1999).
30 Chain of custody is defined as “[t]he movement and location of real evidence, and the
history of those persons who had it in their custody, from the time it is obtained to the
time it is presented in court.” Aida Ashouri, Caleb Bowers & Cherrie Warden, An Overview
of the Use of Digital Evidence In International Criminal Courts 10, Salzburg Workshop on
Cyberinvestigations (Oct. 2013), https://www.law.berkeley.edu/files/HRC/Scholarly_arti-
cles_Salzburg_2013.pdf (last visited June 13, 2018).
31 Prosecutor v. Théoneste Bagosora, et al., Case No. ICTR-98-41-T, Decision on Admission of
Tab 19 of Binder Produced in Connection with Appearance of Witness Maxwell Nkole, ¶
8 (Sep. 13, 2004).
32 Sollom, supra note 23, at 9. See also Cody, et al., First Responders, supra note 5, at 11 (not-
ing that many ngos found that maintaining chain of custody forms “can make different
types of evidence particularly helpful to courts”).
33 See Cynthia Petrigh, Protection of Witnesses, Victims, and Staff in Monitoring, Reporting,
and Fact-finding Mechanism 33, mrf Proj. at hpcr Harv. (Feb. 7, 2014), https://papers
.ssrn.com/sol3/papers.cfm?abstract_id=2392493 (last visited June 13, 2018) (noting that
forgoing interviews with individuals who have already been interviewed by one or more
other organizations on the subject eliminates the possible psychological harm that may
arise when a victim or witness tells a difficult story repeatedly). See also World Health Or-
ganization (who), Ethical and Safety Recommendations for Researching, Documenting,
and Monitoring Sexual Violence in Emergencies 23 (Aug. 10, 2007) [hereinafter who Doc-
umenting Recommendations]; who, Ethical and Safety Recommendations for Interview-
ing Trafficked Women 16, 23 (2003) [hereinafter who Interviewing Recommendations].

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trial proceedings.34 Thus, an important lesson learned for first responders like-
ly to interact with sgbc survivors is the need for coordination, in particular,
with respect to interviewing those survivors. This might mean identifying the
organization or institution with the most significant experience in providing
sgbc-related services as a focal point, and even a specific person within the
lead organization as the lead person for sgbc coordination. In Liberia, for ex-
ample, having an identifiable person for sgbc coordination helped outside
partners (mainly national and international ngo partners) identify whom to
turn to with questions and made coordination more visible.35
Moreover, first responders should be aware that, in many cases, sgbc sur-
vivors may fear retaliation for themselves or their families if they assist in
the investigation or prosecution of sgbc.36 Fear of reprisals is often an acute
issue in situations where victims still live near the perpetrators.37 Helping first
responders ensure they are doing what they can to protect the physical and psy-
chological safety of victims and witnesses is essential to helping them encourage
sgbc survivors to provide information and/or participate in investigations.38
34 See Sexual History, Corroboration, and Inconsistent Testimonies, Prosecuting Sex-Based

Violations, Prosecuting Sex-Based Violations e-resource, https://www.prosecutingsexual-
violence.com/2013/04/sexual-history-corroboration-and.html (last visited Apr. 2, 2016).
35 See Gender-based Violence Area of Responsibility Working Group, Global Protection
Cluster, Handbook for Coordinating Gender-based Violence Interventions in Humani-
tarian Settings 40 (Jul. 2010), https://www.unicef.org/protection/files/GBV_Handbook_
Long_Version.pdf (last visited June 13, 2018).
36 See Office of the Prosecutor, International Criminal Tribunal for Rwanda, Best Practices
Manual for the Investigation and Prosecution of Sexual Violence Crimes in Situations of
Armed Conflict: Lessons from the International Criminal Tribunal for Rwanda ¶¶ 53–54
(2008) [hereinafter 2008 ictr Best Practices Manual], http://w.unictr.org/sites/unictr.
org/files/legal library/140130_prosecution_of_sexual_violence.pdf (last visited June 13,
2018).
37 See, e.g., Claudia Paz y Paz Bailey, “Guatemala: Gender and Reparations for Human Rights
Violations,” in Ruth Rubio-Marín (ed.), What Happened to the Women? Gender and Repa-
rations for Human Rights Violations (New York: Social Science Research Center, 2006), p.
116 (noting fear of sgbc victims in context of Guatemalan conflict). This fear might have
increased when indemnification was offered to the Civilian Self-Defense Patrols, many of
whom were the perpetrators of rape, as this led to the reactivation and legitimization of
their leadership within their communities. Id. at 97, 116–17.
38 Note, however, that first responders should be aware that it may not always be necessary
or advisable to share all relevant information with the otp. For instance, while some
ngos provide much needed medical and psychological assistance to sgbc victims and
survivors, they may want to exercise caution before turning over confidential medical re-
cords to the otp, as the otp has an obligation to disclose potentially exculpatory informa-
tion to the Defense, and this could include such records.

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32 SaCouto
Furthermore, treating sgbc survivors with dignity and respect often results
in better cooperation by witnesses and ultimately better evidence.39 Thus, it is
important that first responders be respectful and mindful of the risk of
re-traumatization or other psychological harm to sgbc survivors and follow
certain practices to minimize that risk, if they do not have such practices in
place already. For instance, first responders should strive to ensure that survi-
vors can request that they be interviewed by someone of their gender; this can
help to build a relationship of trust between the survivor and interviewer and
avoid victim re-traumatization.40 Second, when conducting an interview, it is
imperative to inform the interviewee of the purpose of the interview and “how
the information conveyed in the interview will be used.”41 Interviewees should
also be made aware of the risks of the interview, including the possibility of
traumatization,42 and of their right to refuse to answer certain questions, to
take breaks, and to stop the interview at any time.43 To ensure informed
consent on the part of the interviewee, first responders should consider
developing—if they have not already—a consent statement that will be read
aloud to each interviewee prior to the interview, and ensure that the inter-
viewer allows time for questions.44
39 Office of the Prosecutor, International Criminal Tribunal for Rwanda, 2008 ictr Best
Practices Manual, supra note 36, ¶¶ 63, 66 (noting that treating witnesses with respect,
sensitivity, and care helps to put the witness at ease and facilitate witness testimony).
40 Anne-Marie de Brouwer, “The Importance of Understanding Sexual Violence in Conflict
for Investigation and Prosecution Purposes” (2015) 48 Cornell Int’l L.J. 639, 665, http://
www.lawschool.cornell.edu/research/ILJ/upload/de-Brouwer-final-2.pdf (last visited
June 12, 2018) (citing Office of the Prosecutor, International Criminal Tribunal for Rwan-
da, Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes
in Post-Conflict Regions: Lessons Learned from the Office of the Prosecutor for the Inter-
national Criminal Tribunal for Rwanda (Jan. 30, 2014) [hereinafter 2014 ictr Best Prac-
tices Manual], http://w.unictr.org/sites/unictr.org/files/legal-library/140130_prosecution_
of_sexual_violence.pdf (last visited June 13, 2018) (noting that the “[m]anual also
highlights that diverse investigative teams, composed of male and female members of
different ages and nationalities or regional backgrounds, provide the greatest flexibility in
reaching out to and soliciting cooperation from victims and witnesses.”)).
41 Human Rights First, The Role of Human Rights ngos in Relation to icc Investigations
8 (Sep. 2004), http://www.iccnow.org/documents/HRF-NGO_RoleInvestigations_0904.
pdf. Examples include informing the interviewee that interviews will be used for public
reporting, public advocacy, documentation, or “for attempting to trigger a criminal inves-
tigation.” Id.
42 who, who Documenting Recommendations, supra note 33, at 23; who, who Interview-
ing Recommendations, supra note 33, at 16, 23.
43 who, who Interviewing Recommendations, supra note 33, at 23.
44 United States Agency for International Development, Toolkit for Monitoring and Evaluat-
ing Gender-Based Violence Interventions Along the Relief to Development Continuum

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Another way to demonstrate respect for the victim or witness is to ensure

that questions are formulated in a way that is least likely to cause strong emo-
tional reactions. For instance, an interviewer should avoid asking questions
that insinuate negative judgments about the witness’s actions. Instead, the in-
terviewer should let the victim tell his or her story without interruption, asking
specific questions and clarifying ambiguous information in an understanding
and nonjudgmental tone, without questioning the interviewees’ status as a
bona fide survivor of sgbc and explaining beforehand why certain potentially
embarrassing questions may be necessary.45 Importantly, interviewers should
refrain from making any assumptions about sexual or gender-based violence
when conducting interviews. For instance, first responders “should not assume
that, because a witness is young, old, disabled, or male, the witness has not
experienced sexual violence.”46
Finally, it is important for first responders to be aware that there is prece-
dent for successful prosecutions of sgbc even in instances where direct vic-
tim/survivor testimony regarding such crimes is limited or unavailable.47 In-
deed, “the Prosecution may attempt to establish its case through hospital
records, forensic evidence,48 and the testimony of doctors, insider witnesses,
207 (May 9, 2014), https://www.usaid.gov/sites/default/files/documents/2151/Toolkit%20

Master%20(FINAL%20MAY%209).pdf (last visited June 13, 2018). Typically, the interview-
ee would then be asked to sign the consent form, but if issues of confidentiality render
this problematic, another alternative is to have the interviewee sign a separate form that
states that the “informed consent is given to participate in an interview (or other activity)
but does not specify the topic.” Id. at 208.
45 See who, who Interviewing Recommendations, supra note 33, at 23; Sexual Assault
Emergency Response Protocol for Sarnia-Lambton, at 4–5 (2006).
46 See de Brouwer, supra note 40, at 665 (citing 2014 ictr Best Practices Manual, supra note
40).
47 Indeed, the icty Appeals Chamber affirmed in the context of sexual violence charges
“that there is no requirement that an alleged victim personally testify in a case for a trial
chamber to make a finding that a crime was committed.” Prosecutor v. Đorđević, Case No.
IT-05-87/1-A, Judgement, ¶ 857 (Jan. 27, 2014).
48 Note, however, that because of the difficulty in collecting this kind of evidence in conflict
or post-conflict settings, forensic evidence should not be—and has not been—considered
crucial to proving sgbc cases before international criminal tribunals. Nevertheless,
healthcare providers should preserve forensic evidence when conducting medical exami-
nations following a sexual assault, when possible. Various jurisdictions have adopted
guidelines for healthcare providers to follow when dealing with victims of sgbc. See, e.g.,
Dr. K. Peterson, Department of Health of Republic of South Africa, The Primary Health-
care Package for South Africa- A set of Norms and Standards (Sep. 2011), https://www
.medbox.org/za-community-health/the-primary-healthcare-package-for-south-africa-a-
set-of-norms-and-standards/preview? (last visited June 13, 2018); Convention on the Elim-
ination of Discrimination against Women, Responses to the list of issues and questions with

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34 SaCouto
international observers, and eyewitnesses to the sexual violence.”49 For in-

stance, in the Bagosora, et al. case, the ictr Prosecutor successfully secured a
conviction for the crime against humanity of rape against Colonel Théoneste
Bagosora, despite the fact that only one of 242 witnesses in the case testified
about her own sexual victimization.50 Moreover, in the Đorđević case, the icty
Prosecutor relied on the evidence of a witness who had observed a young
Kosovo Albanian girl being removed from a convoy of displaced persons and
taken to the woods by two armed men in order to establish that the girl had
been sexually assaulted.51 Although the Trial Chamber found that it was unable
to conclude that the young girl had been sexually assaulted in the absence of
direct evidence as to what transpired in the woods, the Appeals Chamber re-
versed this, finding it was unreasonable not to conclude that the young girl had
been “subjected to mistreatment that was sexual in nature.”52 Notably, docu-
mentary evidence—such as reports compiled by international observers,
ngos, and media—have also been used to show the existence and scope of
sexual violence in a p articular conflict area53 and to demonstrate that accused
had notice of information that should have alerted them to the possibility or
foreseeability of sexual violence.54 Thus, another goal of an ongoing dialogue
regard to the consideration of the combined initial, second, third, fourth, fifth and sixth peri-
odic reports: Liberia, U.N. Doc. CEDAW/C/LBR/Q/6/Add.1, ¶ 11 (May 11, 2009).
49 SáCouto and Cleary, wcro Investigations Report, supra note 17, at 53.
50 Prosecutor v. Théoneste Bagosora, et al., Case No. ICTR-98-41-T, Judgement and Sentence,
¶568 (Dec. 18, 2008) See also Kelly Askin, Can the icc Sustain a Conviction for the Underly-
ing Crime of Mass Rape without Testimony from Victims?, icc Forum (Jun. 2012), http://ic-
cforum.com/massrape/#Askin (last visited June 13, 2018). Note, however, that there have
been cases where a Trial Chamber may simply be unconvinced that the non-direct victim
testimony is sufficiently reliable or probative. Indeed, in the Bagosora, et al. case, Bago-
sora’s three co-accused were each acquitted of the charge of rape as a crime against hu-
manity “when the judges found the linkage evidence lacking.”
51 See Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-T, Judgement, ¶ 832 (Feb. 23,
2011) [hereinafter Đorđević Trial Judgement] (The witness heard the girl “screaming and
crying,” and indicated that the girl returned “wrapped in a blanket and appeared to be
naked.”).
52 Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-A, Appeal Judgement, ¶ 857(Jan. 27,
2014).
53 See, e.g., Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement,
¶ 653 (Mar. 27, 2013) (specifically referencing a report by the Special Rapporteur to the UN
regarding the displacement of Muslims from Travnik, who had been driven in buses by
Serb forces to Muslim-controlled territory, and in some instances beaten, raped, and
killed during transport).
54 See, e.g., Đorđević Trial Judgement, supra note 51, ¶¶ 1996–1999 (relying on ngo and me-
dia reports to conclude that the accused was well aware of information which made sex-
ual violence foreseeable in that case).

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between the otp and first responders is to raise awareness among first re-
sponders that sources other than crime-based or victim-witnesses can provide
important evidence in sexual violence cases. Importantly, the otp may be able
to increase the value of such information—particularly reports compiled by
international observers, ngos, and media—by providing relevant guidance to
those organizations regarding how they might best present the information
they have in their possession to the otp. For instance, “rather than reporting
separately about individual incidents, it may be helpful if ngos were able to
provide summaries of the total number of incidents they discover in a particu-
lar location, the types of crimes, and the suspected perpetrators of those
crimes and/or groups to which they are linked.”55
3 Conclusion
Organizations already on the ground, such as first responders, are often better
suited than the otp to identify and gather timely and relevant information
about sgbc. However, these organizations have different, often broader, man-
dates than an international criminal court. Thus, some view the collection of
information for purposes of potential future prosecution by the icc as beyond
their mandate or as a potential threat to their efforts, independence, or security.
Encouraging first responders to collaborate with the otp requires that the Of-
fice recognize and address these concerns. In particular, it requires that the otp
identify and pursue opportunities to foster mutual respect and understanding,
and build trust, with first responders. While this might be done in a variety of
different ways, ongoing communication and dialogue between the otp and
first responders is essential and should be pursued as early as p ossible, even
before the otp launches an official investigation of a particular situation.
Even if first responders are persuaded to cooperate with the icc, few first
responders are aware of the types of information that may be most helpful to
investigators and/or prosecutors trying icc crimes, in particular sgbc. As I’ve
argued, there are at least three specific areas about which the icc could help
first responders increase their knowledge, which would likely enhance the
quality of the information or potential evidence collected by first responders
in cases involving sgbc:
1. the legal framework regarding sgbc crimes and modes of liability;
2. the basic rules and jurisprudence governing the way in which icc admits,
weighs, and assesses evidence; and
55 SáCouto and Cleary, wcro Investigations Report, supra note 17, at 80.

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36 SaCouto
3. the challenges that often arise in the investigation of Rome Statute

crimes, particularly sgbc, which may discourage survivors from coming
forward.
Notably, there have been various efforts to draft best practices on how first re-
sponders could help the icc with general evidence collection.56 There have
also been efforts to produce best practices on the investigation and prosecu-
tion of sexual violence crimes in particular.57 The icc should encourage the
development, adoption, and dissemination of a set of guidelines that incorpo-
rates relevant practices from these efforts specifically geared toward helping
first responders obtain reliable information or evidence in a way that would be
most helpful to investigators and/or prosecutors trying sgbc crimes.58
56 See, e.g., Cody, et al., First Responders, supra note 5, at 2–3.

57 See 2008 ictr Best Practices Manual, supra note 36, ¶¶ 63, 66.
58 Such guidelines could, for instance, include checklists for the collection of evidence. In
addition, they could advocate, as other best practices efforts have, see 2008 ictr Best
Practices Manual, supra note 36, ¶ 25, implementation of a standard interview protocol
through, for example, a model questionnaire and model witness statement, which would
not only help ensure proper treatment for sgbc survivors but also increase the likelihood
that investigative methodology and procedures will be conducive to eliciting useful
testimony.

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Chapter 4
Securing Improved Cooperation

Kim Thuy Seelinger
1 Summary
The icc Prosecutor has made accountability for sexual violence a central pri-
ority, as evidenced by the development of her Office’s thoughtful and compre-
hensive Policy Paper on Sexual and Gender-based Crimes, issued in June 2014.1
Increasingly, the Prosecutor seeks collaboration with domestic actors who can
collaborate on and support the investigation and prosecution of crimes of sex-
ual and gender-based violence under the Rome Statute.
Traditionally, the coordination and cooperation between local actors and
the icc Office of the Prosecutor (otp) have varied greatly and have, in general,
been wrought with challenge. Unsurprisingly, this is often the case among
state actors such as the local police, public hospitals, or the government foren-
sic laboratory, where the state is not politically supportive of the otp’s activi-
ties. However, even in cases where the otp’s efforts enjoy political support,
local actors may still be limited in their ability to contribute valuable informa-
tion about sgbcs due to their own capacity constraints. As important, if not
more so, is their potential reluctance to do so.
In this brief article, I note the importance of:
a. thinking expansively about potential local partners who may have infor-
mation about sgbcs to share,
b. understanding the capacity-related challenges local actors may face in
documenting sgbcs generally as well as their lack of awareness of how to
engage the otp, and
c. understanding local actors’ reluctance to cooperate with icc investiga-
tions in order to address this hesitation.
1 Office of the Prosecutor, International Criminal, Policy Paper on Sexual

and Gender Based Crimes, ¶ 107 (June 2014) [hereinafter sgbc Policy Paper], https://
www.icc-cpi.int/iccdocs/otp/otp-Policy-Paper-on-Sexual-and-Gender-Based-Crimes-
-June-2014.pdf (last visited June 12, 2018).

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38 Seelinger
I offer some practical suggestions to improve local awareness of how to sup-

port the otp’s investigations of sgbcs, as well as thoughts as to how to im-
prove their willingness to do so.
2 Argument
icc Prosecutor Fatou Bensouda has made accountability for sexual violence a
central priority, as evidenced by the development of her Office’s thoughtful
and comprehensive Policy Paper on Sexual and Gender-based Crimes (sgbcs),
issued in June 2014.2 Increasingly, the Prosecutor seeks collaboration with
domestic actors who can collaborate on and support the investigation and
prosecution of crimes of sexual and gender-based violence under the Rome
Statute.
Traditionally, the coordination and cooperation between local actors and
the icc Office of the Prosecutor have varied greatly and have, in general, been
wrought with challenge. Unsurprisingly, this is often the case among state ac-
tors such as the local police, public hospitals, or the government forensic labo-
ratory, where the state is not politically supportive of the otp’s activities. How-
ever, even in cases where the otp’s efforts enjoy political support, local actors
may still be limited in their ability to contribute valuable information about
sgbcs due to their own capacity constraints. As important, if not more so, is
their potential reluctance to do so.
Two initiatives of the Human Rights Center highlight ways to enhance the
ability and willingness of first responders to cooperate with the icc otp.
First, in 2014, the Human Rights Center convened an international confer-
ence in Salzburg, Austria, at which members of the icc otp and key ngo rep-
resentatives discussed how local and international ngos, journalists, forensic
scientists, health professionals, and other “first responders” to war crimes and
human rights violations can most effectively work with the International
Criminal Court (icc) in the collection of evidence of serious international
crimes, such as genocide and crimes against humanity. Workshop findings
and recommendations were captured in the report, First Responders: An
International Workshop on Collecting and Analyzing Evidence of Internation-
al Crimes.3
2 Id.
3 Stephen Smith Cody, Alexa Koenig, Andrea Lampros & Julia Rayner, UC Berkeley Human
Rights Center (hrc), First Responders: An International Workshop on Collecting and Ana-
lyzing Evidence of International Crimes 6 (Sep. 2014) [hereinafter First Responders], https://

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Securing Improved Cooperation 39
Second, in terms of sgbcs, in particular, results of our 2011–2014 study on

domestic accountability for sexual and gender-based crimes are presented in
The Long Road: Domestic Accountability for Sexual Violence in Conflict and
Post-Conflict Settings and a forthcoming, separate report on eastern Demo-
cratic Republic of Congo.4 These resources illuminate ways to understand local
actors’ capacity challenges and reluctance to cooperate, so that they can be
addressed individually.
Here, I draw from both projects to outline a few key thoughts on how we
might improve both the ability and willingness of local actors to support the
otp’s investigation and prosecution of sgbcs.
I Widening the Aperture: Which Local Actors Are Relevant to the

Investigation and Prosecution of sgbcs?
It’s first important to define our target. When we speak of enhancing local ac-
tors’ ability and willingness to assist the icc Prosecutor in the investigation
and prosecution of Sexual and Gender-based Crimes (sgbcs), which local ac-
tors do we even mean?
We tend to think of traditional human rights defenders as being the primary
documenters of wartime atrocities—international or grassroots actors from
within civil society who take photos, collect records, interview survivors, and
compile reports and dossiers for potential future truth commissions or prose-
cution by international tribunals. Increasingly, these human rights defenders
are collecting evidence of conflict-period sexual violence as part of the harms
they document.
However, we should think expansively about the potential network of lo-
cal actors who may have access to information about the sgbcs committed
in the context of a specific conflict. From our Long Road research on domes-
tic accountability mechanisms for sexual and gender-based crimes in four
conflict-affected countries, we sketch out the following rough typology of rel-
evant actors who are based on the ground:
1. Medical care providers, including staff of local hospitals (especially those
with gender-violence recovery centers or reproductive healthcare units)
and medical staff in refugee or internal displacement camps. This in-
cludes those providing psychosocial support.
www.law.berkeley.edu/files/HRC/First_Responders_final_with_cover4.pdf (last visited June

12, 2018).
4 Kim Thuy Seelinger & Julie Freccero, UC Berkeley Human Rights Center (hrc), The Long
Road: Accountability for Sexual Violence in Conflict and Post-Conflict Settings (2015) [here-
inafter Long Road], https://www.law.berkeley.edu/wp-content/uploads/2015/04/The-Long-
Road-Executive-Summary-August-2015.pdf (last visited June 12, 2018).

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40 Seelinger
2. Leaders of displaced communities, who are chosen as representatives in

the immediate wake of violence. Often, refugee and idp communities
establish their own community governance structures when displaced—
these can range in terms of formality, but they are always worth explor-
ing. Individual leaders may not have firsthand knowledge of sexual or
gender-based crimes committed against their community members, but
they can often provide effective referral within the group—whether in a
camp or more decentralized setting.
3. Civil society organizations working with survivors of sexual and gender-
based violence, like the Coalition on Violence Against Women (covaw),
which provided psychosocial and legal counseling after the 2007–2008
post-election violence in Kenya or the Refugee Law Project in Uganda,
which supports both male and female refugees violated in conflict-affected
homelands like Northern Uganda, Rwanda, and the Democratic Republic
of the Congo.
4. Religious leaders, places of worship, and faith-based organizations, which
are so often providers of physical shelter and material support during cri-
sis periods. For example, Filadelfia Women’s Crisis Center in Nakuru, Ke-
nya, or the Muslim Women’s Association in the Umpiem Mai camp on the
Thai-Burma border.
5. Local human rights defenders, who document war crimes, crimes against
humanity, and acts of genocide during and after crisis through survivor
declarations, news collection, photography, etc, for future investigation
and prosecution. These groups include the Global Justice Research Project
(gjrp) in Liberia and the Independent Medical Legal Unit (imlu) in Ke-
nya. Their documentation often includes crimes of sexual violence.
6. Local police, where they remained operational during emergency periods.
7. Local forensic analysts, where forensic laboratories exist and have collect-
ed physical evidence—e.g., blood, bones, weapons—for examination.
8. Humanitarian actors like the un High Commissioner for Refugees
(unhcr) where it provides direct protection efforts, and other interna-
tional groups providing services mid-crisis or in displacement such as the
International Committee of the Red Cross, International Rescue Committee,
Caritas, and the International Medical Corps.
9. Members of local human rights commissions, where the commission was
independent and conducted fact-finding, like Kenya’s Commission of In-
quiry on Post-Election Violence (cipev or “the Waki Commission”).
10. Local journalists with a reputation for independent and ethical
investigation.

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Although not all of these actors will be useful or willing in all cases, it is im-
portant to identify, and be receptive to, a wide variety of potential sources at
the outset.
II Understanding Capacity and Awareness Challenges: Willing

Collaborators’ Ability to Collect and Share Useful Information
Where a local actor may be willing to cooperate with the icc otp, its potential
contribution can still be limited by internal capacity challenges and lack of
clarity with respect to how to work with the otp.
Our research in Kenya, Uganda, Liberia, Sierra Leone, and eastern Demo-
cratic Republic of Congo highlighted ways in which limited capacity and
general collapse of infrastructure in conflict-affected areas contributed
to a near universal failure to collect evidence of crimes of sexual violence
contemporaneously.
For example, the healthcare providers who were able to operate during pe-
riods of conflict in Kenya, Liberia, Sierra Leone, or Uganda were often the first,
and only, point of call by a survivor of sexual violence. But at the time, few
healthcare providers had received training in the collection and management
of forensic evidence. Even if they had been trained, evidence gathering and
preservation for possible prosecution later simply were not priorities during an
emergency period.5 A women’s rights advocate in Monrovia noted that, during
Liberia’s second civil war, no one delivering emergency medical services to
sexual violence survivors stopped to ask a patient, “What happened?”6
Similarly, the likelihood of the police investigating conflict-period cases of
sexual violence was slim. Not only was reporting non-existent, but in many
places, complaints of violence could often only be submitted in one’s neigh-
borhood police district anyway. This made reporting futile even for survivors
who might want to come forward but who were displaced by the crisis. A Libe-
rian prosecutor reminded, “During wartime, there was no legal process. We
were all just trying to survive.”7
Moreover, the sheer task of documenting and investigating sexual violence
as it can occur during conflicts is daunting—particularly when it involves
armed actors. Several interviewees also mentioned the great difficulty in iden-
tifying direct perpetrators if they were members of an unfamiliar group or oth-
erwise foreign to a survivor’s community. Similarly, it was often difficult for
5 Interview with an anonymous nurse, in Monrovia, Liberia (Aug. 2012).

6 Interview with an anonymous women’s rights advocate, in Monrovia, Liberia (Aug. 2012).
7 Liberian Prosecutor, Verbal statement at Missing Peace Practitioners’ Workshop on Account-
ability for Sexual Violence, in Kampala, Uganda (Aug. 2015).

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42 Seelinger
survivors to provide information about ties to higher-level commanders who

were not at the scene of the crime.
Many interviewees noted that even now, police lack sufficient competence
or sensitivity to handle day-to-day cases of sexual and gender-based violence.
In Kenya and Uganda, key informants noted that because sexual and gender-
related crimes are not adequately incorporated into the police academy cur-
riculum, members of the general police force are insufficiently familiar with
how to handle these cases, resulting in weak investigations and case files that
are not useful in court. Some informants also mentioned police officers’ gen-
der bias or lack of prioritization of gender-related crimes as obstacles to effec-
tive response.
At this point in time, the national and local police are even less likely to be
trained or capacitated with regard to international crimes. They typically focus
on the implementation of domestic penal laws. The specific evidentiary re-
quirements and rules of admissibility relevant to the icc are not yet an area of
training or facility.
It’s not just state actors. As Human Rights Center colleagues noted in our
First Responders report:
Most ngos are not trained in evidence-gathering techniques and there-

fore may not capture information about crimes in ways that are court
admissible. For example, first responders may be unaware of ways to col-
lect evidence in a manner that allows for its authentication by the otp.
Thus, there is a need to develop trainings and disseminate guidelines on
how to collect evidence of crimes in ways that will maximize its potential
probative value in court.8
Finally, unless they are directly contacted by the icc otp, many willing col-
laborators may be unsure of how to contact or engage with the otp in general.
There is a lack of guidance regarding ngos’ roles and responsibilities with re-
gard to international investigations or trials, or the responsibilities of the icc in
the context with local partners. This is presumably also the case among actors
who may be interested in sharing information regarding sgbc specifically.
III Addressing Reluctance and Risk: Local Actors’ Willingness to Share

sgbc Evidence with the otp
There are several reasons that relevant local actors may not be willing to share
information and possible evidence of sgbcs with the icc otp.
8 Cody, et al., First Responders, supra note 3, at 4.

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Some of these reasons are general hesitations that many other groups may
have—security risks to staff members seen to be cooperating with an interna-
tional investigation, lack of willingness to step onto the “conveyor belt” that
may lead to a protracted engagement with the Court, or apprehension about
the nature and mechanics of a working relationship with the otp.
It seems that certain local actors who may have access to information about
sgbcs committed during periods of armed conflict may have specific concerns
about becoming involved in any investigation efforts—not just those led by
the otp.
For example, healthcare providers at both large international humanitar-
ian relief organizations and public hospitals and clinics often treat survivors
of sgbcs during and in the immediate wake of conflict periods. They may
provide post-rape care, testing for pregnancy, hiv and sexually transmitted
infections; they may offer counseling and psychosocial support. However, the
healthcare providers we interviewed in Kenya, Liberia, Sierra Leone, Uganda,
and eastern Democratic Republic of Congo routinely explained that during
crisis periods, they literally work in triage, trying to provide emergency care
not just for sgbc survivors but for the entire community affected by violence.
In this context, it is difficult to meet even basic documentation standards. Tak-
ing on any additional degree of enhanced documentation or specimen collec-
tion that might later support an investigation for international crimes seemed
entirely overwhelming. Social workers and shelter providers expressed similar
concerns.
Perhaps more importantly, local actors providing medical and psychosocial
support noted an ethical dilemma that they faced when confronted with the
possibility of supplying the investigators with evidence of sgbcs. First, they
did not see themselves as “evidence collectors.” Second, they frequently noted
that cooperating with an investigation could compromise their roles as neutral
sources of clinical and therapeutic care for survivors. Many felt that survivors
would not come forward for healthcare and counseling if they thought the pro-
vider was turning over medical or counseling files to prosecutors.
Further, many of the local actors who traditionally work with survivors of
sgbcs expressed reluctance to push their clients or patients into the justice
system when there was little chance of swift conviction and little to no witness
protection offered.
IV Recommendations
My recommendations regarding the improvement of the capacity and aware-
ness of the icc, and addressing reluctance to engage with the icc otp are as
follows:

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44 Seelinger
A Identification and Mapping of Relevant Actors

In preparing to identify priority and appropriate sources of sgbc-related infor-
mation in a country, the otp should ensure that its due diligence on local in-
vestigation and accountability efforts includes:
1. Research on local gender norms, traditional practices, and colloquial ter-
minology related to sexual and gender-based violence in the target com-
munity, to provide important context for outreach and engagement with
local actors on the issue of sgbcs.
2. Identification and mapping of the main civil society and governmental
actors on the ground and what their general process and challenges are
with respect to documentation of sgbcs. This means developing a close
understanding of any specialized units focused on sexual and gender-
based violence, as within the police force or at local hospitals. This exer-
cise can help refine a list of possible actors and help develop realistic ex-
pectations about the kinds of information they may provide.
3. Identification of any disparity between the Rome Statute and provisions
in domestic penal law regarding sexual and gender-based crimes, to de-
tect and address definitional and procedural differences.
4. Engagement of relevant external researchers or even supervised law stu-
dents who are part of university law clinics (not necessarily in the situa-
tion country) to supplement this preparatory work.
B Resources and Guidance

To improve the quality of sgbc evidence collected by local actors, the otp and
its outreach partners should distill key resources into formats or modules that
can be easily consumed by local actors. Specifically, such resources may
include:
1. The icc Prosecutor’s Policy Paper on Sexual and Gender-based Crimes,
released in June 2014;9
2. The International Protocol on the Documentation and Investigation of
Sexual Violence in Conflict (2017);10
3. Iici Guidelines for Investigating Conflict-Related Sexual and Gender-
based Violence Against Men and Boys (2016);11
9 Office of the Prosecutor, International Criminal, sgbc Policy Paper, supra note 1.
10 Foreign & Commonwealth Office of United Kingdom, International Protocol on the Docu-
mentation and Investigation of Sexual Violence in Conflict, Second Edition (March 2017),
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/598335/International_Protocol_2017_2nd_Edition.pdf (last visited
June 13, 2018).
11 Institute for International Criminal Investigations, Guidelines for Investigating Conflict-
Related Sexual and Gender-based Violence Against Men and Boys, (Feb. 29, 2016), https://

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4. Istanbul Protocol: Manual on the Effective Investigation and Documen-

tation of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (2004);12
5. who Ethical and Safety Guidelines for Researching, Documenting, and
Monitoring Sexual Violence in Emergencies (2007);13
6. who Ethical and Safety Guidelines on Interviewing Trafficked Women
(2003);14
7. who / unodc Guidance on Strengthening the Medico-Legal Response
to Sexual Violence (2015).15
C Engaging the icc otp

To help illuminate the ways in which a local actor might directly engage or sup-
port the otp’s investigation of sgbcs, local groups need more information
about the ways in which they can support the otp and what the nature of that
relationship would entail. For this reason, the otp should develop and dis-
seminate simple guidance about engaging with the icc generally, including:
1. What information regarding sgbcs does the otp need, both generally as
to evidentiary requirements, and specifically as to the relevant scope of
sgbcs?
2. What is the potential value of pattern evidence, which may derive from
aggregated, anonymized records of sgbc-related service provision or
other data local actors may already possess?
3. How can the admissibility of any information shared be ensured?
4. What does the information-sharing relationship and process entail, and
how can individuals or groups access the otp?
5. What forms of protection and support can survivors of sgbc expect if
they engage in the icc process?
6. What assurances or efforts can the otp make regarding the security of
local staff who engage with them, including ways to alert local partnering
organizations of key developments and planned announcements related
to the case at hand?
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/546569/PSVI_training_-_violence_against_men_and_boys.pdf.
12 U.N. High Commissioner for Human Rights, Istanbul Protocol, HR/P/PT/8/Rev.1, U.N.
Sales No. E.04.xiv.3 (2004).
13 World Health Organization (who), Ethical and Safety Recommendations for Research-
ing, Documenting, and Monitoring Sexual Violence in Emergencies (Aug. 10, 2007).
14 who, Ethical and Safety Recommendations for Interviewing Trafficked Women 16, 23
(2003).
15 who & United Nations Office on Drugs and Crime, Strengthening the Medico-Legal Re-
sponse to Sexual Violence (Nov. 2015).

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46 Seelinger
D Dissemination
The otp and development partners should think creatively about dissemina-
tion of the above resources and material. Dissemination of tools, resources,
and information about the icc and sgbc evidence collection should be ap-
proached creatively.
For example, in preparing to launch of our Long Road study at the 2015 Miss-
ing Peace Practitioners’ Workshop in Kampala, Uganda, we created a resource
library of all the prosecution handbooks, clinical care guidelines, interview
checklists, etc. used by the local police, nurses, and prosecutors we had inter-
viewed in five countries. We made this “practitioners’ resource library” avail-
able to Workshop participants on flashdrives. We also put the entire resource
library online for public access after the Workshop.16 A similar repository of
practice-oriented resources for the documentation of sgbcs under the Rome
Statute could be created.
Similarly, social media and easily digested platforms like YouTube might be
promising ways to roll out short training modules in local languages.
E Strengthening the Base

Development partners and relevant government ministries should continue to
support the training and capacity of healthcare workers, police, and other state
actors to identify and document day-to-day crimes of sexual and gender-based
violence. While elements and evidentiary requirements relevant to interna-
tional crimes of sexual violence should be introduced into training curricula, it
is critical to improve the baseline capacity, so a stronger response and docu-
mentation system is in place in case of future crises.
F Improving Willingness of Specific Actors

Specific materials and outreach should be tailored to healthcare providers, hu-
manitarian relief agencies, and other actors who may have specific concerns
about the preservation of institutional neutrality, particularly in a conflict-
affected community. To the extent that these local actors’ reluctance to share
information derives from their desire to protect individual survivors from ex-
posure, the otp should highlight the possibility of accessing anonymized, ag-
gregated case information to at least establish patterns of sgbc commission in
a given time period or geography. They may be willing to provide some forms
of evidence more readily than others.
16 Missing Peace Document Database, UC Berkeley hrc, https://www.law.berkeley.edu/re-

search/human-rights-center/programs/sexual-violence-program/missing-peace-practi-
tioners-network/missing-peace-document-database/ (last visited Apr. 4, 2016).

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Part 2
Outreach: Challenges Communicating with Victims,
Witnesses, and Other Stakeholders

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The Outreach Challenge

There are said to be many objectives of international justice, including cre-

ating a sense among survivors and others that perpetrators have been held
accountable and that proceedings are fair and impartial; establishing a cred-
ible narrative of the crimes committed or events that transpired; advancing
reconciliation; and deterring future crimes. The icc can realize none of these
objectives if information about its proceedings, evidence, or judgments fails
to reach the communities where crimes have occurred or might occur in the
future.
Part 2 addresses fundamental questions about how that information might
be communicated effectively and to whom. The icc currently utilizes many
means of communication, including its website, tours of the Court, public
speeches by judges and the Prosecutor or her staff, and a multi-dimensional
“outreach” program run by the Registry that targets communities affected by
the crimes the Court investigates. However, efforts at outreach may not be as
effective as hoped, particularly given the icc’s limited resources, the often re-
mote location of the targeted communities, security issues in reaching them,
and some audiences’ lack of access to technology or media. Moreover, radically
different cultural norms and conflict resolution processes often present diffi-
cult challenges for communication to targeted communities, and their under-
standing and acceptance of the icc’s Western justice mechanisms.
The following question was featured on www.iccForum.com from February
2015 through April 2016:
How can the icc and its stakeholders more fully address challenges to
outreach and public information, better utilize technology and other
methods to enhance understanding of the Court’s mandate and activi-
ties, and promote support for its work?
The mandate of the International Criminal Court icc) is to contribute
to the fight against impunity for international crimes through a fair and
impartial trial, and thus to contribute to the prevention of such crimes.
Making judicial proceedings public is one of the key elements of a fair
trial. Justice must be both done and seen to be done. It is accordingly
important to establish an effective system of two-way communication, in

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The Outreach Challenge 49
particular, between the icc and communities affected by its work, to pro-
mote understanding, manage expectations, and provide access to judi-
cial proceedings.
The Outreach Program of the icc is led by the Registry. It targets the
regions and communities affected by the crimes under investigation and
prosecution by the icc, using various communication tools, including
face-to-face meetings, town-hall meetings, and interactive radio and tele-
vision programs. In addition to outreach to affected communities, the Of-
fice of the Prosecutor needs to provide the public at large with informa-
tion about its work and activities to promote an understanding of, and
support for, its work, and to achieve its mandate to investigate and pros-
ecute crimes under the icc jurisdiction. There are increasing opportuni-
ties to utilize the internet and social media such as Twitter.
Yet communicating clearly and consistently with a diverse, interna-
tional, and often remote audience is no easy task. Reaching out to those
in situations affected by the icc’s work poses various challenges, includ-
ing: unstable, unsafe environments; limited access to media, internet,
electricity; polarized populations and media distortion; deliberate ma-
nipulation of information; under-resourced local media and civil society
groups; concerns about security and independence of potential partners;
lack of access to education and illiteracy in some affected populations;
and the difficulties of providing material in local languages. The icc’s
founding instruments, its objectives, proceedings, decisions, and con-
straints can be difficult to understand for anyone not familiar with inter-
national justice. Further, the Court has limited resources to promote
awareness and understanding of its mandate and activities. Public infor-
mation and outreach activities must also take into account obligations
and imperatives of the Court, such as confidentiality of information; pre-
serving integrity of investigations; protection of victims, witnesses, and
others at risk; and respect for the rights of persons being investigated or
prosecuted.
How, then, can the icc improve its outreach and public information
activities, and to what end? Which audiences should the icc be most
concerned with reaching out to, and how best could they be reached?
What information is most important to transmit to different audiences?
How important is it to invest in promoting awareness of the Court? What
can other stakeholders, in particular States Parties, do to enhance the
outreach capacity of the icc? How can they promote a better under-
standing of the icc’s mandate and activities and build greater support for
the icc? How can deliberate or inadvertent misinformation about the

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50 Steinberg
icc be addressed? How can the icc or others more effectively use the
internet, social media, or communications technologies?
The essays in Part 2 offer a range of views on how the icc may communicate
more effectively with its audiences. None of the commentators below oppose
continuation of the Registry’s outreach program, but some question the cost-
effectiveness of those outreach activities and all of the commentators support
modified, supplementary, or alternative means of communication. They all see
technology as an element of communication, but Alison Cole, and Christopher
and Olga Werby, emphasize its limits in terms of accessibility and utility in re-
mote areas, and express concern about the security implications for those in
conflict zones who try to use technology to receive information from or send it
to the icc.
The Werbys and Francisco O. Ramirez each would reframe the icc’s “out-
reach” activities. Informed by research on the effectiveness of human rights
education, but mindful of sovereignty issues, Ramirez would recast outreach
as education, arguing that the icc should engage in a long-term effort to incor-
porate human rights and personhood broadly—and the icc’s mission, activi-
ties, and cases, in particular—into textbooks and other educational materials
that are consumed not just in law schools, but in other curricula and through
varied educational venues. The Werbys would reconceive outreach as analo-
gous to marketing, defined as “activity that an organization does to advance its
goals by persuasively communicating with an appropriate audience,” and offer
a carefully tailored outreach plan based on precisely identified goals, activities,
and audiences to be reached. Ramirez and the Werbys both see a need for the
Registry to partner with a range of organizations and institutions in order to
further their plans.
The Werbys, and Patrick Vinck and Phuong N. Pham, emphasize the central
importance of carefully identifying and understanding the icc’s target audi-
ence. Consistent with their marketing approach, the Werbys emphasize defin-
ing and understanding the target audience so as to persuasively communicate
information that advances the icc’s goals to that audience, some information
continuously and other only when appropriate, whereas Vinck and Pham
would tailor the content of icc communication to be culturally appropriate
and responsive to prevailing questions being asked by the target audience.

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Chapter 5
States Must Support the icc’s Use of Technology

for Outreach
Alison Cole
1 Summary
Outreach is a critical component of the work of the icc. Claims to the contrary
can be countered through an assessment of the mandate and purpose of inter-
national justice. Although the icc has adopted a comprehensive definition of
outreach, there are still aspects relating to the broader objectives of meaning-
ful engagement which must be included in the Court’s approach. Additionally,
the icc’s implementation of outreach could benefit from developments in
new forms of technology. In order to assess the use of such new tools in design-
ing effective outreach strategies, the icc must first conduct mapping exercises
to determine the level of access and technology infrastructure within a given
community. Addressing any security threats, including through new technol-
ogy, is crucial to this initial assessment phase. In terms of technology tools
which facilitate communication, the icc has several options for building part-
nerships with technology partners, including on the provision of hardware and
tools which facilitate connectivity. Finally, in terms of the substance of the en-
gagement, the icc can also maximize partnerships with actors currently gen-
erating content on the work of the Court. However, technology tools cannot
replace the need for developing culturally sensitive and gender appropriate
methodologies and for securing the funding from the member states in order
to ensure the icc is co-developing strong outreach and public information
strategies with the affected communities.
2 Argument
The premise that international courts ought to conduct outreach is disputed.1

Critics of the icc, along with proponents of tight budgeting, have argued that
1 Sara Darehshori, “Lessons for Outreach from the Ad Hoc Tribunals, The Special Court for Si-
erra Leone, and the International Criminal Court” (2008) 14 New Eng. J. Int’l & Comp. L. 299,
http://www.webcitation.org/6WIcXaYAx (last visited June 12, 2018).

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52 Cole
the court should stick to its core activities: the running of in-court trials.2 Such
claims are often supported by the view that international justice mechanisms
are not charged with establishing the historical record of the events beyond
the prosecution of those deemed most responsible, and thus there is no role
for courts other than establishing the guilt of those senior leaders. Likewise,
critics point to the limited role courts should have in reconciliation processes,
which is a sensitive political process beyond the scope of a court’s legal exper-
tise.3 Within this line of thinking, public information and outreach are
perceived to be a mere public relations exercise which is inappropriate for a
judicial entity, which must concentrate its efforts on assessing facts and apply-
ing the law. Indeed, these criticisms may appear to have been borne out his-
torically, since both the Ad Hoc Tribunals for Rwanda and the Former Yugosla-
via did not include public information as part of the official budget, and instead
outreach was funded by a small group of states on a voluntary basis.4
However, there are several ways in which the very foundations of interna-
tional justice require robust outreach and public information processes. First-
ly, assessments of past tribunals have demonstrated that without outreach,
international justice takes place in a decontextualized vacuum, which risks
rendering the entire legal process pointless. An in-depth population-based
survey of the communities in Rwanda demonstrated that the work of the
Rwanda Tribunal was virtually unknown to the majority of the population in
Rwanda.5 This limited the impact of the Tribunal’s work to those immediately
involved in the cases litigated at the Tribunal (although the impact for wit-
nesses was not always positive), and thereby created a general view that inter-
national justice was an expensive waste of time. A similar population-based
survey was conducted in the Balkans and found that the judgments of the Tri-
bunal were exacerbating existing tensions, since each side viewed the Tribu-
nal’s judgments as either vindicating or denying their experience of the con-
flict. The conclusion of this study identified that outreach was crucial in
providing information about the cases and understanding about the justice
processes, including how cases were selected and how judges determined guilt
through convictions or acquittals. Such information provided citizens the
2 Id.
3 Rebecca Devitt, Justice and Peace: The Role of International Tribunals in International Justice,
E-Int’l Rel. (Jan. 24, 2012), http://www.e-ir.info/2012/01/24/justice-and-peace-the-role-of-in-
ternational-tribunals-in-transitional-justice/ (last visited June 14, 2018).
4 Support and Donations, International Criminal Tribunal for the Former Yugoslavia, http://
www.icty.org/en/content/support-and-donations (last visited Feb. 12, 2015).
5 Eric Stover and Harvey M. Weinstein, My Neighbor, My Enemy: Justice and Community in the
Aftermath of Mass Atrocity (Cambridge: Cambridge University Press, 2004).

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States Must Support the icc’s Use of Technology for Outreach 53
o pportunity to situate the legal process within the broader community healing
process and reconciliation.
This social science research is particularly helpful in identifying the impor-
tance of outreach in achieving several aspects of the icc’s mandate, as set out
in the Preamble to the Rome Statute. First, the Preamble to the Rome Statute
links accountability with peace and security,6 which thereby recognizes the
broader context within which the Court operates, and thus the need for the
Court to interact with actors outside the Court. This places an obligation on
the Court to engage with the full range of constituents responsible for main-
taining peace and security, including directly to citizens through outreach and
public information. Secondly, the Preamble highlights the objective of the in-
ternational community to prevent crime through the work of the icc.7 Re-
search relating to penal theory, particularly with respect to deterrence, empha-
sizes the importance of knowledge of the law as a key variable within the
factors that lead to a deterrent effect.8 Although deterrence theory is a new
area of analysis under international criminal law, its application within the
context of the icc is dependent on public information regarding the work of
the Court.9 Finally, most of the core activities set out within the Rome Statue
depend, to a large extent, on voluntary cooperation with outside actors. This is
particularly the case for the icc which, unlike the previous Ad Hoc Tribunals,
includes components of the civil law system through the victim participation
process.10 In order to ensure the Court receives due assistance from intermedi-
aries11 or obtains cooperation from potential victim participants or witnesses,
the Court must actualize its obligation of ensuring fully informed consent
through providing appropriate public information and conducting outreach to
ensure that the greatest number of possible actors have access to the Court.
6 International Criminal Court, Rome Statute of the International Criminal Court, U.N.
Doc. A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute].
7 Id.
8 Discussion of Recent Deterrence Studies, Death Penalty Information Center, https://
deathpenaltyinfo.org/discussion-recent-deterrence-studies (last visited Feb. 12, 2015).
9 Mark Kersten, The International Criminal Court and Deterrence: The “Lubanga Syndrome,”
Justice in Conflict (Apr. 6, 2012), https://justiceinconflict.org/2012/04/06/the-internation-
al-criminal-court-and-deterrence-the-lubanga-syndrome/ (last visited June 14, 2018).
10 David Tolbert, International Criminal Court, Taking Stock of the Impact of the Rome Stat-
ute and the International Criminal Court on Victims and Affected Communities, https://
asp.ICC-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/DavidTolbert-ReviewConference-
Paper-on-victims.pdf (last visited June 14, 2018).
11 Open Society Justice Initiative, Intermediaries and the International Criminal Court:
A Role for the Assembly of States Parties, http://www.iccnow.org/documents/OSJI-Inter
mediaries-ICC-memo-.pdf (last visited June 14, 2018).

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54 Cole
This increased knowledge of the Court and its methods of operation will have
a positive impact on the ability for outside actors to interact with the Court
and thereby enhance the ability of the Court to achieve its mandate. In other
words, outreach is not only required within the terms of the Court’s objectives,
but conducting outreach is also in the Court’s own best interests.
After establishing that the icc is required to conduct outreach and provide
public information, it is then necessary to determine what activities constitute
outreach, and in turn, what challenges exist to the implementation of out-
reach. Outreach does not have a strict technical definition, and its meaning is
not set out in the core legal documents of the Court. However, the icc has
publicized its own definitions through its public website and official reports,
including most recently, in the Report of the Court on the Public Information
Strategy 2011–2013.12 These definitions cover key components within civil soci-
ety definitions, such as in the 2011 Outreach Report of the International Center
for Transitional Justice (ictj).13 The icc states that public information is the
provision of accurate and timely information about the Court “to the public at
large as well as to specific audiences, through a variety of means.”14 Outreach is
defined by the icc as a “sustainable, two-way communication” with communi-
ties affected by the situations that are within the area of the Court’s legal pro-
ceedings. The icc specifically notes that outreach, aside from an engagement
with outside communities, also seeks to “clarify misperceptions and misunder-
standings and to enable affected communities to follow trials.”15
These definitions from the icc are impressively comprehensive, including
recognition for the need to ensure a dialogue as opposed to a one-directional
approach to communication with information simply transmitted from the
Court. However, it is notable that definition adopted by the ictj places greater
emphasis on building “direct channels of communication with affected
communities”16 in order to ensure the Court is responsive to the unique chal-
lenges faced within each content. According to the ictj, outreach and public
information programs should ensure that accountability processes are:
12 International Criminal Court, Report of the Court on the public information strategy 2011–
2013, ICC-ASP/9/29, at 6 (Nov. 22, 2010) [hereinafter Strategy 2011–2013].
13 Clara Ramírez-Barat, International Center for Traditional Justice, Making an Impact:
Guidelines on Designing and Implementing Outreach Programs for Transitional Justice
(Jan. 2011), https://www.ictj.org/sites/default/files/ICTJ-Global-Making-Impact-2011-Eng
lish.pdf (last visited June 14, 2018).
14 International Criminal Court, Report of the Court on the public information strategy 2011-
2013, Doc. ICC-ASP/9/29, at 1 (Nov. 11, 2010).
15 International Criminal Court, Strategy 2011–2013, supra note 12.
16 Ramírez-Barat, supra note 13, at 3 (emphasis in original).

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meaningful to the affected population, while providing the knowledge

and tools necessary for the people to actively participate in the process.
[…] outreach programs should be to promote public engagement and
ownership of the justice process, thereby contributing to building its le-
gitimacy and lasting impact.17
Understood in this way, the icc outreach work would not only need to extend
beyond the trials in The Hague, but also should extend to assisting with the
Court’s positive complementarity work, and additionally, ought to address
questions regarding the legacy of the Court. Both these issues (positive com-
plementarity and legacy) are yet to be addressed in a clear strategy by the
Court and the member states.
Within the parameters of these definitional issues, many concrete challeng-
es can be identified. There are several emerging new tools, particularly those
utilizing technology, which can assist the Court in overcoming challenges to
outreach and facilitate the Court in achieving its mandate.
The most crucial challenge which ought to be addressed from the outset in
any context is the question of security and protection. The icc provides pro-
tection in only a limited range of circumstances, generally when individuals
are put at risk as a result of their activities with the Court.18 However, in certain
situations, even holding information about the Court (such as through attend-
ing outreach sessions or obtaining public information documents from the
Court) can put a person at risk from targeted retaliation attacks by entities
opposed to the Court’s operations. By conducting a thorough risk assessment
in preparing a communications strategy in advance of entering a new situa-
tion, icc staff can ascertain the means by which the Court can engage with
people within a given country, and thereby identify the security risks associat-
ed with the means of communication and the means of engagement primarily
utilized in that country.
There are several groups which provide security expertise and training, and
keep abreast of technology developments and the new emerging challenges.
For example, Security First covers protection issues responding to the full spec-
trum of threats faced by human rights defenders, from physical risks to threats
to confidentiality.19 Security First is currently compiling an interactive app
17 Id. at 7 (emphasis added).

18 Markus Eikel, “Witness Protection Measures at the International Criminal Court: Legal
Framework and Emerging Practice” (2012) 23 Criminal Law Forum 97.
19 Security First, https://secfirst.org/ (last visited Feb. 12, 2015).

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56 Cole
called “Umbrella” which will allow a human rights defender to choose what
they want to do, such as: conduct risk assessment; securely make a call/email;
securely access the internet; encrypt data; plan secure travel; protect their of-
fice/home; plan counter-surveillance; measure insider threats; use a safe-
house; or deal with kidnapping, arrest, or evacuation.20 Tactical Tech21 also
provides training materials on security and protection such as Security-in-a-
Box,22 and Mobiles-in-a-Box for cell phone security.23 Another ngo called Mo-
bile Active24 provides similar support through its SafeMobile project. Also for
cell phones, Amnesty International has devised a tool called the “Panic Button,”
which will alert an emergency contact should the button be activated on the
device in the case of a threat.25 The icc could collaborate with such experts in
security and protection in order to devise robust communication strategies
that are safety-orientated.
The extent to which technology is utilized within a given icc situation
country is critical in devising an outreach and public information strategy
which will maximize the opportunity for a meaningful engagement. Technol-
ogy is often critical to the establishment of contact and enabling dialogue.
International courts and tribunals typically rely upon intermediary organiza-
tions such as survivor networks and local human rights groups in order to initi-
ate communication and conduct outreach. However, in order to best design
innovative and meaningful outreach strategies, the icc must build strategies
which are reflective of the technology infrastructure within a given country
and region. This requires the icc to conduct a mapping of the technology in-
frastructure and use. There are several organizations which are active in map-
ping global communication infrastructure. For example, the Engine Room is
developing a project called TechScape to provide empirical data on technology
20 Umbrella, Security First, https://secfirst.org/ (last visited Feb. 12, 2015).

21 About Us, Tactical Technology Collective, https://tacticaltech.org/pages/about-us/ (last
visited Fed. 12, 2015).
22 Security In-A-Box, Tactical Technology Collective, https://archive2013.tacticaltech.org/se-
curityinabox.html (last visited Feb. 12, 2015).
23 Mobiles In-A-Box, Tactical Technology Collective, https://archive2013.tacticaltech.org/
mobilesinabox.html (last visited Feb. 12, 2015).
24 Mobile Active Defense, http://www.mobileactivedefense.com/tag/safe-mobile-comput-
ing/ (last visited Feb. 12, 2015).
25 Amnesty International Launches New App to Fight Attack, Kidnap and Torture, Amnesty
Int’l (Jun. 23, 2014), https://www.amnesty.org/en/latest/news/2014/06/amnesty-interna-
tional-launches-new-app-fight-attack-kidnap-and-torture/ (last visited June 15, 2018).

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use.26 The World Bank27 and internet services providers also typically conduct
reviews of market access.
For example, access to cell phones is increasing rapidly, with access grow-
ing at 366% in East Africa in the last five years and 260% in Central Africa.28
However, the Court must be sure to assess each country individually, since ac-
cess varies dramatically per country—for example, 85% of the population in
Cote d’Ivoire has access to cell phones whereas 17% has access in the Central
African Republic.29 Access is also dominated by gender and other societal dy-
namics, with women overall 23% less likely than men to own a mobile phone
within the Africa region.30 Depending on the access to mobile technology,
the icc could utilize tools which target either Smartphone platforms or non-
Smartphone platforms. For example, Frontline sms utilizes sms text messages
to connect phones around content-sharing and interacting through group
messages and receiving feedback.31 This tool is open source and can be cus-
tomized according to the requirements of the context. Another group, People’s
Intelligence, utilizes a similar interactive sms-text phone format to collect in-
formation regarding human rights abuses.32 For Smartphone users, there are
additional sources which could be of assistance in developing engagement
platforms with the icc, such as Obscuracam developed by witness and The
Guardian Project, which allows people to record video whilst pixilating the
faces of respondents who wish to remain anonymous.33 Several key comput-
er research centers have capacity to address communication challenges, and
the icc could engage with institutions such as Carnegie Mellon University to
identify potential technology solutions to outreach and public information
26 Introducing TechScape, The Engine Room, https://www.theengineroom.org/techscape/

(last visited Feb. 12, 2015).
27 Individuals using the internet (% of population), The World Bank, https://data.worldbank
.org/indicator/IT.NET.USER.ZS (last visited Feb. 16, 2015).
28 Peter Lyons, et al., gsma, Sub-Saharan Africa Mobile Observatory 2012 (2012), https://
www.gsma.com/publicpolicy/wp-content/uploads/2013/01/gsma_ssamo_full_web_11_12-
1.pdf (last visited June 15, 2018).
29 Id.
30 gsma development Fund, the Cherie Blair Foundation & Vital Wave Consulting, Women
& Mobile: A Global Opportunity (2013), https://www.gsma.com/mobilefordevelopment/
wp-content/uploads/2013/01/GSMA_Women_and_Mobile-A_Global_Opportunity.pdf
31 Frontline, https://www.frontlinesms.com/ (last visited Feb. 12, 2015).
32 People’s Intelligence, http://peoples-intelligence.org/ (last visited Feb. 12, 2015).
33 ObscuraCam: Secure Smart Camera, The Guardian Project, https://guardianproject.info/
apps/obscuracam/, accessed (last visited Feb. 12, 2015).

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58 Cole
challenges.34 Over 2015, the Open Society Justice Initiative will be working
with partners to coalesce these emerging tools into a set of guidelines to assist
ngos in interacting with the icc. Although the focus will be around the collec-
tion of potential information for the cases, the means of interaction will also
be of potential use for public information and outreach activities.
In instances of limited technology infrastructure, there are several
hardware-based developments which the icc could consider in order to facili-
tate access to its constituency. For example, the Nairobi-based technology cen-
ter i-Hub35 has fostered innovative solutions to its technology needs, including
a device known as “brck” (pronounced “brick”) which enables internet access
without electricity.36 It is a Wi-Fi router and mobile modem in one, which can
be connected to the internet by Ethernet and will also switch to a 3G or 4G con-
nection if the power cuts out. It can support up to 20 wireless connections and
can work as a network drive through its 16 gigabytes of storage. Another group
working in hardware development, Videre, specializes in developing technol-
ogy which incorporates security mechanisms and enables encrypted, covert
communication.37 Aside from advancing communication methods, the icc
may also consider radio hardware options in settings where information is dis-
seminated largely through broadcasting channels. For example, Partners in
Technology International installs high frequency radio systems, radio email,
and satellite phones in remote areas,38 and Telecoms Sans Frontier conducts
similar work to increase connections with information dissemination.39
Finally, there are technology-based tools which can assist the icc in ad-
dressing the challenge of content creation. The icc already does fantastic work
emailing weekly updates and YouTube clips of in-court sessions.40 Several
web-based partners also conduct daily in-court monitoring designed to assist
journalists and lawyers to access specialized knowledge on icc developments,
such as ijmonitor.org,41 icc Forum,42 and Justice Hub from Radio Netherlands
Worldwide.43 However, the icc website could provide greater access to filings
such as the searchable databases developed by the Special Court for Sierra
34 Center for Human Rights Science, Carnegie Mellon University, https://www.cmu.edu/

chrs/ (last visited Feb. 13, 2015).
35 iHub, https://ihub.co.ke/ (last visited Feb. 12, 2015).
36 brck, https://www.brck.com/ (last visited Feb. 12, 2015).
37 Videre, http://www.videreonline.org/ (last visited Feb. 12, 2015).
38 Partners in Technology, http://www.partners-in-tech.com/ (last visited Feb. 12, 2015).
39 Télécoms Sans Frontières, http://www.tsfi.org/ (last visited Feb. 12, 2015).
40 International Criminal Court, YouTube (Feb. 16, 2015) https://www.youtube.com/user/
IntlCriminalCourt.
41 International Justice Monitor, https://www.ijmonitor.org/ (last visited Feb. 12, 2015).
42 icc Forum, http://iccforum.com/ (last visited Feb. 12, 2015).
43 Radio Netherlands Worldwide, http://www.rnw.nl/english (last visited Feb. 12, 2015).

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Leone (scsl),44 Extraordinary Chambers in the Courts of Cambodia (eccc),45

ictr,46 and icty.47 There are several technology groups specializing in the
development of such databases such as Benetech,48 Huridocs,49 and the Hu-
man Rights Data Analysis Group.50
Perhaps, the biggest challenge facing the outreach and public information
program is designing communication strategies jointly with communities, and
yet finding means to ensure balanced representation of voices. The icc must
strive to ensure their communications are gender-balanced, culturally sensi-
tive, and empowering for voices which may typically be denied space with-
in their own community. This challenge has faced cross-cultural disciplines
for decades, the social sciences have developed complicated participatory
modes, and the icc could learn a lot from more creative means of creating
dialogue.51 Unfortunately, there is no snazzy technology fix for designing such
sensitive processes. And even more unfortunately, all components set out in
this discussion depend entirely upon the financing provided by the member
states.
44 The Residual Special Court for Sierra Leone, http://www.rscsl.org/ (last visited Feb. 12,
2015).
45 Extraordinary Chambers in the Courts of Cambodia, https://www.eccc.gov.kh/en (last
visited Feb. 12, 2015).
46 International Criminal Tribunal for Rwanda, http://unictr.unmict.org/ (last visited Feb. 12,
2015).
47 International Criminal Tribunal for the Former Yugoslavia, http://www.icty.org/ (last vis-
ited Feb. 12, 2015).
48 Benetech, https://benetech.org/ (last visited Feb. 12, 2015).
49 Huridocs, https://www.huridocs.org/ (last visited Feb. 12, 2015).
50 Human Rights Data Analysis Group, https://hrdag.org/ (last visited Feb. 12, 2015).
51 Village Volunteers, Participatory Rural Assessment (Jul. 9, 2011), https://www.villagevol-
unteers.org/wp-content/uploads/2011/06/Participatory-Rural-Assessment.pdf (last visit-
ed June 15, 2018).

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Chapter 6
Formal and Informal Human Rights

Communication and Teaching
1 Summary
The International Criminal Court represents a core institution within the glob-
al human rights regime. Since World War ii, this regime has entailed an in-
crease in human rights treaties, organizations, conferences, and discourse. In
addition, there has been a rise in human rights education organizations, con-
ferences, and publications. Established human rights advocacy groups such as
Amnesty International have shifted from a mostly legal lens to a broader edu-
cational emphasis. This global human rights activity culminated in two United
Nations decades of human rights education and even the articulation of the
right to a human rights education. Given the worldwide legitimacy of educa-
tion, linking human rights endeavors to teaching and learning human rights is
pragmatically compelling. In practice, many an established citizenship right
has been re-framed as a human right; civic education morphs into human
rights education. The same educational re-framing could cast the role of the
International Criminal Court as an upholder of international human rights
norms and a last resort to make all individuals accountable for their behaviors
in this domain.
Such a re-framing raises questions about state sovereignty. Yet it is precisely
the educational path that allows one to reflect on both the historical rise of
national states and the emergence of a more inclusive national citizenship,
and the contemporary and expanded focus on personhood and human rights.
The horrors of World War ii, often associated with excessive nationalism,
paved the way for this contemporary and expanded focus. Further skepticism
regarding such a re-framing might come from those who question the efficacy
of human rights norms in general and the International Criminal Court in par-
ticular. My own research suggests, however, that some human rights develop-
ments are consequential.

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Formal and Informal Human Rights Communication and Teaching 61
2 Argument
The International Criminal Court (icc) is a legal institution that affirms the
rights of individual persons and imposes obligations on other individuals, in-
cluding state actors, to respect these rights or face prosecution. In my opinion,
few Americans outside of legal circles know about the icc. The few that do
may think of it as a failed institution1 and perhaps even know that its develop-
ment was contested by the United States State Department. If one reflects
more seriously on the international human rights regime, one would have to
acknowledge that despite its roots in the fundamental freedoms celebrated in
the Atlantic Charter, the United States, the United Kingdom, and the Soviet
Union had serious reservations about human rights.2 These reservations re-
flected different national vulnerabilities, such as race, the colonies, and a sin-
gle party state. They also indicated a concern over infringements of national
state sovereignty.
While the major powers hesitated, other and often newly emerging coun-
tries took up the human rights cause. Once the human rights genie was re-
moved from the Westphalian bottle, it acquired a life of its own. To be sure,
national sovereignty is affirmed in the United Nations Charter, especially in
Article 51, Section 1. However, in the post-World War ii era, national indepen-
dence movements evoked human rights, as would the civil rights, women’s
rights, and other social movements throughout the world.
Today, the global landscape is dotted with international and national hu-
man rights organizations.3 More recently, human rights education organiza-
tions and conferences have emerged and proliferated.4 It is clear that the ear-
lier and more specific legal lens has broadened to include an educational
emphasis. A cross-national analysis of over three hundred social studies text-
books from sixty countries, for instance, finds a dramatic rise in the use of the
1 “First Kenya, now Sudan: The International Criminal Court takes another bad knock,” The
Economist, 20 December 2014, http://www.economist.com/news/middle-east-and-africa
/21636780-international-criminal-court-takes-another-bad-knock-first-kenya-now-sudan
2 Paul Gordon Lauren, The Evolution of International Human Rights (Philadelphia: University
of Philadephia, 2003).
3 Francisco O. Ramirez, David Suárez and John W. Meyer, “The Worldwide Rise of Human
Rights Education,” in Aaron Benavot and Cecilia Braslavsky (eds.), School Knowledge in Com-
parative and Historical Perspective: Changing Curricula in Primary and Secondary Education
(Netherlands: Springer, 2006), pp. 35–54.
4 Francisco O. Ramirez and Rennie Moon, “From Citizenship to Human Rights to Human
Rights Education,” in Mikael Rask Madsen and Gert Verschraegen (eds.), Making Human
Rights Intelligible (Oxford: Hart Pub., 2013), p. 191.

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62 Ramirez
phrase “human rights” between 1975 and 2008.5 The human rights emphasis
especially grows in the post 1995 period and is much more likely to be found in
textbooks with a more student centric pedagogical format. The latter is glob-
ally on the rise and often celebrated as the route to critical thinking as opposed
to rote learning. Women’s and children’s rights are re-framed as human rights
and communicated as such to young people throughout the world.
These educational developments are consistent with global political chang-
es. The proportion of countries that have ratified the Convention to Eliminate
all Forms of Discrimination Against Women (cedaw) has sharply increased,6
as has the proportion of countries with a human rights commission.7 For both
of these outcomes, the increases seem to be triggered by international confer-
ences that highlight human rights issues. These conferences directly (in site) or
indirectly (anticipatory socialization) generate what some researchers call a
normative cascade or bandwagon.8 They constitute part of a wider world cul-
ture in which nation-states are expected to affirm support for human rights.9
Those that do not actually ratify the treaties claim that their constitutional
frameworks already embody human rights principles (the United States’ argu-
ment). Those that express broad reservations regarding the treaties they ratify
risk being “called out” (consider, for instance, Denmark’s remarks toward Saudi
Arabia regarding cedaw ratification).
All these developments suggest a secular trend in the direction of de-
emphasizing some aspects of state sovereignty in favor of a worldwide con-
sensus regarding human rights. Textbooks do not problematize human rights
as undercutting state authority. Quite the contrary: the implicit message is that
the good nation-state is one committed to human rights. Of course, it is naive
to assume that ratification leads to improved human rights practices. Indeed,
it is repeatedly argued that ratification is often nothing more than window
dressing, a form of organized hypocrisy that actually conceals human rights
violations.
5 John W. Meyer, Patricia Bromley and Francisco O. Ramirez, “Human Rights in Social Science
Textbooks: Cross-national Analyses, 1970–2008” 83(2) Sociology Of Education 111–34.
6 Christine Min Wotipka and Francisco O. Ramirez, “World Society and Human Rights: An
Event History Analysis of the Ratification of the Convention to Eliminate All Forms of Dis-
crimination Against Women,” in Beth A. Simmons, Frank Dobbin and Geoffrey Garrett (eds.),
The Global Diffusion of Markets and Democracy (Cambridge: Cambridge University
Press, 2008), p. 303.
7 Jeong Woo Koo and Francisco O. Ramirez, “National Incorporation of Global Human Rights:
Worldwide Expansion of National Human Rights Organizations, 1966–2004” (2009) 87(3) So-
cial Forces 1321–354.
8 Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political
Change” (1998) 52(4) International Organization 887–917.
9 It appears that we are now in an era where the human rights regime is more contested.

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Formal and Informal Human Rights Communication and Teaching 63
However, a more nuanced understanding of the impact of human rights

commissions is in order. Cole and Ramirez (2013) find that human rights com-
missions lower the level of human rights abuses, but only as regards to physical
integrity outcomes instead of civil and political rights matters. Moreover, the
impact takes place over time. The short-term effect of having a commission is
to empower victims and their advocates, and that results in increased report-
ing of abuses. The longer-term effect though is a favorable one. These findings
suggest that where there is a greater global normative consensus, such as in the
case of physical integrity, having human rights commissions in place is a sound
strategy.10
Despite opposition from the United States and other powerful countries,
membership in the International Criminal Court has increased, from Senegal
in 1999 to the current 122 countries that are now States Parties to the Rome
Statute. To be sure, its operations require support from the Security Council,
which in turn depends on the support of States Parties. There is much skepti-
cism regarding its actual or even potential efficacy. There is less social science
research focused on the icc than on human rights treaties or organizations.11
However, it is important to bear in mind that physical integrity issues are at the
core of the mandate of the icc and, as noted above, there is a more global
consensus regarding physical integrity than as regards to other rights. Non-
Western countries can invoke their cultures to justify limitations on the free-
dom of assembly or speech, but the right to torture is not one that generates
justifications on the grounds of cultural relativism. This greater normative con-
sensus explains why so much of the energy of Amnesty International and oth-
er human rights advocacy groups focuses on physical integrity issues.
In the short run, the survival and efficacy of the icc will depend in good part
on its state members. This is also true of human rights in general. Yet in the long
run, education matters. The good citizen was the product of an educational
system that fostered good citizenship. As our vision of citizenship traverses na-
tional boundaries, we need education that emphasizes the virtues and rights of
personhood and the need to foster and defend these human rights. The in-
creased emphasis on human rights in textbooks, including the diffusion of the
Holocaust as a human rights disaster,12 is a promising beginning. The spread of
10 Wade Cole and Francisco O. Ramirez, “Conditional Decoupling: Assessing the Impact of
National Human Rights Institutions” (2013) 78(4) American Sociological Review 702–25.
11 But see Beth Simmons and Allison Danner, “Credible Commitments and the Internation-
al Criminal Court” (2010) 64(2) International Organization 225–56. Also see Jay Goodliffe
and Darren Hawkins, “A Funny Thing Happened on the Way to Rome: Explaining Interna-
tional Criminal Court Negotiations” (2009) 71(3) The Journal of Politics 977–97.
12 Patricia Bromley and Susan Garnett Russell, “Holocaust as History and Human Rights:
Holocaust Education in Social Science Textbooks, 1970–2008” (2010) 40(1) Prospects:

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64 Ramirez
human rights education from law schools to other parts of the university is also
a step in the right direction.13
In the long run, support for the Court will require that the youth of today
know more about its mandate and the obstacles it faces. In my opinion, this
requires more clearly situating the icc within the global human rights regime
and more directly pursuing the human rights education path. In practice, this
educational strategy means more conferences, more organizations, and more
discourse that disseminate the work of the International Criminal Court to
more youthful audiences. It means engaging civil society actors and expanding
the network of stakeholders beyond state authorities. In this endeavor, build-
ing on the work of human rights educators is paramount.
unesco’s Quarterly Review of Comparative Education 153–73.

13 David Suárez and Patricia Bromley, “Institutionalizing a Global Social Movement: Human
Rights as University Knowledge” (2012) 118(3) American Journal of Education 253–80.

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Chapter 7
Localizing Outreach
Patrick Vinck and Phuong N. Pham
1 Summary
There are no doubts that public information and outreach strategies are criti-
cal for the icc’s operation, legitimacy, and public impact. How to do outreach
effectively, however, remains a major challenge. Too often, outreach is done
with a limited understanding of the context in which engagement with affect-
ed communities must take place. Our research shows that outreach strategies
must define and understand the target audience, especially key subgroups rel-
evant to the work of the Court. These groups may have different, even compet-
ing information and communication needs. Outreach to these various groups
must be targeted using tailored content that is culturally appropriate and ad-
dress prevailing questions. Similarly, the means of engagement of the public
must reflect media and information consumption habits of each group. New
technologies offer unprecedented, reliable, and cost-effective abilities to en-
gage with a large number of people in a near real time way, but may not be
appropriate for all groups. Rapid polling and survey methods offer somewhat
more traditional ways to consult less connected people. Even when outreach
strategies are informed by population-based evidence, outreach remains chal-
lenging and affected by the pace of proceedings at the Court. Maintaining in-
terest and relevance is a key challenge. Finally, the expectations that outreach
should have a widespread effect on knowledge and attitudes about the Court
are often unrealistic. Rather, evidence on education, literacy level, information
sources, and consumption among other should help define realistic goals
against which progress can be measured.
2 Argument
The idea that the icc’s operation, legitimacy, and public impact depend on how
much communities affected by violence understand the Court is widely ac-
cepted. Without some level of knowledge about the Court, victims may be un-
able to come forward and participate in proceedings, and may be u nsupportive

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66 Vinck and Pham
of justice efforts they do not understand.1 Broader, and arguably less realis-
tic, goals of societal change associated with the icc, such as the promotion of
the rule of law, accountability, and peace and reconciliation, also require, at
a minimum, some level of understanding of the work of the Court.2 A lack of
understanding of the work of the Court, on the other hand, may result in the
spread of misconception and rumors, enabling the politicization of the Court
and undermining justice efforts.
It was not until the late 1990’s that the importance of communicating with
affected communities was recognized as a central role of tribunals. Lessons
from the International Criminal Tribunal for Rwanda (ictr) and the Interna-
tional Criminal Tribunal for the former Yugoslavia (icty) showed that the fail-
ure to adequately engage with the population had undermined the legitimacy
and legacy of both tribunals.3 Since then, international and hybrid tribunals
set up to judge serious crimes around the world have all undertaken public
information programs, developing an understanding of outreach as a two-way
communication effort to build a bridge between affected communities and the
courts.
Despite the growing experience of reaching out to communities affected by
violence to engage in a dialogue around the icc, practitioners’ understanding
of how to do this most effectively remains arguably quite poor. Outreach strat-
egies are primarily rooted in an assumption about how to best communicate
with affected populations, with the occasional interest in adopting innovative
approaches and technologies. Lacking is a detailed understanding of the con-
text within which outreach must take place. Outreach evaluation—the pro-
cess of gathering data about information consumption patterns, target groups,
and about knowledge, attitudes, and practice relating to the icc—can be done
fairly rapidly and effectively using mixed methods that combine the collec-
tion of qualitative and quantitative data to inform the design and assess the
1 Patrick Vinck and Phuong N. Pham, “Outreach Evaluation: The International Criminal Court
in the Central African Republic” (2010) 4(3) International Journal of Transitional Justice
421–42.
2 Pierre Hazan, “Measuring the Impact of Punishment and Forgiveness: A Framework for Eval-
uating Transitional Justice” (2006) 88(861) International Review of the Red Cross 19 (2006).
3 Janine N. Clark, “International War Crimes Tribunals and the Challenge of Outreach” (2009)
9(1) International Criminal Law Review 99–116. Varda Hussain, “Sustaining Judicial Rescues:
The Role of Outreach and Capacity-Building Efforts In War Crimes Tribunals” (2005) 45(2)
Virginia Journal of International Law 547–85; Kingsley C. Moghalu, “Image and Reality of War
Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda”
(2002) 26(2) Fletcher Forum World Affairs 21–46;Victor Peskin, “Courting Rwanda: The Prom-
ises and Pitfalls of the ictr Outreach Programme” (2005) 3(4) Journal of International Crimi-
nal Justice 950–61 (2005).

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Localizing Outreach 67
e ffectiveness of outreach efforts. Outreach evaluation has in fact been used by

the icc outreach unit to inform its strategies and evaluate its impact. These
efforts, however, are limited by the lack of funding for outreach in general, and
more specifically for the gathering of data that should guide outreach efforts.
Our team has integrated aspects of outreach evaluation in broader efforts,
looking at the role of transitional justice, and specifically the icc, in recon-
struction and peacebuilding after mass violence. The methods we have devel-
oped over the last ten years enable the rapid collection of a large number of
survey interviews conducted among representative samples of adults in af-
fected communities, combined with key informant interviews and focus
groups. Successive research in the eastern part of the Democratic Republic of
the Congo (one of eight “situations” where the icc intervenes) conducted in
2008 and 2013 show, for example, that awareness about the existence of the icc
rose from 28% to 54% of the adult population.4
This is a remarkable achievement considering the logistical and technical
challenges of operating in the region, and the overall weakness of information
systems. Much of this accomplishment is due to expanded coverage by the
media, as well as a combination of outreach activities by local ngos and the
icc outreach unit. However, knowledge and understanding of Court proceed-
ings remains low—in 2013, just 9 percent of the respondents described their
knowledge of the icc as good or very good. Furthermore, awareness data hide
important inequalities. Awareness about the Court was significantly lower
among adult women (33% had heard of the Court) compared to men (75% had
heard of the Court). When they did hear about the Court, women were twice
more likely than men to have relied on informal sources of information, such
as family and friends, rather than the media. Similar inequalities have been
documented in other situations where the icc intervenes, such as the Central
African Republic.5 Unsurprisingly, poor, rural, uneducated women tend to
have lower awareness and knowledge of the Court. They also tend to rely more
than any other group on informal information sources rather than the media,
which opens them to misinformation.
4 Patrick Vinck & Phuong N. Pham, Harvard Humanitarian Initiative & United Nations Devel-
opment Programme, Searching for Lasting Peace: Population-Based Survey on Perceptions
and Attitudes about Peace, Security and Justice in Eastern Democratic Republic of the Congo
(Sept. 2014), http://www.peacebuildingdata.org/sites/m/pdf/DRC2014_Searching_for_Last-
ing_Peace.pdf (last visited June 14, 2018).
5 Patrick Vinck & Phuong N. Pham, UC Berkley Human Rights Center, Building Peace, Seeking
Justice: A Population-based Survey on Attitudes About Accountability and Social Recon-
struction in the Central African Republic (Aug. 2010), https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=1652997 (last visited June 14, 2018).

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68 Vinck and Pham
These surveys are not sufficient to fully measure the effect of outreach, but
they have the potential to inform the content, strategies and methods of
outreach, and public information. Specifically, our research suggests that for
outreach strategies to be successful, they must build on five points:
1. First, outreach must define and understand their target audience. Out-
reach and public information are public programs, and as such, their au-
dience is wide and diverse. It is also highly heterogeneous and may in-
clude groups with very different information and communication needs.
These groups may be defined along socio-economic characteristics in-
cluding gender and age groups, livelihoods (e.g. journalists), as well as
experience and patterns of exposure to the conflict (e.g. outreach to spe-
cific groups of victims). These groups may differ, for example, in how they
access information, or in the type of questions and issues that they have
regarding the involvement of the icc in their community. Our studies
show that trauma and patterns of exposure to violence, including direct
exposure, exposure as a witness, and experience of coercion, strongly af-
fect perception and attitudes about the Court.
2. Second, outreach must deliver targeted outreach content based on the
characteristics and information and communication needs of the target
groups. There are important differences in the type of questions raised by
the public regarding the involvement of the icc across situations. Af-
fected communities in northern Uganda may be focused on the impact of
the icc on peace processes, while affected communities in eastern Dem-
ocratic Republic of the Congo (drc) may be more focused on specific
on-going trials. Even within a given situation, the widely different levels
of knowledge and perception about the Court among various groups
need to be taken into account in the outreach strategy. This is especially
critical in situations where outreach must be sensitive to pre-existing
structural inequalities and divides that exist along socio-economic lines,
including ethnicity. In Ituri, eastern drc, for example, our research found
that perception of the Court differed across ethnic groups, reflecting a
perceived bias on who was treated as a victim and who was treated as a
perpetrator of mass violence.
3. Third, the means of delivery must be culturally appropriate and mindful
of the information consumption patterns of the target groups. Public
meetings focused on leaders and key stakeholders, as well as radio mes-
sages are very common, relying on the assumption that stakeholders will
act as relays of information for the former, and that radio are near ubiq-
uitous for the latter. These assumptions, however, remain largely unprov-
en, and data from surveys point to important differences. In a survey of

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Localizing Outreach 69
five prefectures in the Central African Republic, we found that just 48%
of the women listened to the radio at least occasionally, compared to 70%
of the men. Just 30% of the adults with no formal education listened to
the radio at least occasionally, compared to over 77% among adults with
at least some secondary education. Poverty was also an important factor,
with just 14% of the adults in the poorest group listening to the radio at
least occasionally, compared to 96% among the richest quintile. In a dif-
ferent setting, a survey in Abidjan, Côte d’Ivoire showed that 69% of the
population watched the television at least occasionally, making it a rele-
vant media for outreach.6
The means of delivery is critical, especially as the rapid growth of
mobile connectivity (including mobile internet connectivity) offers un-
precedented abilities to engage in two-way communication with affected
communities, sometimes in near real-time. Data streams, such as online
posts on social media can further be used for mood analysis, helping
measure perception of the icc. Other forms of engagement in social
media are also rising (the icc has a YouTube channel), but generally, out-
reach has been slow at adopting new technologies. This partly reflects
situations in the field, but a clear analysis of the most effective way to
reach various outreach target groups is generally missing.
4. Fourth, outreach must be both timely and continuous. One challenge for
outreach is that icc proceedings can be lengthy. Maintaining the interest
of the affected communities is important but challenging in this context:
In eastern drc, despite ongoing trials and condemnation, about half the
population felt the icc had had no impact on peace (52%) or justice
(51%). The rest was somewhat evenly divided between those advancing
positive and negative impacts. In Uganda, the absence of any proceed-
ings (until the recent arrest of Dominic Ongwen) meant that the icc had
slowly become less relevant to the people, undermining their support for
the Court.
5. Finally, fifth, results of outreach must be measured against realistic expec-
tations. Ideally, outreach should contribute to a universal knowledge and
understanding of the Court among affected communities in situations
where the Court intervenes. In practice, however, it is an impossible goal
to achieve, especially in contexts where literacy may be low, information
6 Phuong N. Pham & Patrick Vinck, Havard Humanitarian Initiative, Fragile Peace, Elusive Jus-
tice: Population-Based Survey on Perceptions and Attitudes about Security and Justice in
Abidjan, Côte d’Ivoire (Sept. 2014), http://www.peacebuildingdata.org/sites/m/pdf/Abi-
djan_2014_Fragile_Peace_Elusive_Justice.pdf (last visited June 14, 2018).

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70 Vinck and Pham
networks are lacking, and the population may have little exposure and
experience with formal justice systems. In other words, is it realistic to
expect the population to know more about the icc than they do about
their own justice system? A related issue is that benchmarks are arbitrary.
In eastern drc, 52% of the adults have heard of the icc (2013). In the
Central African Republic, it is 32%, compared to 94% in Abidjan, Côte
d’Ivoire. But arguably, reaching an awareness level of 32% in Central Afri-
can Republic is more complex than reaching nearly 100% in Abidjan.
Outreach goals must therefore be carefully identified, taking into account
a range of variables that include education level, communication infra-
structure, etc.
Together, these five points call for a localized, or contextualized, approach to
outreach that builds on evidence of the differences in opinions prevailing
within affected communities, as well as differences in information and com-
munication needs and in access to information and technology. The methods
we have developed offer low cost opportunity to gather such data. Other ad-
vances in technology may help further build extensive, reliable, and low cost
two-way communication mechanisms between the Court and the individuals
served by the Court. However, the means of communication and content of
outreach should be carefully designed to serve even the least connected.

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Chapter 8
Practical Strategies
Christopher and Olga Werby
I Introduction
On a gray day in March, an icc field officer and his associate leave their tempo-
rary office in Goma,1 driving in a 4×4. In the back, they carry a portable genera-
tor. Stowed behind the driver’s seat are a computer and a projector, carefully
wrapped in blankets to cushion them for the long bumpy trip.
Soon after they leave town, the Democratic Republic of Congo (drc)’s
countryside looks like jungle. They travel for seven hours, on dirt roads that get
more rutted and dangerous the further they go. Every so often the road disap-
pears beneath a muddy stream. Then, they slow to a crawl and inch through
the sometimes deep water, urging their trusty vehicle not to stall.2 They stop
and submit at checkpoints where men carry machine guns. Sometimes the
men are government soldiers, and sometimes they are not. Finally, they reach
their destination: a small village previously ravaged by conflict.3
About forty people, many of whom have never heard of the icc, gather in
the small church at the center of the village. The field officer gives a speech in
1 The drc is a large country. The capital city of Kinshasa—where the icc has its field office—
is located in the west. The conflict region is primarily in the east. Being located in Kinshasa
has advantages for the icc: they’re near the seat of government and the headquarters for
media organizations, and it is relatively secure. But it also makes it very difficult to reach the
conflict area in the east. The infrastructure necessary to make the trip by land vehicle just
doesn’t exist. Although we’ve found it difficult to confirm, it seems that the icc has also been
operating informally from an office in Goma, a city in the conflict area on the eastern edge of
the country bordering Rwanda. From there, it is possible to travel by car to rural villages that
have suffered through the ongoing conflict. See International Criminal Court, Public Infor-
mation and Outreach: Engaging with Communities, Advance Copy 10 (Nov. 17, 2014), https://
iccforum.com/media/background/outreach/2014-11-17_Public_Information_and_Outreach-
Engaging_with_Communities-Advance_Copy.pdf (last visited June 14, 2018) [hereinafter En-
gaging with Communities].
2 Remote Congolese roads are notoriously difficult to navigate.
3 For a vivid impression of the physical difficulties of reaching remote, war-torn villages in the
eastern drc, see P. Coomes, “Into the Bush: Vaccinating a Remote Community,” bbc News, 17
November 2014, https://www.bbc.com/news/in-pictures-30035323 (last visited June 13, 2018)
(containing an article and imagery of a photojournalist as he accompanies a Médecins Sans
Frontières vaccination team into a hard-to-reach rural area of the drc).

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72 Christopher and Olga Werby
French that his associate translates into Lingála. He talks about the icc and its
mission. Then, on the whitewashed wall, he projects a video clip showing Bos-
co Ntaganda, known to many of the villagers as “The Terminator,” in a confir-
mation of charges hearing taking place in a courtroom in the Hague. The video
is captioned with subtitles in Swahili. The villagers struggle to make sense of
what they are seeing, but they’re interested and engaged.
Afterwards, the field officer answers some questions. Then the associate ad-
ministers a questionnaire consisting of a series of yes or no questions about
the attendees’ perceptions of the icc. The comments received are mostly posi-
tive. Everyone seems pleased by the experience.
This is the vision for the icc’s Field Outreach: meeting directly with people
affected by situations before the Court (the “Affected Public”) to bring them
information about the icc and its activities. And the icc has been executing
on this vision, conducting hundreds of similar meetings each year. The icc
believes that these in-person meetings with rural villagers are necessary to ful-
fill the Court’s mandate.4 The purpose of these in-person meetings is said to
give communities “ownership over the Court,”5 or to “engender greater local
community participation in Court proceedings,”6 or to make justice “seen to
be done,”7 or to “establish an effective system of two-way communication,”8
4 International Criminal Court, Strategic Plan for Outreach of the International Criminal Court,
Doc. ICC-ASP/5/12, at 3 (Sept. 29, 2006) [hereinafter Strategic Plan]:
Hence, in order for the Court to fulfil its mandate, it is imperative that its role and judicial
activities are understood, particularly in those communities affected by the commission
of crimes under the Court’s jurisdiction.
5 International Criminal Court, icc Outreach Report 2010—“Making Justice Meaningful,” You-
Tube, at 1:25 (Dec. 8, 2010), http://youtu.be/VRe8Ag_emOg.
By working with the communities, the Outreach unit aims to give them ownership over
the Court, rendering it an institution that works for them and in their name.
6 International Criminal Court, Outreach Report 2010 1 (Nov. 26, 2010), https://iccforum.com/
media/background/outreach/2010-11-26_icc-Outreach_Report_2010.pdf (last visited June 14,
2018) [hereinafter Outreach Report 2010]:
The Outreach Unit’s programmes aim to cultivate a level of awareness and understanding
of the icc’s mandate and mode of operations, promote access to and understanding of
judicial proceedings, and foster realistic expectations about the Court’s work. This in turn
will engender greater local community participation in Court proceedings by addressing
the concerns of those in affected communities and by countering misperceptions.
7 Strategic Plan, supra note 4, at 3:
[I]t should not be forgotten that making judicial proceedings public is a central element
of a fair trial and therefore necessary to ensuring the quality of justice. Justice must be
both done and seen to be done.
8 Id.:
The Court must therefore put in place mechanisms to ensure that affected communities
can understand and follow the Court through the different phases of its activities. To this

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Practical Strategies 73
or to “create realistic expectations9 of the Court’s work among affected

communities”10
Those are all worthy goals, even if they are difficult to achieve. But does it
really make sense to send representatives to remote rural regions of the world
to try to bring news in-person of the icc’s activities? Given a limited budget
and resources, any outreach effort needs to make choices: who to reach, how to
reach them, and what to say. As a young institution11 telling its story to the
world, what are the right choices?
Once choices have been made, outreach products must be designed and
executed. What should those materials be like? How can they be made more
effective? What strategy should be used for their design, execution, and
distribution?
The icc Forum usually invites legal scholars to answer the questions of the
Prosecutor. But this question on outreach required a response from
practitioners. We’ve been creating outreach products for 21 years.12 The icc
end, it must seek to bridge the distance between the Court and these communities by
establishing an effective system of two-way communication. This communication should
serve first of all to increase the confidence of these communities in the international
criminal justice system, since they will be better informed about the Court and its role.
But it will also enable the Court to better understand the concerns and expectations of
the communities so that it could respond more effectively and clarify, where necessary,
any misconceptions that might exist, particularly on the question of how local and inter-
national justice mechanisms work together.
9 “Realistic expectations” means “reduced expectations.” See Strategic Plan, supra note 4, at
25:
Among the affected population, there are high expectations about the Court. Out-
reach activities need to explain that the Court will not prosecute all persons who have
committed crimes in the region. This is coupled with their expectation that the Court
will provide comprehensive reparations for the crimes committed against them.
See also International Criminal Court, Report on the Activities of the International Criminal
Court, Doc. ICC-ASP/13/37, at 9 (Nov. 19, 2014):
Outreach activities focused on managing expectations of concerned populations with
regard to the stage of the proceedings in the Lubanga and Katanga cases, including on
potential reparations.
10 International Criminal Court, Outreach Report 2010, supra note 6, at Foreword.
11 The Rome Statute came into effect on July 1, 2002 and the icc began operations on March
11, 2003. Claire Calzonetti, Frequently Asked Questions about the International Criminal
Court: How did the court begin, Council on Foreign Relations, https://www.cfr.org/back-
grounder/frequently-asked-questions-about-international-criminal-court (last updated
Jul. 23, 2012) (last visited June 15, 2018). It’s fair to say that the icc is still establishing its
footing among the international community.
12 We’re the principals of Pipsqueak Productions located in San Francisco, California.

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Forum—this website—is one of our products, created for ucla School of Law
in partnership with the icc’s Office of the Prosecutor (otp).13
The outreach question posed by the Prosecutor is a complex one with many
parts. To respond to the question requires that we untangle the different mo-
tives for outreach, dive deep into the icc’s goals for its materials, examine the
process used to create them, and candidly point out issues and solutions along
the way.
We’ll separate those materials that need to be continuously created from
those that need to be created only once. We’ll discuss how information flows
outward from the Court to the media and other organizations, and how those
other entities repurpose that information to satisfy their own goals. We’ll ex-
amine how using a design process can help create great outreach materials.
And we’ll provide examples of how creativity and creative partnerships can
extend the reach of the icc and its budget.
We’ll touch upon how partnerships between the icc and other organiza-
tions can greatly increase the reach of the icc at a very low cost. Perhaps un-
surprisingly, we cite this website—the icc Forum—as a favorable example of
an effective partnership.
Keeping in mind that witnesses and victims—at least identified victims—
are the responsibility of the icc’s Victims and Witness Unit (vwu) and not the
Outreach Unit,14 we’ll take a hard look at the efficacy of trying to send repre-
sentatives in person to rural locations in situation countries15 to meet with the
Affected Public.
13 The icc Forum was created under the direction of Professor Richard Steinberg at ucla
School of Law, and produced in collaboration with Professor Steinberg, the students of
his clinic, the Office of the Prosecutor of the icc, and the Sanela Diana Jenkins Human
Rights Project.
14 For witnesses and identified victims, the Rome Statute provides for their participation
during the proceedings and, in some circumstances, to receive protective measures, secu-
rity arrangements, and reparations. International Criminal Court, Rome Statute of the
International Criminal Court, UN Doc. A/CONF.183/9, art. 68 (July 17, 1998) [hereinafter
Rome Statute]. The Rome Statute also provides for the creation of a Victims and Wit-
nesses Unit (vwu) whose activities include two-way communication between victims
and witnesses and the Court. Rome Statute, art. 43(6). Witnesses also need to be in com-
munication with the otp. These contacts with the victims and witnesses by the vwu and
the otp are not part of the outreach activities of the Court. When we talk about field
outreach with the Affected Public, we are not talking about these kinds of communica-
tions, which are beyond the scope of this comment. See Victims and Witnesses Unit, Int’l
Crim. Ct., http://www.webcitation.org/6WCLDx0JA (last visited Feb. 8, 2015).
15 Countries affected by situations and cases before the Court are referred to as “situation
countries.”

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Before concluding, we’ll take a detailed look at the icc’s website—its most
important outreach tool—and offer suggestions for improvement.
II Creating Effective Materials
A Outreach vs. Marketing

In 2013 and 2014, the icc spent over €3 million annually on its outreach e ffort.16
What is outreach17 and why would an organization18 want to engage in it?
The term “outreach” has two meanings. It can refer to a charitable activity—a
church serving food to the poor. But it can also refer to an organization’s desire
to use communication to advance its own goals. The distinction is fundamen-
tal: does the activity advance the goals of the recipients or the organization?
What if the goals are mixed? What if the hungry people must listen to a
sermon before receiving food? A church might believe that delivering the ser-
mon serves the goals of the recipients. But that’s incorrect. The church is
The icc doesn’t focus on a single location and must split its resources between all its
situation countries and beyond. This distinguishes the icc’s outreach efforts from similar
efforts of the ad hoc tribunals—the icty, ictr, scsl, eccc, stl, spsc, and so on—each
of which is dedicated to a single community.
16 The 2013 approved budget for the Public Information and Documentation Section (pids)
that includes the icc’s outreach effort (broadly defined—see discussion, infra note 17),
was €3,754,700. The then proposed budget for 2014 was €3,798,200. The budget contains
other items that aren’t strictly within our definition of outreach including the Library, the
Documentation Unit, and the Protocol Unit. Therefore, based on the publicly available
information, “over €3 million” is a reasonable approximation. See International Criminal
Court, Proposed Programme Budget for 2014 of the International Criminal Court, Doc. ICC-
ASP/12/10, at 114 tbl. 91 (July 29, 2013) [hereinafter Proposed 2014 Budget].
17 The icc sometimes uses the term “outreach” to refer only to communication with the Af-
fected Public—what we sometimes refer to as “Field Outreach.” Other activities fall under
other headings including “external relations” and “public affairs.” At other times, the icc
uses the term “outreach” to refer to all those functions collectively, together with some
work of the information and communications technology group. For this comment, we
use the term outreach in its broad, inclusive sense. See Outreach, Int’l Crim. Ct., http://
www.webcitation.org/6WCLjlq73 (last visited Feb. 8, 2015).
18 When we refer to the “icc” or the “Court,” we’re treating it as a single entity, as it is gener-
ally perceived from the outside. However, we recognize that, internally, the icc has di-
vided its responsibilities among its four organs of the Presidency, Judicial Division, Office
of the Prosecutor, and the Registry, and that the Registry is primarily charged with out-
reach. Within the Registry, there are further divisions of responsibility that, for the most
part, we ignore.

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a dvancing its own goals by using the sermon to communicate with its audi-
ence. High-minded, altruistic motives don’t convert the church’s goals into
those of its audience. The sermon is promotional; providing the food is
charitable.
The icc serves communities when it investigates, prosecutes, defends, im-
prisons, and adjudicates the guilt or innocence of individuals. But that service
isn’t done through outreach. The Court has no mandate to serve local commu-
nities through a charitable form of outreach; the Rome Statute is silent on the
matter.
Let’s disentangle this at the outset so that we don’t confuse a promotional
activity with a charitable one. The icc’s outreach efforts are designed to ad-
vance the icc’s goals. The taint of commerce clings to the term marketing;
perhaps using the term outreach removes some of the commercial sting. But
when used in its promotional sense, outreach describes the same activity as
marketing.
So, let’s define marketing. Marketing is the activity that an organization
does to advance its goals by persuasively communicating with an appropriate
audience.
B Identifying Goals
Marketing goals tend to be few in number, and they are usually quite specific.
For commercial projects, the goal is usually to sell a product or service; for non-
profits, the goal is generally to raise money or awareness. Ancillary goals for
both companies and non-profits are often about increasing goodwill.
The icc’s goals for its outreach communications are overloaded. To an audi-
ence of the Affected Public in situation countries, the icc aims “to cultivate a
level of awareness and understanding of the icc’s mandate and mode of op-
erations, promote access to and understanding of judicial proceedings, and
foster realistic expectations about the Court’s work.”19 It wants to foster greater
participation of local communities in the activities of the Court.20 It wants to
counter misinformation.21 And it wants to establish and maintain a sustained
dialogue based on trust.22
But beyond this, the icc wishes to increase the broader impact of the Court,
promote deterrence, improve the enforcement of international justice and
19 International Criminal Court, Outreach Report 2010, supra note 6, at 1.

20 International Criminal Court, Strategic Plan, supra note 4, at 5.
21 Id.
22 Id. at 6.

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contribute to the prevention of crimes and the fight against impunity.23 It

wants to be a “well-recognized and supported institution.”24 It wants to obtain
cooperation.25 It wants to get key stakeholders in various countries to promote
the principles of the Rome Statute and contribute to the respect and support
of international criminal law.26 It wants to “situate the Court as part of the
broader international justice system.”27 It wants to improve the quality of re-
porting on international justice issues.28 It wants to be a central resource for
international criminal law.29 It wants to promote a positive image of the
Court.30 And it wants to encourage the Assembly of States Parties to fund its
budget.31
It also wants to support local judiciaries in their own efforts to prosecute
those responsible for violations of the Rome Statute.32 It wants to establish a
historical narrative of accountability for situation countries.33 It wants “to
make justice meaningful among key groups within affected communities—in
particular women, children and youths.”34
It needs to effectively counter political attacks. When the African Union or
the president of Kenya, Uganda, or Zimbabwe denounce the Court, there
needs to be an effective response. Similarly, the Court needs to be able to re-
spond to inappropriate media criticism and errors, and be part of the news
cycle regarding ongoing international conflicts.
23 International Criminal Court, Integrated Strategy for External Relations, Public Informa-
tion and Outreach 2 (Apr. 18, 2007), https://iccforum.com/media/background/out-
reach/2007-04-18_Integrated_Strategy_for_External_Relations_Public_Information_and_
Outreach.pdf (last visited June 14, 2018).
24 International Criminal Court, Assembly of States Parties to the Rome Statute of the Interna-
tional Criminal Court, Doc. ICC-ASP/5/32, Part ii at 84.
25 International Criminal Court, Strategic Plan of the International Criminal Court, Doc. ICC-
ASP/5/6, at 6 (Aug. 4, 2006).
27 International Criminal Court, Strategic Plan, supra note 4, at 10.
28 International Criminal Court, Report of the Court on the public information strategy 2011–
2013, Doc. ICC-ASP/9/29, at 6 (Nov. 22, 2010) [hereinafter Strategy 2011–2013].
29 Id. at 9.
30 International Criminal Court, Proposed 2014 Budget, supra note 16, at 140, ¶¶552, 557.
31 See International Criminal Court, Outreach Report 2010, supra note 6, at Foreword.
32 International Criminal Court, Review Conference of the Rome Statute, RC/ST/CM/INF.2, at
3 (May 30, 2010) (Focal points’ compilation of examples of projects aimed at strengthen-
ing domestic jurisdictions to deal with Rome Statute Crimes).
33 Iain MacLeod, Head of UK Delegation, Statement of the United Kingdom of Great Britain
and Northern Ireland, Assembly of States Parties, November 21, 2013, at 2, available
online.

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As if this list wasn’t formidable enough, new outreach goals are added on an
ad hoc basis. For example, goals were added to encourage African female law-
yers35 and Sudanese lawyers36 to join the Court. A goal was added to encourage
the attendance of the elderly and the disabled at the Court’s sponsored meet-
ings.37 A goal was added to encourage teaching about the icc and interna-
tional criminal law.38 When it was discovered that journalists were afraid of
reporting about the icc in the drc, a new goal was added to train newspaper
managers to help the journalists overcome their reticence.39
That’s a lot of goals for a marketing program. Taken individually, these goals
would be difficult to achieve. But trying to achieve all of them results in a loss
of focus. Goals should form a locus—a magnetic north—towards which all
marketing efforts point. When there are many dissimilar goals, marketing ma-
terials can’t effectively point to all of them. At best, some materials address
some goals, while some materials address others. Often however, materials will
try to support too many goals and become diffuse, not effectively supporting
any of them. We grant that all these goals are worthy—who isn’t in favor of
deterrence? Who doesn’t want to support the disabled?—but how does one
distinguish the most important goals without prioritization? Given many goals
and limited resources, only scant support can be allocated to any single goal.
The Court’s outreach effort risks being stretched too thin, trying to do too
much with too little.
C Marketing Choices
Every marketing program exists within real-world constraints; we live in a
world of restricted budgets, tight deadlines, and limited human resources. No
project can do it all; choices have to be made.
35 See Press Release, International Criminal Court, First Phase of the icc’s “Calling Af-
rican Female Counsel Campaign” a success (Nov. 26, 2010), https://www.icc-cpi.int//
Pages/item.aspx?name=first%20phase%20of%20the%20icc%E2%80%99s%20%
E2%80%9Ccalling%20african%20female%20counsel%20campaign%E2%80%9D%20
a%20success (last visited June 15, 2018).
37 Id. at 7.
38 Id. at 30:
[T]o encourage teaching on international criminal law and the icc by including the
topic of international criminal law in the formal curricula of faculties of Law, Political
Science, International Affairs, and Journalism.
39 Id. at 35.

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Making choices is the soul of design: choices of goals, means, and resources.
As Apple put it in a famous commercial, “Designing something requires fo-
cus…there are a thousand no’s for every yes.”40
All marketing efforts need to focus on what is attainable: given the con-
straints, what can be done to advance the organization’s goals? Practicality
must infuse the choices made during the design process. This often requires
considerable internal negotiation over priorities. “We’d love to be able to do
that, but we just can’t afford it right now.” At the end of the design process,
what’s left is what’s doable.
D Type of Materials
While creating a painting, an artist might not worry about who will see it; dis-
tribution can be an afterthought. But in a marketing campaign, identifying the
distribution channel comes before creating the product.
Distribution channels are chosen to reach particular desired audiences.
Reaching European voters, for example, requires different channels than
reaching Kenyan law students.
Technology vastly amplifies the reach of a marketing product.41 While it’s
possible to reach people who do not have access to technology, it’s much more
expensive. The per person cost of reaching an audience of European voters
might be measured in pennies, while the per person cost of reaching the Af-
fected Public in remote villages in the drc might be measured in the tens or
hundreds of euros.
In Figure 1, below, two independent audience attributes are used to explore
distribution alternatives. The first attribute, the horizontal axis, is whether the
user is seeking the information (“pull”) or, alternatively, whether the icc is pur-
suing the user to deliver information (“push”). The second attribute, the verti-
cal axis, is whether the user has access to technology or not.
40 Apple Inc., Intention, YouTube (Jun. 11, 2013), http://youtu.be/XsMtZozZoDU (last visited
June 15, 2018).
41 In discussing the 1956 television premiere of Laurence Olivier’s movie Richard iii, usc
English literature professor Dr. Frank Baxter noted that, thanks to television, more people
saw the play in that one telecast than had witnessed all its stage performances since
Shakespeare’s time. J. Gould, “TV: Another Milestone; Debut of ‘Richard iii’ on Home
Screen Is Economically Impossible Come True,” N.Y. Times, 12 March 1956, https://www
.nytimes.com/1956/03/12/archives/tv-another-milestone-debut-of-richard-iii-on-home-
screen-is.html (last visited June 13, 2018).

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Figure 1 Quadrant diagram explores types of marketing materials based upon distribution
alternatives suggested by audience attributes
In Figure 1, some media examples42 are provided for each of the four quadrants
to illustrate how they vary depending on the two user attributes. Materials take
the form dictated by the chosen communications technologies. If you’ve
42 In 2006, pids presented their brainstorming on the possible ways that the icc could com-
municate to their different audiences. The results were a comprehensive collection of
outreach options—a mixed list of both distribution and materials—from games to theat-
rical performances, radio and television programs, university courses, cartoons, posters,
and many others. See International Criminal Court, Strategic Plan, supra note 4.

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bought television commercial time, you need to create a video spot; if you’ve
bought a highway sign, you need to create a billboard; if you’re developing a
website, you need to create web content.
icc outreach materials generally split into two broad categories:
– News Materials are about what’s happening now. They include recently re-
leased Court documents, newsmaker interviews, press conferences, footage
from the courtrooms, daily trial summaries, and other current happenings
at the Court. Like most news, timeliness is a key consideration; these materi-
als expire. And since the Registry is charged with remaining neutral in ongo-
ing situations, the presentation of News Materials has to be carefully free of
bias or advocacy. News Materials tend to be dry, but they don’t have to be dry
as dust. They can be enlivened with news judgment, a knowledge of history
and context, keen observations, good writing, and production craft.
– Context Materials are about the Rome Statute, the founding and history of
the Court, the place of the Court in the international system, the aspirations
of the Court, and the reach and limitations of the Court. As a relatively new
international institution, the Court needs to educate the world about all this
and more: international criminal law generally, including its history and de-
velopment; the important treaties and declarations; the ad hoc tribunals,
the United Nations; human rights; and so on. Context Materials do not tend
to expire although they do need to be kept up to date.
The production of News Materials is ongoing and, for the most part, created
through a pre-existing workflow. Daily trial summaries require a production
pipeline: each time, someone has to write the summary, someone has to de-
liver it to camera, someone has to edit and package it, someone has to push it
through the existing distribution channels. A press release runs through a
pipeline as well, as does posting Court documents on the website.
The production of Context Materials is completely different. Each new
product is a one-off. It has to advance some goal of the icc, and it has to be
tailored to its audience. It needs to be carefully conceived, designed, and pro-
duced; it needs to be interesting, creative, and imaginative.
E Audience Groups
A marketing effort identifies appropriate audiences by broadly categorizing
those who might be both receptive to its message and able to help satisfy its
goals. When the goals are commercial, the identified audiences are those who
might purchase a product or utilize a service. When the goals are political, the
identified audiences are those who might advance those goals through voting,
contributing, or advocacy. For the icc’s outreach effort, each goal has a differ-
ent, although potentially overlapping, set of appropriate audiences.

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Many taxonomies can be devised to group audiences in useful ways. The

icc’s Public Information and Documentation Section (pids) identifies four
core outreach programs: Community, Academic, Legal, and Media.43 We pro-
pose a slightly different high-level grouping based upon how the audiences use
information from the icc. That, in turn, suggests approaches to reach those
audiences. Very broadly:
– Media repurpose the materials to generate a product they can sell: newspa-
per and magazine articles, television reports, blog postings, and the like.
– Organizations—including ngos; Academics; and International, Govern-
mental, and Academic Institutions—rely upon the material to shape their
own work product: ngos use it to influence their work with the Affected
Public and otherwise; Academics use it as material to research, analyze, and
criticize; Academic Institutions use it to affect their curricula; International
and Governmental Institutions use it to influence policy.
– The Affected Public uses the information to understand the impact on
themselves and their communities.
– The General Public absorbs the material in accordance with their widely
varying personal and idiosyncratic interests. When targeting this group, it
will be necessary to further divide it by considering additional characteris-
tics: culture, language, education, degree of interest, technological access,
geographic location, and so on.
It’s important to understand how these different audiences are likely to use
these materials before creating them. Seeing the materials through the audi-
ences’ eyes helps create materials that they will find useful. Useful materials
have more impact and are more likely to be redistributed to others.
F Information Flow
The icc disseminates News and Context Materials44 to its four basic audienc-
es: Organizations, Media, the Affected Public, and the General Public. The dif-
ferent audiences use that information in ways that are meaningful to them.
Information doesn’t just flow from the icc outwards; it is also shared be-
tween the various audiences. Each repurposes the information in official and

44 In 2010, the latest year that a detailed public report of the Outreach Unit’s work is avail-
able, the scope of work was truly massive. Daily trial summaries in video and audio, hun-
dreds of hours of radio programming including many one-hour talk shows, hundreds of
video “Ask the Court” programs, theatrical performances, moot court programs, “Listen-
ing Clubs,” academic briefings, workshops, interactive meetings, print materials, materi-
als for schools, and many more. See generally International Criminal Court, Outreach Re-
port 2010, supra note 6.

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Figure 2 Information flows from the icc to various audiences who then redistribute that
information in a variety of ways
unofficial flows among the other groups. Journalists repurpose the icc’s infor-
mation to create the products they sell. Organizations actively work with the
individuals they serve.45 Individuals communicate with each other in a variety
of means, some of which are likely to be unanticipated by the icc.46 Taken
together, information flows freely from one audience to the next.
45 See International Criminal Court, Strategy 2011–2013, supra note 28, at 11:
ngos plays a key role in disseminating information and raising awareness about the
Court through such activities as organizing seminars, panel discussions, roundtables,
exhibits and commemorative events, and focusing on icc-related key issues.
46 An interesting research case study focuses on how communities of the Federally Ad-
ministered Tribal Areas in Pakistan; isolated by instability, poverty, conflict, and exten-
sive media censorship; use a complex technical and non-technical communications
network to access and test the veracity of the information they need. Panthea Lee,
Reboot & Internews, Trust, Influence, and Connectivity: Understanding Information

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Figure 3
Information surrounds the Affected
and General Publics
Organizations and Media have far greater access to technology than the Af-
fected Public. They are much more likely to pull information from the icc than
depend upon push marketing from the Court; in Figure 1 above, they will be
found primarily in the first quadrant. And, importantly, they have far more
contact with the Affected Public and the General Public than the icc can ever
have. They often share cultural roots with the communities they serve. Consid-
ered collectively, Organizations and Media command more manpower, money,
and resources. Of course, their focus isn’t on advancing the Court’s goals.
They’ll only use the icc’s materials if they find them useful to advance their
own goals.
Information surrounds the Affected and General Publics and diffuses to
their attention. Some of these individuals will be reached by Media, some will
be reached by Organizations, some will be reached through community lead-
ers, some will seek out information themselves from the icc, and, probably
unavoidably, the vast majority won’t be reached at all.47
cosystems in Pakistan’s Tribal Areas (2013), https://iccforum.com/media/background/

E
outreach/2013-08-22_Internews-Trust_Influence_and_Connectivity-Understanding_In-
formation_Ecosystems_in_Pakistans_Tribal_Areas.pdf (last visited June 15, 2018). See
also P. Lee, “Chatting in Code on Walkie-Talkies in Pakistan’s Tribal Areas: How people
communicate in one of the most dangerous places on earth,” The Atlantic, 16 May 2013,
https://www.theatlantic.com/international/archive/2013/05/chatting-in-code-on-walkie-
talkies-in-pakistans-tribal-areas/275913/ (last visited June 13, 2018) (presenting a sum-
mary version of the report).
47 SeeT. Susman-Peña, et al., “Why Information Matters: A foundation for resilience,” Internews,
November 2014, p. 11, https://iccforum.com/media/background/outreach/2014-12-04_Inter
news-Why_Information_Matters-A_Foundation_for_Resilence.pdf (last visited June 13,
2018):

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G Compelling Content
Let’s speak plainly. It’s not enough to create a lot of content. The content also
has to be good. Unfortunately, much of the Court’s outreach content is not.
Boring content doesn’t work hard enough to advance the icc’s goals.48 Flowing
Figure 4 “We all bring our own baggage.”
Borrowed from environmental studies, the term “information ecosystem” is used to

describe how local communities exist and evolve within particular information and
communication systems. Within these systems, different types of news and informa-
tion may be received from outside then passed on to others—through word of mouth,
key community members, phone, the Internet, and the like. An examination of an in-
formation ecosystem looks at the flow, trust, use and impact of news and
information.
48 In print materials, for example, there’s sometimes a notion that long, text-heavy pages,
without graphics or polish, convey a serious tone befitting the gravitas of an organization.
But materials can be both lively and informative, and still be appropriate for a serious
institution. It seems self-evident, but perhaps it deserves to be explicitly stated: outreach
materials are designed to communicate; the better they are at communicating, the more
effective they will be at serving the outreach goals of the Court. See also discussion, infra
note 56.

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rivers of gray text are not compelling. Long-lived Context Materials should be
fantastic. pids has had a long time to get these Context Materials just right.49
For Context Materials, unlike News Materials, there’s no need for the Regis-
try to stay neutral and unbiased. The Registry can strongly advocate for the
icc, its history, and its importance in the international order.
Compelling and effective materials don’t just happen. Each piece of content
needs to be designed to communicate just the right information with just the
right voice to just the right audience.50 As the icc wishes to communicate with
a very diverse group of audiences, each piece of material must be adjusted for
that audience’s culture, interests, education, and language.51
If a piece can’t be properly created with in-house resources and talent, then
it should be outsourced.52 Even if it might seem more expensive (and it’s fre-
quently not),53 choosing low cost over quality is a bad bargain.54
49 Take, for example, the icc’s webpage for the Rome Statute itself which presents links, in
four languages, to pdf files of the statute’s text. Wouldn’t you imagine that the icc’s web-
site would host a more vibrant presentation of this foundational document? Rome Stat-
ute, Int’l Crim. Ct., http://www.webcitation.org/6WCLb1rln (last visited Jan. 31, 2015)
[hereinafter Rome Statute Webpage]. Compare icc Forum Rome Statute Webpage, infra
note 57 (an interactive web presentation of the Rome Statute that’s more functional than
a static pdf file).
50 A particular piece of Context Material content shouldn’t try to do it all; it can be tightly
focused on a particular piece of information and point to a single icc outreach goal. Only
in aggregate do the Context Materials need to cover all the necessary information and
support all the prioritized outreach goals.
51 The Rome Statute is based primarily on western traditions of justice. But even First World
audiences, including those trained in the law, can have difficulty understanding the icc,
its mission, its procedures, its limitations, and international criminal law generally. The
difficulty of appropriately contextualizing the icc is compounded when the audience is
from a different culture and isn’t familiar with western legal principles, or has limited edu-
cation, or doesn’t speak the same language.
52 We acknowledge our own bias here; our company depends on the work that organiza-
tions outsource to us. Sometimes, an organization has the talent and resources available
in-house to execute a particular project well. But when they don’t, and still try to do it
themselves, the project suffers. See Christopher Werby & Olga Werby, Section on The Digi-
tal Do-It-Yourselfer, Pipsqueak Productions, https://pipsqueak.com/project-development
(last visited Jan. 31, 2015):
Imagine you need a suit. You can buy a sewing machine and some fabric and go to town.
But when you get there, it’s going to be in a homemade suit. […] Even if you own a sewing
machine—unless you’re a tailor—it’s probably not a good idea to make your own suits.
53 In order to make an accurate comparison of the costs of performing work in-house versus
outsourcing it, many hidden charges need to be made explicit. See Christopher Werby &
Olga Werby, Section on True Costs of an In-house Project, Pipsqueak Productions, https://
pipsqueak.com/business-philosophy (last visited Jan. 31, 2015).
54 Getting the attention of the audience is usually the most expensive part of marketing. It
doesn’t make sense to spend that money, get their attention, and then spoil it by present-
ing poor materials.

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Beyond the good writing required to script an audio piece, you need a voice
that is both charismatic and a native speaker in the target language. You need
translation that goes beyond accuracy to preserve the rhythm and poetry of
the original script. If you’re producing a live radio talk show, you need a knowl-
edgeable expert, fluent in the appropriate language and culture, who is both
interesting to listen to and quick enough to carry off an extemporaneous per-
formance. If you’re creating video, there are the technical aspects—lighting,
camera, audio, editing—in addition to putting something on screen that’s
worth watching. For print, you need good design, writing, photography,55
illustration, and layout.56 For the web, you need to combine those print skills
with engineering talent and then couple that with a grasp of the web’s oppor-
tunities and limitations as a communications channel.57
55 Good photography is a valuable communications asset that can create a big impact and
doesn’t require translation. A good photograph is useful to make a strong layout for a print
piece or a website. A good photograph can convey emotion, or suggest trust, or compas-
sion, or dedication, or dignity. On the other hand, poor photography creates little impact
and produces a bad impression. That bad impression bleeds over, contaminating what-
ever message was intended to be conveyed. In marketing circles, there’s a well-known
story about how an airplane’s dirty exterior caused passengers to unfairly make negative
inferences about its engine maintenance. They might not know about mechanical safety,
but they know about dirt. Someone at the icc came up with the idea of training event
staff members to take photos so that they could replace professional photographers. In-
ternational Criminal Court, Proposed 2014 Budget, supra note 16, at 143:
It also includes training in photography, with a view to savings in the cost of using
professional photographers for website use and publications, […]
This is one of those ideas that sounds good, but isn’t. Amateur photos are fine for amateur
use. But if you’re hiring professional photographers whose work actually can be replaced
by event staff members after a bit of training, then you need to hire better professional
photographers.
56 For example, consider the illustrations and layout of an important context document:
“Understanding the International Criminal Court.” The layout is a single long column of
text, interspersed by full page “illustrations” which were created by running photos
through a computer filter to produce an illustrated effect. The document has been set up
for page spreads, with even and odd running footers, and intentionally blank pages that
force the sections to begin on the (incorrectly numbered) verso page. But the document,
when linked from the website, is intended to be read in a web browser. In a web browser,
blank pages are a nuisance, and page spreads aren’t part of the presentation. Without in-
tending to be harsh, few would mistake this document for a professionally designed and
illustrated web presentation. International Criminal Court, Understanding the Interna-
tional Criminal Court, https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf
(last visited Feb.8, 2015).
57 The web is a different medium than print and requires a different approach. A docu-
ment designed for print is not nearly as effective to a web audience as a presentation
customized for the web. See, e.g., id. Even straight text can be more functional online
when its presentation has been tailored for use on the web. See, e.g., Rome Statute of the

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H Design Process and Its Application

So, how are great materials created that are both responsive to the needs of
their audiences and advance the icc’s goals? Unlike Athena’s emergence from
Zeus’s head, products aren’t created fully formed. Having a design process al-
lows for the conceptualization of an entire program, or it can be zoomed in to
create individual products. Design processes used by different organizations
differ in their details, but generally contain the following steps:
– discovery: specify and prioritize the goals; identify the audiences appropri-
ate to advance those goals;
– creative brief:58 state clearly the problem and the constraints;
– design: craft an appropriate and doable solution to the problem;
– production: gather available resources and execute the materials;
– distribution:59 get the materials to the attention of the identified audiences;
– assessment:60 determine whether the materials actually answered the cre-
ative brief and any lessons learned in the process, and then use that infor-
mation to inform the next design cycle.
Consider the following realistic marketing fantasy. The intent of this hypothet-
ical is to show how the design process can be used to create a product and how
information flow can amplify distribution.
Discover: The process begins with the discover step. In Section ii(B), supra,
we discussed discovery in terms of identifying and prioritizing the icc’s goals
for its materials; and in Section ii(E), supra, we discussed how to pick appro-
priate audiences to advance those goals. We won’t repeat that information
here.
International Criminal Court, icc Forum, https://iccforum.com/rome-statute [hereinaf-

ter icc Forum Rome Statute Webpage].
58 In Figure 5, infra, we divide this step into the “choose” and “specify” steps.
59 Using the “if we build it, they will come” approach to distribution just doesn’t work. A plan
must be created and executed to get materials to the attention of their appropriate audi-
ences. Creating materials that no one sees is a wasted effort. For just one example, see
International Criminal Court, Outreach report 2008, Central African Republic, You-
Tube (Oct. 14, 2009), http://youtu.be/QdfqyebRzR0 (last visited Feb. 2, 2015) [hereinafter
Outreach Video]. The video can (just barely) be accessed from the icc’s Website by follow-
ing this chain of links: Main Page → Educational Resources → Multimedia Resources → In
the Field → to a YouTube playlist. On the YouTube page, it’s the first item on the list. In the
five years since this video was posted, it has garnered a total of 96 views. This video could
easily have been embedded on the icc Website’s “Outreach” or “Situation” pages. There it
would have enjoyed much greater exposure, while enlivening the text-heavy presentation
of those pages.
60 In Figure 5, infra, we divide this step into the “evaluate” and “inform” steps.

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Figure 5 A design process helps create effective materials focused on the organization’s
goals, and targeted to the right audience
Choose: The next step is to write a creative brief. The icc is interested in con-
veying certain topics. But the audience is also interested in particular topics.
When choosing what to cover, it’s best to pick an intersection between the two.
In this example, the choice is made to explain human rights—as defined in the
Universal Declaration of Human Rights (udhr)—to the Affected Public.
Specify: As part of the creative brief, we need to specify the constraints. In
our example, the creative brief might say the following:
We want to reach the Affected Public. The material should make the
udhr interesting and accessible to a semi-literate audience. There’s very
little money available to create the product. The final product should be

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able to be distributed locally by our people on the ground in situation

countries.
The creative brief is a negotiated document. The stakeholders need to agree

that it properly sets forth the problem.61 But it should stop there—a creative
brief shouldn’t offer a solution.
Design: Then, the product needs to be designed. The project can be out-
sourced or, if the appropriate resources exist internally, assigned in-house.62
The designer figures out doable strategies that answer the creative brief. By
using creativity to work within the constraints, the designer comes up with a
targeted design solution.
Her design approach might be:
We’re going to sponsor a contest asking people to illustrate the individual

articles of the udhr. We’ll take the best submissions for each Article and
create individual color posters that will be joined together to form a sin-
gle pdf file. The pdf file can be considered a graphic comic book when
viewed in its entirety or the individual pages can be printed as color post-
ers by the field offices. In addition to conveying the information, we hope
the artwork helps generate an emotional impression. By making it a con-
test, we’ll gain extra attention for the project, and we’ll give the newspa-
pers a story for presenting the materials. We’ll make it clear that the pdf
can be freely repurposed—maybe we can get some viral distribution.
The designer includes a sample page giving an idea of how the final might look.
Produce: Now, the project needs to be produced. The producer63 uses her
social media expertise, contacts acquaintances in the media, and puts out a
61 The creative brief should be done in-house—or, at least, carefully considered and en-
dorsed by the stakeholders. Usually a one-time external production resource won’t have
the information necessary to properly define the problem, although an ongoing relation-
ship with a firm can allow them the time they need to become familiar with the market-
ing objectives of the organization.
62 If a project is to be outsourced, we find it’s usually better to outsource both the design and
the production steps. It’s just human nature: a team that executes its own design has a
bigger investment in the project’s success than one that only executes the designs of
another.
63 The designer and the producer are often the same person, which can be helpful. For the
designer, there’s an opportunity to design to her production strengths and, when she’s the
producer, she will certainly buy into her own design. Sometimes, however, the producer
delegates the execution to many different specialists—here, the producer might employ
a social media expert, a public relations consultant, a webmaster, a layout artist, and so

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Figure 6 Designer’s sample page to show how a contest might be used to illustrate the
Universal Declaration of Human Rights
call on the Internet for the contest. There’s some interest from media organiza-
tions: a few create stories about the icc’s contest. There’s a decent response
from the public. The producer creates a layout with the best submissions
merged into a final product.
on. Generally, larger teams have greater bandwidth—they can produce content more
quickly—but they are less efficient than smaller teams. For one thing, there’s a significant
cost to maintaining accurate communication—meetings and the like—between team
members. See generally, Frederick P. Brooks, Jr., The Mythical Man Month: Essays on Soft-
ware Engineering (Massachusetts: Addison-Wesley, 1975). For long-lived Context Materi-
als, we’d recommend slow efficiency over quick execution. Since there’s no rush, this is
one race that the tortoise can win.

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Distribute: The pdf is put up on the icc’s own website and distributed elec-
tronically to the icc field offices with instructions to output individual pages
on color inkjet printers. The posters go up locally in several locations near the
field offices.
The poster set is also distributed to the Media. More stories are created
about the contest and the poster set, including several human-interest profiles
about the people who created the illustrations. Images of the posters appear
on a number of Media websites. The images are tweeted and retweeted. They
are posted on several LinkedIn and Facebook groups that send out emails to
their members featuring the posters. Even months later, some of the illustra-
tions are seen to accompany news articles about human rights—a notable use
included a big spread in Uganda’s Daily Monitor on a feature story about gov-
ernment police abuses.
Because they advance its own goals, Human Rights Watch (hrw) puts the
material up on its website and sends it around its network, including those in
the field. Other human rights organizations pick up the electronic posters and
make them available on their websites. The Human Rights Action Center
prominently features the material to its supporters. Amnesty International
was already creating packets of materials about human rights for schools in the
Central African Republic; they reprint sets of the pdf on glossy color paper
and include them in the packets. The Office of the United Nations High Com-
missioner for Human Rights decides to use the materials as part of its own edu-
cational efforts. The Wikipedia entry on the udhr links to the materials. The
posters get some more attention on Twitter. Some schools in the drc receive a
donation of inexpensive computers. The organizers preloaded the pdf, togeth-
er with other content, onto those computers. Some teachers who received
those computers give their students the challenge of making their own illustra-
tions from Articles of the udhr.
In ongoing outreach efforts, assessment is the next step, consisting of two
parts:
Evaluate: Did the product meet the requirements of the creative brief?
Did it reach the desired audience? Was it effective?
Inform: Communicate what could be done better next time to those

charged with the design and creation of the next round of materials.
In this case, while the materials were well-liked, no one remembers that they
came from the icc. The icc brand was on the front cover of the pdf packet,
but not on the individual pages—and most people saw the individual pages
used as posters and illustrations. Oops. Lesson learned. Next time, the icc

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brand will be put onto each page. This information is communicated back to
the outreach team.
Context Materials tend to be evergreen—they don’t expire. Since they last a
long time, it’s a good investment to spend a bit more to get them right. Materi-
als that don’t engage their audience (e.g. boring materials) tend to get stopped
dead in their tracks. But interesting materials have legs and can “go viral”—
traveling far beyond their initial distribution. Marketers dream of viral distri-
bution for their products.
III Partnerships
The icc can’t accomplish its outreach goals alone. Other organizations—
governments, ngos, academic and civil society associations—have reach and
resources beyond those that the icc can muster. Organizations already receive
and repurpose the information disseminated by the icc. But a partnership
implies a closer relationship for a defined activity, where partners put their
own resources and networks to work advancing the icc’s goals. Partners can
also be called upon to be a strong voice for the icc when it’s under attack.64
But that network of support can’t be built overnight.
The icc occupies a privileged position in the constellation of organizations.
It is relatively new and can still be agile. Its mission is widely supported. It’s
perceived as an important member of the international community. From the
perspective of another organization, a partnership with the icc confers pres-
tige. All of this make the icc a valuable partner.
The downside of entering into a partnership is that the icc loses some mea-
sure of control. Other organizations have their own goals that may not match
perfectly with the icc’s. For example, the Registry is charged with being neu-
tral in relation to current situations. A partner such as hrw doesn’t operate
under that type of restriction—they don’t shy away from advocacy.
The trick to creating a successful partnership is to align the icc’s goals with
those of its partner. Where the goals won’t align, create separation. Where proj-
ects are a win-win for both organizations, goal alignment is possible. In order
to make a partnership work, the icc has to be on the lookout for these oppor-
tunities, and it has to make some changes in its own operations to be a better
64 See, e.g., Video of African Union accuses icc of racism, France 24, at 3:48 (May 29, 2013),
http://www.france24.com/en/20130528-African-Union-accuses-ICC-of-racism/ (in a tele-
vision interview, Elise Keppler, hrw Senior Counsel, makes a strong defense of the icc
against charges of racism).

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partner itself.65 Finally, the icc has to be prepared to cede some control to its
partner.
A The icc Forum—An Example Partnership

How does such a partnership work in practice? Unlike the marketing hypo-
thetical we used to discuss the design process, this example is quite real.
The icc Forum66 (the “Forum”) is a joint venture between the ucla School
of Law and the icc’s Office of the Prosecutor (otp). It was designed to moot
some of the tough legal issues faced by the otp and the Court. Each issue of
the Forum identifies a specific question of interest to the otp, frames that
question, organizes background materials, and reaches out to a balanced group
of experts—usually legal scholars known for their work on the topic—to gen-
erate a range of well-considered opinions on that issue. The public is invited to
comment on the issues. Their comments are carefully moderated to keep the
conversation civil and on point. The Forum was intended to use the web to
combine the best aspects of a legal journal with the approachability of an on-
line community interested in high-level discussions of international legal
issues.67
Let’s talk about goal alignment. The Forum is funded by the Sanela Diana
Jenkins Human Rights Project. For Ms. Jenkins, a survivor of the Bosnian Con-
flict, the Forum advances her abiding interest in international justice issues.
For the students of ucla School of Law, the Forum represents an opportunity
to conduct research and do legal writing on a variety of important topics, for a
real audience, alongside some of the most respected and well-known experts
in the world. For ucla School of Law, the partnership with the icc confers
institutional prestige. For Professor Richard Steinberg, the Forum’s Editor-in-
Chief, the Forum affords a leadership position in the scholarly exploration of a
new legal discipline—human rights and international criminal law. Of course,
65 For example, pids needs to answer its email. We desired information for this comment
from the Public Affairs Unit. Repeated, and increasingly urgent, inquiries to its main pub-
lished email address at PublicAffairs.Unit@ICC-cpi.int did not elicit a reply of any kind,
ever.
66 The first issue of the Forum went live in September 2010. Until April 2013, the ICCForum.
com was located at the domains UCLAForum.com and UCLALawForum.com. Those do-
mains still redirect to the now canonical ICCForum.com web address.
67 For more information on the design of the icc Forum, see Richard H. Steinberg, Olga
Werby & Christopher Werby, “UCLAForum.com—ict & icc otp Case Study” (2012) 6(4)
Transforming Gov’t: People, Process and Pol’y 358–67.

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it also provides him with an excellent authentic activity68 he can use to teach
his students.
But what of the icc otp’s goals? The Forum provides a variety of viewpoints
to help the otp sharpen its legal thinking on the issues under discussion. The
Forum also helps expose the public to some of the complex issues faced by the
otp. And, to help offset the opacity of the internal operations of the otp, it
helps educate the legally-interested public on how the otp actually works.
While the goals of the otp and pids aren’t identical, the Forum also ad-
dresses many of pids goals. It can fairly be said that the Forum helps to:
– cultivate a level of awareness and an understanding of the icc’s mandate
and mode of operations;
– promote access to and understanding of judicial proceedings;
– foster realistic expectations about the Court’s work;
– establish the icc as part of the international order and be a “well recognized
and supported institution”;
– forward the icc as an entity that can provide a positive force for peace and
justice in the world;
– create a central resource for international criminal law;
– develop a positive image of the Court and address political and media
attacks;
– assist the icc in being part of the news cycle on relevant, trending issues.
How can we claim that the Forum helps provide a positive image of the Court
when it hosts some opinions that are openly hostile to the Court? There are
comments on the Forum that accuse the Court of being an instrument wielded
by western powers to exert colonialism over Africa; that criticize the Court as
being too slow or ineffective to provide a real deterrent; and that attack the
Court for having a hidden political agenda.
The Forum is a credible source of unbiased information about the icc pre-
cisely because it entertains a wide variety of opinions, including those critical
of the Court. We’ve all developed a finely tuned sense that rejects the unrelent-
ing flow of flattery that many organizations heap upon themselves in their
marketing materials. Every important institution has detractors. That the icc
welcomes negative opinions says a lot about the institution. It’s not about brav-
ery. Rather, akin to the adversarial process said to be a courtroom’s crucible for
truth, the Court shows that it is unafraid of being challenged, and perhaps im-
proved, through analysis and debate.
68 An authentic activity is one that has meaning beyond its creation. For an essay or com-
ment, often that means writing for an audience rather than just for an instructor and a
grade.

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Those negative opinions are also at a distance from the Court. There’s a sep-
aration between an open online discussion run by ucla School of Law and the
icc itself. That separation is an important benefit of a partnership with anoth-
er organization. Whatever happens on the Forum isn’t attributable to the icc.
Partnerships do require something of a cultural shift—a leap of faith
perhaps—where the icc doesn’t see the landscape as “us versus them.” Rather,
the icc needs to trust its partners and see itself as part of a community of gen-
erally like-minded people and organizations, sympathetic to each other, each
trying to do the right thing, and all dedicated to international justice and hu-
man rights.
IV icc’s Field Outreach
A cornerstone of the icc’s outreach effort has been directed towards the Af-
fected Public who aren’t seeking information from the icc and don’t have ac-
cess to technology—Figure 1’s third quadrant. For each of the years 2011 and
2012, as many as 35,000 people went to about 500 meetings with icc Outreach
field staff.69 While 35,000 is a lot of people, it is instructive to compare that
to an outreach effort targeting the Affected Public who do have access to
technology—the audience in Figure 1’s second quadrant. The Outreach Unit
claims that, in the drc alone, they reached an estimated 25 million people an-
nually through print, television, and radio.70 Finally, 35,000 people must also
69 The number of those meetings which served rural members of the Affected Public is prob-
ably much less. But 35,000 individuals and 500 meetings for each of those two years serves
as an upper bound. The published materials combine all audiences for these meeting—
Affected Public but also Media and Organization audiences—into a single figure. Meet-
ings were conducted in both urban and rural areas. Combined, in those five situation
countries during 2011 through 2012, 983 meetings reached a total of 69,007 participants.
That breaks down as follows: In the Central African Republic in 2011 and 2012, when se-
curity conditions permitted these meetings to occur, a total of 13,682 participants were
reached in 256 meetings. International Criminal Court, Engaging with Communities, su-
pra note 1, at 7. In the same two years in the Côte d’Ivoire, 114 participants were reached in
7 meetings. Id. at 9. In the same two years in the drc, 30,581 participants were reached in
407 meetings. Id. at 14. In those years in Kenya, 9280 were reached in 151 meetings. Id., at 19.
In Uganda, again in 2011–2012, 15,350 participants were reached in 162 meetings. Id. at 24.
70 International Criminal Court, Engaging with Communities, supra note 1, at 11. Are Figure
1’s second quadrant audience, who might have access to a radio, somehow less “affected”
than Figure 1’s third quadrant audience, who don’t? We’re unaware of any information
that suggests that those with access to technology were less affected by violence than
those without such access. Both audiences are worthy, even if it costs much less per capita
to reach the second quadrant’s Affected Public.

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be measured against the combined population of those five countries: about

183 million people.71
The effort spent reaching those 35,000 people in a year was significant.72
The money and other resources73 used for this effort were diverted from other
outreach efforts that could have reached a much wider audience. Was it worth
it? If it was intended as a charitable effort, how much good did it do? If it was a
marketing effort, how effective was it in comparison to its cost?
These are hard questions to answer. There’s no doubt that the people who
physically attended a meeting learned more about the icc as a result. What the
Outreach Report doesn’t provide are examples where the Affected Public’s lives
were improved, or even where they were able to take direct action, based upon
the information received during a meeting with the icc’s Outreach Unit.74 The
post-meeting assessment primarily focuses on the icc’s promotional goals for
71 Population of car, Côte d’Ivoire, Uganda, Kenya, and the drc, Wolfram Alpha, at http://
www.wolframalpha.com/input/?i=Population+of+CAR,+Cote+d%27Ivoire,+Uganda,+Ke
nya,+and+the+DRC (last visited Jan. 29, 2015).
72 The difficulties reaching rural members of the Affected Public without using technology
shouldn’t be underestimated. See International Criminal Court, Outreach Report 2010,
supra note 6, at 65, 56:
It was sometimes difficult to hold outreach activities in the interior owing to the lack
of adequate means of communication (Internet and telephone). The Court staff mem-
bers sometimes found it difficult to inform the local authorities and leaders of civil
society about their visits and proposed activities. The authorities and leaders likewise
had difficulty contacting the Outreach Unit’s staff members. As a result, the popula-
tion’s involvement in the outreach activities was less than optimal. Moreover, the cal-
endar of activities in the interior frequently had to be adjusted to take certain realities
such as climate constraints into account. During the rainy season (June–November),
it was difficult to ascertain how many participants would attend the outreach activi-
ties as many people do not go out in the heavy rain. Furthermore, for the rural popula-
tion, the demands of the agricultural calendar are more pressing than the Court’s ac-
tivities. In 2009–2010, the Outreach Unit intensified its campaign in car because of
activity in the Bemba case. The Outreach plan of action for each venue involved a
pyramid of sessions, six in all, beginning with one for the region’s administrative au-
thorities, then one for the local authorities, then one for the religious authorities, then
one with ngos and civil society organizations, then one for women’s groups, and fi-
nally one for the general public.
73 There were at least 13 icc Outreach employees in those five countries during 2011 and
2012. While the meetings don’t represent 100% of their time, conducting 500 meetings a
year is a significant undertaking. Even if the meetings only occupied half their time and
even if no time was expended by personnel not in the field, that’s 6.5 man-years of effort
expended annually to reach those 35,000 people.
74 International Criminal Court, Engaging with Communities, supra note 1, at 4. We can get
a peek at what the participants get out of the meeting by reading a positive assessment in
the icc’s Outreach Report about an event in the Central African Republic:

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the meeting: was the attendee’s perception of the icc improved as a result of
the meeting?75
A primary objective for the meetings is to dampen the expectations of the
audience for both reparations and justice.76 At this point in the icc’s history,
the icc can communicate its aspirational goals to the Affected Public, but little
that has a current impact on their lives and security.77 Perhaps, in the future,
the icc will be able to meet the expectations of the Affected Public and dem-
onstrate a record of success in ending impunity and providing victim
compensation.78
Each of the situation countries has other Organizations—ngos, govern-
mental and religious groups, and civil society associations—that, together
with local news media, keep their populations appraised of the work done by
the Court. These groups are part of these communities and are immersed in
The women are telling me that they are very happy today, because it is the first time
that they have seen images from the trial and heard a summary in the Sango
language.
75 See International Criminal Court, Outreach Report 2010, supra note 6, at 21. The Uganda
outreach team asked a series of questions after meetings—all yes or no except for one
multiple choice at the end—to measure the effectiveness of their work:
1. Was this the first time that you heard about the icc?
2. Did you learn anything today that was important to you?
3. Will you discuss what you learned here today with other people?
4. Is there anything that you will do as a result of this meeting?
5. Would you recommend that others come to a meeting like this?
6. Do you understand more about how the icc works?
7. Are there any issues that you do not understand?
8. Are you happy with the presence of the icc in your country?
9. Have you been personally affected by the types of crimes that the icc is
investigating?
10. How do you get your information? Radio. Word of mouth. Other meeting. Newspaper.
Other. TV. Poster.
76 Discussion, supra note 9.
77 It is often said that “justice should not only be done, but … be seen to be done.” R v. Sussex
Justices, ex parte McCarthy, 1 KB 256 (1924); see also Strategic Plan, as quoted supra note
7. But with rare exceptions, is the icc currently in a position to demonstrate to the Af-
fected Public that justice has been done for them? At best, the meetings might provide
hope that justice is being done or, in the future, might be done.
78 See International Criminal Court, Outreach Report 2010, supra note 6, at 10. This para-
graph on the icc’s Uganda outreach efforts in 2010 is illustrative:
Turnout to icc sessions has decreased. […] Some may have also lost interest in the icc
process due to the lack of arrests, the lack of judicial developments in the situation,
and the understanding that reparations will come only after an accused person is
convicted.

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their culture. They are the insiders.79 Isn’t it up to them—and not the Court—
to disseminate this information?80 Isn’t the icc more likely to spread news of
its activities by concentrating its efforts on these other Organizations? Should
the icc really create groups of on-the-ground personnel traveling around rural
areas in situation countries to try to bring news about the icc, in-person, to
people without access to technology?
Serving the Affected Public is a noble activity, and people feel good doing
it. Some other organizations, that serve hard-to-reach populations, require
direct physical contact with the people they serve. When the Médecins Sans
Frontières team travels to rural villages in the drc for a vaccination program,
they must do so with an in-person outreach program.81 But the icc serves
the Affected Public by adjudicating crimes committed against them. Its “jus-
tice vaccine” is administered at a distance; its service isn’t performed through
outreach.82
If the icc improves the situation on the ground, the Affected Public will
know about it, even if they’ve never heard of the icc. The icc can use an in-
person outreach program to take credit for positive changes in people’s lives,
facilitate their understanding of the Court, and try to garner their support. But
that’s a marketing effort designed to advance the goals of the icc rather than
an act of service to the Affected Public.
Budgets are tight. The icc’s in-person outreach effort reaches only a tiny
fraction of the Affected Public at a significant expense. Weighing the costs
against the benefits, this is not an efficient investment of the icc’s marketing
79 See Susman-Peña, et al., supra note 47, at 12:

Information is inherently social and acquires meaning only in a social context. Infor-
mation is a relationship; generating and receiving information are both creative acts.
Information is an activity, not a thing; it has to move or it ceases to be of value. […]
Information is a defining aspect of human relationships; thus the question of trust is
critical to the study of information ecosystems. Information must move or it has no
reason to exist; because it moves, it transforms as context and actors shift.
80 We recognize that a clear disadvantage of not communicating directly is the loss of con-
trol over the content and its presentation. Distortion, misreporting, and the instability of
the news media in situation countries is a recognized problem. That’s clearly exacerbated
when the Court is investigating or prosecuting leaders in the current government. But
when operating within a country, can the Outreach Unit ever effectively match the com-
munications of a government hostile to the icc? See, e.g., billboards in Sudan at Appen-
dix A.
81 Coomes, supra note 3.
82 As previously noted, victims and witnesses are served by the Victims and Witnesses Unit
rather than the Outreach Unit. The vwu does need to have in-person contact with the
people under their charge who do not have access to technology. But the activities of the
vwu are not part of this discussion. See discussion, supra note 14.

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resources. Choosing to meet in-person with a small handful of the Affected

Public means that there are no resources available to market to other easier-to-
reach audiences, even including other members of the Affected Public. It is
tempting to try to do it all, but goals must be prioritized and some may have to
be considered “Nice to Have” rather than “Must Have.”83 If a major icc out-
reach component must be cut, this is it.84
V The icc’s Website
The icc’s website (the “Website”) is its most important communication and
distribution platform. In addition to the information, documents, and other
material found there, it is also used to stream public hearings and distribute
materials to the press and the icc’s own field offices. For most people around
the world, the Website is the embodiment of the Court. The Website needs to
tell the story of the Court through Context Materials; it must provide News
Materials to tell the activity of the Court; and it must educate by being a library,
an archive, and providing the history of the Court. Those with technological
access seeking information about the Court85 probably make the Website one
of their first destinations. In 2013, the Website had more than two million visi-
tors, double that of 2012.86
The Website serves diverse audience groups, each with specific needs. The
general public requires contextualization to understand the Court. Media and
Organizations seek News Materials. Students writing a report on the icc seek
Context Materials. Practitioners and scholars seek a definitive source for the
official documents of the Court. The Affected Public seek information on inter-
acting with the Court.
The Website needs to be technically competent, modern in design, usable
across a variety of devices, and easy to search and navigate. Currently, the
83 Budgeting by goal rather than by activity is one way to prioritize the goals and make sure
that none are short-changed because others are expensive to achieve.
84 We specifically exclude field outreach with Media and Organizations from this comment.
It is useful for the icc to meet with the media, government officials, and ngos; train law
students, political scientists, and journalists; and develop curricula for academic institu-
tions in situation countries. Acting indirectly through the Media and Organizations, the
icc can efficiently reach members of the Affected Public and advance the icc’s outreach
goals.
85 This is the audience depicted in Figure 1’s first quadrant.
86 See International Criminal Court, Report on activities and programme performance of the
International Criminal Court for the year 2013, at 27, Doc. ICC-ASP/13/19 (May 27, 2014).

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c ontent is mostly text with a few images. There’s little video or other rich me-
dia.87 Because the Website is a resource for the Court, and for international
criminal law generally, the location of deep content on the Website needs to
never change once it has been posted.
An effort must be made to keep the text on webpages up to date. There’s
content up on the site that has clearly never been revisited since it was first
posted. For example, on the drc Outreach page, this paragraph has not been
updated for at least seven years:
Outreach activities in 2008 will focus mainly on Ituri and the two Kivus
because of the current court cases. Special effort will be made to ensure
access…88
On the web, each individual document or webpage has a unique location ad-
dress called a Uniform Resource Locator (url), the link that often starts with
87 The icc has already produced videos that would be appropriate for use on its Website.
See, e.g., discussion, supra note 59. Technically, it’s trivial to embed a YouTube video on a
webpage. Adding video would improve the richness of information presented on the
webpage; more people would see the video; and, since the video has already been pro-
duced and approved, it would cost the icc almost nothing. Since it would plainly be a
marked improvement, why are there so few videos on the icc’s Website? This is such an
obvious idea that it has certainly occurred to people within the icc. But large organiza-
tions are divided into units that each have an interest in a shared resource like a website.
Afraid of losing some of their authority over the parts they control, they engage in turf
battles. Implementing change requires that someone push against the entrenched bu-
reaucracy of these various units. Without that effort, even if there is general agreement
about the insufficiency of the Website, the status quo will be maintained.
88 Outreach in Democratic Republic of the Congo, Int’l Crim. Ct., http://www.webcitation
.org/6WCK3Xgd4 (last visited Feb. 8, 2015). There are other examples on the website, e.g.,
Outreach in Uganda, Int’l Crim. Ct., http://www.webcitation.org/6WCKEJxyB (last visited
Feb. 8, 2015):
Outreach activities will focus, during 2008, on strengthening existing programmes
and partnerships and creating new ones (especially to reach the youth and
Women)…
See also, e.g., Timeline, Int’l Crim. Ct., https://www.icc-cpi.int/iccdocs/PIDS/TL/time
line.html (last visited Feb. 8, 2015), (the icc timeline in its educational resources sec-
tion, which ends at 2012, as if the Court had no significant events in 2013 or 2014). See
also, e.g., Publications: Outreach—Democratic Republic of the Congo, International
Criminal Court (Jan. 12, 2007), http://www.webcitation.org/6WCKUQ1nV, (last visited
Feb. 8, 2015) (the list of drc Outreach publications that begins and ends with docu-
ments produced on one day, the 12th of January 2007). See also, e.g., icc Weekly Up-
date, Int’l Crim. Ct, http://www.webcitation.org/6WCKadubk (last visited June 14,
2018) (as of our last visit, almost three months are missing. The last weekly update is
#228 dated November 17, 2014).

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“http.” The Website has extremely long and unwieldy urls. Even for websites
managing a lot of content, there’s no technical requirement that urls be so
complex.89 Many urls contain improper characters.90 And in 2012, an earlier
url scheme was replaced with a new scheme with even longer urls, breaking
the existing links.91 url permanence,92 critical for preserving citations to orig-
inal material,93 is a key component of the icc’s stated goal of being a central
89 The icc Website manages a large number of documents. But it doesn’t compare to a site
like YouTube that manages at least several hundred million videos. Cf. YouTube Statistics,
YouTube, https://www.youtube.com/yt/about/press/ (last visited Jan. 30, 2015). The You-
Tube url http://youtu.be/1K4Y8iqLzxQ points to a single video out of all those millions
and is only 27 characters in length. Compare it to an icc Website url here, https://www
.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeS-
tatutEng1.pdf, at 98 characters. Many of the icc’s urls are even longer than that. See
discussion, infra note 91 (a 137-character url which points to the otp main page). For just
a few examples of the problems caused by very long urls: they can’t be transmitted
through non-digital communication, they are almost impossible to write down accurate-
ly, they are easily garbled; they would be very difficult to manually type into a web brows-
er, they are too long to fit on a single line in a citation (urls can’t be hyphenated); they
frequently break when sent via email and the link wraps; they can’t be easily read and
understood by humans; and so on. The icc Website contains a form that victims are to
use to apply for reparations. Imagine you were on the radio talking to the Affected Public,
and you wanted to communicate a 95-character url over the air so that your listeners
could access the form. It’s almost impossible.
90 Improper characters in urls include spaces, each of which must be replaced by the en-
coded string “%20,” decreasing the human readability of the url and making it difficult
to cite. If the spaces were just replaced with underscores, the url would be much more
readable.
91 About 2012, many urls on the icc Website were actually lengthened and became more
unwieldy and unreadable. For example, the url for the otp’s main page used to be an
81-character link. It was changed to a 137-character link. When a website changes its url
scheme, best practice calls for redirects to be implemented on the server so that users
following an old link will automatically be rerouted to the document’s new location. If the
icc had done this, old links would still work properly. But the icc didn’t. So, across the
Internet, everyone’s links to the content of the icc’s Website silently broke. Among te-
chies, changing the url scheme without redirecting old links is derisively referred to as
“breaking the web.” In December 2012, at the icc Forum, we noticed the broken links
problem. To fix it, we needed to locate every link on the Forum pointing to the icc and
then, for each link, we needed to do research to find the new url and use that to replace
the old one. Of course, many websites didn’t notice that their links to the icc’s Website
were broken, or they chose not to spend the money and time to fix them. Those links now
fail. See discussion, infra note 93 (examples of web links from well-known organizations
to the icc that fail).
92 “Link rot” is the term used when links no longer refer to the original reference. There’s
really no good excuse for this. See Tim Berners-Lee, Cool uris Don’t Change, W3C (1998),
https://www.w3.org/Provider/Style/URI (last visited June 14, 2018).
93 “Breaking the web” is a serious problem, especially for an organization that sees itself as a
primary archive and resource for international criminal law. Included below are a few

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resource for international criminal law. But this has not been internalized by
the icc’s information technology personnel.94
well-known organizations—among thousands—hosting links to the icc’s Website that

now fail: the United Nations, the New York Times, the Harvard Law Review, Human Rights
Watch, the International Bar Association, the American Society of International Law, the
Journal of International Criminal Justice, the Court’s own decisions, the icc’s own You-
Tube channel, and the Coalition for the International Criminal Court. For examples of
broken links, most of which result in a “page not found” error, see Northern Uganda: Major
Steps Towards Peace in a Decades-Old Conflict, 10 Stories the world should hear more
about, (2007), http://www.un.org/events/tenstories/07/printable/uganda.shtml (last vis-
ited Feb. 2. 2015). See also A. Hambouz and J. Khan, “Stop the Fighting and Start Uniting,”
N.Y. Times, 3 May 2006, https://learning.blogs.nytimes.com/2006/05/03/stop-the-fight-
ing-and-start-uniting (last visited June 14, 2018) (a link to the “About” page on the icc
Website fails). See also “Laser Beam or Blunderbuss” (2007) 120 Harv. L. Rev. 1848 at 1848
n.1. See also Admissibility of Cases before the icc in A Summary of the Case Law of the Inter-
national Criminal Court, Human Rights Watch (Mar. 2007), https://www.hrw.org/legacy/
backgrounder/ij/icc0307/2.htm (last visited June 14, 2018). See also The International Crim-
inal Court (icc), Int’l Bar Assoc., http://www.ibanet.org/Committees/WCC_ICC.aspx (last
visited Feb. 2, 2015) (the first link on the page, to the Rome Statute on the icc’s site, is
broken, together with most of the other links on the page). See also Anja Seibert-Fohr,
“The Crime of Aggression: Adding a Definition to the Rome Statute of the icc” (2008)
12(24) asil Insights at nn.1,3,9. See also Paola Gaeta, “Is the Practice of ‘Self-Referrals’ a
Sound Start for the icc?” (2004) 2 J. Int’l Crim. Just. 949, 952. See also Situation in the Re-
public of Kenya, ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya, at 8 n.8
(Mar. 31, 2010) (Hans-Peter Kaul, dissenting), https://www.icc-cpi.int/pages/record.
aspx?uri=854287 (this is one of the Court’s own documents where internal links to other
Court documents fail). See also Outreach Video, supra note 59 (this is on the Court’s own
YouTube channel, where the link back to its own website is broken). See also Communica-
tions and Outreach, Coalition for the Int’l Crim. Ct., http://www.coalitionfortheicc.org/
(last visited Jan. 28, 2015) (links to the pre-2010 documents are broken).
94 In a draft document about the icc Website court records management system, there are
two proposals to “retire” documents relating to closed cases after seven years and move
them—either entirely offline or, if online, to a separate site collection linked from the icc
website. Armin Taslaman, icc Website Court Records Management System, Draft Paper
(Sept. 14, 2014), available online (http://www.icc-cpi.int/iccdocs/PIDS/other/ICC%20
website%20Court%20Records%20management%20system.docx), archived (http://www
.webcitation.org/6WCMG7xkc). The online version of the proposal sounds like it would
break all the existing links to these documents, which is pretty bad (see discussion, supra
note 91 and 93). But the offline version is even more draconian:
An offline site would be created. The site would be accessible only from within the
Library and Research Centre. The site would reside on the icc Intranet […] There
would be a specific section of the website created to promote and explain the histori-
cal site. The section would feature the request form to visit the site.
While technical issues exist in maintaining a large and growing archive of materials, there
are technical solutions that don’t involve breaking web links to historical documents. It
should be clear that moving documents to offline repositories or otherwise breaking

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Technically, the icc’s Website is built upon a content management system

(cms). A cms is a software tool designed to manage a website, ideally separat-
ing the content from its presentation on a webpage. A database usually con-
tains the content or its representation.95 A handful of templates contains the
presentation of the webpages. The cms merges the database content with the
presentation found in the appropriate template and produces the pages actu-
ally seen by the user—with a header, footer, sidebar, links, and text.
Which cms to adopt is an important decision.96 Once implemented, the
choice is locked in—it’s difficult to move content from one system to a differ-
ent vendor’s system later on. But the templates, containing the visual presenta-
tion of the website’s content, are much more flexible. The templates should be
periodically adjusted so that the visual presentation they control is kept fresh
over the life of a website.
Without going into too much technical detail, a look at the underlying
source code for the pages of the icc’s Website reveals something of a mess.
Lots of content has been added over time, but the current coding style remains
stuck in the early 2000s, back when the web was very young and web standards
had not yet evolved. The webpages mix semantic content with presentation;97
e xisting web links to those documents is antithetical to the icc’s stated goals of being
both an archive and a central resource for international criminal law. For a modern
international organization, it is a shockingly retrograde idea to take documents currently
online and available to the entire world, and make them accessible only to those who
physically visit a library in the Hague.
95 Content is contained in an external file, like a pdf; or is represented in fields in a data-
base, like text on a page; or both. A piece of external content—often a pdf file, a video, or
an image—has a database representation with fields for metadata such as title, date cre-
ated, date uploaded, location, access restrictions, and so on. When displayed on a website,
that metadata information is used to create informative links to that content on an ap-
propriate webpage and, perhaps, enforce access restrictions. Text destined for a
webpage—like a blog post—is also often stored in a database and then wrapped in a
template’s presentation elements when delivered to the user.
96 We don’t have inside information from the icc about their technology choices. But, by
examining the Website externally, the cms looks to be a commercial program called
iapps, a product of Bridgeline Digital, written in C#, employing a server-side web applica-
tion framework called asp.net, deployed on a Microsoft Windows Server, and using ms-
sql for the database backend technology.
97 Once the content is free from presentational elements, then the presentation of that con-
tent is much easier to update. css Zen Garden is an inspirational testament to the power
that the separation of content from presentation can bring to a website. It uses a single
page of html markup—the semantic content—and applies to that markup a wide vari-
ety of stylesheets created by different designers—the presentation styles. The result dem-
onstrates many wildly different presentations of identical content. When content is sepa-
rated from presentation, it is much easier to maintain and update.

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are difficult to maintain;98 violate web standards;99 and won’t validate.100 The
pages are non-responsive,101 and are set at a fixed width of 750 pixels.102 Be-
cause the presentation is fixed, it does not adapt to improve the experience for
users on mobile devices with narrower screens,103 or for users on laptop or
desktop devices with wider or higher resolution screens.104 Also, the look of
the Website is dated and the aesthetics could be greatly improved.105
It’s an effort to manage a website for an organization as large and complex
as the icc. But it’s an important effort that has to be done properly. Whether
98 See Separation of Concerns, Wikipedia (Jan. 28, 2015), https://en.wikipedia.org/wiki/Sepa-

ration_of_concerns, accessed January 28, 2015.
99 Web standards are promulgated through the W3C, an organization founded by Sir Tim
Berners-Lee after he left cern in 1994.
100 As an example, click here to validate the Website’s English language home page. When
last checked on January 28, 2015, there were more than 100 errors on this page.
101 See Responsive Web Design, Wikipedia (Jan. 28, 2015), https://en.wikipedia.org/wiki/Re-
sponsive_web_design, accessed January 28, 2015. As an example, the icc Forum uses re-
sponsive design principles to adapt to a wide variety of screen-sizes. The website isn’t just
scaled down to fit on small screens. Rather, the presentation is changed by rearranging,
removing, and resizing individual elements as appropriate, to give a good experience to
users on mobile devices as well as desktops and laptops. The layout shifts can be easily
seen on a desktop or laptop computer by grabbing the edge of the browser window, ad-
justing the width, and watching the page change while making the window narrower or
wider. For an example, see Appendix B.
102 Even for fixed width websites, this is very narrow. Fifteen years ago, many sites were de-
signed to work in monitors that were 800×600 pixels. But now, the standard is to design
for a minimum monitor size of 1024×768 pixels. According to one source, currently 1% or
less of users are on desktop monitors that are 800×600 pixels or smaller. Web Statistics and
Trends, w3schools.com, https://www.w3schools.com/browsers/browsers_display.asp
(last visited Feb. 8, 2015). Browser statistics need to be taken with a grain of salt, however,
because each site attracts a very different audience with a different mix of characteristics.
But even if a greater percentage of the icc’s audience are still on low resolution monitors,
a responsive site would accommodate their narrow screens by changing the site’s layout
to fit the width of their browsers.
103 The icc Website shrinks down to fit on a mobile phone but doesn’t adjust its presentation
for the small device. See Appendix D. Tiny navigation targets and even tinier print are
daunting obstacles to mobile users. Mobile devices, including smart phones and tablets,
are increasingly used to access websites. The percentage of users on mobile devices is
sharply increasing over time, especially in Africa and the rest of the developing world. See
Mobile Internet Usage Soars by 67%, StatCounter, (Sept. 18, 2014), http://gs.statcounter
.com/press/mobile-internet-usage-soars-by-67-perc (last visited June 15, 2018). A current
review of the icc’s Website browser statistics will underrepresent mobile usage. While
each website attracts a different mix of desktop to mobile users, websites that are opti-
mized for mobile usage attract a greater share of users on mobile devices. Put simply, a
better mobile experience encourages people on mobile devices to use the site.
104 Discussion, supra note 101. Images and logos are also fuzzy on higher resolution devices.
105 See, e.g., Rome Statute Webpage, supra note 49.

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the back end of the Website is adequate for the needs of the icc is unknown to
us. But the focus for the Website cannot all be directed inwards towards the
needs of the organization; it needs to be directed outwards, towards the needs
of its users. And, right now, the public-facing front end of the Website suffers
from clear neglect and needs competent attention.
VI Conclusion
When an organization loads too many objectives onto its outreach program,
there’s a loss of focus. Materials that try to address too many goals end up not
effectively supporting any of them. The outreach effort gets stretched too thin.
The icc has a wide range of goals and a wide range of audiences. Rather
than try to address all the goals with a single product, the icc needs to create
particular materials to address particular goals with particular audiences.
Outreach materials cleanly divide into news and context. News Materials
need to be continuously created in-house on a schedule. But Context Materials
should be more considered than that. Because they are not time sensitive, they
can be carefully designed to communicate effectively with their audience.
Unfortunately, much of the icc’s available outreach materials are unin-
spired and dull. Creating good content is hard. But an organization such as the
icc can certainly find the talent and resources necessary to do so, even if it
isn’t available in-house.
The audiences for the outreach materials have different needs. It’s best to
divide the audiences based upon how they are likely to use the icc’s
information—supporting those uses where possible. This amplifies the distri-
bution of the icc’s products without adding to their cost.
The icc can’t do it alone. It needs to enter into partnerships with other
organizations—governments, ngos, academic and civil society a ssociations—
that have reach and resources beyond those that the icc can muster. The icc
Forum is an example of how an effective partnership can work to advance the
icc’s goals without significant cost to the icc.
We argue against sending representatives in-person to remote rural regions
of the world to try to bring news of the icc’s activities to the Affected Public.
Even if the icc has altruistic motives, this field outreach isn’t done for charity;
it’s done to advance the icc’s goals. And it must advance those goals sufficient-
ly to justify its cost. Currently it doesn’t.
The icc’s Website is its most important outreach tool. The Website could be
very effective in addressing audiences of different interest levels, educational

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attainment, language, and culture. The Website is also the reservoir of all the
icc’s materials—and the custodian of its history and legal legacy.
But the public-facing side of the website is stale. It’s text heavy and gray. It
doesn’t communicate well to the variety of people who come seeking informa-
tion. And it has a number of technical problems. Examples include: failure to
adapt for mobile devices (a poor experience for mobile users), mixing content
with presentation (a maintenance headache), and not supporting link perma-
nence (a decrease in value as an archive of international criminal law). The
Website is primarily a communication tool, and yet its focus seems to be di-
rected inwards, towards the needs of the Court, rather than outwards, towards
the needs of its audiences. The Website has been neglected; we suspect that it
is underfunded. Given its importance to the outreach effort, it should attract a
larger share of the outreach budget.
In closing, we realize that circumstances sometimes require outreach to be
reactive rather than deliberative. Anybody who’s been paying even scant at-
tention knows that the icc has significant public relations problems. Al-Bashir
has claimed victory over the icc in Darfur.106 Kenya’s Kenyatta has said he has
been vindicated by the dropping of charges against him.107 Ethiopia’s Desalegn,
the previous head of the African Union, accused the court of “race-hunting”108
and is agitating for rules shielding sitting heads of state from prosecution.109
Uganda’s Museveni is trying to orchestrate a mass exodus of African nations
from the Rome Statute.110 Zimbabwe’s Mugabe, newly ascended to the chair-
manship of the African Union, was once urged upon the Court as a p ossible
106 “Sudan President Bashir hails ‘victory’ over icc charges,” bbc News, 13 December 2014,
http://www.bbc.com/news/world-africa-30467167 (last visited June 13, 2018).
107 “Kenyan president says he is ‘vindicated’ after icc drops charges,” The Telegraph, 5 De-
cember 2014, https://www.telegraph.co.uk/news/worldnews/africaandindianocean/ke-
nya/11275616/Kenyan-president-says-he-is-vindicated-after-icc-drops-charges.html (last
108 K. Williams, “African Union accuses icc of racism,” France 24, 29 May 2013, http://www
.france24.com/en/20130528-African-Union-accuses-ICC-of-racism/ (last visited June 13,
2018).
109 African Union, Extraordinary Session of the Assembly of the African Union, Addis Ababa,
Ethiopia, (Oct. 11, 2013), https://au.int/en/focus-countries/ethiopia (last visited June 15,
2018).
110 afp, “Museveni calls for mass pull-out of African states from International Criminal
Court,” Daily Nation, 12 December 2014, https://www.nation.co.ke/news/politics/African-
states-quit-ICC-Museveni/-/1064/2554310/-/vg9hpw/-/index.html (last visited June 13,
2018).

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target for prosecution.111 Perhaps unsurprisingly, he is not friendly towards the

icc,112 and has said that Africa must withdraw from the Court.113
These issues require a strong response from the Court. However, it’s all too
easy to get lost in the weeds. Beyond public relations and the News and Con-
text Materials, there’s a need for something more in the icc’s outreach effort.
The icc is the world’s most recent expression of a desire for international
criminal justice. People everywhere want accountability for the crimes that are
committed against them. If not yet an expectation, justice is at least an aspira-
tion. The Court is a radical innovation where a large majority of the world’s
countries have surrendered a piece of their individual sovereignty to collec-
tively say “no more” to the scourge that war inflicts upon civilians. The icc’s
outreach effort has to go beyond the icc itself and help sell the Rome Statute’s
vision of international criminal justice to the world. While the promise of the
Rome Statute is yet to be fully achieved, the icc as an institution needs to
change societal norms of war and impunity.
Figure 7 icc outreach must reach different levels of social organization to cause societal
change
111 See M.S. Ellis, “International justice: The world vs. Robert Mugabe,” N.Y. Times, 2 April
2004, https://www.nytimes.com/2004/04/02/opinion/international-justice-the-world-vs-
robert-mugabe.html (last visited June 13, 2018) (when he wrote this article, Mark Ellis was
the executive director of the International Bar Association). See also “Crimes against hu-
manity: What international bodies can, and cannot, do about Zimbabwe,” The Econo-
mist, 26 June 2008, https://www.economist.com/node/11636475 (last visited June 13, 2018).
112 See “Mugabe tells Kenyatta to skip icc trial—report,” News24, 15 October 2013, http://
www.news24.com/Africa/Zimbabwe/Mugabe-tells-Kenyatta-to-skip-ICC-trial-re-
port-20131015-2 (last visited June 13, 2018); see also “Mugabe takes aim at icc,” Indepen-
dent Online, 23 September 2011, https://www.iol.co.za/news/africa/mugabe-takes-aim-at-
ICC-1143175#.VMwQfcZE-S0 (last visited June 13, 2018).
113 M. Macharia, “Kenya: Africa Must Pull Out of the icc, Says New AU Chairman, Robert
Mugabe,” All Africa, 31 January 2015, http://allafrica.com/stories/201501310495.html (last
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Appendix A
Appendix B

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Appendix C
Appendix D

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Part 3
The icc Withdrawal Issue

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The Issue of State Party Withdrawal

African states were among the biggest proponents of establishing the icc, but
by 2013 several African governments had begun challenging the icc’s legiti-
macy, and by 2016 three of Africa’s 34 States Parties had announced their inten-
tion to withdraw from the Court. Since the Rome Statute had entered into
force, all icc investigations were of situations in Africa and all prosecutions
grew out of those Africa investigations. The African Union, several non-state
parties, some African States Parties, and various commentators complained
that the icc was targeting Africa, that the icc had not been fully considering
the consequences of its actions for diplomatic efforts on the continent, or,
more broadly, that the icc was a neocolonial effort by European powers to
police Africa. At the same time, leaders of some of the complaining govern-
ments were themselves subjects of icc investigations, which generated a de-
gree of skepticism about motives for the complaints.
The following question was featured on www.iccForum.com from Novem-
ber 2016 through June 2017:
In recent weeks, the governments of the Republic of Burundi, the Repub-

lic of South Africa, and the Islamic Republic of the Gambia have an-
nounced their intention to withdraw from the icc. How will this affect
the emerging system of international criminal justice in the short and
long term? What steps might be taken to strengthen that project?1
A range of views is presented in Part 3. All the commentators agree that threats
of African withdrawals pose a challenge to the icc, but some are more skepti-
cal than others about the merits of substantive complaints. Richard Dicker
1 Of the three African States Parties that in 2016 announced their intent to withdraw, only Bu-
rundi followed through; its withdrawal took effect on October 27, 2017. The Gambia retracted
its withdrawal. The Republic of South Africa’s withdrawal became uncertain due to domestic
court decisions and political changes in the country. Nonetheless, critiques suggesting the
icc has an anti-Africa bias persist. In March 2018, following the Prosecutor’s decision to open
a preliminary examination of the situation in the Philippines, the Philippine government
announced its intention to withdraw from the icc; the Philippines withdrawal took effect on
March 17, 2019. As of July 2019, no other countries have withdrawn.

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The Issue of State Party Withdrawal 113
sees Burundi’s and South Africa’s “pushback” against the institution as “buyer’s
remorse”—complaints by those governments’ leaders about the Rome Stat-
ute’s core principle of the irrelevancy of official position, a principle those
states had previously championed. He advocates standing firm in defense of
the integrity of the Rome Statute so the icc “remains an institution worth hav-
ing.” Similarly, David Scheffer finds complaints lodged by some African leaders
and the African Union disingenuous: while they complain that all investiga-
tions and prosecutions are focused on Africa, Scheffer argues that African state
parties have both the legal authority and political power to refer (or pressure
the UN Security Council to refer) non-Africa situations to the Court.
The late Cherif Bassiouni acknowledges that some of those pushing for
withdrawal are corrupt leaders, but also identifies serious institutional short-
comings of the Court, including cumbersome UN bureaucratic rules, Security
Council referrals that were not backed with adequate resources, and the icc’s
lack of jurisdiction to address glaring atrocities outside of Africa, such as in
Assad’s Syria. Bassiouni argues that these problems form a basis for legitimate
complaints about the icc and help explain some of the Court’s poor record of
outcomes. He argues that the Prosecutor and the President should step up
their efforts to establish constituencies supporting the Court in Africa and
elsewhere.
Kamari Clarke is fundamentally critical of the icc’s constitution. For her,
perceptions that the icc is a tool deployed by the economically rich and pow-
erful to adjudicate African states are explained by the underlying global struc-
tures of inequality that gave birth to the icc. She advocates addressing the
political foundations of violence and amending the Rome Statute to grant the
UN General Assembly some limited authority to defer investigations and pros-
ecutions, which would effectively give African and other developing countries
more control over the icc’s activities.

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Chapter 9
Concerning the icc Withdrawal Problem

M. Cherif Bassiouni
1 Argument
African countries were among the early supporters of the International Crimi-
nal Court (1994–1998) and their expectations were high.1 But they quickly per-
ceived themselves targeted by the Prosecutor,2 after the Court opened investi-
gations/prosecutions in four African nations.3 In 2010, the president and vice
president of Kenya were indicted for “crimes against humanity” for the death
of an estimated 1,000 persons, along with sexual violence, serious injuries and
displacing persons, over a period of two years,4 which arguably did not mea-
sure up to a standard of serious harm under the circumstances.5
The initial popular narrative among Africans was that with the advent of the
International Criminal Court (icc), they hoped to have a shield from predato-
ry dictators whose ravages in the region over the last half-century have caused
causalities in the millions. The popular disappointment was easy to be exploit-
ed by corrupt leaders such as Jacob Zuma of South Africa, Pierre Nkurunziza of
1 The African nation Senegal was the first state to ratify in the Rome Statute in 1999. Addition-
ally, African states are the largest block of state parties to the Rome Statute with 34 African
states having ratified the Rome Statute. The States Parties to the Rome Statute, International
Criminal Court, https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states
%20parties%20to%20the%20rome%20statute.aspx (last visited Nov. 9, 2016).
2 This perceived targeting is based on the fact that all four convictions obtained by the IC Care
of Africans. Further, nine out of the ten current “Situations Under Investigation” by the icc
are in Africa. See Situations Under Investigation, International Criminal Court, https://www
.icc-cpi.int/Pages/Situations.aspx (last visited Nov. 9, 2016).
3 These investigations were opened in The Democratic Republic of Congo, Uganda, The Cen-
tral African Republic and Darfur, Sudan. Id.
4 These charges were either not confirmed or withdraw and prosecution did not move forward.
Situation in the Republic of Kenya, International Criminal Court, https://www.icc-cpi.int/Ke-
nya (last visited Nov. 8, 2016).
5 The Court’s jurisdiction, “shall be limited to the most serious crimes of concern to the interna-
tional community as a whole.” (emphasis added).
International Criminal Court, Rome Statute of the International Criminal Court, art. 5,
U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute].
[hereinafter Rome Statute]. Thus, the alleged crimes did not fall within the jurisdiction of
the International Criminal Court.

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116 Bassiouni
Burundi, and Yahya Jammeh of Gambia, who have expressed their govern-
ments’ desires to withdraw from the icc.6 While it may suit their political pur-
poses, they are doing a great disservice to an idea and an institution that has
taken so long to nurture and to bring about in the face of so much political
opposition. And for that, they must be stopped. In the face of these positions,
Botswana and other African State Parties are supporting the Court,7 and South
African civil society and the South African Supreme Court are standing up to
Zuma’s authoritarianism.8
Judicial institutions and systems undergo trial periods before they are firmly
established. In many instances, the success of an institution is due to a particu-
lar personality whose role and influence at the time shaped the institution’s
creation and set it on a path toward its future. Without Chief Justice John Mar-
shall, it is hard to see how the Supreme Court of the United States would have
succeeded as it has. Conversely, the success of the European Court of Human
Rights was not due to a particular prominent leader, but to the contributions
of many distinguished jurists who worked together within an institutional
framework. More importantly, they had a political support network among ju-
rists in the different state parties. In time, the European Court made its deci-
sions on a routine basis in the heretofore unimaginable situation, where a
single individual could bring a state to the bar of justice and have that interna-
tional judgment become nationally enforced without further ado.9
Those who have worked on the creation of the International Criminal Court
had hoped that the same path would be pursued, and the same outcomes ob-
tained.10 But that was not the case for a variety of reasons. No John Marshalls
or collective like-minded judges emerged to shape the institution’s future. And
the external support of jurists and others were not drawing the institution’s
agenda and work.
6 Editorial Board, “A Stronger Court for Crimes Against Humanity,” N.Y. Times, 3 November
2016, https://www.nytimes.com/2016/11/03/opinion/a-stronger-court-for-crimes-against-
humanity.html (last visited June 18, 2018).
7 “Botswana reaffirms support for icc, ‘regrets’ SA decision,” The Daily Maverick, 26 Octo-
ber 2016, https://www.dailymaverick.co.za/article/2016-10-26-botswana-reaffirms-sup-
port-for-icc-regrets-sa-decision/ (last visited June 18, 2018).
8 “The International Criminal Court: Exit South Africa,” The Economist, 29 October 2016,
https://www.economist.com/middle-east-and-africa/2016/10/27/exit-south-africa
9 European Court of Human Rights, The Life of an Application, https://www.echr.coe.int/
Documents/Case_processing_ENG.pdf (last visited June 18, 2018).
10 M. Cherif Bassiouni, “The Time Has Come for a Permanent International Criminal Court”
(1991) 1 Ind. Int’l & Comp. L. Rev. 1. See also M. Cherif Bassiouni, “The International Crimi-
nal Court in Historical Context” (1999) 1999 St. Louis-Warsaw Transatlantic L.J. 55, 65–66.

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Concerning the icc Withdrawal Problem 117
In Rome in 1998, 120 states voted for the establishment of the International
Criminal Court with 7 against and 21 abstentions, among those opposing it be-
ing Israel and the US, as well as China,11 each of which was accused of crimes
within the Court’s jurisdiction12 but none are States Parties to the Rome Stat-
ute.13 Since then, the number of States Parties has become 124,14 but without
any evidence of greater support for the icc among the major political and eco-
nomic states in the world. In fact, the travailed history of the establishment of
the icc, some say since the end of wwi and others, since wwii, has been con-
fronted by the realpolitik of those states opposing international criminal jus-
tice and the enforcement of international human rights.
The fact that the Court and its organs have been made part of the United
Nations’ bureaucratic institution is probably its greatest handicap. United Na-
tions bureaucracy with all of its failings has been well known over the last 60
years, and no efforts of reform have succeeded. This type of bureaucracy is ca-
pable of sinking any judicial institution even when built on the highest expec-
tations of so many states and peoples all over the world. And, it was exploited
by those states seeking to undermine the Court.
The cumbersome rules of human resources, the impossible rules of security
that have made effective investigations almost impossible, and the cost im-
posed by United Nations’ standards have also made the institution financially
11 See M. Cherif Bassiouni & William A. Schabas (eds.), The Legislative History of the Interna-
tional Criminal Court, 2nd rev. ed. 2 vols. (Leiden: Brill ǀ Nijhoff, 2016), yol. i, pp. 100–01. See
also John Washburn, “The Negotiation of the Rome Statute for the International Criminal
Court and International Lawmaking in the 21st Century” (1999) 11 Pace Int’l L. Rev. 361.
12 Rome Statute, art. 5, supra note 5. (1. The jurisdiction of the Court shall be limited to the
most serious crimes of concern to the international community as a whole. The Court has
jurisdiction in accordance with this Statute with respect to the following crimes: (a) The
crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggres-
sion. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision
is adopted in accordance with articles 121 and 123 defining the crime and setting out the
conditions under which the Court shall exercise jurisdiction with respect to this crime.
Such a provision shall be consistent with the relevant provisions of the Charter of the
United Nations.).
13 On January 1, 2015, the State of Palestine referred Israel to the International Criminal
Court for “alleged crimes committed ‘in the occupied Palestinian territory, including East
Jerusalem, since June 13, 2014.’” The investigation is still in its preliminary phase. Palestine,
International Criminal Court, https://www.icc-cpi.int/Palestine (last visited Nov. 9, 2016).
14 The States Parties to the Rome Statute, International Criminal Court, https://asp.icc-cpi.
int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20
rome%20statute.aspx (last visited Nov. 9, 2016).

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118 Bassiouni
unworkable. Since its inception, the icc has cost over $1 billion15 with this
year’s budget (2016) at €136.58 million,16 and a total staff of over 800 (neatly
divided into national quotas, irrespective of levels of competence).17 Yet al-
most twenty years later, only four persons have been convicted, at a cost of
$250 million per conviction. With this and other results, disappointment is
understandable.
But that is not all. The nature of the United Nations political beast of which
the icc is administratively part of, also reveals the hypocrisy of the Security
Council which referred two cases, Darfur and Libya,18 to the icc without pro-
viding resources or political support, leaving the Court holding the bag of fail-
ures. And, so it was that President (former General) Omar al-Bashir was duly
indicted by the Court,19 to its credit, but never arrested by any African or Arab
state that he visited.20 The United Nations Security Council shamefully did
nothing to bring about his arrest.
To the general public and in Africa, the disparity between this and other Af-
rican cases, and situations elsewhere in the world appear imbalanced. Suffice
to mention, Bashar al-Assad and his senior military leaders as well as Vladimir
Putin and his senior military leaders have been involved in the death of over
500,000 civilians in Syria in what is clearly crimes against humanity and war
15 J. Silverman, “Ten years, $900m, one verdict: Does the icc cost too much?,” bbc, 4 March
2012, http://www.bbc.com/news/magazine-17351946 (last visited June 18, 2018). See also
D. Davenport, “International Criminal Court: 12 Years, $1 Billion, 2 Convictions,” Forbes,
12 March 2014, https://www.forbes.com/sites/daviddavenport/2014/03/12/international-
criminal-court-12-years-1-billion-2-convictions-2/#71bab3512405 (last visited June 18,
2018).
16 Assembly of State Parties, International Criminal Court, Report of the Committee on Bud-
get and Finance on the work of its twenty-sixth session, Doc. No. ICC-ASP/15/5 (Jul. 12, 2016),
https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/ICC-ASP-15-5-ENG.pdf (last visited June
18, 2018).
17 Section on Facts and Figures, International Criminal Court, https://www.icc-cpi.int/about
(last visited Nov. 8, 2016).
18 Situation in Darfur, Sudan, International Criminal Court, https://www.icc-cpi.int/Darfur
(last visited June 18, 2018). Situation in Libya, International Criminal Court, https://www
.icc-cpi.int/Libya (last visited Nov. 8, 2016).
19 International Criminal Court, Case Information Sheet: The Prosecutor v. Omar Hassan Ah-
mad Al Bashir, Doc. No. ICC-PIDS-CIS-SUD-02-006/18_Eng, https://www.icc-cpi.int/dar-
fur/albashir/Documents/AlBashirEng.pdf (last visited Nov. 9, 2016).
20 This includes visits to South Africa, Uganda and Djibouti, all state parties to the Rome
Statute. Press Release, International Criminal Court, Al Bashir case: icc Pre-Trial Cham-
ber ii finds non-compliance of Uganda and Djibouti; refers matter to asp and UN Secu-
rity Council (Jul. 12, 2016), https://www.icc-cpi.int/Pages/item.aspx?name=PR1231 (last

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Concerning the icc Withdrawal Problem 119
crimes, also generating 6 million refugees and internally displaced persons,21

but are beyond the scope of the most elementary justice. Given such a dispar-
ity in investigations and prosecutions undertaken by the Court and the desire
of governments to withdraw from the Court, this is a wakeup call. This is the
time to take stock and eventually to make changes in the icc and bring about
a more effective support and better management.
The following recommendations can be implemented without much delay
and with limited costs, they are:
1. Prosecutor Fatou Bensouda, who is from The Gambia, should devote a
substantial portion of her time travelling to all African States Parties to
meet with the judiciary, prosecutors, lawyers, and civil society and try to
establish constituencies in these countries to enhance support for the
icc;
2. President of the Court Silvia Fernández de Gurmendi and President of
the Assembly of States Parties Sidiki Kaba should plan programmatic ac-
tivities at the national, regional and international levels for judges, pros-
ecutors, and lawyers from States Parties to enhance knowledge and un-
derstanding of the icc’s work and to enhance complementarity within
the state parties.
These efforts would enhance the icc’s visibility and credibility, and more par-
ticularly, it would enhance the role of national legal systems within the context
of complementarity.
21 A. Barnard and S. Sengupta, “Syria and Russia Appear Ready to Scorch Aleppo,” N.Y.
Times, 25 September, 2016, https://www.nytimes.com/2016/09/26/world/middleeast/
syria-un-security-council.html (last visited June 18, 2018); R. Gladstone and S. Sengupta,
“Unrelenting Assault on Aleppo Is Called Worst Yet in Syria’s Civil War,” N.Y. Times, 26
September, 2016, http://www.nytimes.com/2016/09/27/world/middleeast/aleppo-syria.
html (last visited June 18, 2018); B. Hubbard, “‘Doomsday Today in Aleppo’: Assad and
Russian Forces Bombard City,” N.Y. Times, 23 September 2016, http://www.nytimes
.com/2016/09/24/world/middleeast/aleppo-syria-airstrikes.html (last visited June 18,
2018). See also United Nations High Commissioner for Refugees, Stories From Syrian Refu-
gees, https://data2.unhcr.org/en/situations/syria (last visited Nov. 9, 2016).

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Chapter 10
African Withdrawals and Structural Inequities

1 Summary
African States Parties to the icc participated in the Rome Statute for the icc
with the expectation that if the statute was not serving them appropriately,
amendments would be possible, when needed. With the icc’s exclusive Afri-
can prosecutorial activity in Africa alone, the problem is that particular under-
lying structures of inequality that gave birth to the formation of the icc con-
tinue to shape the perception of it as being a tool to adjudicate African states
and not deployed for the economically rich and powerful states. Thus, in
strengthening the international criminal justice project, we need to take seri-
ously the various calls by African States Parties to amend the Rome Statute in
ways that decouple icc indictments from global structures of inequality. And,
one of the ways to strengthen the international justice project is to not only
work collaboratively with various institutions that address the political foun-
dations of violence, but we need to also begin to take seriously the proposed
amendments that are being reviewed by the icc’s Assembly of States Parties
(asp). One such amendment is that of Article 16. While the Article 16 amend-
ment is just one of the viable amendments being proposed by African states,
looking to addressing African states’ concerns could go a long way in both rec-
tifying some of the structural inequalities of our time.
2 Argument
African States Parties to the icc participated in the Rome Statute for the icc
with the expectation that if the statute was not serving them appropriately,
amendments would be possible, when needed. Prior to the commencement of
withdrawal action, African States Parties to the icc argued for the need for the
reform of the Rome Statute—if it were to align with expectations of fairness in
international justice. The sudden announcement of Burundi’s withdrawal
from the Rome Statute, followed by South Africa’s intentions to withdraw, and
then The Gambia’s announcement of withdrawal captures the legal, political
and emotional responses central to various African frustrations with the un-
equal domain within which the icc operates. With the icc’s exclusive African

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African Withdrawals and Structural Inequities 121
prosecutorial activity in Africa alone, the problem is that particular underlying

structures of inequality that gave birth to the formation of the icc continue to
shape the perception of it as being a tool to adjudicate African states and not
deployed for the economically rich and powerful states. The reality is that the
icc’s reach is not universal and the world’s most powerful c ountries—the
United States of America, to Russia, China, Japan, and India—are not under
the jurisdiction of the icc. This pattern of unequal engagement and the frus-
tration with the idea that member states are expected to cooperate with presi-
dential arrest actions that may lead to regime change and further national tur-
moil, are being cited as the reasons for current African state withdrawals. In
strengthening the international criminal justice project, we need to take seri-
ously the various calls by African State Parties to amend the Rome Statute in
ways that decouple icc indictments from global structures of inequality.
One of the ways to strengthen the international justice project is to not only
work collaboratively with various institutions that address the political foun-
dations of violence, but to also begin to take seriously the proposed amend-
ments that are being reviewed by the icc’s Assembly of States Parties (asp).
The amendments to the Rome Statute were raised at the asp meeting in No-
vember 2014 in which African states underscored the importance of undertak-
ing reforms in order to produce a fair and effective sphere of international jus-
tice. They propelled attempts to lobby reform of the icc, and if some concerns
were addressed, various African states agreed that they would refrain from
withdrawing from the icc.
Different amendment proposals were submitted by South Africa and Kenya
respectively and subsequently endorsed by the African Union commission.
They included controversial amendments such as an amendment to Article 27
that insisted on the Irrelevance of Official Capacity of those who were indict-
able, thereby denying immunity to those leaders who have enjoyed it in the
past, as well as other less controversial ones such as amendments to: (ii) the
Preambular part of Rome Statute to allow for complementarity of regional ju-
dicial institutions, (iii) Article 16 on the deferral of cases and ultimately ad-
dressing the exceptionalism of UN Security Council’s permanent members,
(iv) Article 70—Offences against administration of justice, and the (v) Reduc-
tion of the powers of the Prosecutor.1 However, the continued exclusive Africa
1 The first meeting of the Open-Ended Committee at the level of the Ministers was in New
York. As it outlines in the relevant documents, “In undertaking its work, the Open-ended
Ministerial Committee met three (3) times at the level of Ministers in New York—27 Septem-
ber 2015; New Delhi—30 October 2015; and The Hague—17 November 2015; and once at the
level of Ambassadors on 23 October 2015 in Addis Ababa.” Progress Report of the Commission
on the Implementation of the Decisions of the Assembly of the African Union on the Interna-
tional Criminal Court, Executive Council of African Union, 28th Ordinary Session (Jan. 2016),

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122 Clarke
activity and the lack of progress with statute amendments led African states to
engage in the development of a withdrawal strategy.
At the African Union Summit in January 2016, African states demanded the
urgent development of a comprehensive strategy to address the perceived se-
lectivity of the Court, including collective withdrawal from the icc. This led to
the formation of an Open-Ended Ministerial Committee in which African
states articulated the: (i) need for continental and country level ownership of
international criminal justice through the strengthening of national judicial
systems and working toward the ratification of the African Court, (ii) impor-
tance of engaging with the UN Security Council and clearly communicating
that no referrals of particular situations on the African continent should be
made without deference to Assembly of the Union, and (iii) need for a robust
strategy to enhance the ratification of the Malabo Protocol expanding the ju-
risdiction of the African Court of Justice and Human and Peoples’ Rights to
include international crimes. Because of the slow pace of possible icc reforms,
they also insisted on the (iv) need for timelines for withdrawals. Thus, contem-
porary withdrawals of African states reflect aspects of strategy and require that
we address the reduction of future withdrawals by addressing those concerns
that are viable for the shaping of a fair and equal international justice project.2
Yet while some, like an Article 27 amendment of the irrelevance of national
capacity provision, challenge the foundational spirit of the Court and are dif-
ficult to support, others are quite viable and necessary if we are going to ad-
dress the structures of inequality within which the Court operates and per-
petuates. For example, an examination of South Africa’s proposed Article 16
amendment is a case in point since it highlights the role of the United Nations
Security Council (unsc) and its referral and deferral mechanisms under Arti-
cle 16 of the Rome Statute. It also raises questions about the fairness of the in-
ternational system within which the statute is intricately interwoven.
Article 13 outlines the three triggers for the exercise of jurisdiction through
which it affords the unsc the power to refer a case to the icc. And, Article 16
provides the unsc deferral power:
No investigation or prosecution may be commenced or proceeded with

under this Statute for a period of 12 months after the Security Council, in
a resolution adopted under the Chapter vii of the Charter of the United
http://www.jfjustice.net/userfiles/file/ICC%20Report%20on%20progress%202016%20
01ICC%20EX%20CL%20952%20(XXVIII)%20_E%20(1).PDF (last visited June 18, 2018).
2 Id.

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African Withdrawals and Structural Inequities 123
Nations, has requested the Court to that effect; that request may be re-
newed by the Council under the same conditions.3
Under the United Nations Charter, the Security Council’s primary responsibil-
ity is to uphold international security and peace.4 Composed of 15 members, 10
rotating and 5 permanent members, including the United Kingdom, China,
France, Russian Federation and the United States of America, the Security
Council is responsible for determining the existence of a threat to peace and to
take the appropriate action, be it diplomatic or military, to control the con-
flict.5 While exercising their right to vote, the permanent members are also
able to veto decisions. They have been granted special status as permanent
members. However, no African countries are members of the unsc. On the
other hand, the United Nations General Assembly is the main policymaking
and representative organ of the UN. There is a total of 193 members that make
up the General Assembly, and each member is allowed one vote on important
issues, including that of peace and security. In light of this structural imbal-
ance, South Africa proposed the following amendment:
1. A State with jurisdiction over a situation before the Court may request
the UN Security Council to defer the matter before the Court as provided
for in (1) above.
2. Where the UN Security Council fails to decide on the request by the state
concerned within six (6) months of receipt of the request, the requesting
Party may request the UN General Assembly to assume the Security
Council’s responsibility under paragraph 1 consistent with Resolution 377
(v) of the UN General Assembly.
This amendment was proposed to address situations where the unsc was un-
able to decide on a deferral request. It also responded to what Chidi Odinkalu
(2014, Codesria public speech) called de facto immunity, a relation of engage-
ment with international justice in which P5 states that have the economic and
military power to exist outside of the reach of the Court are also able to refer
cases to the Prosecutor of the icc. In this light, and in response to the unsc’s
inaction in relation to the AU’s request to defer the case of the president of
3 International Criminal Court, Rome Statute of the International Criminal Court, art. 16, U.N.
Doc. A/CONF.183/9.
4 Frequently Asked Questions, United Nations Security Council, https://www.un.org/en/sc/
about/faq.shtml (last visited May 27, 2016).
5 Id.

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124 Clarke
Sudan, they advocated for unsc’s failed decisions on deferrals to be trans-

ferred to the UN General Assembly for a decision.
While the Article 16 amendment is just one of viable amendments being
proposed by African states, looking to addressing African state concerns could
go a long way in both rectifying some of structural inequalities of our time
while also strengthening the delivery of international justice writ large. Such
an agenda has the potential to move us toward the rectification of the Court’s
work within the political realities within which it operates. This is what will
contribute to building a stealthier domain of international justice.

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Chapter 11
A Court Worth Having: Defending the Integrity of

the Rome Statute
Richard Dicker
1 Summary
The withdrawals by South Africa and Burundi from the Rome Statute of the
International Criminal Court (icc) pose a real challenge to the evolving sys-
tem of international justice centered on the icc. Coming after escalating criti-
cism from a small number of African leaders, the withdrawals represent a loss
to the Court, to the victims it serves, and a threat to perceptions of the icc’s
legitimacy. This pushback is “buyer’s remorse” of a core principle of the Rome
Statute—the irrelevancy of official position in possible prosecution before the
Court. While giving a respectful airing to different views, strong Court-support-
ing States Parties must remain firm in their defense of the integrity of the
Rome Statute so that the icc remains a “court worth having.” Fundamental
principles agreed to in Rome cannot be “bargained off” in the face of exorbi-
tant and baseless demands. Even with additional withdrawals, the outcome
could be a strengthened Rome Statute system.
2 Argument
In withdrawing from the Rome Statute of the icc, the government of South
Africa cited a purported conflict between its icc obligations and its ability to
interact with leaders as a regional peacebroker. Significantly, a South African
court had found that the Zuma government violated domestic law when it
failed to arrest icc fugitive President Omar al-Bashir of Sudan during his visit
to the country for an African Union summit in 2015.
The stakes are high. Giving sitting heads of state immunity for the most seri-
ous crimes would create perverse incentives for alleged perpetrators to hold
onto power indefinitely or to seek power to avoid prosecution. Through its cur-
rent about-face on global justice, the Zuma government is sending a clear mes-
sage to the nearly 20,000 African victims who have or will be participating in
icc proceedings.

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126 Dicker
Withdrawal does nothing to address the real gaps in the reach of the inter-
national justice system, including the failure of key powers, like the United
States and Russia, to sign up to the icc treaty as well as those stemming from
the veto prerogative of the permanent members of the UN Security Council.
These double-standards need to be addressed, but the solution lies in expand-
ing the icc’s reach, not undermining it.
Doubtless, South Africa’s withdrawal would be a blow. Its government
played a vital role in the negotiation of the Rome Statute. At his invitation, I
participated in a September 1997 meeting of the Southern Africa Development
Community’s (sadc) justice ministers convened by Nelson Mandela’s Minister
of Justice, Dullah Omar, outside Pretoria. Minister’s Omar’s objective was to
work with his counterparts from sadc to formulate a common negotiating po-
sition for the ongoing negotiations. Six weeks later, in the United Nations Gen-
eral Assembly, I heard South Africa’s UN Ambassador proudly proclaim “the
ten sadc principles” for an effective, independent, and impartial icc. This
leadership flowed from self-confidence following the end of apartheid and the
promulgation of a historic new c onstitution enshrining human rights and re-
spect for the rule of law.
South Africa’s regressive step could likely provide political cover for addi-
tional withdrawals possibly by Kenya and a few others. Nairobi has mobilized
opposition to the icc inside the African Union due to the now-dismissed icc
charges against Kenya’s president and deputy president. The AU has called for
immunity of sitting leaders, but so far, efforts pushed by Kenya for a mass walk-
out have not achieved much support.
The departure of any one State Party is regrettable, but regret must not
cloud perspective or diminish principle. The cited group of departing African
states, driven by “buyers’ remorse,” would represent a small fraction of African
States Parties. The Court is hardly at risk of collapse or irrelevance. South Af-
rica’s announcement has prompted an increasing number of States Parties to
affirm strong support for the icc’s mission. These include Canada, Switzer-
land, Slovenia, Czech Republic, to name a few. The threatened withdrawals
could lead to a deeper understanding of and commitment to the icc’s impor-
tance as the world’s premier accountability institution. Most significantly, the
withdrawal of a few African governments has prompted strong statements of
support for the Court from a greater number of African States Parties. This ac-
tivism represents a step beyond the expressed support at July’s African Union
Summit in Rwanda. There—at the ministerial level—five States Parties, Nige-
ria, Botswana, Senegal, Cote d’Ivoire, and Tunisia, expressed their opposition
to the further development of Kenya’s plan for a large scale withdrawal from
the Rome Statute. At the summit, several other African states parties entered

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A Court Worth Having 127
objections to the final resolution. This pushback pierces the fictitious and
self-serving narrative that African governments are opposed to the icc. De-
pending on how events unfold, factoring in additional withdrawals, the result
could be a court membership that is slightly smaller but more committed to
assisting the icc.
The next round in this contentious process will play out at the fifteenth ses-
sion of the Assembly of States Parties meeting. While States should be open to
dialogue with South Africa and other countries, they will need to be clear in
these discussions on “redlines” to preclude re-negotiation over core icc prin-
ciples. The substantive “no go areas” should include any weakening of the pro-
vision allowing sitting heads of states to be prosecuted at the Court.
Given South Africa and Kenya’s revision of core principles, it could well be
that the great majority of icc countries may find there is no space for princi-
pled compromise consistent with integrity of the icc treaty and the indepen-
dence of the Court. These revisionist governments are drawing a circle that
cannot be squared. Consistent with Dullah Omar’s visionary leadership in
1997, it is clear that it would be better for those countries unwilling to stand for
justice to leave. In the long run, it’s preferable for the icc to be, as former Ca-
nadian Foreign Minister Lloyd Axworthy stated in Rome, “a court that is worth
having” than one with a larger membership linked by illusory agreement to
weakened principles of accountability.
This is not to say that there is not more work to be done to improve the prac-
tice of the icc. The Court’s leadership is making progress, but there are still
gaps: bringing about more efficient proceedings linked to better case selection;
more meaningful victim participation; more Court presence in the field and;
greater impact in the communities most affected by the crimes alleged. This
will all need to take shape as the Court extends its reach out of Africa. It is al-
ready investigating in Georgia, and the coming years could see investigations
in Afghanistan, Palestine, and Ukraine. The extension of jurisdiction will also
challenge the more powerful governments—Russia and the United States—
that have held themselves outside of the Court’s jurisdictional consent regime.
Simultaneously, international agencies, donor states and civil society must
ramp up efforts to enhance national accountability efforts—the first line of
protection for civilians at risk.
These steps will necessarily occur on a more difficult international land-
scape than the one on which the icc was created. Back then, some deemed
that “history had ended.” These changes won’t mollify Jacob Zuma or Uhuru
Kenyatta, not to mention Vladimir Putin or Donald Trump. That is another
challenge for a court that is needed now more than ever. Precisely because the
icc represents a huge advance in the fight against impunity, its path was never
going to advance in a straight line forward.

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Chapter 12
Three Realities about the Africa Situation

at the icc
David Scheffer
1 Argument
There are three realities that merit a closer examination in the context of the
looming exodus of at least several African nations (South Africa, Burundi, and
The Gambia) from the International Criminal Court (icc). They are the power
of States Parties to the Rome Statute to refer situations to the icc, the power of
the Security Council to refer situations to the icc,1 and the power of the Secu-
rity Council to stall an investigation or prosecution consistent with Article 16
of the Rome Statute.2 In all three areas of inquiry, African States Parties, par-
ticularly those objecting to the icc’s performance, have failed to understand or
capitalize upon the legal authority of key provisions of the Rome Statute. The
complaints lodged by some African leaders and the African Union, as well as
some governments’ moves toward withdrawal, are disingenuous in character
when their own conduct has failed to transform the icc into a court of much
wider situational jurisdiction outside of Africa.
I The Power to Refer Situations

It is well known to icc scholars and practitioners that a State Party has the
authority under Articles 13(a) and 14 of the Rome Statute:
to refer to the Prosecutor a situation in which one or more crimes within

the jurisdiction of the Court appear to have been committed requesting
the Prosecutor to investigate the situation for the purpose of determining
1 With respect to the first two issues, see also David Scheffer, “How to Move Beyond South Af-
rica’s Notice of Withdrawal from the icc,” Just Security, 24 October 2016, https://www.justse-
curity.org/33339/time-icc-open-preliminary-examination-philippines/ (last visited June 18,
2018).
2 With respect to the third issue, see also David Scheffer, “The Security Council’s Struggle over
Darfur and International Justice,” Jurist, 20 August, 2008, http://www.jurist.org/forum/2008/
08/security-councils-struggle-over-darfur.php (last visited June 18, 2018).

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Three Realities about the Africa Situation at the icc 129
whether one or more specific persons should be charged with the com-
mission of such crimes.
Any such referral to the icc Prosecutor does not require any approval by the
Pre-Trial Chamber in order to activate a formal investigation by the Prosecutor.
That does not mean that the Prosecutor necessarily will find sufficient evi-
dence to proceed with prosecution of any case pertaining to the referred situ-
ation. She may conclude there is insufficient evidence and thus terminate the
investigation. Even then, the State Party referring the situation can, pursuant
to Article 53(3) of the Rome Statute, so inform the Pre-Trial Chamber which
then may review the Prosecutor’s decision and may request her to review her
decision. If the Prosecutor has decided to terminate the investigation for par-
ticular reasons identified in Articles 53(1) and 53(2)(c) of the Rome Statute,
then the Pre-Trial Chamber must confirm the Prosecutor’s decision before the
investigation can be concluded.
I point this out to emphasize that a State Party can relatively easily refer to
the icc Prosecutor a situation anywhere in the world that meets the Rome
Statute’s jurisdictional requirements, thus triggering a formal investigation.
Any such referral can be powerfully supported and thus advanced by the Pre-
Trial Chamber in some circumstances even if the Prosecutor has decided to
close her investigation. (This happened in 2015 with the Comoros.)3 So why
hasn’t any State Party government on the African continent used the referral
power to address their largest complaint, namely that the icc, with the excep-
tion of the situation presently under investigation in the Democratic Republic
of Georgia, has had no other non-African situation under official investigation
and prosecution since the founding of the icc in 2002? Granted, the Comoros
referred4 a situation involving an alleged attack by Israel upon a vessel regis-
tered under the Comoros flag, as well as registered vessels of Greece and Cam-
bodia. But the referral still pertains to an injury allegedly inflicted upon that
African nation as opposed to a referral of a strictly non-African situation.
Any African State Party could refer to the icc Prosecutor a non-African situ-
ation of atrocity crimes that meets the jurisdictional requirements of the Rome
Statute, which under Article 12 would require crimes occurring on the territory
of a State Party or perpetrated by the nationals of a State Party. There are a
3 Press Release, International Criminal Court, Comoros situation: Dismissal of the Prosecutor’s
appeal against decision requesting reconsideration of the decision not to initiate an
investigation (Nov. 6, 2015), https://www.icc-cpi.int/Pages/item.aspx?name=pr1170 (last vis-
ited June 18, 2018).
4 Preliminary examination: Registered Vessels of Comoros, Greece and Cambodia, International
Criminal Court, https://www.icc-cpi.int/comoros (last visited Nov. 13, 2016).

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130 Scheffer
number of such situations today. They include claims of large numbers of ex-
trajudicial killings in the Philippines5 and in Mexico,6 the atrocity crimes fu-
eled by civil war in Colombia7 that may not be adequately adjudicated under
complementarity principles, the war and its associated crimes in Afghanistan,
and Palestinian crimes. Many of these are already under preliminary examina-
tion by the Prosecutor, but she ultimately will need Pre-Trial Chamber’s ap-
proval to move forward to a formal investigation.8 A referral by a State Party in
Africa would catapult such situations into official investigations and hence
non-African situations on the agenda of the icc.
Thus, African concerns about the absence of non-African situations at the
icc ring hollow. There are preliminary examinations currently underway in
seven non-African situations9 and, if political will were to arise in African capi-
tals, there could be a sizable number of African State Party referrals of non-
African situations (including any currently under preliminary examination) to
join the on-going formal investigation of atrocity crimes in the Democratic
Republic of Georgia.
II Security Council Referrals

African States Parties understand the power of the Security Council to refer
situations to the icc in a manner consistent with Article 13(b) of the Rome
Statute. Their complaint is that the Council has exercised that power under
Chapter vii of the U.N. Charter only with respect to two African situations:
Darfur (2005)10 and Libya (2011).11 They would ask why the Security Council has
not referred alleged atrocity crimes in Syria or Iraq or Ukraine or North Korea
or Palestine or Sri Lanka or Afghanistan or, for that matter, the United States
5 Alex Whiting, “It is Time for the icc to open a Preliminary Examination in the Philip-
pines,” Just Security, 3 October 2016, https://www.justsecurity.org/33339/time-icc-open-
preliminary-examination-philippines/ (last visited June 18, 2018).
6 “Mexico’s Federal Police chief fired after report on extrajudicial killings,” fsrn, 30 August
2016, https://fsrn.org/2016/08/mexicos-federal-police-chief-fired-after-report-on-extraju-
dicial-killings/ (last visited June 18, 2018).
7 “Colombia referendum: Voters reject Farc peace deal,” bbc News, 3 October 2016, http://
www.bbc.com/news/world-latin-america-37537252 (last visited June 18, 2018).
8 International Criminal Court, Rome Statute of the International Criminal Court, art.
15(4), U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute].
9 Afghanistan, Colombia, Iraq/United Kingdom, Palestine, Cambodia, Ukraine, and Regis-
tered vessels of Comoros, Greece, and Cambodia.
10 Situation in Darfur, Sudan, International Criminal Court, https://www.icc-cpi.int/Darfur
(last visited Nov. 13, 2016).
11 Situation in Libya, International Criminal Court, https://www.icc-cpi.int/Libya (last visit-
ed Nov. 13, 2016).

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with respect to tactics employed in interrogations and detainments and aerial

bombings since 9/11. The answer is obvious given the composition of perma-
nent members of the Security Council (United States, United Kingdom, France,
Russia, and China), each one of which can exercise the veto power. The most
prominent example is the situation in Syria, a nonstate party, which has not
been referred to the icc because of an actual exercise of the veto power by
Russia and China in May 2014.12
The 34 African States Parties13 comprise the largest regional block in the
icc. When all European States Parties (East and West) are consolidated into
one group, they actually have the more significant number of 43. Nonetheless,
the African States Parties could wield considerable influence on Security
Council members, particularly the permanent ones, to refer non-African situa-
tions under U.N. Charter Chapter vii authority to the icc. The fact that they
have not exercised that diplomatic power effectively falls in large part on their
shoulders. Using such power means prevailing on both Russia and China, the
latter increasingly investing in Africa, to approve or abstain in, for example, a
referral of the horrors long erupting in Syria or in North Korea. It would mean
prevailing upon all permanent members to refer alleged atrocity crimes arising
from the Sri Lanka civil war. A Security Council’s referral of the plight of the
Rohingya in Myanmar is not implausible, but where is the African pressure to
advance that cause? African States Parties also could intervene far more effec-
tively with non-permanent Security Council members14 to press for such refer-
rals by the Council.
But the credibility of African States Parties as supporters of the icc, rather
than as dissidents from the ranks of the African Union or rejectionists such as
Burundi, South Africa, and The Gambia, would need to be demonstrated in
order to wield such diplomatic clout with all members of the Security Council.
This year, Africa has Angola, Egypt, and Senegal as non-permanent members
on the Council.
Of these three governments, only Senegal is a State Party (and very support-
ive) of the Rome Statute. Next year, Ethiopia, a nonstate party, replaces Angola
12 Press Release, United Nations Security Council, Referral of Syria to International Criminal
Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution,
SC/11407 (May 22, 2014), http://www.un.org/press/en/2014/sc11407.doc.htm (last visited
June 18, 2018).
13 State Parties to the Rome Statute: African States, International Criminal Court, https://asp
.icc-cpi.int/en_menus/asp/states%20parties/african%20states/Pages/african%20states.
aspx (last visited Nov. 13, 2016).
14 Current Members: Permanent and Non-Permanent Members, United Nations Security
Council, http://www.un.org/en/sc/members/ (last visited Nov. 13, 2016).

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132 Scheffer
on the Security Council. As it now stands, the easiest rebuttal of permanent

Council members would be to listen to Angola (and shortly Ethiopia) and
Egypt, which likely would balk at initiatives regarding the icc, and bow to
skeptical or rejectionist views of other key African nations that are States Par-
ties. That is a reality that African States Parties as a whole either can change
with more pro-active pressure on Security Council members to refer non-
African situations to the icc, or refrain from diplomatic pressure and further
enable permanent members to avoid the issue entirely.
III Security Council Brake on Investigations and Prosecutions

For years, there has been a major campaign by the African Union and some
African leaders and governments to pressure the Security Council to use its
U.N. Charter Chapter vii enforcement authority to act consistent with Article
16 of the Rome Statute and block continued work on certain African investiga-
tions or prosecutions for a period of at least 12 months, including particularly
those pertaining to top leaders in Sudan, Libya, and Kenya over the last decade.
The Security Council, steered primarily by permanent members United States,
United Kingdom, and France, as well as European and Latin American non-
permanent members, has steadfastly refused to so cripple the icc’s mandate
and integrity for the sake of saving certain African strongmen from account-
ability for alleged atrocity crimes. No doubt that refusal to act consistent with
Article 16 at the request of African rejectionists opposed to the icc’s full scope
of jurisdiction has fueled the withdrawal campaign among some African States
Parties.
But the African campaign has fallen victim to the original intent behind Ar-
ticle 16. As the lead negotiator and head of delegation for the United States
during the negotiations in the 1990’s, I was deeply engaged in the process of
finalizing the text of Article 16. The United States had lost its own effort at the
U.N. negotiations to restrict referrals to the icc to the Security Council and to
States Parties but subject to a Security Council check on such State Party refer-
rals, as opposed to the ultimate outcome of broadening the referral power to
States Parties acting without a Security Council check and the right of the Pros-
ecutor to initiate proprio motu investigations.
The general terms of Article 16 were introduced by Singapore as a compro-
mise following the defeat of the American position. Thus, Article 16 became
known as the “Singapore compromise.” It was an effort to attract the support of
the permanent members of the Security Council for the Rome Statute, as well
as calm the concerns of some governments about political manipulation of the
icc. At least, there would be a backstop available in the Council if a State Party
or the Prosecutor tried to use the icc for unacceptable political objectives. It

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was conceived as a means of ensuring that the Security Council could block a
referral by a State Party or initiation of an investigation proprio motu by the
Prosecutor, but Article 16 was not conceived for the purpose of Security Coun-
cil’s self-discipline of its own referrals to the icc.
Once the Security Council referred a situation to the icc, it was not consid-
ered plausible (even though it is theoretically possible) that the Council would
reverse its own decision and abort investigations and prosecutions under that
referral. That scenario simply did not enter the negotiating realm before or
during the Rome talks. Rather, the Singapore compromise embodied in Article
16 was designed to ensure that politically motivated actions by States Parties or
by the Prosecutor that might contradict Security Council’s aims could be sus-
pended or terminated indefinitely by the Security Council acting under its
Chapter vii authority. After all, the permanent members knew very well that if
they wanted to use Chapter vii to shut down an icc investigation or prosecu-
tion, they had every legal power to do so under existing U.N. Charter authori-
ties. They did not require that power to be affirmed in Article 16 of the Rome
Statute.15
The negotiating history of and the pragmatic purpose undergirding Article
16, namely that it serves as a check on State Party referrals and Prosecutor-
initiated investigations, eluded African advocacy with the Security Council to
reverse course on the Darfur and Libya situations that had been referred by the
Council under Chapter vii authority. It is not surprising that at least some
Council members—both permanent and non-permanent—probably saw the
effort as illogical and manipulative of Article 16 for all of the wrong reasons.
Once the Council has acted under Chapter vii to refer a situation to the icc,
its members are not inclined to undermine the purpose and legitimacy of their
original action in order to appease African strongmen. That would weaken the
Security Council as a U.N. institution and as the guardian of international
peace and security. At no time during the drafting negotiations on Article 16, in
which African delegations engaged actively, was there any focus on reversing
or constraining the Security Council and the decision it can reach to refer a
situation to the icc. The fact that the actual wording of Article 16 may lead
some to seek a Security Council’s reversal of its own referral of a situation and
the cases that emerge from it does not mean that the Security Council will see
it that way. The original intent behind Article 16 appears to have prevailed.
15 For additional discussion of this issue in the context of Africa, see David Scheffer, All the
Missing Souls: A Personal History of the War Crimes Tribunals (Cambridge: Princeton Uni-
versity Press, 2012), pp. 414–17.

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Part 4
Measuring Success: The Performance Issue

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The Performance Issue and Metrics of Success

Assessments of the icc’s performance vary, partly due to differences in what

exactly is being assessed and how.
The following question was featured on www.iccForum.com from July 2017
through February 2018:
The icc has established four key goals regarding, broadly, its proceed-
ings, leadership, witness security, and victim access. What are the appro-
priate ways to measure the icc’s progress towards those stated goals?
How can the performance of the icc as a whole be properly assessed?
The icc has now released two reports detailing its progress towards
the implementation of performance indicators to measure its success in
various areas, which can be accessed in Report of the Court1 and Second
Report.2 The focus of these reports is the development of Court-wide in-
dicators: the development of additional performance indicators, reflect-
ing the specific functions of the main organs, flow from this source.
The reports identify the following four key goals as critical for assess-
ing the performance of the icc as a whole:
a. The Court’s proceedings are expeditious, fair, and transparent at ev-
ery stage;
b. The icc’s leadership and management are effective;
c. The icc ensures adequate security for its work, including protec-
tion of those at risk from involvement with the Court; and
d. Victims have adequate access to the Court.
Developing appropriate ways of measuring progress towards these goals
is extremely important, but complex for a number of reasons—not least
because the icc is but one actor in the system of international justice
1 International Criminal Court, Report of the Court on the Development of Performance Indi-
cators for the International Criminal Court (November 2015), https://www.icc-cpi.int/items-
Documents/Court_report-development_of_performance_indicators-ENG.pdf.
2 International Criminal Court, Second Court’s Report on the Development of Performance
Indicators for the International Criminal Court (November 2016), https://www.icc-cpi.int/
itemsDocuments/ICC-Second-Court_report-on-indicators.pdf.

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The Performance Issue and Metrics of Success 137
created by Rome Statute. Although many national judicial bodies devise

performance measures or indicators, they are not necessarily suitable
models for the icc because of, inter alia, its limited number of cases; the
diversity of underlying country situations, each with their own unique
political, diplomatic and legal cultures; and its dependence on other ac-
tors for cooperation.
So, for example, with respect to expeditiousness, the Court’s long-term
aim will be to establish an expected duration for the stages of each new
case against which actual performance can be measured and, crucially,
variations accounted for. In order to get these measures right, however,
the Court first needs to complete an adequate number of cases that can
serve as benchmarks. But is the uniform application of benchmarks ap-
propriate, or even possible, given the peculiarities of each situation and
case?
The complexity of assessing the “performance” of the Court may be
further compounded by consideration of factors extrinsic to the Court. Is
it possible to assess the Court’s “performance” with reference only to the
Court’s activities?
There are on-going investigations in eight different country/situations.
The operational, logistic, and security-related considerations on the
ground, and the extent of cooperation of local and international part-
ners, including States and the United Nations Security Council, can im-
pact on results-based performance, and vary significantly from one situ-
ation to another.
Other measures may prove difficult to quantify due to contested lack
of a common understanding of definitions and understandings. For in-
stance, fairness lies at the heart of criminal proceedings, whether at the
national or international level, but its subjectivity makes it an inherently
difficult value to measure. The question of, to whom does the concept of
fairness apply, also primarily arises: the accused? the victims? the inter-
national community? Before fairness can be measured, there must be a
shared understanding of what it means.
How does one measure such things as whether the Court’s “leadership
and management are effective,” or whether it ensures “protection of
those at risk from involvement with the Court”?
Against this backdrop, which aspects of the Court’s performance can
meaningfully and usefully be measured? How best can this be done, giv-
en the unique nature of the institution and its context? How should
quantitative and qualitative measures be applied? Are there institutions,
judicial or otherwise, in a sufficiently analogous position to the icc

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138 Steinberg
whose experience it could draw on? Are there learnings from national
experiences that could prove transferable to the international and global
context? Should the icc limit the choice of indicators to those primarily
under the control of the Court itself? What impact does the budget of the
Court have on its performance? Most broadly, what in the end is to be
gained from such an exercise—what are the benefits; are there any hid-
den pitfalls?
In the first contribution below, Geoff Dancy argues that too little attention has
been paid to the method by which the icc is assessed. Among other method-
ological considerations, he underscores the importance of knowing the audi-
ence for whom the assessment is being performed. He also emphasizes a
distinction between evaluating the icc’s performance and assessing its im-
pact, the latter being an exercise that Dancy believes is best undertaken not by
the icc but by independent analysts.
Daniel Krcmaric is a political scientist who undertakes precisely such an
assessment of impact. Krcmaric’s rigorous analysis of data confirms two hy-
potheses, one that has long been asserted by Rome Statute skeptics and an-
other that has long been asserted by icc champions: the icc has simultane-
ously prolonged conflict (because culpable leaders would rather keep fighting
than make peace only to face trial in The Hague) and has deterred further
atrocities, as proponents of international justice mechanisms have hoped.
The other contributors to Part 4 share concern about the scope of the
icc’s self-assessment. Gabrielle Louise McIntyre suggests that the icc’s self-
assessment is too circumscribed, arguing that a more constructive assessment
would consider not only the performance of the icc organs (i.e., the Court, the
Office of the Prosecutor, and the Registry), but also the role played by the States
Parties, as well other external actors and factors. She believes that a more ho-
listic approach to assessing the Rome system is warranted. Similarly, Yuval Sh-
any suggests that the icc’s self-assessment has been too limited. He argues that
the key goals identified by the icc as a starting point for evaluating the Court’s
performance are a “hodgepodge of process and outcome goals,” are too nar-
rowly focused, and do not sufficiently relate to the core business of the Court—
ending impunity and developing international criminal law. Carsten Stahn is
wary of many assessment efforts in general. Arguing that “the most important
effects of icc justice are not measurable or quantifiable,” he favors a broad,
holistic account, viewing performance in a systemic context and considering a
variety of stakeholders, not the least of which are the affected societies.

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Chapter 13
Methodologies and Design of Performance

Indicators
Geoff Dancy
1 Summary
Commentary on the International Criminal Court is heavy with evaluation but

light on method. Observers make harsh pronouncements about the Court’s
cost, its pace, its conviction rate, and its bias.1 Rarely, though, are gripes about
the icc accompanied by a measured discussion of what we should expect.
The icc is the first of its kind. That means there are no baselines for com-
parison. There is also no protocol, or set of best practices, for how to review its
work. Yet the criticisms mount, creating a pressing need for internal perfor-
mance review.
In December 2014, the Assembly of States Parties requested that the Court
“intensify its efforts to develop qualitative and quantitative indicators that
would allow the Court to demonstrate better its achievements and needs.”2
This move could be a sign that the Court’s honeymoon period—if it ever
existed—is over, and it is now time to start counting beans. The request could
also be a way to exert subtle pressure on the Court to demonstrate its worth in
the face of political pressure.
The Court has obliged. Pursuant to the asp’s request, the icc is working
with the Open Society Justice Initiative to develop indicators of Court perfor-
mance. The pilot work is detailed in two 2016 reports. The Second Report,3 a
1 For examples, see D. Davenport, ‘International Criminal Court: 12 Years, $1 Billion, 2 Convic-
tions,’ Forbes, 12 March 2014, https://www.forbes.com/forbes/welcome/?toURL=https://
www.forbes.com/sites/daviddavenport/2014/03/12/international-criminal-court-12-years-
1-billion-2-convictions-2/&refURL=http://iccforum.com/performance&referrer=http://ic-
cforum.com/performance (last visited June 20, 2018); Elizabeth Peet, ‘Why is the Interna-
tional Criminal Court so Bad at Prosecuting War Criminals?’ (2015) Wilson Quarterly
2 Assembly of States Parties, International Criminal Court, Strengthening the International
Criminal Court and the Assembly of States Parties, Doc. No. icc-asp/13/Res.5 at Annex i, ¶7(b)
47 (Dec. 17, 2014).
3 International Criminal Court, Second Court’s Report on the Development
of Performance Indicators for the International Criminal Court (Nov. 11,

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140 Dancy
twenty-page document on the development of indicators, is helpful in two

ways: it provides insight into the Court’s thinking about how it should be evalu-
ated, and it appends a fifty-page annex with raw data on the last three years of
Court activity.
Clear from this report, and from the question posed to the icc Forum
penned by Prosecutor Fatou Bensouda, is that many methodological questions
remain unanswered. How should the Court quantify fairness? How can it pos-
sibly evaluate whether its own leadership is effective? Can contextual factors be
captured by quantitative measures or benchmarks?
Luckily, cutting-edge social science research offers answers to these kinds of
questions. The answers always start in the same place: design of inquiry.
2 Argument
Methodical research design is not glamorous but is absolutely crucial—and

social scientists watch from the sidelines as practitioners routinely mess it up.
At its most fundamental level, research design is about matching the questions
you want to ask to the methods you will use to answer those questions. It also
requires thinking about the audience for your work. Most importantly, design
means planning before you waste time collecting data or creating indicators.
How should the icc do this work? I make four suggestions.
I Suggestion One: Maintain a Distinction between Performance

Evaluation and Impact Assessment
The first step in designing an examination of icc operations is to separate
“performance evaluation” from “impact assessment.” Though these terms
sound vaguely similar—or like corporate jargon plastered on a PowerPoint
slide—there is a real and meaningful difference between the two concepts.
Evaluation determines “the worth of a thing,”4 which involves weighing
“strengths and weaknesses of programs, policies, personnel, productions, and
organizations to improve their effectiveness.”5 This lies in contrast to impact
assessment or the “tracking of change as it relates to an identifiable source or
2016) [hereinafter Second Report], https://www.icc-cpi.int/itemsDocuments/icc-Sec-

ond-Court_report-on-indicators.pdf (last visited June 21, 2018).
4 Blaine Worthen, “Program Evaluation,” in Herbert J. Walberg and Geneva D. Haertel (eds.),
The International Encyclopedia of Education Evaluation (Oxford: Pergamon Press, 1990), p. 42.
5 See About aea, American Evaluation Association, https://www.eval.org/p/cm/ld/fid=4 (last
visited Jun. 27, 2017).

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Methodologies and Design of Performance Indicators 141
set of factors.”6 Where the first is about applying standards to facts, the second
is about determining the casual power of an intervention.
To appreciate the difference, consider schools. Evaluating school perfor-
mance means ensuring teachers are hired and compensated properly, stu-
dents are treated fairly, the curriculum is chosen carefully, parents’ concerns
are a ddressed, grades are awarded following equally applied procedures, and
students’ standardized test scores meet certain thresholds. Closely monitor-
ing a school’s performance in these areas is different from assessing the social
impact of a school. Assessing social impact requires one to look outward: Do
schools improve the neighborhoods in which they reside? Are schools helping
students maintain gainful employment? Do school expulsion policies exacer-
bate incarceration? Evaluation is about the quality of internal performance;
impact assessment is about external effects.
Embedded in the word evaluation is value. Evaluating the performance of a
person or an organization means making judgments based on normative crite-
ria about what is good. We do this all the time: humans are steady-state evalu-
ators. That food server is good, that garbage truck is moving too slow, that gov-
ernment office is inefficient, and so on.
Impact assessment requires much more meticulous observation about what
causes what. We know smoking leads to cancer based on painstaking medical
research starting in the 1950s that established statistical correlations between
addictive smoking and the incidence of lung cancer. Decades later, clinical
studies established linkages between the inhalation of smoke and biologi-
cal mutations in the body. We can be sure of the impact of smoking because
scientists discovered correlations and then came to understand the biologi-
cal mechanisms that produce this correlation. These two types of causal
inference—statistical correlations and the identification of mechanisms—are
essential to impact assessment.
When examining the icc, observers exhibit two tendencies. The first is to
conduct performance evaluation of the Court based on unspecified criteria.
Trials are too long, or they are too costly, or the rights of the defendant are inad-
equate. However, criminal courts in the most developed countries in the world
may be subject to the same criticisms. What is a good benchmark length for
an investigation or an appeals process? What is the ideal expenditure-to-
conviction ratio? Evaluating without stated baselines leaves analysis unan-
chored; and, many times, unmoored from reality.
6 Geoff Dancy, “Impact Assessment, Not Evaluation: Defining a Limited Role for Positivism in
the Study of Transitional Justice” (2010) 4 International Journal of Transitional Justice 355, 358.

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142 Dancy
The second tendency among observers is to blur the lines between perfor-
mance evaluation and causal impact assessment or to evaluate based on im-
pact. This amounts to thick consequentialism: the icc is good if and only if
it can stop violence on the ground or, at the very least, do no harm in a situ-
ation of interest. This argument is powerful because it simplifies complex in-
terventions; nevertheless, the consequentialist standard is probably unhelpful
for evaluation. No organization or set of interventions can produce an un-
blemished record of successes. No criminal court can deter violence in every
instance.
This is why evaluation and impact assessment should remain distinct. An
organization can perform well based on internal standards but have no impact
on its external environment. Or it can perform poorly and have huge impacts.
These are separate issues.
A 2015 Open Society Justice Initiative consultancy report on icc perfor-
mance does not recognize the distinction, urging the Court to create “impact
indicators” in order to explore, among other things, “the Court’s legacy in the
countries where it operates and beyond, including its deterrent effect.”7 The
icc seems not to have heeded this advice, which is for the better. In its two
reports on performance, the Court emphasizes four criteria by which to evalu-
ate its operations:
1. that the proceedings are expeditious, fair, and transparent;
2. that its leadership and management are effective;
3. that it ensures adequate security for its work; and
4. that victims have adequate access to the Court.
These criteria direct the Court inward, restricting it to evaluating operational
conduct, and preclude judgment based strictly on the consequences of icc
interventions. This is good.
However, this list of goals, along with the Court’s work on indicators so far,
combines a number of overlapping evaluative criteria. Some lend themselves
to quantification and some do not. For instance, the first goal combines a con-
cern for expeditiousness which could be measured temporally, with a concern
for fairness which cannot be measured directly. This creates two potential
problems. First, it invites arbitrary quantitative benchmarking; and, second, it
introduces a number of overlapping and complex evaluative standards that
must be meticulously parsed.
7 See Open Society Justice Initiative, Briefing Paper: Establishing Performance Indicators for
the International Criminal Court (Nov. 2015), https://www.opensocietyfoundations.org/sites
/default/files/briefing-icc-perforamnce-indicators-20151208.pdf (last visited June 21, 2018).

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II Suggestion Two: Carefully Design a Few Key Benchmarks

First, the icc’s listed goals embody four areas of focus: trial proceedings, lead-
ership, security, and victims. The Second Report presents fifty pages of tabled
data.
The sheer number of indicators in these tables impress a data scientist, but
they are probably dizzying to most people. Under a section labeled “fairness
and expeditiousness of proceedings,” the report includes summary informa-
tion on seven different phases of every ongoing proceeding at the icc:
confirmation, trial preparation, trial, judgment, sentencing, reparations, and
final appeal. Under the confirmation stage alone, there are ten indicators; and,
if each phase is included, the total number of indicators comes to sixty-three.
This is a lot, and it is not obvious why some of these indicators are useful for
evaluation.
However, we should resist the urge to be too critical at this stage. The Court is
still assembling all of this raw data in one place and workshopping ideas about
how to aggregate this data into more substantial indicators of performance.8
In this process, those staffers tasked with producing indicators should keep
a few elements of design in mind. First, less is more. Among methodologists,
there is something known as Goodhart’s Law or the “tendency of a measure to
become a target.”9 Indicators are a powerful technology.10 When we produce
measures of performance, those measures come to shape the way tasks are
performed. For instance, if students are admitted to university on the basis of
the sat, schools will start to orient their secondary education around improv-
ing sat scores.
This same process could occur at the icc. If we produce a battery of indica-
tors about the speed of trial proceedings, and those indicators are leveraged as
performance benchmarks, then it will create a strong incentive to hasten pro-
ceedings at every stage to improve trial expeditiousness scores. In this instance,
speedier trials may be a desired outcome; but the more benchmarks that are
produced, the higher the risk that doing the job of prosecuting war criminals
will be reduced to checking boxes on a form. Though it should continue to col-
lect as much data as possible, the icc staff should construct and publicize only
8 International Criminal Court, Second Report, supra note 3, ¶ 95.

9 AnnJanette Rosga and Margaret L. Satterthwaie, “The Trust in Indicators: Measuring Hu-
man Rights” (2009) 27 Berkeley J. Int’l L. 253, 285.
10 Kevin E. Davis, Benedict Kingsbury and Sally Engle Merry, “The Local-Global Life of Indi-
cators: Law, Power, and Resistance,” in Sally Engle Merry, Kevin E. Davis, and Benedict
Kingsbury (eds.), in The Quiet Power of Indicators: Measuring Governance, Corruption, and
Rule of Law (2015), pp. 1–24.

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144 Dancy
a few key quantitative indicators of performance. Doing so will preserve its

agency and protect it from the mire of audit culture.
Second, in constructing a crucial few indicators, plan carefully. Start by
drawing diagrams that break big concepts into component parts and link those
parts to observable Court activities. This is called operationalizing a concept.
Take, for example, the notion of effective leadership and management. What are
the components of this concept? Based on the presentation of data in the 2016
Court report, the components appear to be: budget implementation, human
resources, and staff diversity represented by geographic and gender balance.
Within the geographical balance component category, many countries are
listed as “under-represented” in staff.
There are two problems of operationalization in this construct. The first is
that geographical balance is not intuitively related to effective leadership. Geo-
graphical balance, in my mind, is a component of representativeness, not ef-
fectiveness. An argument could be made that these ideas are cousins; but in
current form, there is a mismatch between the parent concept and one of its
components. The second issue is that the method for determining that certain
countries are under-represented on staff remains unspecified. No clear link is
drawn between the conceptual component—geographical balance—and its
level of representation measure. A diagram outlining the logic of conceptual-
ization and indicator choice, of the type often used in studies of democracy,11
could easily address these issues.
Third, during the design process, don’t favor indicators just because they are
easily quantified. One reason the Court may have chosen to present indicators
of the staff’s geographical composition is that it’s simple to measure and ex-
press in numbers. There are fourteen staff members from Italy. Showing this is
much easier than trying to measure a concept as large as effective leadership.
Even more difficult is measuring other outlined evaluative criteria like victim
access or fairness of proceedings. For instance, in her question to the icc Fo-
rum, Head Prosecutor Bensouda worries that the “subjectivity” of fairness
“makes it an inherently difficult value to measure.”
This is a reasonable concern. But the inherent difficulty of measuring con-
cepts like fairness or access does not mean that it cannot be done. Social scien-
tists possess reliable indicators of highly complex phenomena, like state
11 See charts in Gerardo L. Munck and Jay Verkuilen, “Conceptualizing and Measuring De-
mocracy: Evaluating Alternative Indices” (2002) 35 Comparative Political Studies 5.

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repression,12 democracy,13 and judicial independence.14 These are all built atop
hundreds of subjective coding decisions, as are other regularly referenced
measures of fairness. Electoral fairness, for instance, depends on the judgment
of election monitors and monitoring agencies.15 How does one create usable
indicators of such complex concepts?
The answer is the final point about design: when it comes to complex con-
cepts or conceptual components, be inductive. To again reference the question
written to the icc Forum, Head Prosecutor Bensouda states, “Before fairness
can be measured, there must be a shared understanding of what it means.”
I understand the logic behind this statement, which reflects an impulse toward
deductive reasoning: first we define and then we measure. However, it is not
technically true that we must define something before we can measure it.
Some interpretive concepts are innately unsuitable for top-down measure-
ment. Just like Plato’s interlocutors in The Republic could not define justice, we
probably can’t arrive at a universal definition of concepts like fairness.
What we can do is ask people—participants, staff, affected communities—
whether they think certain proceedings are fair. This is an inductive process. It
is possible to construct performance indicators by modeling people’s respons-
es to survey questions alongside other information like expert evaluations. For
example, Bayesian statistical models can estimate underlying or latent traits in
a population based on various sources of available data. Used by the most well-
designed data projects in the world,16 Bayesian models do not assume a proper
or universal definition of various concepts. Instead, they take thousands of in-
dividually recorded judgments and use them to generate estimates. In some
ways, performing Bayesians statistics is the mathematical equivalent of ana-
lyzing the connotation of words.
At relatively low cost, the Court could seek out high-level statisticians to
conduct surveys and build, from the bottom up, indicators of complex con-
cepts like trial fairness or transparency. This could be part of a much-needed
12 Christopher J. Fariss, “Respect for Human Rights has Improved over Time: Modeling the
Changing Standard of Accountability” (2014) 108 Am. Pol. Sci. Rev. 297.
13 Staffan I. Lindberg, Michael Coppedge, John Gerring and Jan Teorell et al., “V-Dem: A New
Way to Measure Democracy” (2014) 25 J. of Democracy 159.
14 Drew A. Linzer and Jeffrey K. Staton, “A Global Measure of Judicial Independence, 1948–
2012” (2015) 3 J.L. & Cts. 223.
15 Judith G. Kelley, Monitoring Democracy: When International Election Observation Works,
and Why It Often Fails (Princeton: Princeton University Press, 2012).
16 See e.g., The Varieties of Democracy Project, https://www.v-dem.net/en/ (last visited
Jun. 20, 2017).

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146 Dancy
larger strategy of “reckoning with complexity” in international criminal law.17

But to do so, the Court will first have to address a third issue of design: who is
the audience?
III Suggestion Three: Know Your Audience

Among the four goals outlined by the Court lurk six big evaluative criteria: trial
expeditiousness, trial fairness, transparency of proceedings, leadership effec-
tiveness, security, and victim access. If one is to assess perceptions of how fair
or accessible the icc is, one must first ask: fair or accessible to whom?
This is where evaluation gets political. Who is the Court’s master? For whom
is this performance evaluation meant? Whose perceptions of fairness should
count?
As I see it, the icc has five important audiences:
1. The Assembly of States Parties
2. Outside jurists and experts
3. Judges, staff, and counsel who have direct experience with the Court
4. Compliance partners, who are actors within states that have the power to
promote international criminal accountability18
5. Victims
If the icc intends on building indicators based on a combination of assembled
data and stakeholder feedback, as I have suggested, it would be helpful to
match evaluative aims to the audience of interest. For example, it strikes me
that those most qualified to answer questions about expeditiousness and ef-
fective leadership are Groups 2 and 3. The same goes for trial fairness. It would
be most enlightening to know how defense counsel perceives Court proceed-
ings, in comparison to judges, staff, and observers. Groups 3 and 4 are probably
in the best position to answer survey questions about operational security.
These evaluations would be easy to implement because they require only that
the icc survey its own employees, or those with whom it regularly interacts.
The promise of survey-based responses is greatest in relation to Groups 4
and 5, which include compliance partners and victims. While knowing what
staff and outside experts think of victim access could certainly yield interest-
ing results, the crucial evaluations should come from those people in situation
countries directly affected by icc interventions.
There are two ways to meaningfully access the affected population. The first
is to interview or survey victim participants or local icc partners. Good work
17 Diane Orentlicher, “Owning Justice and Reckoning with its Complexity” (2013) 11 J. Int’l
Crim. Just. 517.
18 Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Oxford: Princ-
eton University Press, 2014), p. 53.

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of this type is already underway. A study by the Human Rights Center at the
Berkeley School of Law was based on interviews with 622 victims registered
with the icc. Among other things, it found that victims want more contact
with the Court; and that they possess “insufficient knowledge to make in-
formed decisions about their participation in icc cases.”19 Another study per-
formed by the icty in coordination with independent experts at University of
North Texas asked tribunal witnesses to evaluate their experience testifying as
well as their perceptions of icty effectiveness, administration of justice, and
fairness. The results are surprisingly positive, with a majority of witnesses re-
porting that they think the icty has done a “good job.”20 Because these two
studies are directly relevant to evaluative criteria being considered by the icc,
the Court might do well to borrow from their approach.
It will also be necessary to conduct random surveys of the wider population
especially in those areas being examined or investigated. Based on its listed
evaluative criteria, the icc seems particularly concerned about victim access.
This means addressing the following question: “Does the population of victims
in a situation country have sufficient opportunity to engage with the Court?”
Based on a sample of already-registered victims, we cannot know how many
other victims were denied access or were generally unaware of the icc’s in-
volvement. Only by randomly drawing samples of the population at large can
we determine how many people in the wider population were victimized but
did not access the Court. While more difficult, this kind of work is certainly
possible. For example, The Hague Institute for Justice conducted a random sur-
vey in four regions most devastated by 2007–2008 election violence in Kenya.
The evidence shows that around half of the respondents witnessed or were
victimized by violence; members of that half were much more favorable to the
Court than the average Kenyan respondent.21
While survey research is costly, academic institutions and research partners
can shoulder some of the financial burden. Moreover, survey-based evaluations
will be an increasingly valuable investment over time for three reasons. First, as
mentioned before, they are more flexible because they do not rely on top-down
19 Stephen Smith Cody, Eric Stover, Mychelle Balthazard & K. Alexa Koenig, UC Berkeley
Human Rights Center, The Victims’ Court?: A Study of 622 Victim Participants at the
International Criminal Court 3 (2015), https://www.law.berkeley.edu/wp-content/uplo
ads/2015/04/VP_report_2015_final_full2.pdf (last visited June 20, 2018).
20 Helena Vranov Schoorl et al., icty, Echoes of Testimonies: A Pilot Study into the Long-
Term Impact of Bearing Witness Before the icty 95 (2016), http://www.icty.org/x/file/
About/Registry/Witnesses/Echoes-Full-Report_EN.pdf.
21 Geoff Dancy, Yvonne Marie Dutton, Tessa Alleblas, and Eamon Aloyo, “What Determines
Perceptions of Bias toward the International Criminal Court? Evidence from Kenya”
(2019) J. Conflict Resol. https://doi.org/10.1177/0022002719893740

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148 Dancy
definitions of fuzzy concepts like fairness or effectiveness. Thus, survey evalua-

tions can be deployed relatively quickly without waiting for groups of people
to agree on definitions. Second, once designed, surveys can be re-used to at-
tain data from anonymous respondents in various populations across contexts.
One could use the same survey in many different countries. Third, surveys help
produce comparative benchmarks. If the icc wants to create performance in-
dicators that can serve as a guideline to future practice, it is absolutely neces-
sary to establish comparable baselines. What is an a ppropriate fairness score?
Is trial fairness improving? These questions can only be answered if there is
more than one data point produced by administering the same data-generating
instrument—repeating surveys—at different points in time.
Some people may be inclined to interrupt here. If the evaluative ideal I’m
outlining were reached, the icc would possess rigorously designed perfor-
mance indicators that draw on feedback from important audiences. It might
also convert these indicators into benchmarks against which it continually
evaluates its own performance over time. However, a skeptic could claim this
all amounts to little more than navel-gazing. Even if the icc performs its work
well, it does not mean that it has a positive impact on conflict-affected coun-
tries or on global politics as a whole.
According to the Second Report, civil society urged the icc to “give serious
attention to the development of indicators that measure and facilitate im-
provement in achieving a broader sense of impact in situation countries on the
ground.”22 Shouldn’t the Court really focus its energies on assessing its broader
impact on the deterrence of atrocity, on reconciliation, or on peace?
IV Suggestion Four: Assist, but Do Not Conduct Impact Assessment

My answer is: No. The icc should not perform impact assessments, which
should be kept separate from performance evaluation.23 Furthermore, it is
good that the Court has so far approached this issue with caution, promising to
consider impact assessment in the future but ultimately not moving on it. Why?
First, expecting a justice institution to assess its own impact is abnormal.
The US Supreme Court does not publish research on how its decisions affect
society. The Department of Justice conducts audits of doj operations to root
out misconduct, and it also publishes statistical reports through the Bureau of
Justice Statistics; but it is not tasked with assessing the larger impact of its op-
erations on the deterrence of crime or recidivism. This is a good model for the

23 Others disagree on this point. See, most notably, Birju Kotecha, “The ICC’s Office of the
Prosecutor and the Limits of Performance Indicators” (2017) 15 J. of Int’l Crim Just. 550–51.

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icc. Evaluate performance and furnish scholars and observers with statistics,
but do not perform causal studies.
Second, impact assessments conducted by the icc would likely be biased
toward positive results. That is not to challenge the integrity of icc leadership
or staff; it is only to recognize, especially when funding or support are at stake,
that it is nearly impossible to remain objective.
And third, impact assessment is very hard and requires expert training in
causal inference, time, and investment. That kind of work should be left to so-
cial scientists.
Academic researchers, using both advanced qualitative and quantitative
methods, are already producing a wealth of new icc impact studies. These can
be split into three types: those that focus on the legal effects of icc interventions,
those that focus on the Court’s deterrence of atrocity crimes, and those that
focus on the impact of the icc on political violence.
With regard to legal impacts, evidence suggests that actors operating in the
shadow of the Court change behavior to appear compliant with international
criminal law. The Colombian government made many alterations to its Special
Peace Jurisdiction because of the otp’s monitoring during an extended pre-
liminary examination.24 Sarah Nouwen notes how Sudan and Uganda both
established special courts to try atrocity crimes, but ultimately argues that
these courts were established to under-perform.25 In this, she sees a blind spot
in the complementarity regime.
Other studies show that the icc can have more indirect legal impacts. In a
forthcoming article, Florencia Montal and I find that icc investigations are
statistically correlated with more prosecutions of state agents—like police and
security forces—for human rights crimes. To show this, we used a statistical
matching procedure that compares countries with icc investigations to simi-
lar countries that are not subject to icc intervention. There is no legal reason
to expect a relationship between icc investigations and domestic human
rights prosecutions. The latter are normally for crimes that do not reach the
level of atrocity and are technically outside of the icc’s jurisdiction. However,
the correlation between investigation and human rights trials is strong. The
reason is that domestic reformer coalitions are emboldened by the icc pres-
ence in a country. They lobby for more local accountability, they push for
24 Éadaoin O’Brien, Par Engstrom & David James, Human Rights Consortium, in the Shadow
of the icc: Colombia and International Criminal Justice (May. 2011), http://repository.es-
sex.ac.uk/6101/; Geoff Dancy and Florencia Montal, “From Law versus Politics to Law in
Politics: A Pragmatist Assessment of the icc’s Impact” (2016) 32 Am. U. Int’l L. Rev. 645.
25 Sarah M.H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the Interna-
tional Criminal Court in Uganda and Sudan (Cambridge: Cambridge University Press, 2013).

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150 Dancy
judicial reform, and they file more legal cases. The government responds with
more prosecutions. Because this was an unforeseen impact of icc interven-
tion, we call it “unintended positive complementarity.”26
New research also yields a much more nuanced understanding of atrocity-
crime deterrence. Early research on the deterrence question was primarily hy-
pothetical or based squarely on theoretical models. Much of it argued that the
icc could not possibly deter atrocities because those committing such offens-
es would be insensitive to the prospect of punishment.27
However, scholarly impact assessors are using statistical analysis of ob-
served data to challenge excessively rationalist accounts of deterrence. Ben Ap-
pel finds the average levels of repressive violence decreases in states after they
ratify the Rome Statue, and repressive violence is also lower in those states than
in non-Rome-ratifying states.28 Courtney Hillibrecht presents evidence that
government-sponsored killing decreased in Libya following the referral to the
icc.29 And Jo and Simmons discover that, among all civil war states, Rome Stat-
ute ratification is associated with roughly 50% fewer civilian killings by state
governments. Furthermore, direct intervention by the icc is associated with
almost 60% fewer targeted killings by both government and rebel forces. The
authors conclude that violent actors change behavior not only because they
fear legal punishment but also because of the informal sanctions associated
with being targeted by the icc. The latter process they call “social deterrence.”
These findings should not be taken as evidence that icc involvement in a
country is universally positive. Other data scientists discover little relationship
between icc intervention and violence.30 The icc also has mixed impacts on
larger processes of organized political violence. The Court was not e stablished
to end war, but it regularly gets involved in civil war states. Researchers argue
convincingly that the icc affects the resolution of civil war in a non-linear
26 Geoff Dancy and Florencia Montal, “Unintended Positive Complementarity: Why Inter-
national Criminal Court Investigations Increase Domestic Human Rights Prosecutions”
(2017) 111 Am. J. Int’l L.
27 For reviews of the literature, see Tom Buitelaar, “The icc and the Prevention of Atrocities:
Criminological Perspectives” (2016) 17 Hum. Rts. Rev. 286. For an earlier version, Tom Bu-
itelaar, The Hague Institute for Global Justice, Working Paper 8 (Apr. 2015), http://www
.thehagueinstituteforglobaljustice.org/wp-content/uploads/2015/10/The_ICC_and_The_
Prevention_of_Atrocities.pdf (last visited June 21, 2018); Martin Mennecke, “Punishing
Genocidaires: A Deterrent Effect or Not?” (2007) 8 Hum. Rts. Rev. 319.
28 Benjamin J. Appel, “In the Shadow of the International Criminal Court: Does the icc De-
ter Human Rights Violations?” (2018) 62 J Conflict Resol.
29 Courtney Hillebrecht, “The Deterrent Effects of the International Criminal Court: Evi-
dence from Libya” (2016) 42 Int’l Interactions.
30 James D. Meernik, International Tribunals and Human Security (Lanham: Rowman & Lit-
tlefield Publishers, 2016).

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fashion. For instance, Mark Kersten contends that icc arrest warrants in
Uganda encouraged Lord’s Resistance Army leaders to come to the negotiat-
ing table; but because the warrants could not be dissolved, they also stood in
the way of a peace settlement.31 Hillibrecht and Strauss contend that state
leaders simply use the Court to constrain their main political opponents.32
And other research suggests that the icc’s impact on political violence might
change with its stages of involvement, varying between preliminary examina-
tions, investigation, and trial phases.33 Much remains to be explored.
3 Conclusion
This is just a brief survey, but one thing seems certain. For all its faults and mis-
steps, the icc has definitely sent shockwaves through global society. It does
alter political behavior. This raises a puzzle that circles back to the issue of
performance indicators: Are the icc’s on-the-ground impacts dependent on
how well it performs its functions? Many critical voices charge that the Court
has fallen far short of its operational expectations; yet new impact studies sug-
gest that the Court exerts measurable effects on legal developments, patterns
of violence, and political conflict. What does it mean if the icc has these im-
pacts despite sub-par performance?
It’s quite possible that, so far, the icc is more important for what it is than
what it actually does. The mere existence of the Court sends resonant signals
of accountability across the globe. A second possibility is that political actors
will adjust, learn from Kenya’s obstructionist example, and begin exploiting
the icc’s shortcomings.
It’s not the job for the icc itself to sort out these possibilities. Instead, the
Court must focus on improving its own practices. It needs to look inward and
design well-conceived performance indicators. In terms of knowledge, this will
produce increasing returns. As time goes on, trained impact assessors can use
reliable indicators to establish whether effective or fair Court operations yield
greater impacts on the ground—and ultimately contribute to a better world.
31 Mark Kersten, Justice In Conflict: The Effects of the International Criminal Court’s Interven-
tions on Ending Wars and Building Peace (Oxford: Oxford University Press, 2016).
32 Courtney Hillebrecht and Scott Straus, “Who Pursues the Perpetrators? State Cooperation
with the icc” (2017) 39 Hum. Rts. Q. 162.
33 Michael Broache, Beyond Deterrence: The icc Effect in the otp, openDemocracy, (Feb. 19,
2015), https://www.opendemocracy.net/openglobalrights/michael-broache/beyond-dete
rrence-icc-effect-in-drc (last visited Jun. 27, 2017); Yvonne M. Dutton and Tessa Alleblas,
“Unpacking the Deterrent Effect of the International Criminal Court: Lessons From Kenya”
(2017) 91 St. John’s L. Rev.

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Chapter 14
Empirical Analysis of the Tradeoff between

Conflict Termination and Atrocity Deterrence
Daniel Krcmaric
1 Summary
There are two diverging schools of thought that discuss how the icc, and the
pursuit of international justice in general, might influence violence. On the one
hand, optimists argue that the threat of prosecution deters atrocities. Consistent
with the claim of Human Rights Watch’s Kenneth Roth that “behind much of the
savagery of modern history lies impunity,”1 the assumption is that the promise
of legal accountability can prevent the next Holocaust or Rwandan Genocide.
On the other hand, pessimists worry that if the warring parties are vulnerable to
international criminal prosecution, they may decide to keep fighting when they
would otherwise make peace. During the 2011 Libyan conflict, for instance, the
Washington Post’s Jackson Diehl speculated that “Libyans are stuck in a civil war
in large part because of Gaddafi’s international prosecution.”2
The current debate contains some valuable points. However, it is too sim-
plistic to argue that the icc is exclusively helpful or exclusively harmful. In
fact, the debate between optimists and pessimists is missing the big picture:
the positive and perverse effects of the icc are intimately linked. In this post, I
will make the case that a credible threat of international justice should both
prolong ongoing conflicts and deter future atrocities. My argument hinges on
a previously neglected factor: how international justice shapes the viability of
exile as a retirement option for abusive leaders.
2 Argument
If we want to understand the real-world effects of the icc on violence, it makes

sense to start by thinking about how the shadow of the Court influences the
1 Kenneth Roth, ‘The Case for Universal Jurisdiction’ (2001) 80 Foreign Aff. 150.
2 J. Diehl, ‘After the Dictators Fall…,’ Wash. Post, 5 June 2011, https://www.washingtonpost.com/
opinions/after-the-dictators-fall-/2011/06/02/AG57AmJH_story.html?utm_term=.42f69db
43085 (last visited June 20, 2018).

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Empirical Analysis of the Tradeoff 153
incentives of belligerents. This post explores how the possibility of facing jus-
tice at the icc shapes the decision-making of political leaders. In principle,
other belligerents could be analyzed in a similar way, but I choose to focus on
heads of state. After all, it is political leaders that typically instigate and enable
mass atrocities.3
Until quite recently, leaders had no reason to worry about international jus-
tice. Despite the occasional high-minded rhetoric from the international com-
munity about “no impunity” and “never again,” proponents of global account-
ability had little to celebrate. In fact, many early advocates of international
criminal law were mocked as dreamy idealists (e.g., consider the long and dif-
ficult path of Raphael Lemkin, described in Samantha Power’s book A Problem
From Hell, as he attempted to outlaw genocide). Consequently, the prospects
for holding violent leaders accountable were bleak. Impunity remained the
norm for a long time.
Impunity had one important implication for the decision calculus of lead-
ers: exile was a good retirement option—even for brutal leaders—when they
were no longer welcome at home. Rather than face the wrath of their own
people, oppressive rulers could find a safe haven abroad. For this reason, there
used to be a long tradition of embattled leaders going into exile as a “golden
parachute” exit strategy. Indeed, past leaders did not hesitate to spend their
remaining days in exile once they were threatened by civil wars and mass pro-
tests. For instance, when Ugandan rebels and Tanzanian forces closed in on
Kampala in 1979, Uganda’s dictator Idi Amin decided to flee into exile (he
eventually settled in Saudi Arabia) rather than stay in Uganda and continue
the conflict. Once in exile, leaders like Amin were safe.
Back then, Western democracies—the very states that do most of the en-
forcement work for international tribunals like the icc today—viewed exile as
a convenient policy tool for easing “bad” leaders out of power. For example, the
United States flew Filipino leader Ferdinand Marcos to a quiet retirement in
Hawaii to avoid a massive crackdown on protesters after a rigged election in
1986. That same year, French and American diplomats convinced Haiti’s cor-
rupt and violent leader Jean-Claude Duvalier to give up power in exchange for
exile on the French Riviera. As unpleasant as it is for an oppressive ruler to be
rewarded with a safe—perhaps even luxurious—retirement home, exile did
provide a way to facilitate political transitions.
The icc was created with examples like this in mind. For far too long, the
thinking went, oppressive dictators had been able to bargain their way out of
3 For an insightful leader-centric approach to the study of mass violence against civilians, see
Benjamin A. Valentino, Final Solutions: Mass Killing and Genocide in the Twentieth Century
(Ithaca: Cornell University Press, 2004).

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154 Krcmaric
trouble and into opulent exiles; and host states typically were happy to accept
them because it was politically expedient. According to scholar David Bosco,
the long process of building the icc was not only a march toward the rule of
law, but it also was “conceived of as a march away from something else: politics
and expediency.”4 As then-un Secretary General Kofi Annan proudly pro-
claimed after the creation of the icc, “Until now, when powerful men commit-
ted crimes against humanity, they knew that as long as they remained powerful
no earthly court could judge them.”5 The icc and other international tribunals,
of course, are meant to change that by making politics subordinate to law.
In recent years, norms of legal accountability have for the first time started
to win over calculations of political expediency (though this certainly is not
always the case). The United Nations created ad hoc tribunals to address mass
violence in Yugoslavia, Rwanda, Sierra Leone, East Timor, Cambodia, and
Chad. Foreign courts using the principle of universal jurisdiction began to
pursue heads of states aggressively. This movement towards accountability
culminated in 1998 with the Rome Statute, which created the icc as the first
permanent international court with broad jurisdiction over mass atrocities.
Also in the late 1990s, powerful Western states began to provide the muscle
to make these tribunals work by arresting indicted criminals. The results have
been dramatic. A host of oppressive rulers previously considered above the
law—such as Augusto Pinochet, Slobodan Milosevic, Charles Taylor, Khieu
Samphan, Laurent Gbagbo, and Hissène Habré—have been arrested in recent
years. How has this global “justice cascade”6 influenced political violence?
To start, consider the exile dynamic described above. Exile used to be the
standard exit strategy for dictators in distress. But due to the recent justice
cascade, the world is becoming a smaller place for oppressive rulers. In today’s
world of globalized justice, fleeing into exile no longer guarantees a safe retire-
ment. To give just one example, Liberia’s Charles Taylor was arrested during his
supposedly safe exile in Nigeria in 2006 and was then extradited to the Special
Court for Sierra Leone. After witnessing events like this, other violent leaders
such as Libya’s Muammar Gaddafi, the Ivory Coast’s Laurent Gbagbo, and
4 David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (New
York: Oxford University Press, 2014), p. 3.
5 See Press Release, United Nations, Secretary-General Says Establishment of International
Criminal Court Is Major Step in March Towards Universal Human Rights, Rule of Law, L/2890
(Jul. 20, 1998), https://www.un.org/press/en/1998/19980720.l2890.html.
6 The phrase “justice cascade” is typically associated with the work of Kathryn Sikkink. See, for
example, Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing
World Politics (New York: W.W. Norton & Company, 2011).

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Empirical Analysis of the Tradeoff 155
S yria’s Bashar al-Assad have decided it is better to hunker down in their own
countries than to flee abroad.
Taking away the “golden parachute” that exile once provided has implica-
tions for how leaders behave during civil conflicts. In fact, it generates two ef-
fects that pull in opposite directions.
On the one hand, there is a dark side to international justice. If abusive lead-
ers think fleeing abroad will eventually land them in the dock at The Hague,
they have incentives to remain entrenched in power. During civil wars, these
leaders have a strong motive to keep fighting—even if the prospects for win-
ning the war are poor—in the hopes of turning the conflict around. Consider
the leaders just mentioned. Muammar Gaddafi, who faced an icc arrest war-
rant, fought to the death rather than flee into exile. Similarly, Laurent Gbagbo
kept fighting until the opposition forces captured him in the presidential man-
sion and then extradited him to the icc. Bashar al-Assad, despite some specu-
lation that he would be forced to flee abroad early in Syria’s war,7 is still fighting
and violating nearly every law of war. Each of these leaders had at least one
foreign country offer exile, but they all decided they would be better off cling-
ing to power.
On the other hand, pursuing accountability comes with an important ben-
efit. Precisely because leaders now know that committing atrocity crimes will
decrease their future exit options, international justice creates a deterrent
effect. Put another way, today’s leaders want to avoid getting trapped in a posi-
tion like Gaddafi or Gbagbo—where the only option is to keep fighting a losing
war—so they will be reluctant to commit atrocities in the first place. Thus, the
icc is achieving one of its primary goals: the deterrence of atrocity crimes.
My current book project, The Justice Dilemma, provides the statistics to back
up the anecdotal evidence mentioned in this post. Three main findings stand
out. First, up until 1998 (a watershed year for international justice featuring
both the Rome Statute and the Pinochet arrest), culpable and non-culpable
leaders went into exile at virtually identical rates. However, today’s culpable
leaders (those who preside over mass atrocities) are about six times less likely
to take the exile option. Second, a leader’s culpability previously had no effect
on civil war duration, but culpable leaders today tend to fight significantly lon-
ger civil wars. Third, since the watershed events of 1998, leaders have been less
likely to initiate campaigns of mass atrocities.
7 A.E. Kramer, “In Russia, Exile in Comfort for Leaders Like Assad”, N.Y. Times, 28 December
2012, https://www.nytimes.com/2012/12/29/world/europe/in-barvikha-russia-leaders-like-as
sad-find-haven.html?mtrref=iccforum.com&gwh=4D6FE3B9F05D77B2B7CF1C5ED5BE4ED
7&gwt=pay (last visited June 20, 2018).

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156 Krcmaric
Altogether, my results suggest that there is a justice dilemma. By taking

away the possibility of exile for culpable leaders, international justice both
prolongs conflicts and deters atrocities.
Can the icc find a way out of this dilemma? Some have suggested that the
icc should become more political (although both Luis Moreno-Ocampo and
Fatou Bensouda have been adamant that the icc is a purely apolitical institu-
tion). The basic idea is that a leader guilty of committing atrocities could be
allowed to bargain away an icc indictment if he steps down peacefully and
leaves the country. Assuming a culpable leader agreed to such a deal, it could
help resolve an ongoing conflict involving that specific leader. However, the
problem with this approach is that it ignores how other leaders will respond. If
offering “get out of jail free” cards become the norm, other leaders will know
that they too can bargain away arrest warrants and find safe havens abroad.
Consequently, the deterrent effect of international justice will be undermined.
The justice dilemma, therefore, is inescapable.
Overall, there is an inherent tension between ending today’s conflicts and
deterring tomorrow’s atrocities. It is possible for the icc and the international
community writ large to do one or the other, but they cannot do both simulta-
neously. Looking ahead, the icc and national policymakers will face difficult
choices on how to prioritize these competing demands.

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Chapter 15
Assessing Performance in Context

Gabrielle Louise McIntyre1
1 Summary
The development of appropriate ways to measure the progress of the Court

toward achievements of its stated goals and its performance overall is a com-
plex and difficult undertaking, and the efforts thus far—reflected in the Court’s
most recent report2—are to be commended. It likewise must be acknowledged
that collecting performance-related data can be a resource-intensive under-
taking, and the Second Report in many ways reflects the need to seek an ap-
propriate balance between performance assessment, on the one hand, and
actual performance, on the other. The Second Report appears to seek to strike
such a balance by limiting the scope of the performance assessment in a num-
ber of different ways and making it a primarily inward-looking exercise.
For performance assessment to be meaningful, however, it cannot take
place in a vacuum, as a number of commentators both inside and outside the
Court have recognized.3 Rather, performance assessment must look at the
work of the Court in its proper context.
That means, inter alia, that performance assessment must take account of
the system created by the Rome Statute in which the icc operates, including
the primary role played by States Parties in the operationalization of that sys-
tem. Indeed, an approach to performance assessment that looks at only some
1 The views expressed herein are those of the author alone and do not necessarily reflect the
views of the organization for which the author works or the United Nations in general. I
would like to thank Willow Crystal, Deputy Chef de Cabinet, for her helpful comments and
edits throughout the drafting of this piece.
2 International Criminal Court, Second Court’s Report on the Development
of Performance Indicators for the International Criminal Court (Nov. 11,
2016) [hereinafter Second Report], https://www.icc-cpi.int/itemsDocuments/icc-Sec-
ond-Court_report-on-indicators.pdf (last visited June 21, 2018).
3 See, e.g., Fatou Bensouda, International Criminal Court, Remarks at Tenth
Plenary Meeting: Discussions on the Efficiency and Effectiveness of Court
Proceedings (Nov. 24, 2015), https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-24-
11-20015-asp (last visited July 11, 2018); Establishing Performance Indicators for the Internation-
al Criminal Court, International Justice Monitor (Nov. 23, 2015), https://www.ijmonitor
.org/2015/11/establishing-performance-indicators-for-the-international-criminal-court/ (last
visited July 11, 2018).

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158 McIntyre
aspects of the Court’s work and mandate, excludes consideration of relevant

external factors, does not fully reflect the aims underlying the performance as-
sessment process, and represents a missed opportunity to identify and address
all factors fundamental to the success of the Court. Such a circumscribed ap-
proach to performance assessment also risks misleading or providing inade-
quate information to key interlocutors—including the Assembly of States Par-
ties and the general public—as to both the Court’s achievements and, more
fundamentally, its needs. Given the current critical stage of the Court’s devel-
opment, providing only a partial or limited overview of the Court’s perfor-
mance could be particularly detrimental in so far as it may give rise to ill-
founded expectations and confusion as to what the Court can achieve, what
hurdles it faces, and where meaningful reforms could be implemented.
As set forth below, a more holistic approach to performance assessment will
serve the Court and the Rome system well in the long run. Such an approach
would mean going beyond the narrow confines of the performance assess-
ment exercise outlined in the Second Report. To do this notwithstanding its
resource limitations, the Court may have to limit performance indicators to
those that are most critical to assessing the success of the Court as a whole. It
may also wish to consider exploring partnerships with external bodies to help
ensure that the performance assessment undertaken is as comprehensive,
meaningful, and effective as possible. Difficult though it may be to implement
a more comprehensive and holistic approach, it is important that such an ap-
proach be adopted from the beginning, not left to be phased in gradually over
time, if the Court, the Assembly of States Parties, and all other interested par-
ties are to truly benefit.
2 Argument
I To Measure Its Performance Adequately and Accurately, the icc

Must Take Account of the Context in Which It Operates and, in
Particular, the Key Role Played by States Parties’ Cooperation and
Support
The four goals identified by the icc for the purposes of measuring perfor-
mance in its Second Report are derived from two of the three priority objec-
tives of its Strategic Plan of 2013–20174 and characterized as representing issues
4 International Criminal Court, Strategic Plan 2013–2017 (Interim Update—July 2015) (Jul. 24,
2015) [hereinafter Strategic Plan], https://www.icc-cpi.int/iccdocs/registry/Strategic_Plan_
2013-2017__update_Jul_2015.pdf (last visited June 21, 2018).

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Assessing Performance in Context 159
rimarily within the control of the Court.5 While “recognizing that the perfor-
p
mance of the Court substantially depends on external cooperation,” the Court
is therefore leaving to one side the third priority objective of “Cooperation and
Support” identified in the Strategic Plan, an issue considered primarily outside
of the Court’s control.6
This same approach is reflected in the Court’s selection of particular perfor-
mance indicators. While recognizing that external factors can have a “substan-
tial impact on the Court’s ‘own’ performance indicators” and noting that all
Court-wide performance indicators should be read and evaluated in their
specific context, the Court considers it “prudent to limit the choice of indicators
for now to those primarily under the control of the Court itself,” leaving such
matters to be considered at a later stage.7
This restrictive, inward-looking approach to assessing performance is prob-
lematic for a number of reasons.
First, and most simply, the alignment of performance measures with the
overall objectives of the Court is critical to identification of what performance
matters for the success of the Court. In this respect, the exclusion of the third
priority objective from the initial development of performance measures is
troubling, as it inhibits consideration of a critical variable that is acknowledged
to be central to the work of the Court: the operational dependency of the Court
on States Parties.8 A coherent and comprehensive approach to p erformance
5 International Criminal Court, Second Report, supra note 2, ¶¶ 5–7. The four key goals identi-
fied by the Court are:
(a) The Court’s proceedings are expeditious, fair and transparent at every stage;
(b) The icc’s leadership and management are effective;
(c) The icc ensures adequate security for its work, including protection of those at risk
from involvement of the Court; and
(d) Victims have adequate access to the Court.
6 Id. ¶ 7.
7 Id. ¶¶ 23–24. See also Id. ¶ 7.
8 See International Criminal Court, Report of the Court on the Development of Performance
Indicators for the International Criminal Court, ¶ 12 (Nov. 12, 2015) [hereinafter First Report],
https://www.icc-cpi.int/itemsDocuments/Court_report-development_of_performance_in-
dicators-ENG.pdf (last visited June 21, 2018):
It should also be noted that, while the Court has not at this stage tried to develop specific
indicators for external factors that can affect its performance, these factors unavoidably
remain relevant when evaluating performance on issues which are seen as largely under
the Court’s control. In particular, the duration of cases is directly affected not only by the
quality and efficiency of the Court’s work, but also by a wide range of external factors.

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160 McIntyre
assessment requires that all of the Court’s priority objectives are taken into ac-
count, not just some of them.
Second, the restrictive approach by which external factors or impacts are
omitted from the assessment risks undermining the overall aims underlying
the performance assessment process. As set forth in the Second Report, the
development of performance indicators is part of a continuing effort to im-
prove efficiency at the Court, to demonstrate better its achievements and
needs, and to allow States Parties to assess the Court’s performance in a more
strategic manner.9 Without an integrated consideration of States Parties’ coop-
eration and other external factors in the context of the performance assess-
ment process, it is not apparent that the Court or the Assembly of States Par-
ties will be able to achieve the desired ends in this regard. Indeed, through the
appropriate formulation of performance indicators that take full account of
the system in which the icc operates, the icc stands a much better chance of
providing an accurate picture of its performance that underscores the intrinsic
role played by States Parties and more accurately reflects the system created by
the Rome Statute. After all, the Court alone is not in control of its performance;
it is the Court in partnership with States Parties that determines the success or
otherwise of the Court.
Third, even if one were to accept that issues outside of the Court’s control
are less relevant or are not as readily measurable, it is not clear that issues re-
lated to States Parties’ cooperation and support are entirely outside of the
Court’s control. In the current icc Strategic Plan, for example, the Court iden-
tifies a number of activities that the Court will undertake to encourage coop-
eration and support for the Court’s activities.10 These are activities that are to
be carried out by the Court—either alone or in partnership with others—and
are therefore in the control of the Court and could be measured. And even
where particular aspects of States Parties’ cooperation are outside of the
Court’s control, as set forth below, there are ways that the degree of and ob-
stacles to cooperation can be assessed in meaningful ways.
Fourth, it would not be overly onerous to develop means to assess perfor-
mance in the area of States Parties’ cooperation and support. To the contrary,
it would seem relatively simple to develop indicators and collect data on the
Court’s effectiveness in operationalizing the Rome system based on those activi-
ties identified in the Strategic Plan as priority objectives to securing cooperation
and support. Indeed, with respect to many of these areas, the Court already pro-
vides some data in its reports to the Assembly of States Parties on cooperation.11

10 International Criminal Court, Strategic Plan, supra note 4, ¶¶ 3.4–6.
11 See, e.g., Assembly of States Parties, International Criminal Court, Report of the Court on
Cooperation, Doc. No. ICC-asp/15/9 (Oct. 11, 2016).
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For example, one of the goals identified in the Strategic Plan is “to conclude
further voluntary agreements with the Court on enforcement of sentences,
relocation of witnesses and interim and other forms of release.”12 To measure
its performance in this regard, the icc could collect information concerning
the number of States Parties that have been approached during an identified
period with respect to entering such voluntary agreements, and the number
that have agreed to enter any particular type of agreement or that have entered
into such agreements.
These numbers will give the Court information about its performance in
relation to meeting this objective. However, for that information to be useful to
the Court or the Assembly of States Parties in terms of developing strategies to
improve the icc’s performance, the Court should seek quantitative and quali-
tative data from States Parties through surveys administered by the Court or
civil society that seek to identify obstacles for States Parties or reasons for delay
in entering voluntary agreements with the Court. Collection of this data in one
place and in relation to specific performance indicators would not only allow
the Court and the Assembly to more strategically address these obstacles but
also meaningfully highlight their impact on the Court’s performance.
The same approach just outlined could likewise be applied to the goal of
encouraging non-States Parties to ratify the Rome Statute and States Parties
and non-States Parties to ratify the Agreement on Privileges and Immunities of
the Court.13 The icc could record the number of States Parties approached
during a particular period, the number that have agreed to ratify or have rati-
fied either instrument subsequent to the approach, as well as quantitative and
qualitative data regarding obstacles encountered or reasons for delay in these
ratifications.
Fifth, it would likewise appear relatively straightforward to develop mea-
sures that assess the impact of States Parties’ cooperation and support in rela-
tion to the other key goals under consideration. Indeed, given the operational
dependency of the Court on States Parties’ cooperation and support in achiev-
ing its goal of expeditious, fair, and transparent proceedings,14 the develop-
ment of performance indicators that capture the impact of these factors on
Court proceedings would seem to be essential if the Court’s performance as a
whole is to be properly assessed.
For example, if the Pre-Trial Chamber of the Court is to perform to its
optimal level, States Parties must execute warrants of arrest issued by the
Court. Failure to do so will lead to situations (as at present) where there are no
12 International Criminal Court, Strategic Plan, supra note 4, ¶ 3.4.

13 Id. ¶ 3.5.
14 International Criminal Court, Second Report, supra note 2, ¶ 5 (This is the first of the four
key goals identified as critical for the assessment of the icc’s overall performance.).
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162 McIntyre
ending pre-trial proceedings. In addition, the efficiency of the Prosecutor’s

p
investigations will be impacted as arrests long after the issuance of an arrest
warrant will invariably require the Prosecution to update its investigation and
ultimately delay the start of the proceedings. To capture and communicate the
impact of States Parties’ cooperation and support on Court proceedings, a
number of steps could be taken.
For instance, the Court could identify the date of the issuance of arrest war-
rants, the numbers of requests sent for cooperation in the execution of arrest
warrants to States Parties and non-States Parties, the number of judicial deter-
minations of non-cooperation in arrests by States Parties made by the Chambers,
and the responses of non-States Parties. Moreover, by collecting quantitative
and qualitative data on the reasons why States Parties and non-States Parties are
failing to execute arrest warrants—for example, perceived illegitimacy of the
arrest warrant, conflict with competing regional or international obligations,
security concerns, or lack of opportunity—the Court’s leadership and manage-
ment (as well as the Assembly) can more readily address these obstacles.
Further, the Court could record the number of requests made to States Par-
ties for other forms of cooperation (for example, relocation of witnesses to al-
low disclosure to take place), the time taken for States Parties to respond to
such requests, the outcome of the requests, and the reasons given by States
Parties for refusing such requests or delaying addressing them. While this data
should be collected across cases to allow the Court’s leadership and manage-
ment to assess the operationalization of the Rome system, it should also be
identified within each specific case so that the impact of these factors on indi-
vidual case performance is apparent.
The same type of data could likewise be collected in relation to any prosecu-
tion and defense requests for cooperation from States Parties in a specific case.
In this regard, the Court could collect quantitative data on the number of re-
quests made by either party or State Parties’ responses to those requests, in-
cluding data on the reasons given for refusal or delay. Again, the collection of
this data will allow the Court’s leadership and management to assess the im-
pact of State Parties’ cooperation on the performance of the Court overall and
on specific cases.
Additionally, and in the same vein as is described above with regard to other
voluntary agreements, the Court could collate data on the number of States
Parties that have adopted implementing legislation to allow cooperation with
the Court, the number of States Parties that have been approached by the
Court’s leadership and management to adopt implementing legislation during
a given period, the number that have agreed to enter such agreements, and the
reasons for refusal or delay in reaching such agreements.

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These are just some examples of the ways the Court could measure the im-
pact of States Parties’ cooperation and support on its performance through
collection of data on its efforts, the results of those efforts, and the reasons for
States Parties’ action or non-action. By collecting data of the types just de-
scribed, the Court will be better able to demonstrate the impact upon its per-
formance of States Parties’ cooperation and to give a more holistic sense of the
Court’s performance. And, it is by reference to such data that the Court (and
the Assembly of States Parties) can develop strategies to improve the Court’s
performance in operationalizing the Rome system in support of its activities.
Finally, just as the Court cannot put to one side the impact of States Parties’
cooperation on its performance, so too can it not ignore the impact of the
founding principle of complementarity upon which the Rome Statute rests—a
principle meant to ensure that the Court itself is a court of last resort. Indeed,
in its Strategic Plan, the Court recognizes the importance of complementarity
to the success of the Court and the Rome system as a whole and indicates that
it will “encourage and facilitate the development of national capacities to
achieve the goals of the Rome Statute.”15 There is no reason why the Court can-
not measure the activities in which it engages in this respect; and, more impor-
tantly, the impact of those activities on the development of national capaci-
ties. In this latter regard, independent initiatives along these lines are already
underway.16 As discussed below, the Court could benefit from partnering with
other organizations to collect relevant data.
Notably, with respect to the fourth goal (“victims have adequate access to
the Court”),17 the Second Report demonstrates appreciation for the fact that
the Court operates within the framework of the Rome system and that it is
important to develop performance indicators, even for certain factors that may
not be immediately under its control such as the Trust Fund for Victims, so as
to give a holistic picture of the Court’s performance and impact in relation to
victim participation and reparations.18 However, as set out above, if the Court’s
purpose in developing performance indicators is to allow for a strategic assess-
ment of its performance as a whole, then it is essential that it take the same
holistic approach to all other areas of its performance that are critical to its
success as an institution.
15 International Criminal Court, Strategic Plan, supra note 4, ¶ 3.6.

16 Resource Center on Complementarity Monitoring, Int’l Nuremberg Principles Acad. (Jun.
25, 2017), https://www.nurembergacademy.org/projects/detail/e28d08a0d5378c33316e4a
26443d6892/resource-center-on-complementarity-monitoring-13/.
17 International Criminal Court, Second Report, supra note 2, ¶ 5(d).
18 Id. ¶ 86.

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164 McIntyre
II The icc Should Tailor and Target Its Performance Indicators to

Ensure Maximum Efficacy
As set forth above, the identification of performance indicators for the icc is
part of an ongoing effort to improve the Court’s efficiency and to respond to
the request of the Assembly of States Parties that the Court develop perfor-
mance indicators that allow the Court to “demonstrate better its achievements
and needs, as well as allowing States Parties to assess the Court’s performance
in a more strategic manner.”19
In light of this, it is essential that the performance indicators being devel-
oped reflect all relevant priorities. Indeed, as set forth above in relation to
States Parties’ cooperation and support, it is crucial that the performance mea-
sures deployed be aligned with the overall objectives of the Court so as to
ensure that a comprehensive picture of the Court’s performance can be
presented.
Further, it is essential that the performance assessment process not collect
information in the abstract simply because data lends itself to measurement,
but instead do so in context and, specifically, in a manner most likely to com-
municate meaningfully about the Court’s achievements and needs. Doing so
would enable both the Court and the Assembly to take the information col-
lected through the performance assessment process and evaluate it with an
eye to improving performance and efficiency in the long run. Moreover, the
adoption of carefully tailored performance indicators, and publicly available
reports concerning the results obtained, may facilitate improved public aware-
ness of the problems, and encourage accountability on the part of the Court.
In short, in its development of indicators, the icc should be clear about its
purpose for monitoring its performance and measure what counts. While
many of the performance indicators identified by the Court thus far would
supply information concerning the Court and its work, it is not clear that this
information will necessarily be meaningful for the Court, the Assembly of
States Parties or other interested interlocutors or that it will serve the Court’s
interests in terms of providing a means by which to facilitate improved perfor-
mance and efficiency.
For example, in relation to the goal of ensuring transparent proceedings, the
Court proposes to collect information on the percentage of judicial decisions
that are public vs. confidential and the overall percentage of courtroom time
spent in public hearings versus those that are confidential or closed sessions.
19 Id. ¶ 1, quoting Assembly of States Parties, International Criminal Court, Strengthening

the International Criminal Court and the Assembly of States Parties, Doc. No. ICC-asp/13/
Res.5 at Annex I, ¶7(b) 47 (Dec. 17, 2014).

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While such information is, of course, relevant to the transparency of proceed-

ings, it is not apparent how these metrics will contribute to a meaningful as-
sessment of the Court’s performance in the absence of relevant comparative
statistics or other means to contextualize the information, such as explana-
tions of the basis for these confidentiality determinations. For instance, will a
rate of 74% of decisions being rendered publicly be considered an achieve-
ment and evidence that the Court is adhering to its obligation to maximize
transparency? Or, will it instead be seen as an indication that improvement is
needed? And, will a drop of 10% in that rate from one year to the next be con-
sidered a detrimental change or simply a reflection of the vagaries of litiga-
tion? Without more information, will the Court or the Assembly have what is
needed to answer these questions or, if results are deemed problematic, to
determine what has to change to positively impact the situation? The identifi-
cation of useful comparators (as discussed below), the collection of generic
information as to the reasons a decision or session was made confidential, and
other steps could be taken to ensure that the performance indicators deployed
in relation to the goal of ensuring transparent proceedings are of maximum
utility.
Moreover, while the Court specifies that, in collecting data on the amount of
material that is public, it will include “redacted and reclassified versions” of
rulings, it adds that “many reclassifications from confidential to public are only
undertaken towards the end of a trial; a reliable figure will therefore only be
available towards the end of a trial.”20 If the aim is to ensure transparent pro-
ceedings, however, the percentage of public (including redacted and reclassi-
fied) rulings compared with confidential rulings calculated at different points
during a trial is not “unreliable;” to the contrary, it is highly informative as an
indicator of how transparent proceedings are while they are still in process.
Collecting and reporting this information throughout the life of a case, togeth-
er with information concerning the reasons for the issuance of reclassified ver-
sions of rulings, may also help to identify best practices and ways in which to
improve the Court’s overall ability to render its proceedings more transparent,
not just at the end of the case but throughout.
In addition, the possibility that rulings may be reclassified even after a case
is concluded should not be discounted. The experience of the Mechanism for
International Criminal Tribunals (“Mechanism”) suggests that there may be
requests for reclassification of or access to classified information long after a
judgment has been rendered. The Court would do well to track such activity,
both as a measure relevant to transparency and also—in so far as requests
20 Id. n.31.

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166 McIntyre
stem from proceedings in national courts—as a means to assess its contribu-

tions to complementarity goals.
The Court may also wish to consider tracking not just the percentage of ju-
dicial decisions but also the percentage of submissions by the parties filed
publicly versus those filed confidentially, as it is not only the Court’s own rul-
ings that are relevant to the transparency of the proceedings but the contribu-
tions of the parties as well.
With respect to this same goal of ensuring transparent proceedings, the
Court also proposes specific indicators concerning the numbers of people
accessing the Court’s home page, social media networks, court hearings, and
numbers of press-related materials, media information sessions, publica-
tions distributed, and numbers of audio and video summaries produced for
international media.21 While not abundantly clear, it would appear that the
Court intends to demonstrate that it is maintaining transparency in its pro-
ceedings by monitoring their accessibility to the broader general public over
time. Although the statistics that would be collected under this rubric may in-
dicate the effort made by the Court in ensuring transparency of its proceed-
ings, the important issue in terms of assessing the performance of the Court is
the result of that effort.
These are just a few examples of ways in which indicators could be devel-
oped and refined so as to capture more relevant data concerning the transpar-
ency of proceedings for purposes of ensuring a meaningful performance as-
sessment process.
To take another example, it is not apparent that the indicators identified by
the Court with respect to its second goal—the effectiveness of its leadership
and management—are designed to best accomplish the desired aims underly-
ing the performance assessment process.
The Court identifies the internal factors of “budget implementation, pro-
curement and human resources issues” as the focus for the Court’s initial de-
velopment of performance indicators in relation to this goal.22 In this respect,
the Court will measure budget implementation rates per court organ, average
time of recruitment process, percentage of staff appraisals conducted in a giv-
en time, geography and gender balance of staff, and relevant indicators regard-
ing the Court’s procurement process.23 In addition, it is intended that imple-
mentation rates of plans to conduct training programs and measures to control
priority risks will be measured as of 2017.24
21 Id. ¶¶ 44–45.
22 International Criminal Court, Second Report, Id. ¶ 48.
23 Id. ¶ 49.
24 Id.

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While the Court’s measurement of performance in relation to these indica-

tors will no doubt provide information about the Court’s management, it is
questionable whether performance in relation to these particular internal
matters is the most critical to the success of the Court as an institution. Indeed,
whether staff performance assessments are completed on time, staff recruit-
ment is carried out as efficiently as possible, or the Court conducts as many
training courses as intended during a specific period, seems to provide rela-
tively little information of genuine utility. In this respect, given the Court’s
limited resources, the icc would be better served by focusing its assessment of
the effectiveness of leadership and management by identifying performance
indicators that provide information about those issues that truly matter to the
success of the Court as a whole.
For example, it would seem highly relevant to track issues related to the
compliance of leadership and management with the regulatory framework in
carrying out activities such as recruitment, and the integrity of the leadership
and management in their overall decision-making related to the management
of the Court. These important aspects of leadership and management perfor-
mance could be assessed by gathering data concerning the number of staff
complaints raised against decisions taken by the leadership and management,
including the number of complaints resulting in litigation against the Court by
its employees and the number that result in a negative finding against the
Court or its leaders and managers. In addition, the number of requests by
counsel for administrative review of decisions by the Registrar and the number
of decisions decided in favor of the complainant could be reported, together
with information concerning the basis for such decisions. The measurement of
staff morale and commitment, such as through staff surveys, could also be a
valuable way to assess the overall effectiveness of Court management and
leadership, as discussed below.25
The effectiveness of the leadership in implementing the system created by
the Rome Statute and operationalizing State cooperation in support of the ac-
tivities of the Court would also appear to be a critical factor to the success of
the Court. This could be measured as set forth above. The effectiveness of the
Court’s leadership and management in shaping a shared understanding of the
mandate of the Court and in promoting a court-wide vision and communicat-
ing that vision, including by managing expectations concerning what the
Court can be expected to achieve, would also seem to be an issue critical to the
success of the Court.
25 See International Criminal Court, Strategic Plan, supra note 4, ¶ 2.4 (Reference is made to
a “structured follow-up on staff surveys,” which suggests that the Court is indeed survey-
ing the morale of its employees.).

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168 McIntyre
The effectiveness of the Court’s (and in particular Chambers’) leadership in

actively managing cases so as to ensure their fairness, transparency, and expe-
ditiousness, discussed further below, would be another important area to
assess. Indeed, the Pre-Trial Chamber has already very successfully demon-
strated its commitment to active management through addressing the incon-
sistency of judicial practice (and hence uncertainty and increased litigation)
with respect to pre-trial proceedings by issuance of the Chambers Practice
Manual.26
Overall, it would appear that those areas of leadership and management
identified by the Court in the Second Report are not those that are most mean-
ingful or significant in terms of assessing the performance of the leadership
and management. The Court would do well to focus its efforts on those issues
that are critical to the success of the Court.
III The icc Can Learn from and Draw upon the Experiences of Other
Relevant Institutions
In the Second Report, the Court suggests that the use of specific performance
benchmarks developed at the national level, as well as other methodologies
followed at the national level to assess the performance of courts, are of limit-
ed value to the icc.27 The Court recognizes that the experience of other inter-
national courts and tribunals “may be more relevant” but does not provide
further details in this regard, simply inviting the views of others.28
While there are undeniable differences between the cases of the icc, on the
one hand, and the cases of national courts or other international criminal
courts, on the other, not taking into account comparisons where relevant, and
not taking on broad lessons from these courts’ approach to performance as-
sessment, limits the efficacy and meaningfulness of the Court’s own perfor-
mance assessment. Indeed, the icc would be ill served by simply ignoring
other institutions trying core international crimes, disregarding performance
26 International Criminal Court, Chambers Practice Manual (Feb. 2016), [hereinafter Manu-
al], https://www.icc-cpi.int/iccdocs/other/Chambers_practice_manual--FEBRUARY_2016
.pdf (last visited July 11, 2018) (The Manual provides clarity to the parties on a range of
issues in pre-trial proceedings that were unclear due to a lack of shared vision on the part
of pre-trial judges as to the purpose of the pre-trial procedure and the appropriate inter-
pretation of the procedures applicable. However, for the impact of the Manual on perfor-
mance to be assessed, the Court would need to measure the time and complexity of pre-
trial proceedings prior to the issuance of the Manual and after the issuance of the Manual,
as discussed below.).
27 International Criminal Court, Second Report, supra note 2, ¶¶ 18–19.
28 Id. ¶¶ 19–20.

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indicators used by national courts, or considering its work in isolation from the
system of complementarity on which it is founded.
This is particularly true when considering the question of the expeditious-
ness of proceedings. All international courts and national courts face obstacles
in the expeditious completion of their cases. At the International Criminal Tri-
bunal for the former Yugoslavia (“icty”) and International Criminal Tribunal
for Rwanda (“ictr”), for example, a backlog of accused persons in custody and
limited courtroom availability meant long delays before the start of trials; pre-
trial proceedings were often protracted and complicated by States Parties’
cooperation issues in the securing of evidence, and delays were caused by, for
example, the volumes of disclosure or the discovery of new evidence. The
longest cases at the icty from the time of arrest took twelve and thirteen
years29—two of which are currently pending either re-trial or appeal before
the Mechanism—while at the ictr the longest case from the time of arrest
took close to twenty years.30 Cases tried in national courts are not necessarily
proceeding much more quickly. For example, cases of two lower-level accused
transferred to France by the ictr in 2007 are still ongoing after nine and a half
years. A recent case concluded in the Dutch national courts took twelve years
from first charges.31
While the challenges faced in individual cases and by various courts may be
different, they are not necessarily so different as to make the experience of
these other proceedings, or the ways in which these courts measure their own
performance, irrelevant to the icc.
For example, if the overall length of proceedings is considered to be an im-
portant way to measure the expeditiousness of its proceedings,32 the icc may
29 Nikola Šainović, surrendered May 2, 2002, Appeal Judgement Jan. 23, 2014 (Prosecutor v.
Sainović et al., Case No. IT-05-87, formerly known as Milutinović et al.); Jovica Stanišić and
Franko Simatović arrested on Mar. 13, 2003, Appeal Judgement Dec. 15, 2015, retrial or-
dered and currently pending before the Mechanism (Prosecutor v. Stanišić & Simatović,
Case No. MICT-15-96); Vojislav Šešelj, surrendered Feb. 23, 2003, appeal pending before
the Mechanism (Prosecutor v. Šešelj, Case No. MICT-16-99); Jadranko Prlić et al., surren-
dered Apr. 5, 2004, Appeal Judgement of the icty expected November 2017 (Prosecutor v.
Prlić et al., Case No. IT-04-74).
30 Joseph Kanyabashi and Elie Ndayambaje were arrested in Belgium on June 28, 1995 and
transferred to the ictr on Nov. 8, 1996, Appeals Judgement Dec. 14, 2015 (Prosecutor v.
Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse
Nteziryayo, Joseph Kanyabashi, Elie Ndayambaje, Case No. ICTR-98-42-A, Order Assign-
ing a Pre-Appeal Judge (July 21, 2011)).
31 See “Dutch Arms Trafficker to Liberia Given War Crimes Conviction” The Guardian, 22 April
2017, https://www.theguardian.com/law/2017/apr/22/dutch-arms-trafficker-to-liberia-gu
us-kouwenhoven-given-war-crimes-conviction (last visited July 11, 2018).
32 See International Criminal Court, Second Report, supra note 2, ¶ 35.

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170 McIntyre
do well to communicate its achievements—and the acknowledged distinctive-

ness of its proceedings and cases—to the Assembly of States Parties by using,
as a measure of its performance, the time frames of other international and
national courts, in particular those national courts dealing with core interna-
tional crimes committed on the territory of another state. Although there may
be real and important reasons that the cases at other courts are not directly
comparable to icc cases, providing information to the Assembly and others
in this manner may provide a useful context in which to understand the
Court’s own performance as compared with simply looking at these cases in a
vacuum.
The relevance of other international and national courts is not limited to
their possible use as basic comparators for the icc; they can also be the source
of valuable guidance on the development of a variety of performance indica-
tors that could be meaningfully adapted to the icc context. And, further to the
discussion above, they can point to important ways in which performance as-
sessment design can impact meaningfully on the underlying goals of the as-
sessment exercise related to enhancing efficiency.
For example, some national court systems monitor the length of time re-
quired to dispose of individual motions and ask judges to indicate the reasons
when a particular motion has been pending beyond a designated benchmark
without being resolved. The icc could adopt the same approach in consider-
ing its performance, not simply in relation to motions overall, but perhaps
more meaningfully, in relation to the disposal of particular types of motions
such as those concerning disclosure or provisional release. Measuring its per-
formance in this manner may assist the Court in identifying areas where mo-
tion practice is high, what types of motions take the longest time to dispose of,
and why. The identification of these factors may enable the Court (or the As-
sembly of States Parties) to explore measures to improve the Court’s perfor-
mance overall.33
The icc could also adopt the national practice of measuring clearance rates
on motions filed during a specific time period (e.g. of the 100 motions filed in a
year, 70 were disposed of, yielding a clearance rate of 70%). The icc could mea-
sure clearance rates overall, clearance rates on particular types of motions, and
clearance rates by specific Chambers. The identification of clearance rates on
motions would enable the Court to assess its performance (and the perfor-
mance of specific Chambers) in keeping up with workload and, if clearance
33 Id. ¶¶ 38–39 (The Court proposes calculating the number of motions filed by all parties
and participants but does not propose identifying the issues upon which such motions
are filed.).

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rates are less than 100 percent, to take measures to identify the reasons for
backlogs, communicate those reasons, and take steps to address them to im-
prove overall performance.
In this same vein, the Court could also measure its progress in disposing of
interlocutory appeals. This requires doing more than simply looking at the
number of interlocutory appeals per year as compared with the average dura-
tion of such appeals, as is suggested at present.34 Rather, the Court could adopt
measures counting the number of interlocutory appeals filed in relation to the
same type of issue and the number of interlocutory appeals filed overall.
The time taken to dispose of interlocutory appeals in relation to the same is-
sue, and the time taken to dispose of interlocutory appeals overall, could be
measured alongside information concerning the overall workload of the
Appeals Chamber during the time that the interlocutory appeals have been
pending. Such measurements would allow the Court to not only assess its per-
formance in the disposal of interlocutory appeals, but also to identify what is-
sues give rise to the greatest number of interlocutory appeals.
Understanding which issues spark the most litigation and are most likely to
seek interlocutory redress, may allow the Court to take steps to clarify the is-
sues and reduce the volume of interlocutory appeals and thereby expedite its
proceedings. Indeed, as procedural and substantive jurisprudential issues are
settled through Appeals Chamber jurisprudence over time, one would antici-
pate seeing an overall improvement in the expeditious conduct of the Court’s
proceedings (assuming, that is, that one can control for the effects of the ex-
pected fluctuation in overall workload of the Court). It is only by measuring
this progress that the Court will be able to adequately convey it to the Assem-
bly of States Parties.
To take another example: the Second Report notably suggests that “specific
performance benchmarks developed at the national level will often be
inappropriate in the icc context.”35 While the actual benchmarks used at the
national level may not be appropriate for the icc, it is not apparent that bench-
marking more generally would not be a valuable tool for the icc. Data from
past icc cases, as the Court acknowledges, cannot accurately predict the time-
line of future cases.36 In this respect, using data from past cases as a bench-
mark for future cases has limited value in terms of predicting the amount of
time a new case may take. However, benchmarking the duration of various
stages of a case and other such variables as recognized by the Court in the
34 Id. ¶ 39(g)(ii).
35 Id. ¶ 19.

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172 McIntyre
S econd Report, may provide some limited information on the Court’s perfor-
mance over time including, importantly, whether the progressive settlement
of contested issues of procedure and jurisprudence is having a positive impact
on overall case-related trends.37
For instance, given the Pre-Trial Chamber’s issuance of the Chambers
Practice Manual and the principles set out within that Manual regarding such
procedures as the arrest warrant hearing, one would anticipate that future
hearings on the issuance of an arrest warrant will be conducted more expedi-
tiously than past hearings. By collecting data from past cases to use as a bench-
mark, the Court could measure the impact of the Chambers Practice Manual
on procedures such as the arrest warrant hearing and hopefully demonstrate
an improvement in expeditiousness with respect to this particular procedure
as well as with regard to other relevant elements of the pre-trial proceedings
addressed by the Chambers Practice Manual.38
Such a comparative analysis would allow the Court to showcase the actual
impact of reforms undertaken in a valuable way. Importantly, this sort of ap-
proach could be applied in a myriad of other areas of the Court’s operations to
both identify areas warranting targeted efficiency initiatives and identify indi-
cators that will measure the impact of those initiatives. It is not enough for the
Court to measure its performance; it must demonstrate that it is using the data
it collects effectively to improve performance, and it must also be able to com-
municate about such improvement.
This is not the only way in which the lessons learned from national jurisdic-
tions concerning the utility of benchmarking can be deployed at the icc. If
benchmarks from past cases are to be used, the Court could also borrow from
the practice of national jurisdictions and derive from its past cases a range of
time frames from the shortest to the longest for any particular phase in the
proceedings. Provided that a particular phase of a pending case falls within
this time range period, the Court has met its performance goal in relation to
that particular milestone in the specific case. If, instead, a pending case pro-
duces results that fall outside of the benchmarked range, further inquiries
could be made to identify what factors may have led to such a difference.
While benchmarking across different icc cases in the manner just outlined
may offer some benefits, each case is unique and, as the Second Report
advocates,39 this fact should be underscored. Indeed, it is inherently difficult to
reliably estimate the length of any case, especially at the beginning. This fact is
37 Id. ¶ 47.
38 Id.
39 Id. ¶ 36.

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borne out by the experience of the icty and the ictr, where initial predic-
tions on the length of cases were invariably found to be inaccurate, despite
these courts having previous experience with considerably more cases than
have been completed at the icc.40 This is because the performance of a court
in relation to any particular case will turn upon a host of variables that may or
may not be present to varying degrees in other cases.41 Accordingly, a better
approach—which seems to be the approach advocated by the Court in the
Second Report—is to focus on each individual case and on ensuring that the
specific case, with all of its inherent complexities, meets the goal of expedi-
tiousness and fairness (to the extent that expeditiousness is an element of
fairness).42
While not referenced, the approach proposed by the Court is similar to that
adopted by the icty. As was the practice at the icty, the Court proposes devel-
oping its own case-specific projected timelines at the outset of a case based on
an assessment of the case’s complexity and taking into account a wide range of
other factors, risks, and possible mitigation measures, and then to track its per-
formance against those projections.43
As the experience of the icty demonstrates, there are important advantag-
es to be gained from the Court establishing projections in relation to individual
cases in this manner, advantages that go above and beyond the ability to track
expeditiousness. While early estimates of the amount of time that will be tak-
en for each stage of the proceedings may be inherently unreliable, the process
of setting goals for the duration of a case (and of its phases) encourages proper
management and the identification and communication about problems en-
countered at various stages of the proceedings with a view to addressing such
problems in a timely manner.
By monitoring the progress of a case against initial (or updated) projections,
the icty was able to demonstrate its commitment to efficiency and to explain
the complexities of its proceedings. This approach has also promoted both
40 See United Nations Security Council, Report of the Office of Internal Oversight Services,
Evaluation of the Methods and Work of the International Tribunal for the Former Yugoslavia,
U.N. Doc. A/70/873-S/2016/441 at ¶¶ 29–32 (2016), https://oios.un.org/page/download2/
id/26 (last visited July 11, 2018).
42 Id. ¶¶ 36–37.
43 Id. ¶ 37:
(T)he different phases in the ‘life’ of a case can provide working assumptions for the
likely overall duration per case. If and where delays are incurred vis-à-vis the timelines
set by a chamber, the reasons for such delays can be documented for purposes of
transparency and lessons learnt with a view to developing improved ways over time
for anticipating and managing such difficulties.

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174 McIntyre
greater transparency and accountability at the icty. But more fundamentally,

the adoption of time frames for the completion of cases and a continuous eye
on measures to meet those time frames helped to create a culture of efficiency
at the icty, involving all of the Tribunal’s organs in a shared commitment to
the expeditious completion of the Tribunal’s work. It could do the same for the
icc.
IV Taking into Account Perceptions and the External Impact of the

Court’s Work Will Make the Court’s Performance Assessment More
Meaningful
One of the dangers of undertaking a performance assessment that is primarily,
if not exclusively, inward-looking is that it ignores external perceptions of the
work of the institution. The importance of such perceptions to the icc’s ability
to carry out its work and to its legitimacy cannot be overstated. Indeed, with
respect to the Court’s fourth goal (victim access to the Court), the Second Re-
port already indicates that the Court appreciates that it cannot ignore external
perceptions of its work or its constituency.44
However, much more should be done vis-à-vis the collection of data con-
cerning perceptions and impact so as to ensure a comprehensive and holistic
assessment of the Court’s performance. Nowhere is this truer than in relation
to the Court’s performance in terms of fairness.
According to the Second Report, some aspects of the icc’s work, while of
central importance, can be difficult to measure in practice. This is, the Court
suggests, particularly true with regard to assessment of the fairness of the
Court’s proceedings, which is a component of the Court’s first key goal. Indeed,
in terms of assessing the fairness of proceedings under goal one, the Court
does not identify any indicators separate from those concerning the expedi-
tiousness of the proceedings, instead suggesting that the indicators adopted in
that regard “seek to measure relevant aspects” of expeditiousness and fairness
taken together.45 Moreover, the concept of fairness is, in many ways, culturally
bound and, as the Second Report suggests, contested.46
However, the fact that it may be difficult to measure the Court’s perfor-
mance with regard to ensuring fair proceedings does not mean that the Court
44 Id. ¶ 78.
45 Id. ¶ 34. International Criminal Court, First Report, supra note 8, ¶ 29:
While fairness of proceedings cannot be directly measured, some potential indicators
may be identified: (a) % of findings by Chambers confirming fair trial violations pur-
suant to motions of the parties; (b) % of grounds of appeals successfully arguing fair
trial violations in Chamber decisions or judgments.
46 International Criminal Court, Second Report, supra note 2, ¶31.

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should abandon any effort to collect information as to this particular compo-

nent of goal one, or that it should assume that fairness will be accurately and
sufficiently reflected in measurements aimed at assessing the expeditiousness
of the proceedings. These two principles are not synonymous, and it would be
dangerously reductive to treat them as if they were. It is therefore important
for the Court to gather information related to fairness in particular.
The hurdles in this regard are not insurmountable. As the Court itself recog-
nizes in the Second Report, there are a host of different ways that fairness
could be measured, such as measures related to time given to the defense.47 In
addition, as the Court recognized in the First Report, potential indicators in-
clude the percentage of findings by Chambers confirming fair trial violations,
and the percentage of grounds of appeal successfully arguing fair trial viola-
tions.48 The Second Report further notes that the Chambers, the Office of the
Prosecutor, and the Registry all have distinctive roles and responsibilities in
ensuring fairness,49 though no organ-specific performance indicators are set
out in the Second Report. More could be done in this respect. Other more gen-
eral measures, such as indicators designed to compare how many contested
prosecution motions were granted versus how many contested defense mo-
tions were granted and the types of motions involved, might also yield impor-
tant information.
But the measures just mentioned, while undoubtedly relevant, are not suf-
ficient. Given the contested and variable nature of the concept of fairness and
the environment in which the Court operates (where perceptions of the Court
by all stakeholders matter), it would be particularly prudent and useful for the
Court to assess not just objective markers such as those identified above but
also subjective ones: perceptions of the fairness of the proceedings of the
Court.
In this respect, and following the practice of many national jurisdictions,
the Court should survey its constituency—including members of the public in
the affected communities, counsel appearing before the Court, and others—
on their perceptions of the fairness of the proceedings. While in the Second
Report the Court shies away from the collection of quantitative data through
the use of surveys due to resources concerns,50 with the availability of on-line
electronic tools such as SurveyMonkey, the Court’s own assessment of relevant
professional and public constituents does not need to be resource intensive.
47 See id. ¶¶ 31–33.

48 International Criminal Court, First Report, supra note 8, ¶ 29.
50 Id. ¶ 82.

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176 McIntyre
(Other possibilities involving partnerships with external bodies are discussed

below and in the Second Report.)51
Accepting that fairness may mean different things to different constituents,
the Court could craft particular questions to pose to particular stakeholders.
For example, to counsel appearing before the Court, the question could be
posed “Do you consider the proceedings were fair in the sense of each party
being offered an equal opportunity to present their case?” The Court could
pose the same question to other legal professionals and judges who follow the
Court’s proceedings. To victims impacted by the proceedings or the population
of the situation country, however, the Court could administer through the Of-
fice of Public Counsel for Victims (or seek the assistance of an on the ground
non-governmental organization to administer) simple surveys focused on per-
ceptions of the fairness of the Courts’ proceedings in relation to a particular
case. For example, victims could be asked: “Do you think the proceedings were
fair to the extent that victims were given a reasonable opportunity to present
their issues to the Court?”
In addition, the Court could survey other relevant stakeholders, such as
members of the Assembly of States Parties, by asking questions related to defi-
nitions and perceptions of fairness, doing so once again through a simple
means such as SurveyMonkey.
The collection of data regarding perceptions of fairness of the Court’s work
and proceedings from a broad range of stakeholders may assist the Court in
understanding how its performance is perceived by relevant stakeholders and
address areas of misunderstanding or dissatisfaction. This is particularly im-
portant given that perceptions of fairness of proceedings at the icc directly
impact the icc’s legitimacy as a court.
The use of survey tools to assess performance can be applied to other goals
as well. Indeed, with respect to assessing the second goal—the icc’s leader-
ship and management are effective—it is important that the icc not ignore
the perceptions of relevant stakeholders both external and internal to the
Court, including the staff of the institution (as set forth above and below), the
Assembly of States Parties, and civil society. Adopting the practice of national
jurisdictions, the icc could administer simple surveys asking questions regard-
ing the effectiveness of the Court’s leadership and management, and the an-
swers obtained could be a helpful means to alert the Court to perceptions and
provide the opportunity for Court leadership to correct misperceptions or ad-
dress criticisms and demonstrate a commitment to improving perceptions.
51 See id.

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The collection of information from staff would be particularly meaningful

in this regard. Numerous national jurisdictions recognize the impact of em-
ployee commitment and morale on the performance of an institution. Indeed,
research indicates that “a high level of employee engagement—its creation
and maintenance—is one of the most crucial imperatives of any successful
organization” and “(i)t is characterized as a proxy for court excellence insofar
as employee engagement correlates with individual, group and organizational
performance in areas such as retention, turnover, productivity, customer
service and loyalty.”52 Given the importance of employee commitment and
morale to the success of any organization, drawing on the practice of national
jurisdictions, the Court could at the very least determine through simple sur-
veys the percentage of employees “who indicate […] that they are productively
and positively engaged in the mission and work of the court.”53
V The icc Does Not Need to Undertake Performance Assessment in

Isolation and Can Productively Partner with Civil Society, Academia,
and Other Interested Parties to Maximize the Utility of the
Performance Assessment Process
According to the Second Report, for “the purpose of developing Court-wide
indicators, the Court needs to be modest and concentrate on a reduced num-
ber of measurable criteria that adequately reflect the overall operational per-
formance of the Court without overburdening the exercise with too many cri-
teria and details.”54 It is likewise noted that the development and refinement
of performance indicators per organ, in relation to States Parties’ cooperation
and concerning other factors, will have to take place in future, if at all.55
The Court’s instinct to limit the performance assessment process in light of
the icc’s limited resources is entirely understandable. Indeed, there is a real
risk for any organization adopting performance targets that those targets and
related performance assessments will take on an outsized importance as com-
pared with the institution’s core work. That said, there is also a risk that under-
taking performance assessment in a way that is too modest or minimalist will
undercut the overall utility of the project.
52 Dan H. Hall & Ingo Keilitz, International Framework for Court Excellence, Global Mea-
sures of Court Performance, Discussion Draft Version 3, at 4 (Nov. 9, 2012), http://www
.courtexcellence.com/~/media/microsites/files/icce/global%20measures_v3_11_2012.
ashx (last visited July 11, 2018).
53 Id.
54 International Criminal Court, Second Report, supra note 2, ¶ 21 (emphasis in original).
55 Id. ¶ 28.

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178 McIntyre
If the icc is to make its own performance assessment process meaningful,

it would do well to take specific steps to ensure that this exercise is properly
resourced and prioritized, including integrating performance assessment tasks
into management procedures, staff performance plans, and evaluations. Allo-
cating clear roles and responsibilities, setting explicit objectives, ensuring ad-
equate training, and seeking to improve upon processes and results in regular
cycles, would all be important ways to facilitate the performance assessment
process.
More generally, and as set forth above, there is real value in ensuring that
the performance assessment process be rendered more holistic, more compre-
hensive, and more useful now, rather than waiting for this to occur in some
undefined future. A solution must therefore be swiftly found that will enable
the Court to engage in a more meaningful performance assessment process
without going beyond those resources that it can reasonably devote to the
process.
One such approach would be to look outside of the Court and find other
organizations and individuals to partner with in collecting and evaluating data
related to the Court’s performance, particularly where such data relates to ex-
ternal factors or interlocutors. This is something that the icc has already con-
sidered with respect to its fourth goal. In this regard, the Court advocates the
collection of data from victims through the use of surveys and, due to resource
concerns, notes the possibility of engaging with other bodies and institutions
involved with international criminal justice to assist with this work.56 The
Court could adopt a similar approach with respect to gathering relevant data
in relation to many of the other aspects of its work discussed above. The colla-
tion of survey and other data in this manner by partners such as non-
governmental organizations and academic institutions will allow the Court to
bring greater meaning to its own data collection efforts and measures (which,
as the Court itself acknowledges, must be understood in context)57 while at
the same time allowing the Court to use its limited resources in the most
meaningful ways possible.
3 Conclusion
In presenting its Second Report, the Court is careful to indicate that its devel-
opment of performance indicators is a work in progress and that the Second
56 Id. ¶¶ 80–82.
57 Id. ¶ 24.

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Report is “a first attempt at an international level to provide a holistic picture

of judicial activities through performance indicators” that may need to be
modified “as some factors may turn out to be less relevant that others, and
further indicators may need to be added.”58
Given the scope of the Court’s undertaking with regard to the development
of performance indicators and its pioneering role in that respect, it is perhaps
not surprising that the icc is proposing that its approach to performance as-
sessment will evolve and grow over time. While some degree of growth and
evolution are inevitable, it is nevertheless essential that a more concerted ef-
fort be undertaken now to ensure a more holistic approach to performance
assessment. A piecemeal or partial approach, or one that proceeds without
having been purposefully designed to yield meaningful information, risks be-
ing misleading, of minimal utility, or both.
As set forth above, the icc does not operate in a vacuum; it operates in a
system—the Rome system—and for a performance assessment to be mean-
ingful, it must take full account of the impacts of that system on the perfor-
mance of the Court as well as the Court’s impact on external stakeholders. The
icc should measure what matters, the fundamentals that are critical to the
success of the Court, and do so in a way that takes account of relevant experi-
ence of other courts and relevant perceptions by stakeholders both inside and
outside the Court. It is by doing all of this that the performance of the icc as a
whole can be properly assessed. And, it is in doing all of this that the Court will
be able to better position itself to effectuate meaningful change, to harness
greater possible efficiencies, and to continue to carry out its mandate in the
best way possible.

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Chapter 16
The Limited Utility of the icc’s Performance

Indicators
Yuval Shany
1 Summary
The four key goals identified by the icc in 2015 and reaffirmed in a slightly
revised version in a Second Report from 2016—expeditious, fair, and trans-
parent proceedings; effective leadership and management; adequate security;
and access for victims to the Court—offer a useful starting point for evalu-
ating the performance of the Court. They have also facilitated the collection
of many relevant performance indicators—quantitative data that enables the
Court, the asp and outside observers to track changes over time in judicial
performance (and to compare it to the practice of other international criminal
courts). Still, one may question how central these key goals are for evaluating
the over-all effectiveness of the icc. In fact, it appears as if the key goals are
a hodgepodge of process and outcome goals, which are related to different
evaluative criteria—judicial effectiveness, cost-effectiveness, and efficiency—
and do not sufficiently relate to the core business of the icc—e.g., ending im-
punity and developing international criminal law. Moreover, one may question
whether the Court is sufficiently sensitive to the risk of availability bias, which
might lead to distorted evaluation of the fulfilment of the four key goals, and
of the overall operations of the Court. Finally, one may question the choice
of “primarily under the control of the court itself” as a reason for narrowly
focusing only on the four key goals. Such a criterion results in an analysis that
ignores the most important goals of the Court, and its application even to the
four key goals is questionable.

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The Limited Utility of the icc’s Performance Indicators 181
2 Argument
The four key goals identified by the icc in 20151 and reaffirmed in a slightly
revised version in a 2016 Second Report2—expeditious, fair, and transparent
proceedings; effective leadership and management; adequate security; and ac-
cess for victims to the Court—offer a useful starting point for evaluating the
performance of the Court. This is because they relate to four important dimen-
sions of the Court’s operations—the manner of conduct of trials and the provi-
sion of information about them, administration of the Court as an interna-
tional organization, ensuring security for those involved in the judicial process,
and addressing the needs of victims. In particular, it would be beneficial for
those monitoring the performance of the Court to make use of the perfor-
mance indicators collected in the periodic reports issued by the Court in order
to evaluate the Court’s operations. Although the Second Report is correct in
cautioning against over-reliance on the data presented3 and in underscoring
the importance of context,4 it does provide an interesting snapshot of the
Court’s work, which allows outside observers to track changes in its perfor-
mance over time and to identify possible causes for fluctuations in the data. It
is regrettable, however, that the Court has not deemed it useful to use perfor-
mance indicators available for other international courts, such as the icty and
ictr, as benchmarks for comparative assessment of the performance of the
icc in those areas where such a comparison may be particularly useful, such as
length of proceedings, number of motions submitted by the parties, transpar-
ency of documents, media coverage, recruitment times, etc.
My more fundamental criticism of the exercise relates, however, to the se-
lection of the key goals. Although the justifications provided in the Second
cators for the International Criminal Court (Nov. 12, 2015) [hereinafter First Report], https://
www.icc-cpi.int/itemsDocuments/Court_report-development_of_performance_indicators-
ENG.pdf (last visited June 21, 2018).
2 International Criminal Court, Second Court’s Report on the Development of Performance
Indicators for the International Criminal Court (Nov. 11, 2016) [hereinafter Second Report],
https://www.icc-cpi.int/itemsDocuments/ICC-Second-Court_report-on-indicators.pdf (last
3 Id. at 6:
For the purpose of developing Court-wide indicators, the Court needs to be modest and
concentrate on a reduced number of measurable criteria that adequately reflect the over-
all operational performance of the Court without overburdening the exercise with too
many criteria and details. Some aspects, while central to key goals of the institution, are
very difficult to measure in practice.
4 Id. (“(A)ll Court-wide performance indicators need to be read and evaluated in their specific
context, particularly where they relate to case-specific performance.”).

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182 Shany
Report for selecting the goals appear sensible—“measurable criteria” and “pri-
marily under the control of the court itself”—and although the Second Report
qualifies the exercise as “work in progress,”5 the Second Report does purport to
reflect the “overall operational performance of the Court.”6 This proposition is
hard to reconcile with the vocabulary of court effectiveness, which foregrounds
other aspects of judicial performance and suggests that, in fact, the key goals
selected may not be as central for evaluation of judicial effectiveness as the
Second Report insinuates.
Arguably, an effective international court is one that fulfills the goals estab-
lished by relevant stakeholders,7 and the normative expectations of the asp—
which is the principal target audience for the performance indicators reports—
take a pride of place in establishing the main goals of the icc. In a previous
work that I co-authored with Sigall Horovitz and Gilad Noam, we claimed that
the icc has been entrusted by its “mandate providers” (i.e. the asp) with the
following goals: ending impunity, encouraging domestic proceedings against
perpetrators, generating deterrence against future crimes, promoting peace
and security, internalization of international criminal law into domestic legal
systems, development of international criminal law, satisfaction of victim
needs, conveying a message of condemnation of international crimes, project-
ing an image of procedural fairness and legitimacy, and—possibly also—
establishing a historical record of atrocities.8 It is striking that only two of the
four key goals are even included in this list and that the Court’s most promi-
nent goals relating to the fight against international crimes—arguably its rai-
son d’être—are excluded.
In fact, with the exception of the fourth goal, the key goals identified pertain
to judicial processes and not to judicial outcomes, a distinction which further
underscores their limited utility. Put bluntly, it is not clear whether fewer or
more prosecution motions, or the number of court days, affects the “overall
operational performance” of the Court; nor is it clear how the implementation
of training programs, or the number of data security incidents, affects judicial
effectiveness. Moreover, the four key goals are a hodgepodge of performance
targets relating to three different evaluative criteria: judicial effectiveness
(goal-attainment), cost-effectiveness (ratio between investment of resources
and outcomes), and efficiency (relationship between positive impacts and
5 Id. at 7 (“The Second Report continues to be work in progress in light of the fact that it is in-
deed a first attempt at an international level to provide a holistic picture of judicial activities
through performance indicators.”).
6 Id. at 6.
7 For a discussion, see Yuval Shany, “Assessing the Effectiveness of International Courts” (2014)
106 The American Journal of International Law, 13–16, 31–35.
8 Id. at 226–237 (with Sigall Horovitz & Gilad Noam).

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costs and other negative externalities). I am of the view that evaluation of op-
erational performance should be conducted with such evaluative criteria in
mind, since conclusions based on performance indicators associated with
each of these criteria are likely to be tied to very different policy reforms, in-
volving very different methods and areas of operation: reforms geared to better
attain the principal goals, reducing Pareto sub-optimal waste, preventing inci-
dental harms, nurturing unintended benefits, etc.
Ultimately, examination of the Second Report raises questions of whether
the Court has been sufficiently sensitive to the risk of availability bias in per-
formance evaluation,9 both in relation to evaluation of the fulfilment of the
four key goals, as well as of other aspects in the “overall operations of the icc.”
With respect to the four goals themselves, the most acute measurement prob-
lem in the Second Report involves the notion of fairness, on which the ap-
proach taken is confusing. On the one hand, the Second Report notes that “care
must be taken to balance speed with fairness”;10 but, on the other hand, it con-
cludes that:
(D)iscussions at Glion and other meetings also highlighted that the con-
cepts of expeditiousness and fairness are in fact intertwined and affect-
ing each other, and that relevant indicators may either relate to both or
that fairness-related values many need to be read in light of expeditious-
ness and vice versa.11
A close look at the Second Report suggests that an important factor which con-
tributed to the decision to collapse the review of fairness and expeditiousness
has been the acknowledged difficulty of measuring fairness.12 So, despite the
grave doubts as to whether performance indicators measuring fairness and ex-
peditiousness are actually correlated,13 the Second Report eventually measures
them together. This looks like availability bias writ large!
9 See Michael J. Albers, Introduction to Quantitative Data Analysis in the Behavioral and So-
cial Sciences (Hoboken: Wiley, 2017), p. 209. The term “availability-bias” was coined by
Tversky and Kahneman to describe distortions in decision making through over-reliance
on readily available information. Amos Tversky and Daniel Kahneman, “Availability:
A Heuristic for Judging Frequency and Probability” (1973) 5 Cognitive Psychology 207.
10 International Criminal Court, Second Report, supra note 2, at 8.
11 Id.
12 Id. at 6 (“This is particularly the case of fairness, which may be very difficult to measure as
such and would require great efforts to identify relevant proxy values instead.”).
13 Id. (“Expeditiousness and fairness are also examples of potentially conflicting goals, re-
flecting the difficulties of measuring the performance of a judicial institution in qualita-
tive terms.”).

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184 Shany
Moreover, as indicated above, the Second Report does not contain informa-
tion, which could throw light on the “overall operations of the Court,” related
to some of its other principal goals such as ending impunity and developing
international criminal law. To the extent that this is related to the associated
measurement problems (which are, no doubt, formidable), this is understand-
able. Still, the Court should then have scaled down even further any claims re-
garding the ability of the four key goals to produce an overall picture of the
Court’s performance and clarify that they merely provide some interesting
data on some aspects—not necessarily the most important aspects—of the
Court’s work. In this context, it is particularly regrettable that the Second Re-
port lacks easily available data on preliminary examinations (such as duration
and investigative activities) and general outreach activities, which could assist
in evaluating the attainment of icc goals other than the four key goals.
Finally, one may question the choice of “primarily under the control of the
court itself” as a reason for focusing only on the four key goals: Not only does
insistence on such a criterion lead to the omission from the analysis of some of
the most important goals of the Court (e.g., ending impunity and internaliza-
tion of international criminal law by State Parties), but even its application to
the four key goals is questionable. As the Second Report indicates, expeditious-
ness of proceedings and implementation of security measures often depend
on cooperation by third parties,14 and it is not clear why such aspects, and not
others, remain “primarily under the control of the court itself.” Furthermore, it
is dubious that the very idea that a meaningful performance evaluation of the
Court, one of whose main “claims to fame” is that it is situated at the heart of a
new international criminal law legal system,15 can be undertaken without ad-
dressing its impact on other elements of the system. To the contrary, it may be
alleged that the ability of the Court to secure legal cooperation from States
Parties, and to motivate them to take actions necessary to advance the goals of
the Court (introduction of new criminal legislation, initiation of criminal pro-
ceedings or referrals, and transfer of suspects), is one of the most important
indicators of the Court’s performance.
14 Id. (“External factors such as local security conditions and the cooperation of local and
international partners can however have a substantial impact on the Court’s ‘own’ perfor-
mance indicators.”). See also Id. at 8 (“The duration of each case is affected by a number of
case-specific factors such as … cooperation of States in providing needed assistance, and
the speed with which such assistance is provided.”).
15 See e.g., David Tolbert, International Criminal Court, Stocktaking: Peace and Justice, Re-
view Conference of the Rome Statute, Doc. No. RC/ST/PJ/M.6, at 8 (Jun. 1, 2010) (“The
Rome Statute and the icc form part of a new legal order”); M. Cherif Bassiouni, Introduc-
tion to International Criminal Law (2d ed. Martinus Nijhoff, 2012), p. 25.

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To conclude, the compilation of performance indicators by the icc is a use-

ful exercise. It may help the Court itself, the asp, and other outside observers
evaluate certain aspect of the Court’s work with a view to forming an opinion
on the Court’s effectiveness, cost-effectiveness, and efficiency. The picture gen-
erated by the Second Report of 2016 is, however, very limited. It focuses on the
attainment of four key goals, while omitting reflection on no-less important
goals of the institution. The Second Report also over-relies on quantitative
data, which raises concerns of an availability bias. Moving forward, it would be
desirable for the Court to expand the list of goals, whose attainment is being
monitored, with a view to including more central “outcome goals,” including
those over which the Court exercises only partial degrees of control. It would
also be desirable for the Court to supplement the quantitative analysis it of-
fered in the Second Report with qualitative research that investigates percep-
tions of key aspects of the Court’s performance. This research should include
the Court’s effectiveness and legitimacy in the eyes of core constituencies in-
cluding defense teams, victims, and outside observers.

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Chapter 17
Performance Indicators: A Double-Edged Sword

Carsten Stahn
1 Summary
The effectiveness of international criminal justice is challenged from many

sides.1 There is an increasing trend among international institutions to respond
to critiques through the development of performance indicators. The icc start-
ed to formalize indicators for its operation in 2015. Such instruments seek to
reply to efficiency critiques, such as concerns related to cost or the length of
proceedings. They are a double-edged sword. There is a risk that they trivialize
the complex nature of international criminal justice. They face many method-
ological challenges. The effects of the icc are more complex and diffuse than
anticipated. Some of the most important effects of icc justice are not measur-
able or quantifiable. Performance indicators are inherently linked to macro
goals. There is a need to broaden perspectives. The assessment of the icc re-
quires a holistic account, which views institutional performance in the context
of systemic considerations and perceptions by a variety of stakeholders. The
icc matters not only to states or global audiences, but mostly to affected societ-
ies. It is thus important to determine what justice goals are important for local
communities. In many cases, the importance of icc proceedings lies not only
in the production of certain judicial outcomes (i.e. cases, trials, reparation), but
in the transformation of certain normative discourses, the creation of common
discursive spaces, or the initiation of longer-term processes. Complementarity
is an important indicator for the success of the Court that complements other
factors such as fairness, independence, and accessibility of justice.
2 Argument
I Introduction
Measuring effects of the icc is a difficult task. For a long time, it was taken
for granted that international criminal justice produces beneficial effects
for accountability, such as delivering effective justice, conducting fair trials,
1 See e.g., Ralph Zacklin, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 J. Int’l Crim.
Just. 541; William Schabas, ‘The Banality of International Justice’ (2013) 11 J. Int’l Crim. Just. 545.

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Performance Indicators: A Double-Edged Sword 187
e nhancing domestic capacity, or contributing to the creation of an internation-

al rule of law. International criminal justice was largely a faith-driven project.2
Deeper and critical inquiry into the effects of international criminal courts and
tribunals has only started with growing critiques and concerns about the per-
formance of international criminal courts and tribunals, and doubts as to the
extent they are able to meet expectations. In this context, it has become more
common to assess performance and validity of courts against quantitative or
technical criteria, such as economic cost-benefit analysis and rational resource
allocation.3
Individual courts and tribunals, such as the icty, ictr, or the Special Court
for Sierra Leone (scsl) have addressed performance and impact-factors as
part of their completion and legacy strategy.4 The icc started to develop per-
formance indicators in 2015. It has taken a relatively modest point of depar-
ture. It has identified four key goals as reference: Expeditiousness, fairness and
transparency of proceedings, effective leadership and management, adequate
security of its work, and adequate access of victims to the Court.5 Efforts inside
criminal courts and tribunals are complemented by emerging studies on the
legal and societal impact of the practice of the icc.6 Some studies have found
2 Carsten Stahn, “Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess Interna-
tional Criminal Justice?” (2012) 25 Leiden J. Int’l L. 251, earlier version (Oct. 31, 2011), https://
openaccess.leidenuniv.nl/bitstream/handle/1887/19651/Oratie%20Stahn.pdf (last visited
July 11, 2018). David Koller, “The Faith of the International Criminal Lawyer” (2008) 40 n.y.u.
J. Int’l L. & Pol. 1019.
3 See Yuval Shany, Assessing the Effectiveness of International Courts (Oxford: Oxford University
Press, 2014).
4 On the icty, see Diane F. Orentlicher, Open Society Justice Initiative, Shrinking the Space for
Denial: The Impact of the icty in Serbia (May 1, 2008), https://www.opensocietyfoundations.
org/sites/default/files/serbia_20080501.pdf (last visited June 21, 2018). On the scsl, see Anto-
nio Cassese, Report on the Special Court for Sierra Leone Submitted by the Independent
Expert (Dec. 12, 2006), http://www.rscsl.org/Documents/Cassese%20Report.pdf (last visited
July 11, 2018); Office of the UN High Commissioner for Human Rights, Maximising the Legacy
of Hybrid Courts, U.N. Doc. HR/PUB/08/2 (2008).
cators for the International Criminal Court (Nov. 12, 2015), https://www.icc-cpi.int/itemsDoc-
uments/Court_report-development_of_performance_indicators-ENG.pdf (last visited June
21, 2018); International Criminal Court, Second Court’s Report on the Development of Perfor-
mance Indicators for the International Criminal Court (Nov. 11, 2016) [hereinafter Second
Report], https://www.icc-cpi.int/itemsDocuments/ICC-Second-Court_report-on-indicators.
pdf (last visited June 21, 2018).
6 A number of situation-specific surveys have been conducted over the past years. See Phu-
ong Pham, Patrick Vinck, Marieke Wierda, Eric Stover & Adrian di Giovanni, ictj, Forgotten
Voices: A Population-Based Survey on Attitudes About Peace and Justice in Northern Uganda
(Jul. 2005), https://www.law.berkeley.edu/files/HRC/Publications_Forgotten-Voices_07-2005.
pdf; Phuong Pham, Patrick Vinck, Eric Stover, Andrew Moss, Marieke Wierda & Richard Bai-
ley, UC Berkeley Human Rights Center, et al., When the War Ends: A Population-Based Survey

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188 Stahn
that trials have a positive effect on human rights practices by virtue of a num-
ber of normative (social alarm, demonstration effect) and coercive factors, like
punishment and enforcement.7 International criminal justice has been cred-
ited for providing visibility to the plight of hundreds of thousands of victims of
crimes. But lenses and indicators to assess impact remain contested. There is
no one-size-fits-all formula.8 Anthropologists, such as Sally Engle Merry, cau-
tion against the temptation to measure effects of accountability mechanisms
in quantitative terms.9 Another warns that statistical references may easily
turn into an advocacy tool.10
This contribution discusses some of the merits and weaknesses of existing
icc approaches to assessing impact and performance. It analyzes the icc’s
choice of indicators, their link to macro goals, comparators for icc perfor-
mance, and the role of context. It argues that some fundamental premises of
icc approaches deserve reconsideration. It concludes with some recommen-
dations to improve the status quo.
II Indicators: from a 2D to a 3D Vision

The existing icc framework is largely ICC-centric. It is heavily focused on
icc operations. It is two-dimensional in its approach. It assesses icc opera-
tions mainly from two main angles: (i) input—the relevance of certain pro-
cedural and operational elements underlining icc action (e.g., inclusiveness,
on Attitudes about Peace, Justice, and Social Reconstruction in Northern Uganda (Dec. 2007),
https://www.law.berkeley.edu/files/HRC/Publications_Forgotten-Voices_07-2005.pdf
(last visited June 20, 2018); Patrick Vinck, Phuong Pham, Suliman Baldo & Rachel Shigekane,
UC Berkeley Human Rights Center, et al., Living with Fear: A Population-based Survey on
Attitudes about Peace, Justice, and Social Reconstruction in Eastern Democratic Republic
of Congo (Aug. 2008), https://www.ictj.org/sites/default/files/ICTJ-DRC-Attitudes-Justice-
2008-English.pdf (last visited June 20, 2018); Stephen Smith Cody, Eric Stover, Mychelle
Balthazard & K. Alexa Koenig, UC Berkeley Human Rights Center, The Victims’ Court?:
A Study of 622 Victim Participants at the International Criminal Court (2015), https://www
.law.berkeley.edu/wp-content/uploads/2015/04/VP_report_2015_final_full2.pdf (last vis-
ited June 20, 2018).
7 Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World
Politics (New York: W.W. Norton & Company, 2011); Hun Joon Kim and Kathryn Sikkink,
“How Do Human Rights Prosecutions Improve Human Rights After Transition?” (2012–13)
7 International Journal of Human Rights Law 69. For a critique, see Padraig McAuliffe, “The
Roots of Transitional Accountability: Interrogating the ‘Justice Cascade’” (2013) 9 Int’l J.L.
Context 106.
8 Oskar N.T. Thoms, James Ron and Roland Paris, “State-Level Effects of Transitional Jus-
tice: What Do We Know?” (2010) 4 International Journal of Transitional Justice 329.
9 Sally Engle Merry, “Measuring the World: Indicators, Human Rights, and Global Gover-
nance” (2011) 52 Current Anthropology 83.
10 McAuliffe, supra note 7, at 106 (“advocacy cascade”).

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t ransparency of proceedings); and (ii) output—fair and effective outcomes.11 It

largely misses an essential third dimension, namely its relation to affected con-
stituencies. This focus is of key importance. Performance assessment should
not be a one-way street or a self-serving exercise of performance validation. It
requires a relational account which takes into account how justice is commu-
nicated and perceived. The icc matters to states or global audiences, but most-
ly to countries and societies where the crimes are committed. For instance, the
fact that a trial constitutes a success from the perspective of the icc does not
necessarily imply that it brings justice for local communities. Similarly, fair-
ness (e.g., the fair treatment of participants in the process and the equal and
unbiased application of norms and standards) is often as much about action
as it is about perception. Thus far, such a relational perspective is only partially
taken into account in icc policy, namely in relation to the Second Report’s
Goal 3—victim access to the Court.12
The narrow focus on input and output stands in contrast with the experi-
ences of icc practice. The effects of icc action are far more complex and di-
verse than the Rome Statute drafters expected.13 The Court has produced many
unanticipated effects and certain outcomes that go beyond mere rationaliza-
tion. The virtue of icc engagement is often more abstract and diffuse than
suggested. Its strength lies in the affirmation of respect for law, the reinforce-
ment of certain legal or moral norms, broader narrative or didactic functions,
or even symbolic functions (e.g., recognition as a victim, collective reparation)14
Measuring performance simply in terms of the number of icc cases, or the
expeditiousness, fairness, or inclusiveness of proceedings, fails to take into ac-
count this complexity. For instance, it does not explain why icc proceedings
11 For a broader account, see Barbara M. Oomen, “Justice Mechanisms and the Question of
Legitimacy: The Example of Rwanda’s Multilayered Justice Mechanisms,” in Kai Ambos,
Judith Large and Marieke Wierda (eds.), Building a Future on Peace and Justice: Studies on
Transitional Justice, Peace and Development: The Nuremberg Declaration on Peace and Jus-
tice (Berlin: Springer, 2009), p. 175.
13 Christian De Vos, Sara Kendall and Carsten Stahn, (eds.), Contested Justice: The Politics and
Practices of International Criminal Court Interventions (Cambridge: Cambridge University
Press, 2015) [hereinafter Contested Justice]; International Criminal Court, Rome Statute of
the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998) [hereinafter
Rome Statute].
14 Mark A. Drumbl, Atrocity, Punishment and International Law (Cambridge: Cambridge
University Press, 2007), p. 12; Robert D. Sloane, “The Expressive Capacity of International
Punishment: The Limits of the National Law Analogy and the Potential of International
Criminal Law” (2007) 43 Stan. J. Int’l L. 39; Mirjan Damaska, “What is the Point of Interna-
tional Criminal Justice?” (2008) 83 Chi.-Kent. L. Rev. 329.

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190 Stahn
may enjoy high societal relevance, although they are highly selective or do not
even result in icc cases. It struggles to explain why icc decisions have strong
normative authority, even though they might suffer from non-compliance.
Many outcomes of icc actions are not concrete results, but processes. For ex-
ample, a key effect of icc proceedings may lie in their broader transformative
effect on justice discourses or the creation of common discursive spaces. These
nuances are sidelined in the existing policy framework.
The Open Society Justice Initiative has suggested a wider taxonomy of indi-
cators. It includes three main types: “operational indicators” that are geared at
assessing the court’s operations, broader “systemic indicators” that view icc
operations in the broader context of the Rome Statute as a system of justice,
and “impact indicators” that take into account “the degree to which people af-
fected by the crimes […] understand and engage with the process, as well as
the court’s legacy.”15 Such a 3D vision provides a more nuanced and richer ac-
count of the complexity of icc justice.
III Goal Relevance

The formulation of indicators is useful if they are not merely technical but tied
to progress towards certain macro goals. Cost-benefit analysis of institutions
typically focuses on quantitative factors, such as the number of trials, the num-
ber of convictions or acquittals, or the length of proceedings. But the value of
the icc goes beyond the quality or fairness of icc trials. There is a need to
place the assessment in perspective in relation to the goals of the icc.
In this context, it is important to distinguish the functions of the institution
as a whole from the objectives of specific proceedings. The icc as an institu-
tion pursues certain broad objectives,16 such as retribution (i.e. prosecution
15 Open Society Justice Initiative, Briefing Paper: Establishing Performance Indicators for
the International Criminal Court, 4 (Nov. 2015), https://www.opensocietyfoundations.
org/sites/default/files/briefing-icc-perforamnce-indicators-20151208.pdf (last visited June
21, 2018).
16 In 2004, the UN Secretary-General outlined a list of broadly defined goals. They include:
retribution (i.e. bringing responsible perpetrators to justice), ending violations and pre-
venting their recurrence, securing justice and dignity for victims, establishing “a record of
past events,” promoting national “reconciliation,” “re-establishing the rule of law,” and
contributing to the “restoration of peace.” See U.N. Secretary-General, The Rule of Law and
Transitional Justice in Conflict and Post-Conflict Societies, ¶ 38, U.N. Doc. S/2004.616
(August 23, 2004), https://www.un.org/ruleoflaw/files/2004%20report.pdf (last visited
July 11, 2018).

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and punishment),17 deterrence,18 prevention, elucidation of facts,19 justice for

victims,20 or strengthening of domestic jurisdiction.21 They are related to the
diverse functions of the Court and the architecture of the Rome Statute. They
are optimization commands linked to the systemic environment of the icc.
Their assessment depends on a balancing of objectives and the perception of
different stakeholders. Proceedings have a more limited function. They give
effect to rights, or pursue specific rationales, such as determining guilt or in-
nocence or revealing a “legal,” rather than a broader “historical truth.”22 The
assessment of operational performance cannot be fully isolated from the un-
derlying macro goals of the institution. They shed a differentiated light on
timeframes and performance.
A good example is the assessment of the length of proceedings. This assess-
ment differs if pace is related not only to criminal adjudication but also to
other objectives such as fact-finding, the establishment of a record, or transfor-
mative goals. A figure of four to five years may appear long for a trial. But it is
less threatening if it is associated with a broader process of the clarification of
historical context. In some cases, from an effectiveness point of view, it may
even be desirable to postpone charges in order to gradually build lines of re-
sponsibility, or to improve the accurateness of charges or the completeness of
justice.23 The passage of time may thus, in some circumstances, represent an
asset and result in a better pursuit of justice. Some of the purported transfor-
mative goals, such as capacity-building or reconciliation, cannot be reached
without a longer-term engagement since they are contingent on recovery and
17 Possible indicators include: number of trials, objectivity and fairness of proceedings, ad-
equate sentencing for crimes, domestic cooperation.
18 Possible indicators include: changes in military strategy of armed forces and civil/military
personnel (cost-benefit analysis), number of human rights violations, enforcement of de-
cisions by domestic agents and judiciaries, political and social support for perpetrators,
number of arrests, limitation of safe havens.
19 Possible indicators include: substantiated record of incidents and events in charges and
decisions, accommodation of different narratives of conflict in charges and testimony,
societal responses to judicial decisions.
20 Possible indicators include: status and treatment of victims in judicial proceedings, post-
testimony satisfaction of victims, satisfaction with reparation, mobilization of other al-
ternative forms of justice.
21 Possible indicators include: implementation of crimes in domestic law, public confidence
in the domestic justice system, reform of domestic institutions.
22 See generally Richard A. Wilson, Writing History in International Trials (New York: Cam-
bridge University Press, 2011).
23 Alex Whiting, “In International Criminal Prosecutions, Justice Delayed Can Be Justice De-
livered” (2009) 50 Harv. Int’l L.J. 323, 331–33.

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192 Stahn
stabilization. The weighing of these goals may require the icc to balance expe-
diency against the need for expending time.
It is thus unrealistic to define absolute benchmarks. The main challenge is
rather to define acceptable limits of tolerance and to set operational perfor-
mance within the context of icc goals.
IV Relevant Comparators
The assessment of performance depends on the relevant comparator. The
problem is that there is no direct reference point. As the Court has rightly not-
ed, it is misguided to compare the length of icc investigations or trial statistics
to traditional domestic cases.24 A more appropriate comparison are cases of
other international criminal courts and tribunals or transnational crime cases.
Such cases are not directly comparable25 but may provide approximations.
From this perspective, the actual length of proceedings may be less dramatic
than conventional wisdom suggests. The length of international criminal pro-
ceedings is driven by a wide range of factors, such as the context-driven nature
of atrocity crime, the scope and complexity of the charges, the level of respon-
sibility of defendants, the number of suspects, the availability of evidence, or
the number of motions filed. A comparative study has shown that internation-
al cases are only “modestly slower” than complex cases in domestic settings.26
For instance, in complex transnational crime cases, it is not unusual that pro-
ceedings take between five to eight years from investigation to completion.27
V Context
One key dilemma of assessing icc performance is the unpredictability of out-
comes and the indeterminacy of causal pathways. The operation of indicators

25 There are various differences between the icc and the ad hoc tribunals. They relate to the
selection and scope of situations; the application of complementarity (Rome Statute, arts.
17–19); the investigative mandate, including the obligation to investigate both incriminat-
ing and exonerating circumstances (art. 54(1)); the confirmation hearing (art. 61); the par-
ticipation of victims at the various stages of the proceedings (art. 68(3)); and the need to
provide for reparation proceedings (art.75).
26 Jean Galbraith, “The Pace of International Criminal Justice” (2009) 31 Mich. J. Int’l L. 79,
142.
27 See European Commission for the Efficiency of Justice, Length of Court Proceedings in
the Member States of the Council of Europe Based on the Case Law of the European
Court of Human Rights (2d ed, Jul. 2011), https://www.euromed-justice.eu/en/system/
files/20090706165340_Lengthofcourtproceedings.basedonthecaselawoftheEuropean-
CourtofHumanRights.pdf (last visited July 11, 2018).

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is heavily influenced by contextual factors, including factors that are beyond

the control of the icc.
Many of the existing icc indicators, such as fairness of proceedings, securi-
ty, or access of victims to icc justice, cannot be assessed separately from other
influences, but rather result from a combination of factors. For instance, the
Katanga case has shown that icc operation may be a partial success in relation
to one factor (e.g. victim participation), but doubtful in relation to others (e.g.
fairness to the defendant).28 Indicators, such as security or access of victims to
justice, depend on the timing of icc intervention (e.g. in conflict or after con-
flict), relevant State support, the length of icc engagement, and capacity/re-
sources. It remains difficult to deal with the role of unintended effects.29 Some
of these effects, such as the mobilization of civil society or domestic alliances
to increase accountability, are positive.30 Others are negative (e.g. a risk of de-
railing peace negotiations, rising victim expectations, or the “mimicking” of
icc processes at the domestic level).31 Neither all positive nor all negative
effects can be solely attributed to the icc. For instance, even a perfectly run
icc trial with inclusive reparation might fail to reconcile tensions among vic-
tim groups, since the perception of reality by these groups is heavily shaped by
certain emotional or rational factors (e.g. prior attitudes, beliefs, narratives)
28 For analysis, see Carsten Stahn, “Justice Delivered or Justice Denied? The Legacy of the
Katanga Judgment” (2014) 12 J. Int’l Crim. Just. 809.
29 For a study of unintended effects in peace operations, see Chiyuki Aoi, Cedric de Coning
and Ramesh Thakur (eds.), Unintended Consequences of Peacekeeping Operations (Tokyo:
United Nations University Press, 2007), p. 6. On unintended effects in the icc context, see
Alejandra Espinosa, Exploring the Unintended Effects of icc Intervention on the Domes-
tic Politics of the drc, Sudan, and Kenya, Special Working Paper Series on “Unintended
Effects of International Cooperation” (Jan. 2017), http://www.ru.nl/publish/pages/814787/
alejandra_espinosa_2017_3.pdf (last visited July 11, 2018).
30 Geoff Dancy and Florencia Montal, “Unintended Positive Complementarity: Why Inter-
national Criminal Court Investigations Increase Domestic Human Rights Prosecutions”
111 Am. J. Int’l L. (forthcoming 2017), earlier version (Jan. 20, 2015).
31 Sarah Nouwen has shown that complementarity becomes ambivalent, if domestic actors
simply imitate the normative and procedural universe of the icc. See Sarah M.H. Nouw-
en, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal
Court in Uganda and Sudan (Cambridge: Cambridge University Press, 2013), p. 413. See
also Christian De Vos, “All Roads Lead to Rome: Implementation and Domestic Politics in
Kenya and Uganda,” in Christian De Vos, Sara Kendall and Carsten Stahn, (eds.), Contested
Justice, supra note 13, at pp. 379, 402–407. Christian De Vos, Sara Kendall and Carsten
Stahn, (eds.), Contested Justice: The Politics and Practices of International Criminal Court
Interventions (Cambridge: Cambridge University Press, 2015) [hereinafter Contested
Justice].

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194 Stahn
that impede engagement with other views.32 There is thus a need to differenti-
ate among measurable and non-measurable outcomes, intended and unin-
tended effects, and long-term and short-term impacts, and to develop criteria
determining the correlation of cause and effect.
A weakness of the icc framework is that it fails to differentiate sufficiently
between different stages of proceedings. The current focus is selective. It relates
to criminal proceedings, i.e. pre-trial and trial. But much of the activity of the
Court takes place before the start of the case. For example, preliminary exami-
nations have turned into one of the most important areas of activities of the
Court.33 The drafters of the Rome Statute anticipated that preliminary examina-
tions would mark a gateway to investigations and cases. But practice has shown
that preliminary examinations have a genuine function of their own, even if
they do not culminate in cases before the icc.34 They may draw alert to atroci-
ties or serve as an incentive for domestic investigations and prosecutions.
The concept of complementarity deserves a more prominent role in the as-
sessment of icc justice. It marks a key indicator to determine to what extent
the system of the Court functions in context. The icc has made some steps in
this direction. It has implicitly recognized that complementarity provides a
means to guide “exit” from situations.35 It has noted that the “ability of the
domestic jurisdiction to exercise its primacy over the crimes” requires attention
in the “progressive completion of the icc’s activities in a situation.”36 But the
role of complementarity extends beyond “exit.” It is a recurrent feature from
preliminary examination until trial. Former icc Prosecutor Luis Moreno-
Ocampo has alluded to the importance of complementarity, when noting that
the “number of cases before the Court should not be a measure of its e fficiency,”
32 On the icty, see Marko Milanović, “The Impact of the icty on the Former Yugoslavia: An
Anticipatory Postmortem” (2016) 110 Am. J. Int’l L. 233.
33 Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Ex-
aminations (Nov. 2013), https://www.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_Prelimi
nary_Examinations_2013-ENG.pdf (last visited June 21, 2018).
34 See Carsten Stahn, “Damned If You Do, Damned If You Don’t: Challenges and Critiques of
icc Preliminary Examinations” (2017) J. Int’l Crim. Just. (forthcoming Apr. 2017), https://
papers.ssrn.com/sol3/papers.cfm?abstract_id=2945466 (last visited July 11, 2018).
35 Elizabeth Evenson and Alison Smith, “Completion, Legacy and Complementarity at the
icc,” in Carsten Stahn (ed.), The Law and Practice of the International Criminal Court
(Cambridge: Oxford University Press, 2015), p. 1259.
36 Assembly of States Parties, International Criminal Court, Report of the Court on Comple-
mentarity: Completion of icc Activities in a Situation Country, Doc. No. ICC-asp/12/32, ¶ 29
(Oct. 15, 2013).

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but rather the regular functioning of national institutions.37 The idea that the
success of the Court is related to its complementarity “footprint” deserves fur-
ther clarification. Complementarity is not necessarily an institution-related
indicator. But it may serve as an important systemic indicator related to the
functioning of the Rome Statute. The key test is not necessarily whether states
have law on the books that implement or copy icc crimes and procedures, but
rather to what extent they “internalize” them in an equivalent form.38 Experi-
ence from icc situations suggests that mere domestication of laws and proce-
dures alone (e.g. through lawmaking) does not ensure effective justice.39 It is
important to assess whether and how they are effectively applied in the do-
mestic realm by legislative, executive, or judicial bodies.
VI Some Recommendations
The attempt to develop indicators for an assessment of performance is a
double-edged sword. It is driven by a desire to counter some of the critiques
that the icc faces. But it faces many methodological challenges. It should not
be used as an instrument to market icc performance40 or to assert its superi-
ority. One risk of the existing framework is that it trivializes icc justice. Some
caution is required in order to avoid counter-productive side effects.
First, it is important to resist the temptation to quantify all aspects of icc
practice. Quantification may detract from the value of the icc. It is necessary
to go beyond mere technical analysis in order to understand the Court’s di-
verse impact. Some of the most important contributions of the icc have been
on a broader normative level—i.e. through social alarm, expressivist functions,
demonstration effects, impact on discourse, etc.—rather than actual enforce-
ment. These contributions easily get lost in an economic cost-benefit analysis.
Second, the existing indicators should be related more clearly to the na-
ture and purpose of the icc. The focus on operational practices is too nar
row. A deeper understanding of icc justice requires a more holistic approach,
37 Luis Moreno-Ocampo, International Criminal Court, Ceremony for the Solemn Under-
taking of the Chief Prosecutor of the International Criminal Court 2 (Jun. 2003), http://
www.iccnow.org/documents/MorenoOcampo16June03.pdf.
38 On complementarity and norm internalization, see Jann K. Kleffner, Complementarity in
the Rome Statute and National Criminal Jurisdictions (Oxford: Oxford University Press,
2008), p. 309.
39 See supra note 31.
40 Christine Schwöbel, “The Market and Marketing Culture of International Criminal Law,”
in Christine Schwöbel (ed.), Critical Approaches to International Criminal Law—An Intro-
duction (Oxon: Routledge, 2014), p. 264.

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196 Stahn
including consideration of systemic factors. Complementarity plays a key

role. As Valerie Arnould has argued:
(Q)uestions of the icc’s success should be approached by exploring the

local changes it produces and how this interacts with broader processes
of social, political, and institutional change at the local level in which the
icc’s operations are necessarily embedded.41
Third, the differences between different stages of the proceedings need to

be articulated more clearly. Factors such as fairness, expeditiousness, or access
of victims to justice, apply in different forms during preliminary examination,
investigation, pre-trial, or trial stages. They must therefore be assessed by part-
ly different methods.
Fourth, impact assessment is not a one-way street. It requires dialogue and
engagement with affected entities. External perspectives serve as an impor-
tant check on the Court’s goals and ambitions. Outreach, demonstration of
misunderstandings, or identification of inflated expectations alone do not suf-
fice to address icc critiques. It is necessary to better analyze how perceptions
about the icc are formed and by what factors they are shaped. The existing
framework is strongly oriented towards states and international audiences.
A key challenge is to inquire more deeply what justice goals matter for local
communities.
41 Valerie Arnould, Rethinking what icc Success Means at the Bemba Trial, openDemocracy,
(Sep. 14, 2016), https://www.opendemocracy.net/openglobalrights/valerie-arnould/re
thinking-what-icc-success-means-at-bemba-trial (last visited Jun. 28, 2017).

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Part 5

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Article 8 of the Rome Statute provides for jurisdiction over the crime of aggres-
sion, but it was agreed at the Rome conference that jurisdiction would not be
activated until four important issues could be resolved. First, the crime of ag-
gression had to be defined. Second, the role of the UN Security Council in re-
ferring a case to the Court needed to be specified. Third, the States Parties
needed to decide precisely who would be the principal individuals to be held
responsible and prosecuted for the crime. Fourth, to what extent, if any, would
the Court have jurisdiction over nationals from states not accepting the legal
provisions that would activate jurisdiction over the crime of aggression.
These issues were addressed largely by amendments adopted at the Kam-
pala Review Conference in 2010 and by the terms of the States Parties’ decision
to activate the crime of aggression in December 2017. However, as suggested by
the essays in this Part 5, some ambiguities remain. Moreover, even within the
confines of the law, the Prosecutor will face important policy questions and
the Court will be faced with several challenges in applying the law.
Part 5 addresses the four questions above from both legal and policy per-
spectives. Benoit d’Aboville offers an overview of the four questions and Dapo
Akande presents an authoritative legal analysis of the fourth question, which
many consider the most controversial. Some contributors, such as Yoram Din-
stein and Sarah Sewell, urge a conservative or restrained approach to applying
the law in particular circumstances. For example, Dinstein urges the Prosecu-
tor to exercise caution in proceeding with a proprio motu investigation of the
crime of aggression unless there is a green light from the UN Security Council.
And in cases of humanitarian intervention, Sewell urges the Prosecutor to
adopt a conservative approach to its mandate so as not to deter humanitarian
intervention, which is not yet an exception to the UN Charter prohibition on
states’ use of force. Other commentators, such as Donald M. Ferencz and Tom
Ruys, express concern that if the Prosecutor or the Court were too restrained in
exercising discretion, they could erode the legal framework governing use of
force.
The following question was featured on www.iccForum.com from February
2018 through June 2018:

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The Crime of Aggression Issue 199
What should be the policy and approach of the Office of the Prosecutor
in conducting investigations and prosecutions with regard to the crime
of aggression?
At the 26th session of the Assembly of States Parties (“asp”) on 4–14
December 2017, States Parties decided to activate the jurisdiction of the
International Criminal Court (the “Court”) over the crime of aggression.
According to the amendments adopted at the Review Conference of
the Rome Statute (the “Statute”) in 2010 in Kampala, Uganda, the Court
may, after 1 January 2017, exercise jurisdiction over the crime of aggres-
sion, as defined in Article 8 bis, on condition that thirty States Parties
have ratified the amendments, and subject to an asp decision to activate
that jurisdiction. As at this writing, thirty-four States Parties have ratified
the amendments.
Determining the conditions for the exercise of the Court’s jurisdiction
over the crime of aggression, including the role of the United Nations
Security Council (the “Security Council”), was a contentious issue at
Kampala. The Kampala Amendments establish three paths for the exer-
cise of jurisdiction over the crime of aggression: referral by a State Party
pursuant to Articles 13 (a) and 15 bis, unless the State Party alleged to have
committed an act of aggression has previously declared that it does not
accept such jurisdiction; referral by the Security Council pursuant to Ar-
ticles 13 (b) and 15 ter; or referral by the Prosecutor proprio motu pursuant
to Articles 13 (c) and 15, once he or she has concluded there is a reason-
able basis to proceed with an investigation in respect of a crime of aggres-
sion, and all other conditions set out in Article 15 bis are met. Article 15 bis
(7) provides that if the Security Council has made a determination of an
act of aggression by a State, the Prosecutor may proceed; if it has not,
then under Article 15 bis (8), the Prosecutor may seek authorization of
the Pre-Trial Division to proceed with an investigation.
What should be the policy and approach of the Office in conducting
investigations and prosecutions with regard to this crime? Notwithstand-
ing the fact that Article 15 bis allows proprio motu investigations without
a Security Council determination, should the Office decline to investigate
or prosecute crimes of aggression unless there is a “green light” from the
Security Council? Conversely, should the Office pay particular attention
to this crime, often referred to as the “supreme international crime”, and
actively seek to investigate and prosecute it whenever the evidence per-
mits and it has jurisdiction to do so, as it does with other crimes in the
icc Statute?

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200 Steinberg
Once an investigation into alleged crimes of aggression is initiated, re-

gardless of the manner in which the Situation is referred to the Court,
what specific challenges might the Office expect to face in conducting
effective investigations and prosecutions, and what steps can the Office
take to address them?
According to the amendments as reflected in Article 8 bis (1) and Ar-
ticle 25 (3) bis of the Statute, only those “persons in a position effectively
to exercise control over or to direct the political or military action of a
State” may be prosecuted for a crime of aggression before the Court. How
should the Office interpret this category of persons? At what level of po-
litical or military leadership must a person be? Does this category exclude
those who are not “top leaders” of a state yet contribute to the commis-
sion of the crime of aggression, such as through financial or material sup-
port? What does the insertion of Article 25 (3) bis into the text of Article
25 mean in terms of the interaction between the other provisions on
modes of liability for crimes against humanity, genocide and war crimes,
and modes of liability for the crime of aggression?
One of the reasons put forward for including the crime of aggression
in Article 5 of the Statute was the potential preventive effect of such in-
clusion. What concrete actions may be taken by the Office to contribute
to the prevention of this crime? For example, should the Office proac-
tively issue public statements intended both to deter the escalation of
violence and to put potential perpetrators on notice that the commission
of the crime of aggression may be punishable by the Court? Would that
be seen as encroaching on the role of the Security Council for the main-
tenance of international peace and security? Indeed, on this question of
the crime of aggression, how should the interrelation of roles of the
Council, on the one hand, and of the Court, in particular, the Office, on
the other, be understood?

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Chapter 18
Understanding the Aggression Amendments

Dapo Akande
I Introduction
This comment examines the question of who will be subject to the icc’s juris-
diction with respect to the crime of aggression. One of the most contentious
questions in the negotiations that have taken place, since the adoption of the
Rome Statute, regarding the crime of aggression is the question whether the
Court’s normal jurisdictional regime should apply to the crime of aggression. A
key point that divided the parties during the aggression negotiations was
whether the Court should have jurisdiction over nationals of a state that does
not ratify the aggression amendments but which is alleged to have committed
an act of aggression on the territory of a state has accepted the aggression
amendments. At the Kampala Review Conference, a provision was included in
the aggression amendments by which States Parties to the Rome Statute could
opt out from the Court’s jurisdiction over aggression. While some states as-
serted that the Kampala Amendments essentially created an opt-out regime,
under which nationals of States Parties to the Rome Statute were covered by
icc jurisdiction unless their state opted-out, others maintained the regime for
aggression was essentially an opt-in regime under which nationals of States
Parties were not within the jurisdiction of the Court unless their state opted-in.
The dispute on this issue continued right up to the 2017 icc Assembly of States
Parties meeting in New York at which the icc’s jurisdiction over the crime of
aggression was activated. The resolution adopted in New York endorsed the
“narrow view” of icc jurisdiction and asserted that its jurisdiction over the
crime of aggression was essentially based on States Parties opting in.
This comment first considers the legal effect that the New York resolution
will have in determining this jurisdictional question. It is argued that the al-
though an asp resolution adopted by consensus can, in principle, be regarded
as a subsequent agreement of the parties to the Rome Statute that establishes
their authentic interpretation of the Statute, within the meaning of the Vienna
Convention on the Law of Treaties, the New York resolution does not, in itself,
provide the definitive answer as to the correct interpretation of the Rome Stat-
ute. It is argued that despite being adopted by consensus, and despite being

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202 Akande
highly relevant for the interpretation of the Rome Statute and Kampala
Amendments, this resolution does not necessarily amount to a subsequent
agreement or subsequent practice that the Court is legally bound to follow.
Nevertheless, it is argued that the position adopted in New York with regard
to the jurisdiction of the Court over nationals of States Parties that do not ratify
the aggression amendments is the correct legal position and the one that the
Court, including the Office of the Prosecutor, ought to adopt. This comment
argues that the answer to the question over whom the Court will have jurisdic-
tion with respect to aggression is to be found in Rome rather than in Kampala
and that the key to addressing that issue is to understand how the amendment
provisions of the Rome Statute work, in conjunction with basic principles of
the law of treaties.
II Who is Subject to icc Jurisdiction over the Crime of Aggression?
In the early hours of the morning on the 15th of December 2017, the States Par-
ties to the Statute of the International Criminal Court (icc), gathered in New
York, took the historic step of “activating” the jurisdiction of the Court over the
crime of aggression. By resolution of the icc Assembly of States Parties (asp),1
adopted by consensus, the crime of aggression will, from July 17, 2018, be sub-
ject to the Court’s jurisdiction. This move was the final step in the long journey
towards the criminalization of crimes against peace. Not since the Nuremberg
and Tokyo tribunals has an international criminal tribunal been competent to
adjudicate on the individual criminal responsibility of state leaders for engag-
ing in aggressive wars. Although there have been numerous stumbling blocks
in the quest to, once again, subject the crime of aggression to international ju-
risdiction, they have been overcome, one by one, along the road from Rome to
Princeton2 to Kampala,3 and finally New York. After agreement in the Special
1 Assembly of States Parties, International Criminal Court, Activation of the Jurisdiction of the
Court Over the Crime of Aggression, Doc. No. ICC-ASP/16/Res.5 (Dec. 14, 2017) [hereinafter
Activation of Jurisdiction].
2 History of the Special Working Group on the Crime of Aggression, International Criminal Court,
https://asp.icc-cpi.int/en_menus/asp/crime%20of%20aggression/Pages/History-CoA.aspx
(last visited Feb. 7, 2018) (Several sessions of the Special Working Group on the Crime of Ag-
gression were held at Princeton University in New Jersey).
3 Assembly of States Parties, International Criminal Court, The Crime of Aggression, RC/Res.6
(Jun. 11, 2010) [hereinafter Kampala Amendments] (The icc Review Conference was held in
Kampala in 2010).

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Understanding the Aggression Amendments 203
Working Group on the definition of the crime, the Kampala Amendments to

the Rome Statute endorsed that definition and set out the circumstances in
which the crime of aggression would fall within the jurisdiction of the Court.4
However, in Kampala, States Parties were not ready to take the final decisive
step with regard to icc jurisdiction over aggression. They decided that the
Court’s exercise of jurisdiction over aggression would require 30 ratifications
or acceptances,5 and also decided to postpone the icc’s jurisdiction until the
taking of a further decision by States Parties to activate that jurisdiction, with
such decision not to be taken before January 1, 2017.6 Nevertheless, they “[r]
esolved to activate the Court’s jurisdiction over the crime of aggression as early
as possible.”7
Almost as soon as the ink dried on the Kampala Amendments, a division of
views emerged as to one aspect of the icc jurisdictional regime with respect to
the crime of aggression.8 This meant that the question of who would be sub-
ject to icc jurisdiction over aggression was not one that could easily be an-
swered. The dispute centered on icc proceedings that are triggered by a state
referral or by the Prosecutor taking up the matter proprio motu. In such a situ-
ation, according to one view, the Court would not have jurisdiction over an al-
leged crime of aggression committed by nationals of, or on the territory of, a
State Party to the icc Statute that does not ratify or accept the Kampala
Amendments. As will be discussed below, this “narrow position” is based on
the second sentence of Article 121 (5) of the Rome Statute. However, according
to the “wide position,” where a national of a State Party commits the crime of
aggression on the territory of a State Party that has ratified the Kampala
Amendments, that person would be subject to the icc jurisdiction over the
crime in accordance with Article 12 (2) of the Rome Statute, unless the state of
nationality has opted out of icc jurisdiction over the crime of aggression.9
4 See Claus Kreß & Leonie von Holtzendorff, “The Kampala Compromise on the Crime of
Aggression” (2010) 8 J. Int’l Crim. Just. 1179 (2010) (Contains an overview of the Kampala
Amendments and an overview of the negotiations in Kampala).
A/CONF.183/9, art. 15 bis, ¶ 2, art. 15 ter, ¶ 2 (July 17, 1998) [hereinafter Rome Statute]. UN.
6 Rome Statute, art. 15 bis, ¶ 3; art. 15 ter, ¶ 3.
7 Assembly of States Parties, International Criminal Court, Kampala Amendments, supra
note 3, at Preamble.
8 See Dapo Akande, What Exactly was Agreed in Kampala on the Crime of Aggression?, ejil
Talk (Jun. 21, 2010), https://www.ejiltalk.org/what-exactly-was-agreed-in-kampala-on-
the-crime-of-aggression/ (ast visited July 12, 2018).
9 Rome Statute, art. 15 bis, ¶ 4 (Provides that the states may, prior to any alleged act of ag-
gression, declare that they do not accept the jurisdiction of the Court with respect to the
crime of aggression).

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204 Akande
This division of views came to the fore during the process instituted prior to
the New York asp meeting to facilitate the making of the activation decision.10
Although States Parties to the Rome Statute may choose to opt out of the icc’s
jurisdiction over aggression under Article 15 bis (4) of the amended icc Statute,
by simply lodging a declaration with the Registrar of the Court, some states,
relying on the narrow position, took the view that they should not be required
to opt out in order for their nationals to be exempt from icc jurisdiction over
aggression. In March 2017, Canada, Colombia, France, Japan, Norway, and the
United Kingdom submitted a paper to that facilitation process, setting out the
narrow view.11 In response, Liechtenstein and then Argentina, Botswana, Sa-
moa, Slovenia, and Switzerland, also submitted papers adopting the wide view
of jurisdiction.12
The significance of the question can be seen from the names that came to
be given, by some, to those in the different camps. Those who took the wide
view13 referred to themselves as “camp protection” because, adoption of their
position would mean that states that had ratified the Kampala Amendments
would be protected from aggression committed by States Parties that had not
ratified the amendments. The other side was characterized as “camp consent”
because they insisted that the Court could only have jurisdiction to determine
whether they had committed acts of aggressions where the alleged aggressor
state had granted jurisdiction to the Court. Given that by the end of 2017, only
35 States Parties to the Rome Statute had ratified or accepted the aggression
amendments (fewer than 30% of the total number of state parties), adopting
one view rather than the other would greatly expand or limit the range of per-
sons over whom the icc has jurisdiction with respect to the crime of aggres-
sion, in cases of state referrals and prosecutions proprio motu.
The dispute is also significant because it goes to the question of whether the
icc’s “normal jurisdictional regime,” according to which crimes committed on
the territory of states that have accepted the jurisdiction of the Court, applies
to the crime of aggression.14 Or, is the jurisdictional regime for the crime of
10 Assembly of States Parties, International Criminal Court, Report on the Facilitation on the
Activation of the Jurisdiction of the International Criminal Court Over the Crime of Aggres-
sion, Doc. No. ICC-ASP/16/24, ¶¶ 11–22 (Nov. 27, 2017).
11 Id. at Annex ii A.
12 Id. at Annex ii B and C.
13 See Stefan Barriga, The Scope of icc Jurisdiction Over the Crime of Aggression: A Different
Perspective, ejil Talk (Sep. 29, 2017), https://www.ejiltalk.org/the-scope-of-icc-jurisdic
tion-over-the-crime-of-aggression-a-different-perspective/ (last visited July 12, 2018).
14 See Rome Statute, art. 12, ¶¶ 2–3.

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a ggression, and other crimes brought within the jurisdiction of the Court by
amendment to the Statute, different?
At the asp, the supporters of the “narrow view” refused to budge on their
position, and in the Assembly resolution, adopted by consensus, on December
15, 2017, the asp:
1. Decides to activate the Court’s jurisdiction over the crime of aggression
as of 17 July 2018;
2. Confirms that, in accordance with the Rome Statute, the amendments
to the Statute regarding the crime of aggression adopted at the Kam-
pala Review Conference enter into force for those States Parties which
have accepted the amendments one year after the deposit of their in-
struments of ratification or acceptance and that in the case of a State
referral or proprio motu investigation the Court shall not exercise its ju-
risdiction regarding a crime of aggression when committed by a national
or on the territory of a State Party that has not ratified or accepted these
amendments.
The resolution thus takes a stand on the central jurisdictional question, with
the hope, by the adherents to the narrow position, of providing a definitive
answer to the question of who will be subject to icc jurisdiction over the crime
of aggression. However, the resolution also conditions an additional operative
paragraph, which:
3. Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the
Rome Statute in relation to the judicial independence of the judges of the
Court;
That paragraph was inserted, by those states that take the wide position, as a
reminder that ultimately, the question of who is subject to the Court’s jurisdic-
tion is one for the Court to decide.
However, as will be shown below, the confirmation by the asp of the narrow
position may not, on its own, be sufficient to establish the correctness or legal
validity of that position.
Since the early steps regarding any potential prosecution for aggression will
be taken by the Office of the Prosecutor (otp), that is the organ of the Court
that will first have to engage with the question of who exactly is subject to icc
jurisdiction over the crime of aggression. In addition to taking a decision on
the narrow or wide position, in cases of state referrals and prosecutions proprio
motu, the otp, and perhaps also the judges may have to consider other ques-
tions that remain unsettled regarding the icc’s jurisdictional regime over ag-
gression. Those other questions include the following:
– What is the position with respect to states which ratify/accept the Rome
Statute after the Kampala Amendments were adopted? Are they to be

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206 Akande
r egarded as having ratified the amended icc Statute of 2010 or only the orig-
inal Rome Statute of 1998?15
– May non-parties to the icc Statute make declarations under Article 12 (3)
accepting the jurisdiction of the Court over aggression, as they can and have
done with respect to the other crimes within the Court’s jurisdiction?16
– In the case of Security Council referrals, will the Court be entitled to exercise
jurisdiction over an alleged act of aggression, committed by a party to the
Rome Statute that has not ratified or accepted the Kampala Amendments?
This contribution focusses on the main issue that has, thus far, divided states
and scholars with regard to the jurisdiction of the Court over alleged crimes
of aggression committed by nationals of, or on the territory of nationals of
those icc States Parties that do not ratify the Kampala Amendments. It will
not consider all of the questions listed above, though some of the points made
along the way will be of relevance in seeking to answer some of those other
questions.
III The Lack of Finality of the New York Decision

Given that the asp has confirmed, by consensus, in its New York resolution, the
narrow position, it might be thought that the dispute regarding the question of
the jurisdiction of the Court over nationals of States Parties who do not ratify the
Kampala Amendments is settled. However, some of the statements that were
made by States Parties immediately after the adoption of the resolution, and by
way of explanation of their positions, show that while no state was prepared
to block consensus and thus prevent activation of the icc’s jurisdiction over
aggression, many states that take the wide view did not abandon their l egal po-
sition.17 The question to be asked is: what is the legal effect of the confirmation
of the narrow position in the asp resolution activating the crime of aggression?
15 See Andreas Zimmermann, Does 19 + 11 Equal 30?: The Nitty Gritty of the Law of Treaties
and the Kampala Amendment to the Rome Statute on the Crime of Aggression, ejil Talk
(Nov. 27, 2014), https://www.ejiltalk.org/does-19-11-equal-30-the-nitty-gritty-of-the-law-
of-treaties-and-the-kampala-amendment-to-the-rome-statute-on-the-crime-of-aggres
sion/ (last visited July 12, 2018).
16 See Stefan Barriga and Niels Blokker, “Conditions for the Exercise of Jurisdiction Based on
State Referrals and Proprio Motu Investigations,” in Claus Kreß and Stefan Barriga (eds.),
The Crime of Aggression: A Commentary (Cambridge: Cambridge University Press, 2017),
p. 656 (A brief consideration of this question).
17 See Nikolas Stürchler, The Activation of the Crime of Aggression in Perspective, ejil Talk
(Jan. 26, 2018), https://www.ejiltalk.org/the-activation-of-the-crime-of-aggression-in-per
spective/ (last visited July 12, 2018).

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To what extent is this resolution dispositive such that it provides a definitive

legal answer to the question of jurisdiction in this circumstance?
As will be explored more fully below, the question regarding icc jurisdic-
tion over the crime of aggression is ultimately a dispute about the i nterpretation
of the Rome Statute, and particularly about the interaction between the Stat-
ute adopted in Rome and the amendments to the Statute adopted in Kampala.
A significant aspect of that dispute relates to the interpretation to be given to
the amendment provisions of the Rome Statute. As has already been men-
tioned, those who take the narrow view base their position, on Article 121 (5) of
the Rome Statute. According to that provision:
Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into

force for those States Parties which have accepted the amendment one
year after the deposit of their instruments of ratification or acceptance.
In respect of a State Party which 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.
The adherents of the narrow position were of the view that the second sen-
tence of that provision has the effect of precluding the icc from exercising
jurisdiction over nationals of States Parties that do not ratify the Kampala
Amendments. It is this view of the second sentence of that provision that is
confirmed by the New York resolution which applies the second sentence of
Article 121 (5) to the crime of aggression. Moreover, the resolution as-
serts that the position there “confirmed” is “in accordance with the Rome
Statute.”
Given that the asp resolution is a statement of the parties to the Rome Stat-
ute which explicitly purports to give meaning to a provision of the Rome
Statute (Article 121, paragraph 5), and to set out how that provision applies in a
particular circumstance, the resolution is practice of the parties to the Statute
regarding the interpretation of that treaty. Furthermore, as the resolution was
adopted by consensus, it might be thought that position taken in it is decisive
in the interpretation of the treaty, either because it represents a subsequent
agreement of the parties to the Rome Statute regarding its interpretation
(within the meaning of Article 31 3(a) of the Vienna Convention on the Law of
Treaties (vclt), or amounts subsequent practice which establishes the agree-
ment of the parties to the treaty regarding its interpretation (within the mean-
ing of Article 31 3(b) of the vclt).

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208 Akande
Indeed, both the International Court of Justice (icj) and the International
Law Commission (ilc) have expressed the view that resolutions of conferenc-
es of States Parties to treaties, or of plenary bodies of international organiza-
tions may count as subsequent agreements or subsequent practice under
Articles 31 3(a) and (b) of the vclt. In the Whaling Case,18 the icj considered
the effect of resolutions of the International Whaling Commission (iwc) on
the interpretation of the Whaling Convention. It stated that:
First, many iwc resolutions were adopted without the support of all
States parties to the Convention and, in particular, without the concur-
rence of Japan. Thus, such instruments cannot be regarded as subsequent
agreement to an interpretation of Article viii, nor as subsequent practice
establishing an agreement of the parties regarding the interpretation of
the treaty within the meaning of subparagraphs (a)and (b), respectively,
of paragraph 3 of Article 31 of the vclt.19
That statement implies that where resolutions are adopted with the support of
all States Parties, they must be taken into account under Article 31 3(a) and (b).
Furthermore, the Court seemed to take the view that when a resolution, which
bears upon treaty interpretation, is adopted by consensus, it is of such a nature
as to be regarded as an authentic interpretation of the treaty. Not only did the
Court make specific note, on several occasions, when a particular resolution
that it relied on its judgment was adopted by consensus, it also stated more
generally that:
These recommendations [of the iwc], which take the form of resolu-
tions, are not binding. However, when they are adopted by consensus or
by a unanimous vote, they may be relevant for the interpretation of the
Convention or its Schedule.20
However, though the ilc also recognizes that a decision adopted within the
framework of a Conference of States Parties may embody, explicitly or implic-
itly, a subsequent agreement or subsequent practice under Article 31 3(a) or (b)
of the vclt, it does not seem to accept that a consensus decision will necessar-
ily qualify as an agreement or practice under those provisions, nor does it
18 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, i.c.j.
Rep. 226, 257 ¶ 83 (Mar. 31, 2014).
19 Id.
20 Id. ¶ 46.

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a ccept that the interpretative position taken in such a decision is to be regard-

ed as binding on interpreters. According to the ilc, a decision will qualify un-
der those provisions:
[I]n so far as it expresses agreement in substance between the parties

regarding the interpretation of a treaty, regardless of the form and the pro-
cedure by which the decision was adopted, including by consensus.21
The words italicized in the last sentence were included:
[I]n order to dispel the notion that a decision by consensus would neces-
sarily be equated with agreement in substance. Indeed, consensus is not
a concept which necessarily indicates any particular degree of agreement
on substance.22
The ilc went on to note that:
It follows that adoption by consensus is not a sufficient condition for an

agreement under Article 31, paragraph 3(b).23
If the essence of a subsequent agreement or subsequent practice under vclt

Article 31 (3) is that the parties (meaning all the parties)24 to the relevant treaty
are to be taken as agreeing in substance to the interpretation given, the ques-
tion that arises is whether all parties to the icc Statute are to be regarded as
21 Int’l Law Comm’n, Report on the Work of the Sixty-Eighth Session, Chapter vi Subse-
quent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties,
UN Doc. A/71/10, Draft Conclusion 11 at 123 ¶ 3 (2016) (emphasis added) [hereinafter ilc
68th Session].
22 Int’l Law Comm’n, Report on the Work of the Sixty-Sixth Session, Chapter vii Subsequent
Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, UN
Doc. A/69/10, Commentary, 214 ¶ 30 (2014) [hereinafter ilc 66th Session].
23 Id. ¶ 31.
24 Int’l Law Comm’n, Report to the General Assembly, 2 Y.B. Int’l L. Comm. 222 (1966) [here-
inafter Yearbook 1966] See the ilc’s commentary to what become Article 31 3(b) of the
Vienna Convention on the Law of Treaties, infra note 39:
The text provisionally adopted in 1964 spoke of a practice which ‘establishes the un-
derstanding of all the parties.’ By omitting the word ‘all’ the Commission did not in-
tend to change the rule. It considered that the phrase ‘the understanding of the par-
ties’ necessarily means ‘the parties as a whole.’ It omitted the word ‘all’ merely to avoid
any possible misconception that every party must individually have engaged in the
practice where it suffices that it should have accepted the practice.

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agreeing to the interpretation of the Rome Stature that is expressed in the New
York activation resolution. While none of them objected to the resolution at
the moment of adoption, some of them did, in their statements after adoption,
make it clear that they did not share the position taken in the resolution.25 This
leads to the question of whether the moment of adoption is to be regarded as
the moment of agreement such that even if there were later to be a lack of
agreement, there was still a moment, even if fleeting, in which all the parties
agreed on a particular interpretation. However, the ilc also notes correctly
that accepting a consensus decision simply means that the state concerned
has decided not to block the adoption of the decision but does not necessarily
indicate its consent to all aspects of that decision. Thus, the view may be taken
the statements made in explanation of votes after the aggression activation
resolution was adopted really do indicate there was not agreement in sub-
stance, by all the parties, on the points covered in the resolution.
Furthermore, the New York activation resolution does not necessarily repre-
sent a subsequent agreement as to the interpretation of the Rome Statute,
which must be taken into account in its interpretation, because not all the par-
ties to the Statute were present at the moment of adoption.26 For that same
reason, the resolution cannot be said to represent subsequent practice which
establishes the agreement of (all) the parties as to the interpretation of the
Rome Statute under Article 31 3(b) of the vclt. Kevin Jon Heller has previously
argued that the Kampala Understandings on the crime of aggression do not
represent subsequent agreements or subsequent practice under Article 31 (3)
of the vclt for the same reason.27 One may argue that in the case of the Kam-
pala Understandings, no State Party to the Rome Statute, whether present in
Kampala or not, has in the seven years, since their adoption, expressed the
view that it disagrees with the interpretations there offered and that this may,
at least at this point in time, represent agreement in substance. However, the
fact that some parties immediately expressed a divergent view to that con-
tained in paragraph 2 of the New York resolution does suggest that there was
no agreement in substance in the way described by the ilc.
One further reason why the New York resolution does not necessarily pro-
vide finality regarding the question of over who the icc will have jurisdiction
with regard to aggression is that even if the resolution counted as subsequent
agreement or subsequent practice establishing the agreement of the parties
25 See Stürchler, supra note 17.

26 Id. See also Yearbook 1966, supra note 24.
27 Kevin Jon Heller, “The Uncertain Legal Status of the Aggression Understandings” (2011) 9
J. Int’l Crim. Just.

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under vclt Article 31 3(a) or (b), it is unclear whether an interpreter is bound

by such an interpretation. In this regard, it should be recalled that the vclt
requires that subsequent agreements or practice which qualify under Article 31
(3) shall be “taken into account” without itself indicating what weight should
be given them. Clearly, an interpreter must consider any subsequent a greement
or subsequent practice that qualifies under Article 31 (2), unlike the case of
supplementary means of interpretation under Article 32, recourse to which
can only occur if certain conditions are met. However, while some are of the
view that an interpretation agreed on by the parties is decisive and binding,
others have argued that such an agreement or practice is only one of several
factors that the interpreter is to consider in applying Article 31 of the vclt.
The ilc does not seem to have a consistent view on this question. In elabo-
rating the vclt, the ilc stated that subsequent agreements represent “an au-
thentic interpretation by the parties which must be read into the treaty for
purposes of its interpretation.”28 Similarly, Sir Humphrey Waldock as ilc Spe-
cial Rapporteur on the Law of Treaties stated that:
Subsequent practice when it is consistent and embraces all the parties

would appear to be decisive of the meaning to be attached to the treaty,
at any rate when it indicates that the parties consider the interpretation
to be binding upon them.29
However, in its more recent work on Subsequent agreements and subsequent

practice in relation to the interpretation of treaties, the Commission has taken
the view that even when a subsequent agreement or subsequent practice falls
within the meaning of vclt Article 31 (3), it is only one of the different means
of interpretation to be taken into account in the process of interpretation un-
der Article 31.30 According to this more recent view of the ilc:
The interpreter must give appropriate weight to such an interpretative

resolution under article 31, paragraph 3 (a), but not necessarily treat it as
legally binding.31
28 Yearbook 1966, supra note 24, at 221 ¶ 14.

29 Humphrey Waldock, “Third Report on the Law of Treaties” (1964) 2 Y.B. Int’l L. Comm. 60
at ¶ 25.
30 ilc 68th Session, supra note 21, at 213 ¶ 37.
31 Id. ¶ 38.

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If the more recent view of the ilc were to be applied to the 2017 New York asp
resolution activating the crime of aggression, the decision taken in paragraph
2 of that resolution (adopting the narrow view of icc jurisdiction over aggres-
sion) would not be binding on the Court. It would merely be one factor to be
taken into account in determining whether the Court does have jurisdiction
over a crime of aggression allegedly committed by nationals of, or on the
territory of, States Parties to the Rome Statute that have not ratified the Kam-
pala aggression amendment.
To conclude on the question of the legal effect of the 2017 asp resolution,
while the states that insisted on the insertion of paragraph 2 of that resolution
pushed for it in an attempt to provide legal certainty that the Court would not
exercise jurisdiction with respect to aggression allegedly committed by States
Parties that had not ratified the Kampala aggression amendments, the resolu-
tion does not necessarily provide such certainty.
However, this conclusion should not be taken to mean that the adoption of
the resolution does not improve the position of the adherents of the narrow
view. Even if the resolution does not qualify as a subsequent agreement or sub-
sequent practice under vclt Article 31 (3), it would nonetheless be a supple-
mentary means of interpretation under Article 32 of the vclt.32 Thus, it can
(and should) be used to confirm the meaning of the Rome Statute that is
reached by application of Article 31 of the vclt. The resolution should also be
taken into account by the Court were it to be determined that the relevant
provisions of the Rome Statute are ambiguous. While the Court may not regard
the resolution as binding, the resolution adds weight to the view that the nar-
row position is the correct interpretation to be given to the Rome Statute.
IV To What Extent Is Jurisdiction over Aggression Subject to Normal

icc Jurisdictional Rules? The Effect of the Rome Statute
Amendment Provisions
Ultimately, the answer to the question of icc jurisdiction over nationals of
icc parties that do not ratify the Kampala Amendments is to be found in Stat-
ute adopted in Rome rather than in the amendment adopted in Kampala or
the New York asp resolution. What was done in Kampala could not have the
effect of changing the treaty rights of parties to the Rome Statute that do not
32 ilc 68th Session, supra note 21, at 122 (“Depending on the circumstances, such a decision
[adopted by a conference of state parties] may embody, explicitly or implicitly, a subse-
quent agreement under article 31, paragraph 3 (a), or give rise to subsequent practice un-
der article 31, paragraph 3 (b), or to subsequent practice under article 32.” (emphasis
added)). See also id. at 120 ¶ 4: (“Recourse may be had to other subsequent practice in the
application of the treaty as a supplementary means of interpretation under article 32.”).

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go on to ratify the Kampala Amendments.33 The crucial step in sorting out the
jurisdictional issues relating to the crime of aggression is the resolution of the
means by which those amendments enter into force under the Rome Statute.
On the central question of whether the icc will have jurisdiction with re-
spect to nationals of States Parties to the icc Statute that do not ratify or ac-
cept the Kampala Amendments, but also do not opt out of the regime, the
main issue is whether the normal jurisdictional regime of the icc largely ap-
plies to the Kampala aggression amendments. Article 15 bis (4) of the Kampala
Amendments provides that: “The Court may, in accordance with Article 12, ex-
ercise jurisdiction over a crime of aggression…” thus suggesting that the nor-
mal jurisdictional regime, provided for in Article 12 of Rome Statute, based on
either the state of nationality of the actor or the state of territoriality accepting
the Court’s jurisdiction, is applicable to the crime of aggression. However, it is
clear that Article 15 bis of the Kampala Amendments, dealing with State refer-
rals and proprio motu investigations with respect aggression, makes one change
to the normal jurisdictional rules of the icc in that it excludes the jurisdiction
of the Court with respect to aggression committed by a national of a nonstate
party or committed on its territory.34
Those who take the wide view of aggression jurisdiction argue, in effect,
that, other than this change with regard to non-parties, the normal jurisdic-
tional regime under Article 12 applies unless as is provided for under Article 15
bis (4).35 On this view, nationals of a state that has not ratified the Kampala
aggression amendments who commit aggression on the territory of a state that
has ratified the aggression amendments are subject to icc jurisdiction on the
basis of territoriality.
Whether the normal jurisdictional rules of the icc Statute applies to the
crime of aggression depends ultimately on how the Kampala aggression
amendments entered into force. Basically, there were four possibilities regard-
ing entry into force of those amendments.
The first possibility is that the amendments could enter into force and be-
come effective simply on adoption at the Kampala Review Conference, without
any need for ratification or acceptance by states. The argument that this was
33 See Andreas Zimmermann, “Amending the Amendment Provisions of the Rome Statute:
The Kampala Compromise on the Crime of Aggression and the Law of Treaties” (2012)10
J. Int’l Crim. Just. 209, 210 (“[A]s a matter of principle and subject, naturally, to the lex spe-
cialis rule, any amendment to a multilateral treaty cannot alter the position of the parties
of the original treaty which decide not to join the later treaty providing for such an
amendment.” (emphasis in original)).
34 Rome Statute, art. 15 bis, ¶ 5.
35 See Barriga & Blokker, supra note 16, at 652.

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possible was based on Article 5 (2) of the Rome Statute which provided that:
“[t]he Court shall exercise jurisdiction over the crime of aggression once a pro-
vision is adopted in accordance with Articles 121 and 123…”
The second possibility was that the amendments would come into force only
when ⅞ths of the States Parties had ratified or accepted them, and then for all
States Parties. This is what was provided for in Article 121 (4) of the Rome
Statute.
The third possibility was that the amendments would come into force under
Article 121 (5) for each State Party that accepted or ratified it one year after such
ratification/acceptance. The second sentence of that provision then goes to
state that:
In respect of a State Party which 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.
A fourth possibility, is that a special and previously unprovided-for amendment

procedure could be designed for the crime of aggression based on a mandate
given to States Parties in Article 5 (2) to negotiate a provision regarding the
definition of the crime and the conditions for the exercise of jurisdiction by
the Court over the crime.36 This possibility is really a variant of the first, in that
it relies on the possibility that the aggression amendments could enter into
force other than in accordance with the provisions dealing with amendments
set out in Article 121.
However, though some of the negotiators of the Kampala Amendments
seemed to think that this fourth possibility was an option open to them, and
that this was what they actually did, such a possibility is neither in accordance
with the text of the Rome Statute, nor with more basic principles of interna-
tional law. The argument that Article 5 (2) would have enabled the aggression
amendments to enter into force, in principle, merely on adoption or without
having to go through the amendment procedures stipulated in the Rome Stat-
ute is not a plausible reading of that provision. It is implausible to suggest that
when there was inability to agree to Court’s jurisdiction over aggression in
Rome, states then accepted that mere adoption of the text (or design of other
specialized amendment procedures) by two-thirds majority at a future confer-
ence would bring the aggression provisions into force, with binding effect,
such that the agreement of states that were to be bound was bypassed and
36 Id. at 667–8 (For an expression of this view).

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without having any opportunity to submit such a text to national parlia-

ments.37 Furthermore, although Article 5 (2) speaks of adoption of the text,
there is nonetheless a reference to Article 121. That reference is not just to the
parts of that article that deals with adoption of the texts but a reference to the
whole of Article 121.38 Article 121, in turn, assumes that any amendment ad-
opted under paragraph 3 of that Article, will then enter into force under Article
121 (4) or (5) dealing with amendments.
Article 5 (2) of the Rome Statute ought to be interpreted in the light of the
ordinarily applicable rules relating to the entry into force of treaty provisions.39
The law of treaties does not foresee that adoption alone will bring a provision
into force. Adoption of a treaty simply signifies agreement on a text with that
text remaining non-binding until it is brought into force. There is nothing in
Article 5 (2) that speaks to a special procedure for the aggression amendments.
Instead, that provision refers to the normal amendment procedures contained
in Article 121.
It is important to recall that the provisions of the Rome Statute, including
Article 5(2) which prevents the Court from exercising jurisdiction over the
crime of aggression and Article 121 setting out how amendments come into
force, are legally binding on the parties, unless they are amended through the
amendment procedures provided for in the Statute, or through some other le-
gally binding instrument. More importantly, the Rome Statute, including the
amendment procedure, is binding on the Court, which, in considering wheth-
er a particular provision is or not in force and binding under the Statute, has no
authority to look beyond the Rome Statute and otherwise applicable rules of
international law.
The best position under international law is that the aggression amendments
come into force under Article 121 (5). First, this provision deals with amend-
ments to substantive crimes within the jurisdiction of the Court. The text of
Article 121 (5) is expressly stated to apply to amendments to Articles 5, 6, 7 & 8
of the Rome Statute. It is true that the aggression amendments go beyond
amendments to those particular provisions. However, a good case can be made
that the amendments are all a package intended to bring into effect the “new”
crime and that the intention behind Article 121 (5) is that it applies to amend-
ments dealing with the creation of new crimes. The negotiators in Kampala
could have included all the conditions for the exercise of jurisdiction over
37 See Zimmermann, supra note 33, at 212–3.

38 Id. at 213.
39 Vienna Convention on the Law of Treaties, art31, at 3(c), 1155 u.n.t.s. 331 (May 23, 1969)
[hereinafter vclt].

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216 Akande
a ggression within Article 8 bis, and it ought to make no difference that they
chose to put some of the package in a differently numbered paragraph. Sec-
ond, it was agreed by the States Parties in Kampala that the amendments “shall
enter into force in accordance with Article 121, paragraph 5” of the Rome Stat-
ute.40 That decision is significant because it constitutes a subsequent agree-
ment regarding the interpretation and application of Rome Statute. Not only
was that decision reached by consensus, but it also remains the case that it has
not been objected to several years later by any party to the Rome Statute,
whether present in Kampala or not.
The conclusion that the amendment enters into force under Article 121 (5) is
of great significance. It means that the effects provided for in the second sen-
tence of that article are to follow for any amendments. The attempt by some to
separate out the entry into force of an amendment under the first sentence of
Article 121 (5) from the consequences of such entry into force under the second
sentence is unpersuasive. That attempted division is part of the argument that
parties to the Rome Statute could negotiate a new amendment procedure for
the crime of aggression which would somehow become binding and somehow
supersede and replace the amendment procedures provided in the Rome Stat-
ute without respecting the binding procedures in the Statute as to who the
Statute was to be amended. The second sentence of Article 121 (5) is a provision
that is binding for all States Parties and the Court and the law of treaties pro-
vides (and indeed logic suggests) that what is set out in this binding provision
cannot be changed by an amendment except for those states that ratify or ac-
cept the amendment.
V Over Whom Will the icc have Jurisdiction with Respect to

Aggression?
A Securing Council Referrals
In the case of referrals of situations by the Security Council, the Court will have
jurisdiction over persons within the situation referred to the Court. They may
be nationals of states that have ratified the Kampala amendment; nationals of
States Parties that have not ratified those amendments; or indeed nationals of
non-States Parties. These points are made clear by the Understandings regard-
ing the aggression amendments which are annexed to the resolution which
adopted the Kampala aggression amendments.41 Paragraph 2 of those Under-
standings states that:
40 See Kampala Amendments, supra note 3, at ¶ 1.

41 Id. at Annex iii, ¶ 2.

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It is understood that the Court shall exercise jurisdiction over the crime
of aggression on the basis of a Security Council referral in accordance
with Article 13, paragraph (b), of the Statute irrespective of whether the
State concerned has accepted the Court’s jurisdiction in this regard.
In this regard, the jurisdictional regime provided for with respect to Security
Council referrals is the same that which already exists in the Rome Statute for
the other crimes.
On its face, the second sentence of Article 121 (5) of the Rome State would
exclude jurisdiction of the icc over crimes committed by nationals of states
that do not ratify an amendment containing that amendment, even in cases of
Security Council referrals. However, there was a wide, perhaps universally
shared, understanding among States Parties to the Rome Statute that the sec-
ond sentence of Article 121 (5) was not to be regarded as applying in cases of
Security Council referrals. This understanding of the meaning of Article 121 (5)
is confirmed in the second paragraph of the Understandings on the Crime of
Aggression reached in Kampala.42 No state seems to have objected to this un-
derstanding. Despite the points made above about how decisions adopted by
consensus within the framework of conference of state parties do not neces-
sarily qualifying as subsequent agreements or subsequent practice establish-
ing the agreement of the parties regarding the interpretation of the treaty,
within the meaning of Article 31 3(a) and (b) of the vclt, understandings in
Kampala appear to fall within those provisions of the vclt.43 For one thing,
there appears to have been agreement in substance among all States Parties
present in Kampala, and on the point relating to Security Council referrals, all
State Parties that took part in the Special Working Group on the Crime of Ag-
gression. Even if not all State Parties were present at the moment of the adop-
tion of the Kampala aggression texts, those not present have now had ample
time to express a contrary position and none has been expressed. This inter-
pretation of Article 121 (5), (that its second sentence does not apply in cases of
Security Council referrals) can now be regarded as an indication of subsequent
practice which establishes the agreement of the parties as to the interpretation
of the Rome Statute under Article 31 3(b) of the vclt.
42 See Blokker & Barriga, supra note 16, at 646, 649–50.

43 See Heller, supra note 27 (Heller, writing not long after the Kampala conference, makes
the opposite argument. However, while the points made by Heller may have been com-
pelling at the time, the passage of time and the lack of objections to the Understandings
perhaps indicate a broader agreement than was originally the case).

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B State Referrals and Prosecutions Proprio Motu

In reviewing the jurisdiction of the icc over aggression it is useful to remem-
ber that states divide into three types for this purpose. First, states that are not
party to the Rome Statute, second states parties to the Rome Statute that also
ratify the Kampala Amendments, and three, states parties to the Rome Statute
that do not ratify the Rome Statute.
In the case of state referrals and prosecution proprio motu, we have already
seen in relation to nationals of non-states parties one change with regard to the
icc jurisdiction regime relating to from the icc’s jurisdiction regime over oth-
er crimes. With other crimes, the Rome Statute allows the icc to exercise juris-
diction over crimes committed by the nationals of non-states parties on the
territory of States Parties.44 With respect to aggression, an act of aggression
committed by a national of a non-state party on the territory of a State Party is
excluded from the jurisdiction of the Court under Article 15 bis (5).45
It may be asked whether non-states parties can accept the jurisdiction of
the icc with respect to aggression by simply making a declaration to that ef-
fect under Article 12 (3) of the Rome Statute which allows such a declaration to
be made relating to the other icc crimes. In my view, the language of Article 15
bis (5) is categorical in precluding jurisdiction over aggression committed by
third state nationals or on its territory.46 Also, accepting such declarations
would put non-states parties in a better position than States Parties. States Par-
ties cannot do anything to allow the icc to exercise jurisdiction over aggres-
sion committed by nationals of non-states parties on the territory of a State
Party. It would then be strange to allow States Parties to not only allow the
court to exercise jurisdiction over aggression committed by their nationals but
also by aggression committed by States Parties on the territory of the non-state
party.
In the case of state referrals and prosecution proprio motu, the icc will have
jurisdiction over nationals of States Parties that have ratified the aggression
amendments when the aggression is committed against another State Party
that has also ratified the amendments, unless the former state has opted out of
icc jurisdiction over aggression.47
44 Rome Statute, art. 12, ¶ 2(a).

45 Rome Statute, art. 15 bis, ¶ 5.
(“In respect of a State that is not a party to this Statute, the Court shall not exercise its
jurisdiction over the crime of aggression when committed by that State’s nationals or on
its territory.”).
47 Rome Statute, art 15 bis, ¶ 4.

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As indicated, the difficult jurisdictional question relates to aggression com-

mitted by a State Party that has not accepted the Kampala aggression amend-
ments? One should recall that States Parties to the Rome Statute may choose to
opt out of the icc’s jurisdiction over aggression.48 However, what about the
State Party to the icc that does not ratify the Kampala Amendments and has not
opted out of the Court’s jurisdiction. If one starts with the Kampala Amend-
ments, Article 15 bis (4) might seem to suggest that the icc will have jurisdic-
tion over aggression committed by States Parties whether they have ratified
aggression amendments or not. Also, if the normal rules of icc jurisdiction set
out in Article 12 of the Rome Statute apply then aggression committed by a
State Party that has not ratified on the territory of a State Party that has ratified
will be subject to icc jurisdiction. However, for a number of reasons the nar-
row view regarding icc aggression jurisdiction is to be preferred.
VI Reasons Why the icc Has No Jurisdiction with Respect to

Aggression Committed by a State Party That Has Not Accepted the
Kampala Amendments and Not Opted Out
1. Under the vclt, and unless otherwise provided in a treaty, an amend-
ment to a treaty does not bind a non-accepting state and cannot remove
the rights of parties to the original treaty that have not accepted the
amendment [Article 40 (4), vclt]. Article 121 (4) of the Rome Statute is
an example of a provision that does provide otherwise than the normal
rule. However, Article 121 (5) is not such a provision, and in fact confirms
the default rule in Article 40 (4) vclt.
2. The ordinary meaning of the text of Article 121 (5) of the Rome Statute
prevents the Court from exercising jurisdiction over crimes covered by
amendments when committed by the national of a State Party that has
not accepted the amendment or when committed on its territory.
Questions have arisen as to how that sentence should be interpreted
(with a dispute between a so called “negative understanding” of that pro-
vision, or of a “positive understanding”). One key reason for interpreting
the words of Article 121 (5) as excluding jurisdiction over crimes commit-
ted by nationals of a non-state party, as well as over crimes committed on
its territory is that the exact same language has been used in other provi-
sions of the Rome Statute and also of the Kampala Amendments to mean
precisely this. Article 124 which allowed states to opt out temporarily
from jurisdiction for war crimes states that the court will not jurisdiction
“when a crime is alleged to have been committed by its nationals or on its
48 Id.

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territory.” Even in the Kampala Amendments, Article 15 bis (5) provides

that with respect to non-states parties, the Court “shall not exercise its
jurisdiction over the crime of aggression when committed by that State’s
nationals or on its territory.” In these other instances, it seems agreed that
the court will not have jurisdiction both where the crime is alleged to
have been committed by a national and also in cases were the crime was
committed on the territory of the state concerned.
Another indication that the second sentence of Article 121 (5) means that
the Court will not have jurisdiction over crimes committed by nationals
of non-accepting state is to be seen in the resolution adopted in Kampala
regarding amendments to Article 8 of the Rome Statute dealing with war
crimes amendments in Kampala. The 2nd preambular paragraph of the
resolution indicates the understanding that Article 121(5) prevents the
Court from exercising jurisdiction over crimes committed by the nation-
als of non-ratifying state as well as on the territory of that state.49
3. The second sentence of Article 121 (5) is an exception to the normal juris-
dictional rules provided for in Article 12. One of the rules of treaty inter-
pretation is that a treaty should not be interpreted so as not to render a
provision redundant. If the second sentence of Article 121 (5) does not
mean that it is creating an exception to the normal rules of jurisdiction it
is unclear what it means.
4. It has been argued that even if the second sentence of Article 121 (5) ordi-
narily excludes the Court from applying amended crimes to nationals of
non-accepting States Parties, this interpretation does not apply to the ag-
gression amendments because States Parties have already agreed to juris-
diction over aggressions in Article 5 of the Rome Statute.50 However,
there is nothing in Article 121 (5) that includes such an exception. Indeed,
States Parties have also accepted jurisdiction of the icc over war crimes,
but in adopting the war crimes amendment in Kampala states parties
agreed that the second sentence of Article 121 (5) applied to those amend-
ed crimes.51
5. The Kampala Amendments do not establish the agreement of the parties
to interpret second sentence of Article 121 (5) in a manner that confers
jurisdiction over nationals of non-ratifying parties. It is possible for sub-
sequent practice, which establishes the agreement of States Parties to the
icc Statute to establish an interpretation of Article 121 (5) which departs
49 See Activation of Jurisdiction, supra note 1.

51 See Activation of Jurisdiction, supra note 1, at Preamble, ¶ 2.

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from the interpretation of that provision that would otherwise be

reached. While, as discussed above, a good case can be made that there is
agreement of the parties that Article 121 (5) second sentence should not
be interpreted to mean what it appears to say with regard to Security
Council referrals the same cannot be said in relation to the general mean-
ing of that sentence.
6. It is argued that if States Parties need to opt in before the court has juris-
diction over aggression committed by those states, why would there be
an opt-out. Why would we have states opting-in only to opt-out? Howev-
er, the text of the Kampala resolution adopting the aggression amend-
ments itself suggests that the opt-out may occur prior to the state ratify-
ing the agreement and seems to contemplate that a state both ratifies the
amendment but opts out icc jurisdiction.52 Second, there are at least
two reasons why the opt-out provision in Article 15 bis (4) still makes
sense even if the icc has no jurisdiction over aggression committed by
States Parties do not ratify the Kampala Amendments.
a. A state that wished to activate the provisions of the Kampala
Amendments dealing with Security Council referrals may wish to
ratify the aggression amendments to help get those amendments to
the necessary 30 parties, while opting out of the state referrals and
proprio motu provisions.
b. An opt-out only excludes the jurisdiction of the Court over aggres-
sion committed by the State Party opting out. The opt-out does not
exclude the Court’s jurisdiction over aggression committed against
the State Party. So, a State Party that wishes to have icc jurisdiction
over aggression committed against that state may ratify the amend-
ments but then opt out from icc jurisdiction over aggression com-
mitted by that state.
7. It is argued that to interpret Article 121 (5) as excluding icc jurisdiction
over crimes committed by non-accepting States Parties is to privilege
those non-accepting States Parties over non-states parties and create in-
equalities. However, the way the Kampala Amendment has been struc-
tured to exclude jurisdiction over aggression committed by or against
non-states parties avoids any such inequality. Furthermore, Article
121(5) does create a more privileged position for States Parties but that
is part of the incentive of states to ratify the Rome Statute. They get to
decide on whether amended crimes apply to their nationals. The Rome
Statute already contains other provisions which favor states parties over
52 See Kampala Amendments, supra note 3, at ¶ 1.

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222 Akande
on-parties. Article 124 of the original Rome Statute allowed States Par-
n
ties to exclude the application of the war crimes provisions to their na-
tionals or crimes committed on their territories whereas non-states par-
ties did not get the opportunity to exclude the jurisdiction of the court
over war crimes committed by their nationals.
8. More broadly and outside the confines of the specific provisions of the
Rome Statute, general principles of international law also point to a re-
quirement that a state consent to the court determining whether that
state has committed aggression. Aggression is a special crime where con-
sent plays a special role. Unlike other international crimes within the ju-
risdiction of the icc, the crime of aggression requires the Court to deter-
mine a question of state responsibility, i.e. that a state has committed an
act of aggression. The fact that the court is required to determine the re-
sponsibility of a state implicates the principle that an international tribu-
nal cannot determine the rights or responsibilities of states without the
consent of that state. This principle is one that has been applied by a
range of international tribunals. Even in cases where the decision of the
tribunal will not be binding on the state, tribunals have still held that
they cannot exercise jurisdiction where they are essentially called upon
to determine the responsibility of a state that has not consented. The icj
refers to this as the Monetary Gold principle.53 This general principle of
international law and the special position of the crime of aggression sug-
gests that one should seek to interpret the Rome Statute and the Kampala
Amendments to require consent.54
53 See Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judg-
ment, 1954 i.c.j. Rep. 19, 33 (Jun. 15, 1954).
54 See generally, Dapo Akande, Oxford Inst. Ethics, L., Armed Conflict, Prosecuting Aggres-
sion: The Consent Problem and the Role of the Security Council, Working Paper (May
2010), http://www.elac.ox.ac.uk/downloads/dapo%20akande%20working%20paper%20
may%202010.pdf (last visited July 12, 2018).

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Chapter 19
Difficulties Not to Be Underestimated

Benoit D’Aboville
1 Summary
For the icc, the consensus decision reached at the States Parties 16th session
on the night of the 14th to 15th December 2017 represented an important event.
It allowed, after twenty years of difficult debates, the activation of the Rome
Statute dealing with the crime of aggression, starting on July 17, 2018. This long-
delayed inclusion of aggression, together with war crimes, genocide, and
crimes against humanity, within the scope of the icc jurisdiction will, howev-
er, present an important challenge for the investigation and prosecution of
such crimes. Future difficulties should not be underestimated.
As it is often reminded, a long-standing goal in the history of international
justice is to allow the prosecution of the crime of aggression and thus to close
a seventy-year gap since the imt and imtfe decisions.1
However, the Court’s ability to investigate and prosecute the crime of ag-
gression per se and not, as up to now (as, for example, in the Former Yugoslavia
and Rwanda cases), through the indirect approach of war crimes (usually, but
not always, associated with aggression), has been a contentious issue, even
during the negotiation of the Rome Statute in 1998.
While the Court was formally vested in the Statute (Article 8) of the jurisdic-
tion over the crime of aggression, the activation of this competence was, for
the sake of reaching a consensus at the Rome conference, postponed until a
future Review Conference would be able to reach an agreement about four
major issues:
1 See Charter of the International Military Tribunal, Article 6, 1951 United Nations Treaty Series
286 (Aug. 8, 1945), http://www.un.org/en/genocideprevention/documents/atrocity-crimes/
Doc.2_Charter%20of%20IMT%201945.pdf (last visited July 17, 2018) (At Nuremberg, the
Charter defined “war of aggression” as part of the “crimes against peace” i.e. the “planning,
preparation, initiation or waging of a war of aggression”). See The International Military Tri-
bunal for Germany, 22 Nuremberg Trial Proceedings 410, 426 (Sep. 30, 1946), http://avalon.law.
yale.edu/imt/09-30-46.asp (last visited July 17, 2018) (“To initiate a war of aggression, there-
fore, is not only an international crime; it is the supreme international crime differing only
from other war crimes in that it contains within itself the accumulated evil of the whole.”).

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224 D’Aboville
– the definition of the crime (nullum crimen sine lege),

– the role of the un Security Council in the process of qualifying the act of
aggression and allowing the case to be referred to the Court,
– the adjudication of the responsibility of the principal individuals to be pros-
ecuted, taking into account their principal role in the conduct of the mili-
tary campaign of aggression, and
– the exception to the competence of the Court on procedural grounds re-
garding acts committed by nationals—or on the territory—of States, either
non-states parties to the Rome Statute or not accepting the aggression
amendments necessary for the activation of the jurisdiction of the Court.
The Review Conference held in Kampala in 2010 reached an agreement on
most of these issues and, accordingly, amended the Rome Statute. However,
some differences were not solved, including the effect of the activation for
States Parties that do not ratify the amendments adopted in Kampala.
2 Argument
According to a first interpretation expressed by some states—led by Liechten-

stein and Switzerland—the states already parties to the Rome Statute, or be-
coming party to it, which did not wish to be bound by the jurisdiction of the
Court over aggression had only one option: to opt out on the basis of Article 15
bis, paragraph 4, i.e. to lodge with the Registrar a declaration excluding the ju-
risdiction of the Court. There was, therefore, no need to further debate the ef-
fects of the non-acceptance by a given State Party of the Kampala amendments
dealing with the crime of aggression.
A second interpretation—expressed in particular by France, UK, Canada,
Japan, and Norway (all countries which did not ratify the amendments)—was
that states may accept the activation of the Court’s competence while, never-
theless, not being impacted by the Kampala amendments. They recalled that,
according to Article 121, paragraph 5 of the Rome Statute, the Court has no ju-
risdiction on crimes which have been the subject of an amendment when
committed by a national or on the territory of a state, which has not ratified
such amendment. They noted that Article 40, paragraph 4 of the Vienna Con-
vention on the Law of Treaties recognizes that those states which don’t accept
an amendment to a treaty to which they are already party are not subject to it.
Therefore, the December 2017 Review Conference had to wrestle with a
thorny procedural problem: how could the Assembly of States Parties solve
this issue? Uncertainty on such an issue could raise confusion about the Court’s
role as regards the future crime of aggression cases and also constitute a disin-
centive towards accepting the Court’s jurisdiction in those situations. Thus, a
clarification was sought about the content and the effect of the Kampala
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Difficulties Not to be Underestimated 225
amendments on the activation of the Court’s competence for those States Par-
ties to the Rome Statute, which had not ratified them—still 89 out of 123 coun-
tries. To decide that the icc would still have jurisdiction over crimes of aggres-
sion committed on the territory of (or by the nationals of) a state which had
not ratified the Kampala amendments, in the absence of a Security Council
referral, would, therefore, be in contradiction of the Vienna principle and ex-
plicitly contrary to Article 121, paragraph 5 of the Rome Statute.
The consensus reached in New York last December recognized the validity
of the second interpretation, while at the same time recalling the indepen-
dence of the judges of the icc.
The definition of the crime of aggression has been in conventions so far but
still raises difficult issues. In December 1974, unga Resolution 3314 (xxix)
agreed on a definition of the terms of aggression, in a formulation close to Ar-
ticle 2, paragraph 4 of the UN Charter. Following closely the definition found in
unga Resolution 3314, the Kampala conference in 2010 adopted its definition
of aggression and used it to amend the Rome Statute in Article 8 bis. In fact,
paragraph 2 refers expressly to the definition of acts of aggression found in
unga Resolution 3314.
However, the prosecutions of those crimes are bound to raise many prob-
lems. The indicted individual must be a national of a State Party which has rati-
fied the Kampala agreement or has committed the crime on the territory of
such a State, and has held a position allowing him “to exercise control over or
to direct the political or military action of the State.”
To determine such a position of direct authority over the action leading to
“aggression” will be even more difficult in the future,2 given the way the m
odern
military operations are nowadays conducted through the permanent interface
of many actors, both political and military leaders, electronically interconnect-
ed between themselves.
As most military operations are now the production of a coalition of states—
whose nationals are both falling and not falling under the icc’s jurisdiction—
how does one assess where the real leadership rests amongst those legally in-
dictable individuals who could be considered to have the necessary decisive
power at the very moment of the illegal act of aggression?
The same determination could be even more difficult in a majority of
occurrences—or even impossible in the case of non-state groups of rebels or
terrorists, such as Boko Haram or isil. Individuals in a position of leadership
of such groups have shifting roles and influence according to time and circum-
stance. In most of these situations, the notion of leadership has only a remote
2 See David Scheffer, “The Missing Pieces in Article 8 bis (Aggression) of the Rome Statute”
(2017) 58 Harv. Int’l L.J. Online 83.
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226 D’Aboville
connection with the concept of a “central command,” which was inherited

from wwii and brought into the unga Resolution of 2014.
Moreover, the icc will be in a quasi-impossible situation to assess the indi-
vidual potential culprits in case of modern cyber or hybrid warfare. The current
international approach, as in international humanitarian law,3 is to try to de-
fine cyber aggression by considering the character (accidental, voluntary or
not) and, above all, the extent of damage caused, taking into account collateral
effects on a civilian population.
But everybody agrees that trying to identify those responsible for such an ac-
tion is fraught with uncertainty and doubts. A state may seem to be responsible
due to technological abilities and political context, but those suspicions may
not provide the legal certainty to formally impugn it and, a fortiori the individu-
als responsible. In the case of hybrid warfare, which also includes cyber-attacks,
one of the motivating reasons to engage in such tactics is plausible deniability—
the inability to be precisely identified as the source of the attack.
Autonomous or semi-autonomous weapons also raise well-known prob-
lems about the final responsibility of their command. Who, in such a case,
would be the culprit of an “aggression” in terms of Article 8 bis: is it the state
using the automated device, the highest level of the command in charge of the
operation, or the anonymous operator located thousands of kilometers from
the target responding to data collected in a computerized way?
The very concept of crimes of aggression—always situated at the crossroad
of a political reality and a legal judgment—as well as the evolution of the
methods of modern warfare could therefore lead the icc into a difficult situa-
tion: prosecuting low level leaders of terrorist and rebel groups who have been
referred to the Court by local governments anxious to discredit them, or, at the
other extreme, become a tribunal that can only prosecute the leaders of coun-
ties which have accepted the Court’s jurisdiction on aggression but can’t pros-
ecute the leaders of the most powerful military nations.
It is doubtful that the UN Security Council’s role, embedded in the process-
es of the icc, will help to facilitate the imputation by the icc of the crime of
aggression, at least for now.
Article 8 bis, adopted in Kampala, defines aggression in paragraph 1 as an act
which, by its nature, gravity, and scale, constitutes “a manifest violation of the
UN Charter.” In the absence of a referral or guidance from the UN Security
Council, the ability of the icc to qualify an act of aggression remains in dis-
pute. Without an answer from the Security Council, the Prosecutor, according
to Article 15 bis, paragraph 8, could ask for a decision of the Pre-trial Chamber
3 See Michael N. Schmitt (ed.), The Tallinn Manual on the International Law Applicable to Cyber
Warfare (Cambridge: Cambridge University Press, 2013).

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Difficulties Not to be Underestimated 227
of the Court to start investigations and prepare a possible indictment. Howev-

er, that could put the icc in a difficult position if the Court has to determine
whether a resolution of the Security Council based on Article vii of the Char-
ter has been overridden (e.g. the position of Russia on Libya in 2011) or if the
involved state invokes the right of self-defense, enshrined in the UN Charter.
Invoking the Charter for self-defense has historically led to the most difficult
debates within the UN Security Council.
How could the icc get into these troubled political waters without risking
the loss of its judicial credibility and reputation for impartiality? How can the
interpretation of the icc on self-defense in a given case always be consistent
with another case, if only because the circumstances, the state, and the indi-
viduals involved are changing?
Moreover, could the icc’s determination of an act of aggression differ from
that made by the International Court of Justice?
Article 15 bis, paragraph 9 states that once the Prosecutor considers there is
a “reasonable basis to proceed with an investigation,” and there is no answer
from the Security Council:
[A] determination of an act of aggression by an organ outside the Court

shall be without prejudice to the Courts’ own finding under this statute.
But, as noted by Christopher Greenwood,4 “[i]nternational law is a single legal

system and the judgments of other courts or tribunals on more general matters
are sources from which the icc can and should draw.”
One may ask whether, in activating the competence of the Court on the
crime of aggression, the States Parties in December 2017 were sensitive to the
approaching 20th anniversary of the Rome Conference and were politically
motivated by the failure of the UN Security Council to take a stand on the Syr-
ian war atrocities?
But the icc, if only because it can indict only individuals and proceed on
legal grounds, cannot be used, even with the best moral motives, as an alterna-
tive to the current political impasse and malfunctions of the UN Security
Council.
The activation of the competence of the icc on aggression remains, there-
fore, at that stage where it is both a landmark of progress within international
criminal justice, but also contains significant political risk for the Court of
“crossing a bridge too far.”
4 Christopher Greenwood, “What the icc Can Learn from the Jurisprudence of Other Tribu-
nals” (2017) 58 Harv. Int’l L.J. Online 71, 73.

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Chapter 20
Three Difficult Problems

Yoram Dinstein
I Introduction
I shall address the three specific questions posed in the icc Prosecutor’s
letter:
1. Should the Office of the Prosecutor decline to proceed with a proprio
motu investigation of the crime of aggression unless there is a “green
light” from the Security Council?
2. At what level of political or military leadership must a person be in order
to cross the bar for investigation and prosecution for a crime of aggres-
sion before the icc? Is it necessary to exclude from investigation and
prosecution individuals who are not in leadership positions in the state
yet contribute to the commission of the crime of aggression, e.g., through
financial or material support?
3. What concrete actions may be taken by the Office of the Prosecutor to
enhance the prevention of the crime of aggression? For example, should
the Office of the Prosecutor proactively issue public statements intended
both to deter the escalation of violence and to put potential perpetrators
on notice that the commission of the crime of aggression may be punish-
able by the icc? Would that be seen as encroaching on the role of the
Security Council?
The way I look at it, the first and the third questions raise mixed legal and pol-
icy issues, whereas the second is purely legal. Moreover, the first and the third
questions both relate to the interrelationship with the Security Council, while
the second does not. I shall therefore deal with the questions in a different or-
der, the second question coming first.
II Answers to the Questions
A Question 2
The Kampala Amendments to the Rome Statute (both Article 8 bis Paragraph 1
and Article 25 Paragraph 3 bis) focus on persons “in a position effectively to
exercise control over or to direct the political or military action of a State.”

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Three Difficult Problems 229
My interpretation of this dual text is as follows:

a. As noted in a footnote appended to the Elements of Crimes, more than
one person may be involved.
b. However, the criteria for investigation and prosecution are not met un-
less the persons concerned “exercise control over or direct” the action of
the state. Clearly, only the top leadership is covered, that is to say, policy-
makers and high-ranking officials who are actually in charge of the action
taken.
c. This formula excludes mid-level officials or other persons who merely
contribute (even in a material way) by assisting, abetting or financing the
aggressive action of the state. It is noteworthy that the Kampala formula
is much more rigorous than the often-repeated phrase—which used to
be very common previously—namely, those who “shape or influence” the
war policy of the state (the source of the phrase is the Judgment rendered
in the High Command trial, in the course of the “Subsequent Nuremberg
Proceedings”). The final Kampala text was not adopted inadvertently, in-
asmuch as the “shape or influence” idiom had been openly debated for
years prior to—and during—the drafting negotiations.
d. Indubitably, the crime of aggression can be committed by civilians, no
less than by the highest-ranking military commanders. But these civilians
must be members of the cabinet or very senior Government officials who
orchestrate state action. Otherwise, they cannot qualify among those
who “exercise control over or direct” the action of the state.
e. Not every type of state action is in play in the Kampala formula:
only “political or military” action counts. Other types of state action—
preeminently, economic or social in character—are thereby dismissed
from consideration.
f. Whatever the legal status of financiers, industrialists or other mate-
rial supporters of an aggressive policy of a state may have been in the
past—especially, from the perspective of the “Subsequent Nuremberg
Proceedings”—that status must be examined today through the exclu-
sive lens of the Kampala text. At present, no person can be investigated or
prosecuted for the crime of aggression unless he or she exercises control
over or directs state action.
g. Plainly, this limitation means that the scope of individual criminal re-
sponsibility for the crime of aggression does not coincide with the wider
contours of Article 25 Paragraph 3 of the Rome Statute (applicable to war
crimes, crimes against humanity and genocide). That is precisely why it
was deemed indispensable in Kampala to insert into Article 25 the new
text of Paragraph 3 bis. That Paragraph expressly states that—in respect

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230 Dinstein
of the crime of aggression—“the provisions of this article shall apply only

to persons” who satisfy the criteria of being “in a position effectively to
exercise control over or to direct the political or military action of a state.”
The significance of the restrictive adverb “only” is self-evident: “only”
means no one else.
B Question 1
Pursuant to Article 15 bis Paragraph 6 of the Rome Statute, before proceed-
ing with an investigation in respect of the crime of aggression, the Prosecutor
must ascertain whether the Security Council has made a determination of
an act of aggression committed by the state concerned; and, in any event,
the Prosecutor must notify the UN Secretary-General of the situation before
the Court. Under Paragraph 7, a Security Council’s determination clears
the way for an investigation. But, under Paragraph 8, in the absence of such
determination—within six months after the aforementioned notification—
the Prosecutor may proceed with the investigation (with the authorization
of a Pre-Trial Chamber), provided that the Security Council has not decided
otherwise in accordance with Article 16 of the Rome Statute. The latter clause
(part of the original Rome Statute) prescribes that no investigation or prosecu-
tion may be commenced or proceeded with for a period of twelve months after
the Security Council—in a resolution adopted under Chapter vii of the UN
Charter—has requested a deferral, and that request may be renewed by the
Council in the same manner.
My interpretation of these provisions is as follows:
a. In effect, whereas the Prosecutor does not need an explicit “green light”
from the Security Council for a proprio motu investigation, it is clear that
it is impossible to proceed—at least temporarily—in case of a “red light.”
b. The Prosecutor has a “green light” from the Security Council once the
Council has made a “determination” that the state concerned has com-
mitted an act of aggression. Such a determination has to be made under
Article 39 of the UN Charter (which opens Chapter vii). The Security
Council’s practice shows that—although there have been multiple
resolutions expressing grave concern over or even condemning acts of
aggression—no formal (and binding) determination of aggression under
Article 39 has been made so far. In the absence of a formal determination
of aggression pursuant to Article 39 of the UN Charter, I do not be-
lieve that the requirement of the Rome Statute Article 15 bis Paragraph
6 has been met. However, in my opinion, it is possible to construe a
Security Council formal determination that a “breach of the peace” has

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o ccurred—a determination that is rare but definitely on record (e.g., in

the Korean and Gulf wars)—as a proper equivalent.1
c. The core question relates to a situation in which no formal determination
of aggression (or a breach of the peace) has been made by the Security
Council. In such circumstances, there may still be a “red light” in the form
of a resolution, adopted by the Security Council under Chapter vii, with
a request for a deferral (this is a request in name only: it is a decision
binding all UN Members). The deferral is for twelve months, but it can be
renewed.
d. Even in the absence of a “red light” from the Security Council, the Prose-
cutor is not free to proceed with a proprio motu investigation of the crime
of aggression until notification has been served on the Secretary-General,
plus a period of six months.
e. Legally speaking, it is clear from the language of Article 15 bis that, once
more, the crime of aggression differs from the other crimes within the
jurisdiction of the Court in that the Prosecutor’s discretion in proprio
motu investigations is curtailed, although it is not eliminated altogether.
f. As a matter of policy, I think that it would be unwise for the Prosecutor to
rush into any proprio motu investigation of the crime of aggression—
even within the constraints of Article 15 bis—without verifying first that
the Security Council has no intention or ability to activate Article 16
(either because of the use of the veto by a Permanent Member or for any
other reason). A potential clash with the Security Council must be avoid-
ed, regardless of any earnest desire in the Office of the Prosecutor to rap-
idly put the wheels of justice into motion.
C Question 3
There is nothing in the Rome Statute or the Kampala Amendments to even
remotely suggest that the Office of the Prosecutor has an active role to play in
the prevention of the crime of aggression. Such prevention rests squarely with-
in the primary responsibility of the Security Council, under the UN Charter, to
maintain international peace and security. Seeking information in the course
of an investigation (as per Article 15 of the Rome Statute) does not embrace the
1 I do not regard a formal “threat to the peace” determination by the UN Security Council—
which is almost routine nowadays—as an equivalent to a determination of aggression. First
of all, in the practice of the Council, a threat to the peace encompasses domestic situations
that are not even remotely linked to the crime of aggression. Secondly, it must be taken into
account that a threat of aggression does not qualify as a crime of aggression.

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232 Dinstein
proactive issuance of public statements designed to deter potential perpetrators

of the crime of aggression or to bring about de-escalation in tense situations.
To my mind, any initiative taken by the Office of the Prosecutor, with a view
to “pushing the envelope” in this respect, would be counterproductive. My con-
cerns are based on legal, factual and policy grounds:
a. Legally, the initiative might be viewed as encroaching on the powers
vested by the UN Charter in the Security Council. After all, a crime of
aggression—under the Rome Statute Article 8 bis Paragraph 1—is con-
tingent on an act of aggression that “by its character, gravity and scale,
constitutes a manifest violation of the Charter of the United Nations.” In
many instances, the Security Council has taken interim measures and
even issued warnings to states that Chapter vii sanctions may be im-
pending. If the Security Council is silent in a given crisis (a silence that
may be momentary or provisional), is the Office of the Prosecutor the
proper authority to intervene with a deterrent statement implying that a
manifest violation of the UN Charter is brewing? What happens if (fol-
lowing prolonged negotiations among the Permanent Members), the
Security Council subsequently takes a stand which is incompatible with
an earlier position advanced by the Office of the Prosecutor?2
b. Legally as well as factually, the initiative—when taken—is likely to be
controversial. The controversy may linger on for a long period of time
(particularly if the crisis somehow peters out).
c. Factually, identifying individuals at whom deterrent proactive state-
ments should be addressed is empirically fraught with difficulties. Legal-
ly, “planning” and “preparation” come within the bounds of the definition
of the crime of aggression in the Rome Statute Article 8 bis Paragraph 1.
Nevertheless, it must be borne in mind that “planning” and “preparation”
of aggression are usually established only retroactively (i.e. after the exe-
cution stage of the crime), with the advantage of hindsight.
d. States often issue reciprocal threats and warnings; indulge in arms races;
make contingency plans for war; and even conduct “war games.” By them-
selves, these acts do not amount to a crime of aggression in the absence
of mens rea. The mental element of all the crimes under the jurisdiction
2 It is important to keep in mind that, when two States are exchanging sabre-rattling state-
ments and otherwise appear to be on the verge of a military clash, it is not always clear which
one of them (if any) would turn out ultimately to be branded legally as the aggressor and
which would be deemed the victim of aggression.

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of the icc is sine qua non (see Article 30 of the Rome Statute). Proving the
existence of such a mental element in advance of the execution of the
crime of aggression is—more often than not—“mission impossible.”
e. Policy-wise, the initiative is liable to deter some wavering states from
ratifying the Kampala Amendments.3 It must be recalled that the Kam-
pala texts were forged after a lengthy process of negotiations that was
crowned with success only thanks to a “go-slow” approach designed for
confidence-building among the numerous wavering states. Why rock the
boat?
III Conclusion
I share the view that the crime of aggression is the “supreme international
crime” (incidentally, the origin of this phrase is the Judgment of the Interna-
tional Military Tribunal at Nuremberg). But the critical importance of the
crime of aggression does not affect either the jurisdiction of the icc—as es-
tablished in the Rome Statute and Kampala Amendments—or the prescribed
role of the Prosecutor.
The common denominator of the three questions posed by the Office of the
Prosecutor appears to be a latent desire to play a more active role in the sup-
pression of the crime of aggression, in a manner transcending the Rome and
Kampala parameters. Although that latent desire is understandable, I think
that it should be resisted.
As far as Question 2 is concerned, the Kampala Amendments leave no legal
latitude in terms of the echelons of prosecutable criminals: solely top leader-
ship comes within the ambit of the crime of aggression under the jurisdiction
of the Court. Influencing state policy is not enough. Any attempt to broaden
the scope of individual criminal responsibility for the crime of aggression
would run counter to the letter and spirit of the Kampala Amendments.
As for Question 1, it must be borne in mind that any premature proprio motu
investigative action regarding the crime of aggression—taken by the Office of
the Prosecutor—may prove to be in disharmony with subsequent Security
Council resolutions. The Office of the Prosecutor would be well-advised to
3 It must be added that—under Article 15 bis Paragraph 5 of the Rome Statute—nationals of

States that are not Parties to the Rome Statute are not subject to the jurisdiction of the Court
as regards a crime of aggression. As well, there is an opt-out provision in Article 15 bis Para-
graph 4, which is subject to more than one interpretation, but it palpably expands the circle
of those not subject to the jurisdiction of the Court.

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234 Dinstein
steer a cautious course, avoiding even a remote possibility of a head-on colli-

sion with the Security Council. In consequence, the Prosecutor should not
rush with a proprio motu investigation of the crime of aggression (despite the
absence of a “red light” from the Security Council).
With respect to Question 3, I believe that it would be imprudent for the Of-
fice of the Prosecutor to assume a proactive preventive role that has no roots in
either the Rome or the Kampala text, runs into tremendous evidentiary diffi-
culties in establishing a “probable cause” for any statement designed to deter
those who plan or prepare for aggression (inter alia, in light of the need to as-
sess the mental element of wrong-doers), and is almost bound to invite wide-
spread criticism that may trigger erosion of confidence in the impartiality of
the icc mechanism.

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Chapter 21
The Crime of Aggression: Definition, Jurisdiction,

and Scope of Application
Donald M. Ferencz
I Introduction
It has been argued that the crime of aggression is so highly politicized that the
Court should altogether avoid it.1 As to this issue, the icc Prosecutor has al-
ready made clear her position:
By virtue of the nature of the Court’s mandate, every situation in which

the icc Prosecutor acts will be politically fraught. My mandate as prose-
cutor is nonetheless clear: to investigate and prosecute crimes based on
the facts and exact application of the law in full independence and im-
partiality…I have made it clear in no uncertain terms that the Office of
the Prosecutor will execute its mandate, without fear or favour, where
jurisdiction is established and will vigorously pursue those—irrespective
of status or affiliation—who commit mass crimes that shock the con-
science of humanity.2
Regardless of whether a criminal code is national or international in character,

its enforcement “without fear or favour”3 is fundamental to any semblance of
“equal justice under law.”4 The Prosecutor has expressed her “firm belief that
1 See e.g. Matthew C. Weed, Cong. Research Serv., International Criminal Court and the Rome
Statute: 2010 Review Conference (Mar. 10, 2011), https://fas.org/sgp/crs/row/R41682.pdf (last
visited July 17, 2018). But see Donald M. Ferencz, “Current U.S. Policy on the Crime of Aggres-
sion: History in the Unmaking?” (2016) 48 Case W. Res. J. Int’l L. 189.
2 F. Bensouda, “The Truth About the icc and Gaza,” The Guardian, 29 August 2014, https://
www.theguardian.com/commentisfree/2014/aug/29/icc-gaza-hague-court-investigate-war-
crimes-palestine (last visited July 16, 2018).
3 A. Ochs, “Without Fear or Favor,” N.Y. Times, 18 August 1896, https://www.nytimes
.com/1996/08/19/opinion/without-fear-or-favor.html (last visited July 16, 2018) (An early
modern use of this phrase is attributable to a statement of principles set forth in 1896 by
Ochs, then the publisher of the New York Times, reprinted exactly 100 years later).
4 See Thucydides, History of the Peloponnesian War (New York: Harper & Brothers, 1972), at Epi-
logue (This maxim, notably found on the portico of the U.S. Supreme Court, is traceable to

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236 Ferencz
recourse to justice should never be compromised by political expediency,” add-

ing that:
The failure to uphold this sacrosanct requirement will not only pervert
the cause of justice and weaken public confidence in it, but also exacer-
bate the immense suffering of the victims of mass atrocities.5
The Office of the Prosecutor currently has three crimes within its active remit.6
As of July 17, 2018 the crime of aggression7 will become the fourth.8 It will be
the first time since the International Military Tribunal at Nuremberg9 that an
international court has had such jurisdiction.
II Summary of the Kampala Amendments
A Background
When the Rome Statue was adopted in 1998, it nominally included the crime
of aggression within the Court’s jurisdiction but left it in a state of suspended
the prominent Greek statesman, Pericles, who circa 341 bce is said to have extolled Athenian
law as affording “equal justice to all”).
5 Bensouda, supra note 2.
6 International Criminal Court, Rome Statute of the International Criminal Court, art. 5, U.N.
Doc. A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute] UN (That is, genocide, crimes
against humanity, and war crimes).
7 See Assembly of States Parties, International Criminal Court, The Crime of Aggression, Doc.
No. RC/Res.6 (Jun. 11, 2010) [hereinafter Kampala Amendments] (The amendments defining
the crime of aggression, and setting forth the conditions under which the Court may exercise
its aggression jurisdiction, were initially adopted by consensus at the Review Conference of
the icc held in Kampala, Uganda, in June of 2010). For a comprehensive discussion, see Ste-
fan Barriga & Leena Grover, “A Historic Breakthrough on the Crime of Aggression” (2011) 105
Am. J. Int’l L. 517, 533; see also Claus Kreß & Leonie von Holtzendorff, “The Kampala Compro-
mise on the Crime of Aggression” (2010) 8 J. Int’l Crim. Just. 1179.
8 See Assembly of State Parties, International Criminal Court, Activation of the Jurisdiction of
the Court Over the Crime of Aggression, Doc. No. ICC-ASP/16/Res.5 (Dec. 14, 2017) [hereinafter
Activation of Jurisdiction] (The asp resolution activated the Court’s aggression jurisdiction as
of July 17, 2018, the 20th anniversary of the adoption of the Rome Statute. It was approved by
consensus during the 16th Session of the asp, meeting in New York from December 4–14,
2017, although the resolution on aggression was not actually adopted until approximately 40
minutes past midnight on the morning of December 15th).
9 See Charter of the International Military Tribunal, art. 6, 1951 United Nations Treaty Series
286 (Aug. 8, 1945), http://www.un.org/en/genocideprevention/documents/atrocity-crimes/
Doc.2_Charter%20of%20IMT%201945.pdf (last visited July 17, 2018) (The Charter of the Inter-
national Military Tribunal at Nuremberg included the waging of a war of aggression within
“crimes against peace”).

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The Crime of Aggression 237
animation. The actual exercise of such aggression jurisdiction would depend

on the later adoption of provisions defining the crime and providing the juris-
dictional conditions under which the Court could investigate and prosecute
for its commission.10
In June of 2010, the Assembly of States Parties met at the icc Review Confer-
ence in Kampala, Uganda to consider definitional and jurisdictional provisions
which had been prepared for consideration by a special working group on the
crime of aggression. In Kampala, the definitional provisions were not consid-
ered particularly contentious, yet the same could not be said for proposals re-
garding the conditions under which the Court might finally exercise its aggres-
sion jurisdiction.
Prior to Kampala, the permanent members of the Security Council had con-
sistently expressed the view that Article 39 of the UN Charter11 gives the Coun-
cil an exclusive right to determine whether an act of aggression has occurred,12
and this view was reiterated in Kampala.13 Going into the Review Conference,
it was very much an open question whether a compromise solution could be
found, whereby the Court would not be seen as being little more than an arm
of the Council as to the crime of aggression.
The amendment package that was negotiated and agreed to in Kampala
consists of a definitional section, found in new Article 8 bis, and jurisdictional
provisions, set forth in Articles 15 bis and 15 ter.14 It is with respect to the issue
of the Court’s jurisdiction over the crime of aggression that the compromises
and concessions which were brokered in Kampala are most evident.
10 Rome Statute, art. 5.

11 United Nations, Charter of the United Nations [hereinafter un Charter], art. 39 (“The Se-
curity Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures
shall be taken in accordance with Articles 41 and 42, to maintain or restore international
peace and security.”).
12 General Assembly Resolution 3314, Definition of Aggression, A/Res/29/3314 (14 December
1974 (The definition of aggression agreed by unanimous consent of the General Assembly
in 1974, had also provided that the Council had the authority to decide that a particular
act would, or would not, be deemed to constitute an act of aggression).
13 See Assembly of State Parties, International Criminal Court, Review Conference of the
Rome Statute of the International Criminal Court, Kampala, 31 May–11 June 2010 Official Re-
cords, at 121 et seq. (Jun. 11, 2010) [hereinafter Kampala Official Records] (Annex viii and
ix includes the separate statements of the United Kingdom, France, China, Russia and
the United States).
14 See Kampala Amendments, supra note 7. For a comprehensive discussion, see Barriga &
Grover, supra note 7; Kreß & von Holtzendorff, supra note 7. For a comprehensive two
volume work on the subject, see Claus Kreß & Stefan Barriga (eds.), The Crime of Aggres-
sion: A Commentary (Cambridge: Cambridge University Press, 2017).

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238 Ferencz
B The icc Definition of Aggression

Article 8 bis begins with a general statement of the definition of the crime, fol-
lowed by an enumerated list of acts, each of which will “qualify as an act of
aggression.”15
1. For the purpose of this Statute, “crime of aggression” means the planning,
preparation, initiation or execution, by a person in a position effectively
to exercise control over or to direct the political or military action of a
State, of an act of aggression which, by its character, gravity and scale,
constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of
armed force by a State against the sovereignty, territorial integrity or po-
litical independence of another State, or in any other manner inconsis-
tent with the Charter of the United Nations…16
Article 8 bis, paragraph 2 further provides that, “Any of the following acts, re-
gardless of a declaration of war, shall, in accordance with United Nations Gen-
eral Assembly resolution 3314 (xxix) of 14 December 1974, qualify as an act of
aggression,” after which it enumerates various acts, including invasion, attack,
bombardment, and blockade. Paragraph 2, subparagraph (f) includes in the
list of aggressive acts the somewhat more passive “action of a State in allowing
its territory, which it has placed at the disposal of another State, to be used by
that other State for perpetrating an act of aggression against a third State.”17 It
is clearly a provision with significant implications for those who allow their
territories to be used by others for military interventions which may, them-
selves, amount to acts of aggression.
C icc Jurisdiction over the Crime of Aggression

Article 15 ter is generally unremarkable in that it provides for broad jurisdic-
tion over aggression cases incident to situations referred by the Security Coun-
cil. It parallels the Court’s jurisdictional regime applicable to the other three
15 Rome Statute, art. 8 bis. Compare G.A. Res. 3314, supra note 12, art. 2 (Although a good deal
of Article 8 bis tracks, verbatim, the language of G.A. Res. 3314, it notably omits the lan-
guage of Article 2):
(“The first use of armed force by a State in contravention of the Charter shall consti-
tute prima facie evidence of an act of aggression although the Security Council may, in
conformity with the Charter, conclude that a determination that an act of aggression
has been committed would not be justified in the light of other relevant circumstanc-
es, including the fact that the acts concerned or their consequences are not of suffi-
cient gravity.”).
16 Kampala Amendments, supra note 7, at 18.
17 Rome Statute, art. 8 bis, ¶ 2(f).

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core crimes which may occur within the context of situations similarly referred
by the Council.18
By contrast, Article 15 bis, which concerns itself solely with the Prosecutor’s
proprio motu and States Party referral jurisdiction for acts of aggression, di-
verges considerably from the jurisdictional regime applicable to the other core
crimes.19 Article 15 bis is clearly the product of negotiated compromises and
concessions. On the one hand, it allows investigations to proceed even in cases
where the Security Council has not affirmatively determined that an act of ag-
gression has occurred. Yet, on the other, it entirely exempts non-states parties
from its jurisdiction and offers a mechanism whereby States Parties may im-
munize their leaders from prosecution for the crime of aggression, simply by
opting out of its reach.20 To date, Kenya is the one State Party that has affirma-
tively opted out of the Court’s jurisdiction under Article 15 bis.21
Although Article 15 bis does not require pre-clearance by the Security Coun-
cil, it does require, at paragraph 6, that the Council be advised, in advance, of
intended aggression investigations:
Where the Prosecutor concludes that there is a reasonable basis to pro-

ceed with an investigation in respect of a crime of aggression, he or she
shall first ascertain whether the Security Council has made a determina-
tion of an act of aggression committed by the State concerned.
18 See Rome Statute, art. 15 ter (“The Court may exercise jurisdiction over the crime of aggres-
sion in accordance with article 13, paragraph (b), subject to the provisions of this
article.”).
19 As to the other three core crimes of the Statute, State Party referral jurisdiction and the
Prosecutor’s proprio motu referral jurisdiction are provided by Rome Statute, art.13, ¶ (a)
and (c), yet without the further limitations imposed by Article 15 bis, discussed immedi-
ately below.
20 Rome Statute, art. 15 bis.
(“4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of ag-
gression, arising from an act of aggression committed by a State Party, unless that State
Party has previously declared that it does not accept such jurisdiction by lodging a decla-
ration with the Registrar. The withdrawal of such a declaration may be affected at any
time and shall be considered by the State Party within three years. 5. In respect of a State
that is not a party to this Statute, the Court shall not exercise its jurisdiction over the
crime of aggression when committed by that State’s nationals or on its territory.”).
21 See Republic of Kenya, Declaration of Non-Acceptance of Jurisdiction of the International
Criminal Court Pertaining to the Crime of Aggression Pursuant to Paragragh [sic] 4 of Arti-
cle 15 bis of the Rome Statute, mfa. Int. 8/14A Vol. x (86) (Nov. 30, 2015), https://www.icc-
cpi.int/iccdocs/other/2015_NV_Kenya_Declaration_article15bis-4.pdf (last visited July 17,
2018) (Though never having ratified the Kampala amendments on aggression, Kenya
opted out on November 30, 2015).

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240 Ferencz
If notified that such a determination has been made by the Council, the
Prosecutor may proceed to investigate. If not, the provisions of Article 15 bis,
paragraph 8 apply:
Where no such determination is made within six months after the date of
notification, the Prosecutor may proceed with the investigation in re-
spect of a crime of aggression, provided that the Pre-Trial Division has
authorized the commencement of the investigation in respect of a crime
of aggression in accordance with the procedure contained in article 15,
and the Security Council has not decided otherwise in accordance with
article 16.
Finally, Article 15 bis, paragraph 9 provides that:
A determination of an act of aggression by an organ outside the Court

shall be without prejudice to the Court’s own findings under this Statute.
By their terms, neither Article 15 bis nor 15 ter could become effective until at
least 30 asp members had ratified them and until the asp had re-approved
them, with such re-approval decision required to be delayed until at least Janu-
ary 1, 2017. The delaying provisions are, at this point, no longer functionally
relevant. Yet the reluctant attitude of the States which demanded their inclu-
sion in the Kampala amendments presents an ongoing challenge to be reck-
oned with.
Though activation of the jurisdictional provisions may be seen as represent-
ing a critical milestone on the road to criminalizing aggression, the provisions
have been heavily, and accurately, criticized for significantly deviating from the
jurisdictional scheme applicable to the other crimes of the Rome Statute.22
Such concerns are exacerbated by the terms of the recent decision activating
the Court’s aggression jurisdiction, discussed below, in Section iii. C 1. The
concessions and compromises which they reflect validate concerns raised by
Professor M. Cherif Bassiouni23 a decade ago, questioning whether “a piece of
22 See e.g. Kevin Jon Heller, The Sadly Neutered Crime of Aggression, Opinio Juris (Jun. 13,
2010), http://opiniojuris.org/2010/06/13/the-sadly-neutered-crime-of-aggression/ (last
visited Feb. 3, 2018) (Heller observes that the asymmetrical application of jurisdiction
permitted by Article 15 bis allows States Parties “to take a completely hypocritical ap-
proach to aggression.”).
23 M. Cherif Bassiouni (1937–2017) was a professor and emeritus professor of law at DePaul
University College of Law for many years and, among other important international as-
signments, was Chairman of the Drafting Committee of the Rome Statute.

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Swiss cheese with a lot of holes in it” runs the risk of doing more harm than
good.24
III Summary of the Kampala Amendments
A Aggression Jurisdiction Presents a New Opportunity

Above a plinth in the north garden at UN Headquarters in Manhattan stands a
solitary, larger-than-life bronze figure. Though not a messenger, he nonetheless
has a message to share. He firmly grips a dramatically misshapen sword, tip-
ping downward toward an anvil. In grudging submission to the blows of the
mallet which he wields from high over his head, the lower half of his sword has
been splayed into a twisting, broadly bended curve. He wears little more than
a look of fierce dedication to his task. Etched beneath him, the words “We Shall
Beat Our Swords into Plowshares.”25
He has stood in that spot, frozen over his sword, for over half a century.26 To
those determined to end the scourge of war, he lays down a silent challenge:
“Take up your implements of change, and use them as I do.”
Today, 71 years after the imt branded aggression as “the supreme interna-
tional crime,” the icc is finally poised to provide a platform for its deterrence.
By activating the Kampala amendments, the asp has forged a new tool in the
arsenal of the law—a hammer of justice, waiting to be tested.
B Relationship to the Security Council

The question of whether the Security Council should have the exclusive right
to control adjudication of the crime of aggression was addressed five years
24 International Criminal Court, “The International Criminal Court and the Crime of
Aggression—Panel 4,” YouTube, at 13:25 (Sep. 26, 2008), https://www.youtube.com/watch
?v=RLwHLOGZ5mw&feature=youtu.be&t=13m25s (Bassiouni made these remarks at the
War Crimes Research Symposium presented by the Frederick K. Cox International Law
Center at Case Western Reserve University School of Law).
25 Isaiah 2:4, biblehub, http://biblehub.com/isaiah/2-4.htm (last visited July 17, 2018) (The
message is in clear reference to the words of the Book of the Prophet Isaiah):
(“And he will judge between the nations, and will decide concerning many peoples;
and they shall beat their swords into plowshares, and their spears into pruning-hooks;
nation shall not lift up sword against nation, neither shall they learn war anymore.”).
See also John Louth, Isaiah’s Echo: Progress, Prophecy, and the UN Charter, ejil Talk (Mar.
27, 2013), https://www.ejiltalk.org/isaiahs-echo-progress-prophecy-and-the-un-charter/
(last visited July 16, 2018) (Includes a beautifully crafted essay on the connection of the
message of the Prophet Isaiah to the United Nations).
26 The statue, which is the work of Evgeny Vuchetich (1908–1974), was donated to the UN in
1959 by the Soviet Union.

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242 Ferencz
b efore the Kampala Review Conference by Professor Mark S. Stein, who con-
cluded that such an exclusive right is unsupportable from both a legal and a
policy perspective.27 His conclusions are consistent with the approach to the
Security Council reflected in the Kampala amendments.
Whether the Court must necessarily wait for a clear “green light” from the
Council has already been answered in the negative by the terms of Article 15 bis
itself. Yet what of the potential situation which could arise if the Council takes
it upon itself to offer up a “red light” by way of notifying the Court that not only
has it not made a determination that an act of aggression has occurred, but
that it has done precisely the opposite—determining instead that a particular
act was not an act of aggression? Notwithstanding the fact that Article 15 bis,
paragraph 9 implies that the Court is free to make its own findings on the mat-
ter, to proceed in light of such a “red light” may be not only be impractical, but
may perhaps also conflict with Article 103 of the UN Charter.28 Needless to say,
the Court should proceed cautiously, if at all, in such a case.29
C The Issue of Equality Before the Law

1 Non-ratification by the UK and France
The sovereign equality of states is a well-established principle.30 Yet, to borrow
a phrase from George Orwell, some states seem to be considerably “more equal
than others.”31
It is an inescapable fact that the U.K. and France, the only two permanent
members of the Council that are also members of the asp, have thus far failed
to ratify the Kampala amendments.32 Moreover, they prevailed at the 16th
27 See Mark S. Stein, “The Security Council, the International Criminal Court, and the Crime
of Aggression: How Exclusive is the Security Council’s Power to Determine Aggression?”
(2005) 16 Ind. Int’l & Comp. L. Rev. 1 (2005).
28 UN Charter, art. 103 (“In the event of a conflict between the obligations of the Members of
the United Nations under the present Charter and their obligations under any other inter-
national agreement, their obligations under the present Charter shall prevail.”). See Kreß
& Barriga, supra note 14, at 1147. (Edwig Belliards’s comments on the subject discusses the
potential tension between Article 103 and the Court’s jurisdiction over the crime of
aggression).
29 Query where the Council has made an affirmative finding of a state act of aggression,
whether a contrary finding by the Court would also raise issues under UN Charter, art. 103.
30 UN Charter, Chapter 2, ¶ 1, http://www.un.org/en/sections/un-charter/chapter-i/index.
html (last visited July 17, 2018) (One of many places this is acknowledged).
31 George Orwell, Animal Farm (London: Secker and Warburg, 1944), Ch. 10 (“All animals are
equal, but some animals are more equal than others.”).
32 See Status of Ratification and Implementation, The Global Campaign for Ratification and
Implementation of the Kampala Amendments on the Crime of Aggression (Dec. 8, 2017),
https://crimeofaggression.info/the-role-of-states/status-of-ratification-and-i
mplementation/ (last visited Feb. 3, 2018) (Web page tracks those states which have

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s ession of the asp in insisting that the activation decision which was recently
adopted should include language to the effect that no State Party that has
failed to ratify the Kampala amendments on aggression can be subjected to the
Court’s 15 bis jurisdiction, regardless of whether they have affirmatively opted
out or not.33
The terms of the activation decision may impact the Court’s relationship
with the U.K., France, and other non-ratifying States Parties. Its operative
paragraphs are as follows:34
The Assembly of States Parties…
1. Decides to activate the Court’s jurisdiction over the crime of aggres-

sion as of 17 July 2018;
2. Confirms that, in accordance with the Rome Statute, the amend-
ments to the Statute regarding the crime of aggression adopted at
the Kampala Review Conference enter into force for those States
Parties which have accepted the amendments one year after the
deposit of their instruments of ratification or acceptance and that
in the case of a State referral or proprio motu investigation the
Court shall not exercise its jurisdiction regarding a crime of aggres-
sion when committed by a national or on the territory of a State
Party that has not ratified or accepted these amendments;
3. Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of
the Rome Statute in relation to the judicial independence of the
judges of the Court;35
r atified. It is perhaps worth noting here that the thirty-five States which have already rati-
fied the Kampala amendments on aggression include over half the members of nato).
33 See Assembly of States Parties, International Criminal Court, Report on the Facilitation on
the Activation of the Jurisdiction of the International Criminal Court Over the Crime of Ag-
gression, Doc. No. ICC-ASP/16/24, at Annex ii (Nov. 27, 2017) (Annex ii contains the posi-
tion paper on this issue submitted on behalf of Canada, Colombia, France, Japan, Norway,
and the United Kingdom. In their separate formal statements following the activation
decision, France, the UK, and Japan expressed the view that the language of the activation
decision was itself authoritative confirmation of the accuracy of their view that the provi-
sions of the Rome Statute, art. 121, ¶ 5 must be taken literally in the context of the amend-
ments on aggression—though I believe it is fair to say that there are those who disagree
with this assertion).
34 Activation of Jurisdiction, supra note 9.
35 Rome Statute, art. 40, ¶ 1 (“The judges shall be independent in the performance of their
functions”). Rome Statute, art. 119, ¶ 1 (“Any dispute concerning the judicial functions of
the Court shall be settled by the decision of the Court.”).

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244 Ferencz
4. Renews its call upon all States Parties which have not yet done so to
ratify or accept the amendments to the Rome Statute on the crime
of aggression.
Paragraph 1 is self-explanatory, authorizing activation of the Court’s aggression
jurisdiction to coincide with the twentieth anniversary of the adoption of the
Rome Statute.
Paragraph 2 is not as straightforward as it may appear. Earlier proposals,
which were acceptable, under the circumstances, to the vast majority of States
Parties, had provided that non-ratifying States Parties which expressed the
view that the second sentence of Article 121, paragraph 5 must be followed
literally36 would effectively be exempted from the application of the Court’s
15 bis jurisdiction without having to do anything further to formally opt-out.
While such proposals may have been expected to satisfy the need of non-rat-
ifiers who had expressed their adherence to this view (or who intended to do
so within a reasonable window of opportunity), the proposals were rejected
by the very small minority of non-ratifiers, who wanted more. The language
of paragraph 2 may understandably be viewed by many as a direct assault on
the delicately balanced compromise agreement hammered out in Kampala, in
that it indicates that any State which fails to ratify the Kampala amendments
cannot be subjected the Court’s Article 15 bis jurisdiction, regardless of what
was seemingly agreed to and unanimously approved at the Review Conference.
While paragraph 2 limits itself to the Court’s Article 15 bis jurisdiction, one
wonders whether non-ratifiers might also consider arguing that a literal read-
ing of Article 121, paragraph 5 should likewise exempt them from the jurisdic-
tion provided for under Article 15 ter, applicable to Security Council referrals.
This, of course, only scratches the surface of the discussion. It should be noted
that all States Parties have an obligation, as set forth in Article 86 of the Statue,
to “cooperate fully with the Court in its investigation and prosecution of crimes
within the jurisdiction of the Court”—whether they have ratified the Kampala
amendments or not.
Paragraph 3 was added in the final moments before the activation decision
was taken, as a counterbalance to paragraph 2. To anyone unfamiliar with the
36 Rome Statute, art. 121, ¶ 5 (“In respect of a State Party which has not accepted the amend-
ment, 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.”) (Its ap-
plication with respect to the aggression amendments is the subject of continuing contro-
versy and debate).

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dynamics which were in play at the asp in New York during the night on which
the activation decision was taken, paragraph 3 may well appear unnecessary,
self-evident, and oddly out of place. It was intended to counter what was seen
by many as an effort on the part of the U.K., France, and a handful of other
non-ratifying states, to, in effect, re-negotiate what was agreed to in Kampala.
The insertion of paragraph 3 in the activation decision was a signal to the icc
judges that, with respect to the language of paragraph 2, the activation deci-
sion reached in New York was agreed to under duress by the vast majority of
States present. It is a reminder that it is the icc judges, rather than a small
minority of powerful states, who should determine the legal effect of the Kam-
pala amendments. It would seem, however, in light of the unambiguous lan-
guage of paragraph 2, that the icc judges will have little, if any, judging left to
do on this particular point.37 A consequence of the fact that activation by
unanimous consensus, rather than by a vote, was a high priority for the asp
was that each and every State Party represented had the power to scuttle the
activation decision if it wanted to. Because of the uncompromising position of
the small handful of States whose position was championed by the U.K. and
France, it seemed to be a clear case of either going home with nothing, or ac-
cepting the activation resolution on terms which were dictated to the concilia-
tory many by the intransigent few.
Though the Court need not necessarily defer to the Security Council as such,
it will surely need to contend with the fact that the United Kingdom and France
have not yet ratified the Kampala amendments and may not do so any time
soon. Given that the other three permanent members of the Council are not
States Parties, and are, therefore beyond the reach of the Court’s Article 15 bis
jurisdiction, there is already a serious lack of equality before the law as to the
crime of aggression. Non-ratification by Britain and France simply makes it
noticeably worse.
37 See Dapo Akande, The International Criminal Court Gets Jurisdiction Over the Crime of Ag-
gression, ejil Talk (Dec. 15, 2017), https://www.ejiltalk.org/the-international-criminal-
court-gets-jurisdiction-over-the-crime-of-aggression/ (last visited Feb. 3, 2018) (Con-
cludes that the effect of the activation decision is tantamount to a subsequent agreement
of the parties to the Rome Statute under Article 31(3)a of the Vienna Convention on the Law
of Treaties). See Nikolas Stürchler, The Activation of the Crime of Aggression in Perspective,
ejil Talk (Jan. 26, 2018), https://www.ejiltalk.org/the-activation-of-the-crime-of-aggres-
sion-in-perspective/ (last visited Feb. 3, 2018); see also Annegret L. Hartig, Dubious Nego-
tiations in New York: Did France and the UK Come to Blow It Up?, IntLawGrrls (Jan. 18, 2018)
(last visited Feb. 3, 2018) (Further discussion of the activation decision itself and its pos-
sible consequences).

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246 Ferencz
Non-ratifying states should be reminded that the ground-breaking prin-

ciple established at Nuremberg that leaders of all nations should be made
accountable for the crime of aggression38 was also unanimously affirmed by
the UN General Assembly.39 The crime of aggression’s hard-fought 1998 inclu-
sion in the Statute and its hard-fought activation as of this July 17th will be
only a Pyrrhic victory if nations of goodwill shrink from supporting its broad
acceptance.40
To erode the principle of equality before the law is to erode confidence in
the global justice system itself. Because of this, the Office of the Prosecutor
may seriously consider working arm in arm with diplomats and civil society
representatives to assist the Court in making known the importance of ratifica-
tion of the Kampala amendments and, in particular, the critical role that Brit-
ain and France—as members of both the Court and the Council—can play in
sending a clear signal that the rule of law is not only for the little people. Such
messaging should surely include the fact that these two asp member states
played a critical role at Nuremberg in establishing the waging of illegal war as
a universally recognized international crime.
Finally, there is perhaps another level on which equality before the law may
need to be emphasized to non-ratifying states, relating not simply to the un-
equal application of the law as among states, but rather to the unequal applica-
tion of the law as between citizens of the same state. In states which have in-
corporated the Rome Statute’s other core crimes into their national codes,
ordinary foot soldiers can be held criminally accountable for war crimes. If the
leaders who send them out to fight do so in criminal violation of the jus ad bel-
lum, should they not similarly be held to account? Awareness of such a double
38 The International Military Tribunal for Germany, Second Day, 2 Nuremberg Trial Proceed-
ings 154 (Nov. 21, 1945), http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-II.pdf (last
visited July 17, 2018) (In his opening statement at the International Military Tribunal at
Nuremberg, the American Chief of Counsel Robert H. Jackson spoke to this principle):
(“[T]he ultimate step in avoiding periodic wars […] is to make statesmen responsible
to law. And let me make clear that while this law is first applied against German ag-
gressors, the law includes, and if it is to serve a useful purpose it must condemn aggres-
sion by any other nations, including those which sit here now in judgment.”).
39 General Assembly Resolution 95(i), Affirmation of the Principles of International Law rec-
ognized by the Charter of the Nurnberg Tribunal, A/Res/1/95 (11 December 1946), http://
www.un-documents.net/a1r95.htm (last visited July 17, 2018) See Antonio Cassese, “Affir-
mation of the Principles of International Law Recognized by the Charter of the Nürnberg
Tribunal” (2009) UN Audiovisual Lib. of Int’l L. 1 (A discussion of the resolution).
40 See R.G. Grant, Commanders: History’s Greatest Military Leaders (London: D.K. Pub., 2010),
18 (A reminder as to how the Greek general, Pyrrhus of Epirus (318–272 bce), managed to
become associated with victories which seem not to bring a meaningful advantage, e.g.,
his victory over the Romans at the battle of Asculum in 279 bce).

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standard among the citizens of non-ratifying states may perhaps play a part as
a stimulant in consideration of the question of ratification by national leaders
who may prefer not to be seen as hypocritical.
2 Separate Ratification Possibility for Article 15 bis and 15 ter

Only a few days after the Kampala Review Conference, Harold Koh, then Legal
Advisor to the U.S. Secretary of State and a key negotiator in Kampala, was on
a panel addressing the import of the aggression amendments. In his remarks
as to their implications, and, in particular, with regard to the fact that each of
the provisions contained therein formed part of a carefully negotiated and
delicately balanced compromise package, he emphasized that “Every single
piece of it was a critical part of what was decided.”41
The language of paragraph 2 of the activation decision may reasonably be
seen as part of an effort to have the terms of the amendments on aggression
interpreted in a manner which reflects something different than what many
states believed had been agreed in Kampala. It undercuts a key feature of the
Kampala amendments that, in order to avoid Article 15 bis jurisdiction, States
Parties would need to pay the “political cost” of having to affirmatively opt out
of the jurisdiction conferred by Article 15 bis, whether they had ratified 15 bis or
not.42
In considering next steps pertaining to non-ratifying States Parties, before
looking forward, it may be worth glancing backward for a moment to the re-
cent activation decision itself—not in terms of analyzing its substantive con-
tent, but rather in looking at its structure. It was structured as an integrated
decision covering activation of jurisdiction under two distinct Articles, 15 bis
and 15 ter.
Article 15 bis and Article 15 ter each contains the following language as to a
required activation decision:
The Court shall exercise jurisdiction over the crime of aggression in ac-
cordance with this article, subject to a decision to be taken after 1 January
2017 by the same majority of States Parties as is required for the adoption
of an amendment to the Statute.
41 American Society of International Law, “The U.S. and the International Criminal Court:
Report from the Kampala Review Conference,” YouTube, at 1:04:17 (Jun. 18, 2010), https://
www.youtube.com/watch?v=hJcUqEwrNS4&feature=youtu.be&t=1h4m17s (last visited
July 16, 2018) (Statement of Harold H. Koh).
42 See Kreß & Barriga, supra note 14, at 1127. (That such a “political cost” was, in fact, an inte-
gral part of the Kampala compromise has been remarked on by Marcel Biato and Marcelo
Böhlke).

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248 Ferencz
Thus, it would appear that had anyone suggested that the ratification deci-
sions specified in each of Articles 15 bis and 15 ter should have been considered
separately by the asp, rather than taken up together in one integrated activa-
tion resolution, they would seemingly have been well within their rights to
have done so. It is not hard to imagine that any such suggestion would likely
have been roundly criticized as an attempt to “cherry-pick” with respect to the
Kampala amendments, which should rightly be seen as an integrated compro-
mise package.43
The question of whether such “cherry-picking” during the activation deci-
sion would have been permissible or acceptable may now be rightly perceived
as fairly moot. Nonetheless, there are some potential “cherry-picking” issues
still to be considered with respect to the Kampala amendments. Given that
there is a credible argument that Articles 15 bis and 15 ter, by their own terms,
could perhaps have allowed for separate activation decisions with respect to
the Court’s 15 bis and 15 ter jurisdictions, the notion of “cherry-picking” as to
ratification options may not seem quite so far-fetched.
Here’s the point: is it possible that the non-ratifiers—including the UK and
France—who insisted on seeing the language of Article 121, paragraph 5 af-
firmed with respect to its application to Article 15 bis, might be willing, instead
of ratifying nothing at all, to at least ratify Article 15 ter? Even raising such a
question may be anathema to those nations of goodwill which have already
fully ratified the Kampala amendments or may do so in the future, and to oth-
ers as well. Yet it is conceivable that the U.K. and France could see ratification
of Articles 8 bis and 15 ter as an attractive solution to the public relations prob-
lem arising from their having completely turned their backs on the crime of
aggression through their failure to ratify any part at all of the Kampala amend-
ments.44 This is by no means to say that they should not ratify the entire pack-
age included in the Kampala amendments, but is simply to say that, until the
political realities are such that they are in a position to fully embrace Article 15
bis, they should at least do something to show that they consider themselves at
43 Rome Statute, art. 5, ¶ 2 (It is worth noting, incident to this discussion, that art. 5, ¶ 2 of the
1998 Rome Statute, concerned itself with the potential later adoption of provision “a” de-
fining the crime and setting out the conditions under which the Court shall exercise juris-
diction. Query whether this lends itself to the argument that the Kampala Amendments,
in keeping with the spirit of art. 5, ¶ 2, should reasonably be seen as a unified set of
amendments, which should not be in any way bifurcated).
44 See e.g. O. Bowcott, “UK Calls for ‘Greater Clarity’ on icc’s New Crime of Aggression,” The
Guardian, 15 November 2017, https://www.theguardian.com/law/2017/nov/15/uk-calls-for-
greater-clarity-on-iccs-new-of-aggression (last visited July 16, 2018) (Recent criticism).

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least nominally subject to the rule of law on aggression. That their own expo-
sure to the Court’s jurisdiction under Article 15 ter is clearly limited by the veto
power they each have the right to exercise on non-procedural matters which
come before the Security Council, should go a long way toward making such a
suggestion politically palatable.45 It must, of course, be observed that, in addi-
tion to being inconsistent with the spirit of the unified compromise package
negotiated in Kampala, such an approach is also inconsistent with the spirit,
though not necessarily the letter, of the Rome Statute’s absolute prohibition on
reservations.46 Nonetheless, it may still be something worth considering as a
potential point of outreach by the Court or by civil society, or both.47
D Evidence Gathering and Witness Protection Concerns

Unquestionably, the conjoined issues of evidence-gathering and witness pro-
tection will be of paramount importance in considering the Office of the Pros-
ecutor’s approach to the crime of aggression. Those who share sensitive intel-
ligence reports and processes or confidential information relating to military
policy or practices may well be put at risk of criminal prosecution, or worse.48
As pointed out by representatives of Norway at the icc Review Conference,
evidence-gathering for the crime of aggression may be particularly difficult
due to problems with the cooperation of states and the problem of potentially
being asked to investigate “on the basis of allegations without access to sub-
stantial evidence on all relevant elements.”49
45 UN Charter, art. 27.

46 Rome Statute, art. 120 (“No reservations may be made to this Statute.”).
47 See Donald M. Ferencz, “The Crime of Aggression: Some Personal Reflections on Kampa-
la” (2010) 23 Leiden J. Int’l L. 905 (As a matter of full and fair disclosure, I should perhaps
add that, from the Review Conference in Kampala, I blogged as follows):
But if the final formulations on jurisdiction considered here in Kampala vest only the
Security Council with the right to initiate a case (as the P-5 would like), I think it’s fair to
say that when the roll-call is taken on this, in addition to translation headsets, there will
be many who’d like nose-clips to be provided as well.
See also Donald M. Ferencz, Great Powers try to Prevent the Activation of the Jurisdiction of
the icc over the Crime of Aggression, Derechos Hum. Rts., (Nov. 29, 2017), http://www
.derechos.org/nizkor/aggression/doc/donferencz4.html (last visited Feb. 2, 2018).
48 See Romina Beqiri, Faculty of L. of Lund U., Witness Protection in International Criminal
Court, , 2011, http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=216702
9&fileOId=2171585 (Contains an overview of the Court’s witness protection measures, in-
cluding a listing of articles pertaining to this field). See also International Bar Association,
Witnesses Before the International Criminal Court (Jul. 2013), https://www.ibanet.org/
Document/Default.aspx?DocumentUid=9c4f533d-1927-421b-8c12-d41768ffc11f (last visit-
ed July 16, 2018).
49 Kampala Official Records, supra note 13, at 123.

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250 Ferencz
The problem of obtaining information about who knew what and when,
and how they knew it, may well be expected to become even more difficult as
governments consider clamping down on whistleblowers who reveal sensitive
information.
Consider, for example, the case of Katharine Gun.50 She was employed by a
British intelligence agency as a translator when she intentionally leaked sensi-
tive information during the run-up to the 2003 war in Iraq. The information
showed that the U.S. government’s National Security Agency was spying on
certain members of the UN Security Council in an effort to push the Council to
approve a resolution authorizing war with Iraq.51 She was arrested and charged
with criminal violation of Section 1 of the Official Secrets Act 1989.52 The case
against her was eventually dropped, ostensibly because the Crown Prosecu-
tion Services were unable to develop sufficient evidence to disprove the de-
fense that what she did was necessary,53 but there is more to the story.
There is suspicion that the case was dropped for a number of unspoken rea-
sons. Among them may have been an interest in limiting further bad publicity,
limiting the further details about those behind the spying which she had re-
vealed, limiting access to embarrassing U.K. government files pertaining to the
illegality of the Iraq war, and limiting the prospect that if she were acquitted,
other potential whistleblowers might be encouraged in claiming the defense of
necessity, as she did. Tellingly, in the process of reporting to Parliament as to
why the case was dropped, the then Attorney General, Lord Goldsmith, advised
that he could not give specific details, explaining that “as the matter concerns
issues of intelligence it is not appropriate for me to do so, even to this House.”54
50 See Martin Bright & Katharine Gun, “Ten Years On: What Happened to the Woman Who
Revealed Dirty Tricks on the UN Iraq War Vote?,” The Guardian, 2 March 2013, https://
www.theguardian.com/world/2013/mar/03/katharine-gun-iraq-war-whistleblower (last
visited July 16, 2018).
51 See Sandra Coliver & Zsolt Bobis, Open Society Justice Initiative, The United Kingdom’s
Official Secrets Act 1989 (Dec. 14, 2011), https://www.right2info.org/resources/publica-
tions/UKOfficialSecretsAct1989byOSJI.pdf (last visited July 16, 2018) (A discussion of the
Official Secrets Act).
52 Id. See also M. Oliver, “gchq Whistleblower Cleared,” The Guardian, 25 Feburary 2004,
https://www.theguardian.com/uk/2004/feb/25/iraq.pressandpublishing (last visited July
16, 2018) (Oliver writes a very revealing and informative article regarding the manner in
which the charges against her were eventually dropped. I strongly encourage all readers
of this comment to have a look at it).
53 See Press Release, U.K. Crown Prosecution Service, Statement on R v Katharine Gun,
108/04 (Feb. 26, 2004), https://www.globalsecurity.org/intell/library/news/2004/intell-
040226-uk-cps01.htm (last visited July 16, 2018).
54 See Gail Bartlett & Michael Everett, The Official Secrets Act and Official Secrecy, House of
Commons Library, Briefing Paper CBP07422, at 38 (May 2, 2017), researchbriefings.files
.parliament.uk/documents/CBP-7422/CBP-7422.pdf (last visited July 17, 2018).

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A recent law commission report on reforms to the Official Secrets Act dis-
closed that increasing the criminal penalties for breach of the Act from to 2 to
14 years imprisonment was suggested by the government’s Intelligence and Se-
curity Committee shortly after the Katharine Gun case arose.55 The law com-
mission report, issued in 2017, has, likewise, proposed that the penalties for
violating the Act should be increased.56 Moreover, it recommended that there
should be no defense for whistle-blowers who claim that their breaches of the
law were necessary as being in the public interest.57 As to the general defense
of necessity, it should be noted that Section 3 of the Criminal Law Act 1967,
permits the necessity defense for the use of “such force as is reasonable in the
circumstances in the prevention of crime.”58 Whether it may be successfully
raised in the context of future leaked information cases remains to be seen.59
As a footnote to Katharine Gun’s story, it should be noted that though the
Chilcot inquiry completely ignored her offer to testify,60 it nonetheless con-
firmed the suspicion, as Sir John Chilcot put it, that Tony Blair had not been
“straight with the nation” on Iraq.61
55 See Law Commission, Protection of Official Data, Consultation Paper No. 230, at 87 (2017),
https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/up-
loads/2017/02/cp230_protection_of_official_data.pdf (last visited July 17, 2018).
56 Id. at 88.
57 Id. at 175. See also Coliver & Bobis, supra note 51, at 4 (The proposal has met with subse-
quent resistance):
(“While the Law Commission has proposed a wide range of revisions […] some nega-
tive stakeholder reaction has focused on the length of sentences for leaking offences,
the fact that there is no restriction to the people that could be subject to the certain
offences in the new Espionage Act, and the lack of a statutory public interest disclo-
sure defence.”).
58 See Criminal Law Act 1967, Part i, Section 3, Legislation.gov.uk, https://www.legislation
.gov.uk/ukpga/1967/58/section/3 (last visited July 17, 2018).
59 See R.v. Jones [2006] ukhl 16 (Mar. 29, 2006), https://publications.parliament.uk/pa/
ld200506/ldjudgmt/jd060329/jones.pdf (last visited July 17, 2018)
(Held that the defense was unavailable to Iraq war protesters because the crime of aggres-
sion had not been brought within the domestic laws of the United Kingdom).
60 See K. Gun, “Take it from a Whistleblower: Chilcot’s Jigsaw Puzzle is Missing a Few Pieces,”
The Guardian, 8 July 2016, https://www.theguardian.com/commentisfree/2016/jul/08/
chilcot-iraq-war-gchq-inquiry (last visited July 16, 2018).
61 “Chilcot: Tony Blair was not ‘Straight with the Nation’ over Iraq War,” The Guardian, 6 July
2017,https://www.theguardian.com/politics/2017/jul/06/chilcot-tony-blair-was-not-straight-
with-the-nation-over-iraq-war (last visited July 16, 2018) See also Wilmshurst Resignation
Letter, bbc, 24 March 2005, http://news.bbc.co.uk/2/hi/uk_news/politics/4377605.stm
(last visited July 17, 2018)
(Anyone who had read the resignation letter of Elizabeth Wilmshurst, which stated
that the war with Iraq amounted to “the crime of aggression,” would certainly already
have had such suspicions).

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252 Ferencz
Unfortunately, long-term witness protection programs can be rather costly,

and the Court may not, as yet, have sufficient resources to support such pro-
grams.62 All of this is to say that the issue of evidence-gathering and witness
cooperation and protection may present practical problems which will need to
be considered in deciding whether prosecution for the crime of aggression in
a given case will be viable. Among the actions which the Court might consider
is working with civil society and government officials toward strengthening
the rights of whistle-blowers in their own national courts, either by working to
develop protocols to assure availability of the necessity defense or other pro-
tective mechanisms. Moreover, if the Court has not already done so, it may
explore the possibility of “piggy-backing” arrangements, whereby the burden
of long-term witness protection may be shared by or shifted to cooperating
states which may already have established such programs or which may be
willing to do so.
Though investigation will likely present a somewhat lesser threshold of con-
cern than actual prosecution at trial, Article 15 bis requires that either the Se-
curity Council or the Pre-Trial Division must authorize any formal aggression
investigation prior to its commencement. Accordingly, sensitivity to issues of
evidence-gathering and witness protection will likely arise fairly early in the
process of considering such an investigation.
E Definitional Issues
1 Acts of Aggression may Include Those not Specifically Enumerated
in the Statute
With regard to potential prosecutions for any crime within its jurisdiction, it is
axiomatic that the Court must not stray from the statutory definition of the
crime in question.63
Although each of the specific acts enumerated in the second sentence of
Article 8 bis, paragraph 2 will “qualify as an act of aggression,” the first sentence
62 See Jake Rossen, 12 Secrets of the Witness Protection Program, Mental Floss (Mar. 29, 2016),
http://mentalfloss.com/article/77695/12-secrets-witness-protection-program (last visited
Feb. 3, 2018)
(An interesting article about the witness protection program in the United States, in-
cluding how much it costs).
See also Alemayehu G. Mariam, Saving the icc: A Proposal for a Witness Protection Pro-
gram, Waagacusub Media (Apr. 7, 2014), http://waagacusub.net/articles/312/Saving-the-
icc-A-Proposal-for-a-Witness-Protection-Program (last visited Feb. 3, 2018).
63 Rome Statute, art. 22, ¶ 2 (“The definition of a crime shall be strictly construed and shall
not be extended by analogy. In case of ambiguity, the definition shall be interpreted in
favour of the person being investigated, prosecuted or convicted.”).

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of paragraph 2 defines the term “act of aggression” without reference to any of

them. Rather, an act of aggression is defined more broadly with reference to:
[T]he use of armed force by a State against the sovereignty, territorial in-
tegrity or political independence of another State, or in any other man-
ner inconsistent with the Charter of the United Nations.64
Although there is no express indication that what is being proscribed in

Article 8 bis is the first use of armed force by a state in contravention of the
UN Charter, the reference in Article 8 bis, paragraph 2 to G.A. Res. 3314 would
certainly seem to imply it.
This said, whether a particular act comes within the definition of aggression
should be construed by both the Office of the Prosecutor and by the icc judges
as broadly as the provisions of Article 8 bis will appropriately allow. And why
not? For example, homicide statutes cannot be expected to enumerate, and do
not attempt to enumerate, the various ingenious and nefarious means by which
people may commit murder—nor should the Rome Statute be expected to.
One emerging form of attack that has received significant attention recent-
ly, yet which is omitted from the list of aggressive acts enumerated in the Stat-
ute, is cyber-attack. Whether such an attack, in a given case, could be seen to
constitute the use of “armed force” within the meaning of the Statute is a ques-
tion which is as yet untested. However, it may be of interest to note, if only for
illustrative purposes, that, according to its mission statement, the United
States Army Cyber Command (arcyber) “directs and conducts integrated
electronic warfare.”65 arcyber is clearly part of the country’s armed forces. It
may, therefore, reasonably be argued that attacks by such means should cer-
tainly constitute the “use of armed force” within the meaning of the Statute.66
2 Fact-based Culpability Testing for Direct or Control

As noted above, in order to be charged with the planning, preparation, initia-
tion or execution of an act of aggression, the accused must be:
[A] person in a position effectively to exercise control over or to direct

the political or military action of a State.
64 See Kampala Amendments, supra note 7.

65 About, U.S. Army Cyber Command, https://www.army.mil/armycyber#org-about (last vis-
ited Feb. 3, 2018).
66 Kreß & Barriga, supra note 14, at 1483 (Discusses possible amendment to the Statute re-
garding cyber-attack; see commentary therein by Ambassador David Scheffer).

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254 Ferencz
This is clearly a facts and circumstances test. Someone may well be in a posi-
tion to “direct” the political or military action of a state, even though not in a
position to assert “control” over either of them. As to potential prosecution for
the crime of aggression, the test of causation will be controlling, rather than
the trappings of title or nomenclature associated with the status of the ac-
cused. For example, where a chief legal officer knowingly gives incorrect legal
advice to others in positions of power, with the reasonable belief that they will
rely on it in determining whether to proceed with an act of aggression, such
person may arguably be seen to have “directed” the political or military action
of the state within the meaning of Article 8 bis, paragraph 1. Similarly, a na-
tional politician or even a key advisor who knowingly misleads other decision-
makers, in the reasonable belief that such deception will lead to the commis-
sion of acts of aggression should be seen to qualify as having been in a position
effectively to exercise control over or to direct the political or military action of
the state.
There are clearly many possible scenarios where effective control or the
ability to direct others may reasonably be inferred and each must, and surely
will, be assessed on its own merits. In setting policy on the matter, the Office of
the Prosecutor should send a clear signal that those in positions effectively to
control or direct the military or political actions of a state will not be able to
hide behind vague or less influential-sounding titles. The old adage, “action
speaks louder than words” may certainly apply to any such analysis—though,
naturally, words will certainly still be of probative value.
i Unreasonable Reliance on Legal Opinions or Other Advice Is no

Excuse
With regard to the issue of reliance on legal opinions or other advice which
may be considered by those in positions of power, it should be noted that any
reliance on such advice must, itself be reasonable. For example, factors such
as whether the opinion or advice may have been either altered or coerced,67
whether it is based on factual assumptions which are themselves suspect,
or whether it has been prepared by a person or persons whose competence,
impartiality, or reliability is questionable must be taken into account in deter-
mining whether it was reasonably relied on. Advice or legal opinions prepared
by those appointed to office by the person or persons who have requested
67 See e.g. S. Walters, “Iraq Inquiry bombshell: Secret Letter to Reveal New Blair War Lies,”
Daily Mail, 28 November 2009, http://www.dailymail.co.uk/news/article-1231746/Secret-
letter-reveal-new-Blair-war-lies.html (last visited July 16, 2018) (Contains an interesting
discussion of Prime Minister Tony Blair’s interaction with Lord Peter Goldsmith, the At-
torney General of the United Kingdom, in the run-up to the Iraq war of 2003).

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the opinion should rightly be subject to an even higher level of scrutiny as to

whether they have reasonably been relied on as compared to advice or opin-
ions requested from sources having no personal or political ties to the person
or person requesting the opinion. To avoid over-reliance on any one person
as the provider of legal advice pertaining to the legality of military, it may be
prudent that such advice come, for example, from a cabinet-level committee
which has considered the matter or, perhaps better yet, from a truly indepen-
dent and credible “independent counsel,” if one can be found.68
Any formal policy regarding the crime of aggression may wish to consider
addressing such issues.
3 Manifest Violation of Charter Threshold

Perhaps the most subjective of the elements imbedded in the statutory defini-
tion of the crime of aggression is the requirement of Article 8 bis, paragraph 1,
that the act in question must rise to the level of:
[A]n act of aggression which, by its character, gravity and scale, consti-
tutes a manifest violation of the Charter of the United Nations.
Presumptively, any such act would violate the UN Charter ’s prohibition on the
threat or use of force, as provided in Article 2, paragraph 4 of the Charter;69
would not be a use of force authorized by the Security Council, as is allowed
pursuant to Article 41 of the Charter;70 and would not be in self-defense after
an attack, as is allowed under Article 51 of the Charter.71
68 See J. Tapsfield, “Far from Satisfactory’: Iraq Report’s Verdict on how Blair Ally Lord Gold-
smith Hardened his Legal Advice During the March to War,” Daily Mail, 6 July 2016, http://
www.dailymail.co.uk/news/article-3677212/Far-satisfactory-Iraq-report-s-verdict-Blair-al-
ly-Lord-Goldsmith-hardened-legal-advice-march-war.html (last visited July 16, 2018)
(Suggestion by the former UK Attorney General, Lord Peter Goldsmith, while testifying
before the Chilcot Inquiry on the Iraq war).
69 UN Charter, art. 2, ¶ 4, at 4, http://www.un.org/en/sections/un-charter/chapter-i/index
.html (last visited July 17, 2018)
(“All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.”).
70 UN Charter, art. 41 (“The Security Council may decide what measures not involving the
use of armed force are to be employed to give effect to its decisions, and it may call upon
the Members of the United Nations to apply such measures. These may include complete
or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio,
and other means of communication, and the severance of diplomatic relations.”).
71 UN Charter, art. 51 (“Nothing in the present Charter shall impair the inherent right of in-
dividual or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to maintain

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256 Ferencz
The precise parameters of what does or does not rise to the level of a mani-
fest violation of the UN Charter as to its character, gravity, and scale is an open
question, which will have to be considered on a case by case basis. Much of
justice and judging has to do with balancing competing interests, whether they
be those of so-called military necessity versus those of civilians who have a
right to life,72 or the tension between the desire of governments to keep their
actions covert and the wishes of their citizens to know what is being done, of-
ten behind their backs, but ultimately in their name. Yet one thing is fairly
clear: an honest case of true humanitarian intervention—akin to a citizen who
must break the law to prevent a greater crime—will certainly not fall within
the ambit of the definition of aggression.73
The principles underlying the necessity defense which apply in domestic
jurisdictions should be recognized at the international level. Yet it should be
kept in mind that although “lady justice” wears a blindfold, she is neither blind
nor deaf. With respect to the question of humanitarian intervention as an ex-
culpatory principle, she may well ask whether those who wish to cloak them-
selves in the mantle of the necessity defense must, themselves, come to the
Court with clean hands. That is to say, perhaps those who put forward “hu-
manitarian intervention” as a defense should be scrutinized as to whether they,
themselves, were in any way complicit in contributing to the commission of
the very atrocities which they claim they must now intervene to put an end to.
Such complicity may take many forms. For example, it could be in the form of
the sale or conveyance of arms by which the atrocities on the ground are being
committed.74 Such a restriction, if published in advance as part of an official
i nternational peace and security. Measures taken by Members in the exercise of this right
of self-defence shall be immediately reported to the Security Council and shall not in any
way affect the authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to maintain or re-
store international peace and security.”).
72 See e.g. Council of Europe, European Convention on Human Rights, art. 2, https://www
.echr.coe.int/Documents/Convention_ENG.pdf (last visited July 17, 2018) (“Everyone’s
right to life shall be protected by law.”).; see also The Declaration of Independence, ¶ 2, US
History.org, http://www.ushistory.org/Declaration/document/ (last visited July 17, 2018)
(“We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are Life, Lib-
erty, and the pursuit of Happiness.”).
73 See Jennifer Trahan, “Defining the ‘Grey Area’ Where Humanitarian Intervention may not
be Fully Legal, but is not the Crime of Aggression” (2015) 2 J. Use of Force & Int’l L. 42.
74 See e.g. M. Nicol, “Britain Sent Poison Gas Chemicals to Assad: Proof that the UK Deliv-
ered Sarin Agent to Syrian Regime for Six Years,” Daily Mail, 8 September 2013, http://

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icc policy, might help to focus the mind of those who, up until now, have not
given the matter sufficient attention.
IV Concluding Thoughts
The brief discussion set forth above in no way pretends to represent a compre-
hensive analysis of the Kampala amendments or the issues which confront the
Court in addressing them.
As noted above, there is much not to like about the amendments on the
crime of aggression—including the manner in which their activation decision
was taken. But having them activated is far better than having nothing at all. At
the very least, they send a clear message that the crime of aggression is illegal
in international law and that it may soon be prosecuted before the icc, albeit
with restrictions as to jurisdiction.
Fulfillment of the promise of Nuremberg has been slow in coming, and is
certainly not yet entirely realized—but activation of the Kampala amend-
ments is a meaningful beginning. At a minimum, legal advisors to heads of
state who may be contemplating military interventions in violation of the UN
Charter will, if asked, be forced to report that the Court is now in a position to
potentially prosecute them for the crime of aggression.75
Moreover, bringing the crime of aggression within the active jurisdiction of
the Court sends a message confirming the seriousness of the crime of aggres-
sion itself. In this regard, it may be of interest that, as reported by Professor Jay
Silver:
Experiments have long revealed the symbiosis of law and morality: being
told that a behavior is illegal makes it also seem more immoral.76
www.dailymail.co.uk/news/article-2415081/Britain-sent-poison-chemicals-Assad-Proof-
UK-delivered-Sarin-agent-Syrian-regime.html (last visited July 16, 2018).
75 Compare e.g. Secret Memorandum from Lord Peter Goldsmith, Attorney General of the UK,
to Tony Blair, Prime Minister (since declassified) (Mar. 7, 2003), http://www.comw.org/
warreport/fulltext/0303goldsmith.html (last visited July 17, 2018) (The Attorney General
advises Tony Blair, who had appointed him, that the Court had no jurisdiction over the
crime of aggression). See also R. Norton-Taylor, “Chilcot Inquiry: Iraq Papers Show Lord
Goldsmith’s Warning to Tony Blair,” The Guardian, 30 June 2010, https://www.theguard-
ian.com/uk/2010/jun/30/chilcot-inquiry-lord-goldsmith-blair (last visited July 16, 2018).
76 J.Silver, “Can the Law Make Us Be Decent?,” N.Y. Times, 6 November 2012, https://www
.nytimes.com/2012/11/07/opinion/can-the-law-make-bad-samaritans-be-decent.html
(last visited July 16, 2018).

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258 Ferencz
Had the asp not agreed to activate the Court’s jurisdiction over the crime of
aggression, it may unwittingly have contributed to giving the impression that
aggression is not a crime to be taken seriously.
Civil society must do its share in working to help plug the loopholes for
those who either fail to ratify or who opt out of the Court’s Article 15 bis juris-
diction by encouraging them to do otherwise.
Given the choice of an icc with no jurisdiction over the crime of aggression
or a Court which can only fight aggression with the as yet incomplete toolbox
provided by the Kampala amendments, I would choose the Kampala amend-
ments, and it is not a hard choice.
Some may see it as accepting the lesser of two evils, but they are two very
different sorts of evils. At Nuremberg, Robert Jackson spoke of those who use
their power “to set in motion evils which leave no home in the world
untouched.”77 The evil of impunity for those of whom he spoke far outweighs
the evils or shortcomings which may be associated with the imperfect begin-
nings of an effort to hold perpetrators of the crime of aggression to account in
a court of law.
Anyone unpersuaded by such logic might perhaps consider the somewhat
more idiosyncratic logic of Mae West, the American star of stage and screen of
an earlier era, who revealed in a film that “Between two evils, I always pick the
one I never tried before.”78 If there is any question that an imperfect Court with
an imperfect jurisdiction over the crime of aggression represents the lesser of
two evils, there can surely be no disputing that it represents the one that hasn’t
been tried yet.
At the risk of sounding either plagiaristic or trite or both, in essence, all we
are saying is give law a chance. Beating swords into ploughshares deserves no
less. Neither do the countless victims of the supreme international crime of
aggression. And neither do people like Katharine Gun.
77 Nuremberg Trial Proceedings, supra note 38, at 99.

78 Klondike Annie (1936), imdb, https://www.imdb.com/title/tt0027851/ (last visited Feb. 3,
2018).

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Chapter 22
Reflections on the ICC’s Role in Prosecuting

Aggression
Tom Ruys
I Introduction
On December 14, 2017, the Assembly of States Parties to the Rome Statute de-
cided by consensus to activate the icc’s jurisdiction over the crime of aggres-
sion as of July 17, 2018.1 The historical decision finally makes true on the prom-
ise created by the original inclusion of the crime of aggression when the Rome
Statute was adopted in 1998 (Article 5 (1) of the Rome Statute). What is more,
the decision at long last revives the legacy of the post-War Nuremberg and To-
kyo Tribunals, where military and political leaders were first (and—so far—
last) criminally prosecuted for “crimes against the peace.”
The consensus decision did come at a heavy price. While it was previously
affirmed (at the time of the adoption of the 2010 Kampala amendments)2 that
the jurisdiction over the crime of aggression would not be exercised against
nationals of non-states parties to the Rome Statute3 or of States Parties making
use of the opt-out mechanism,4 jurisdiction was further curtailed by the activa-
tion decision. In particular, the decision stipulates that in the case of a state
referral or proprio motu investigation, “the Court shall not exercise its jurisdic-
tion regarding a crime of aggression when committed by a national or on the
territory of a State Party that has not ratified or accepted [the Kampala
amendments].”5
The implication of this compromise—disappointingly lacking in ambition
and difficult to reconcile with the original promise of Article 5 of the Rome
1 Assembly of State Parties, International Criminal Court, Activation of the Jurisdiction of the
Court Over the Crime of Aggression, Doc. No. ICC-ASP/16/Res.5 (Dec. 14, 2017) [hereinafter
Activation of Jurisdiction].
2 Assembly of State Parties, International Criminal Court, The Crime of Aggression, Doc. No.
RC/Res.6 (Jun. 11, 2010).
A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute], art. 15 bis (5).
4 Rome Statute, art. 15 bis (4).
5 Activation of Jurisdiction, supra note 1, ¶ 2.

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260 Ruys
Statute—is that prosecutions will be possible only in respect of leaders of a

small circle of countries. Some ten years after their adoption, thirty-nine states
have effectively ratified the Kampala amendments. It follows that investiga-
tions into crimes of aggression will in all likelihood remain exceptional and
that it may take years for the first such investigation to materialize. On the
other hand, inasmuch as every cross-border operation potentially raises ques-
tions as to its legality,6 sooner or later the otp will inevitably have to address
allegations that a crime of aggression has been committed.7
When (rather than if) this happens, the otp will be confronted with a range
of challenges, some of which are ostensibly unique to the prosecution of ag-
gressors. The present essay briefly focuses on two such challenges, specifically
the relationship with the UN Security Council (unsc), and the application of
the primary rules on the use of force (the so-called jus contra bellum).8
II otp Investigations into Crimes of Aggression Should Not Depend

on a Green Light from the unsc.9
In spite of the post-War trials, where individuals were first prosecuted for
“crimes against the peace” (notably at the initiative of the United States), and
in spite of its inclusion in the Rome Statute, some continue to resist the idea
that the crime of aggression constitutes a justiciable crime. In the words of
Koh and Buchwald:
Aggression determinations are fundamentally different in kind [from de-

terminations of atrocity crimes]: they fundamentally require a political
assessment and political management.10
6 Even if the icc’s jurisdiction does not operate retroactively, it is worth observing that
several of the ratifying States, e.g. Spain, Belgium, or the Netherlands, have previously
been involved in controversial military operations abroad, e.g., in Serbia, 1999, or Iraq,
2003.
7 Especially if the number of ratifications of the Kampala amendments were to further
augment.
8 Or jus ad bellum.
9 This section draws, in part, on Tom Ruys, “Justiciability, Complementarity and Immunity:
Reflections on the Crime of Aggression” (2017) 13 Utrecht L. Rev. 18.
10 Harold Hongju Koh & Todd F. Buchwald, “The Crime of Aggression: The United States
Perspective” (2015) 109 Am. J. Int’l L. 257, 263.

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Reflections on the ICC’s Role in Prosecuting Aggression 261
Or as Rostow puts it: “[d]eterminations of aggression are political and rightly

so.”11
Attempts to conceive determinations of aggression as a purely political
question are illustrative of the perverse and flawed tendency, still very much en
vogue today, to surgically detach the political decision-making process leading
up to the launch of a military intervention from the loss of life (among civilians
and combatants) and destruction (e.g., in terms of damage to the economy or
governmental institutions) that all too frequently follows. This tendency is also
reflected in the dominant normative account which views the crime of aggres-
sion as a political crime, which “yields an abstract harm,”12 rather than as a
compound of wrongs against individuals (civilians and combatants), that en-
tails “the slaughter of human life, the infliction of human suffering, and the
erosion of human security.”13
Furthermore, this approach ignores not only the legacy of the 1928 Pact of
Paris—which first outlawed the recourse to war14—and the Nuremberg pro-
ceedings, it is also fundamentally at odds with the fact that the International
Court of Justice has repeatedly pronounced (directly or indirectly) on the com-
patibility of state conduct with the rules governing the use of force15—as have
a number of arbitral tribunals.16 This case-law unequivocally confirms that,
11 Nicholas Rostow, “The International Criminal Court, Aggression and Other Matters: A Re-
sponse to Koh and Buchwald” (2016) 109 Am. J. Int’l L. 230, 232.
12 Erin Creegan, “Justified Uses of Force and the Crime of Aggression” (2012) 10 J. Int’l Crim.
Just. 59.
13 Tom Dannenbaum, “Why Have We Criminalized Aggressive War?” (2016) 126 Yale L.J., 1242,
1270.
14 For an excellent work on the origins and impact of the Pact of Paris (officially General
Treaty for Renunciation of War as an Instrument of National Policy, 94 League of Nations
Treaty Series 57 (Aug. 27, 1928), https://treaties.un.org/doc/Publication/UNTS/LON/Vol-
ume%2094/v94.pdf (last visited July 17, 2018) , see Oona A. Hathaway & Scott J. Shapiro,
The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Si-
mon & Schuster, 2017).
15 See, in particular, The Corfu Channel Case (United Kingdom v. Albania), Judgment, i.c.j.
Rep. 1949 (Apr. 9), p. 4; Case Concerning Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua v. U.S.), Merits, Judgment, i.c.j. Rep. 1986 (Jun. 27), p. 14 [hereinaf-
ter Nicaragua v. U.S.]; Case concerning Oil Platforms (Islamic Republic of Iran v. United
States of America), Judgment, i.c.j. Rep. 2003 (Nov. 6), p. 161; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Rep.
2004 (Jul. 9), p. 163; Case Concerning Armed Activities on the Territory of the Congo (Demo-
cratic Republic of the Congo v. Uganda), Judgment, i.c.j. Rep. 2005 (Dec. 19), p. 116.
16 Eritrea-Ethiopia Claims Commission, Partial Award—Jus ad Bellum—Ethiopia’s Claims
1–8, Decision, 26 Rep. Int’l Arbitral Awards 457 (Dec. 19, 2005), http://legal.un.org/riaa/
cases/vol_XXVI/457-469.pdf (last visited July 17, 2018); Arbitral Tribunal, Award in the

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262 Ruys
notwithstanding the politically sensitive nature of the charges, state responsi-

bility for aggression is a justiciable matter that international courts and tribu-
nals can rule upon independently (within the confines of their jurisdiction).
In the 1980s, the International Court of Justice (icj) did not shy away from
assessing the legality of the US military intervention in the famous Nicaragua
v. U.S. case—notwithstanding US objections that the case involved an inher-
ently political problem and notwithstanding warnings that the icj’s bold ap-
proach would destroy its legitimacy and result in an empty docket (which has
certainly not been the case). By analogy, the otp should not shy away from
actively seeking to investigate and prosecute the crime of aggression. Only by
acting in such manner will it be possible to undo the myth that high-level deci-
sions to deploy armed forces abroad are beyond the reach of judicial scrutiny,
and hold political and military leaders to account for the harm caused. This is
all the more so since the (remote) prospect of the state being held internation-
ally responsible for ignoring the jus contra bellum is unlikely to play a determin-
ing role in decisions over the use of armed force. By contrast, the risk of facing
individual criminal responsibility may weigh heavier in the minds of the deci-
sion-makers concerned. As Dinstein puts it:
Only if it dawns on the actual decision-makers that—when they carry

their country along the path of war in contravention of international
law—they expose themselves to individual criminal accountability, are
they likely to hesitate before taking the fateful step.17
The otp should not let itself be shackled by making investigations into the
crime of aggression dependent on a green light from the unsc. No such legal
requirement follows from the Charter of the United Nations, [hereinafter UN
Charter]. Article 39 of the UN Charter, which decrees that the unsc can take
enforcement action in case of a “threat to the peace,” a “breach of the peace” or
an “act of aggression,” is merely an institutional provision, which defines the
situations in which the unsc may use its Chapter vii powers. Such enforcement
action is not limited to situations where there has been a prior breach of inter-
national law: a “threat to the peace,” for instance, does not necessarily presup-
pose the commission of an internationally wrongful act by any state. Article 39
rbitration Regarding the Delimitation of the Maritime Boundary Between Guyana and Su-
A
riname, 30 Rep. Int’l Arbitral Awards 1 (Sep. 17, 2007), http://legal.un.org/riaa/cases/vol_
XXX/1-144.pdf (last visited July 17, 2018).
17 Yoram Dinstein, War, Aggression and Self-Defence, 6th ed. (Cambridge: Cambridge Uni-
versity Press, 2017), p. 132.

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of the UN Charter was never intended to have the unsc act as a judicial body,
asserting legal responsibility for wrongful conduct.
It has moreover amply been affirmed that the unsc’s competence to deter-
mine an act of aggression is not exclusive. Thus, the absence of a prior finding
of aggression by the unsc has not stopped the icj or arbitral tribunals from
pronouncing on the legality of the use of force by states.18 Nor has it stopped
the UN General Assembly from pronouncing on the legality of military inter-
ventions.19 Suggestions that there is a legal requirement under international
law which makes icc investigations into the crime of aggression dependent
upon prior approval by the unsc are all the more absurd in light of the (ex-
tremely) narrow jurisdiction ratione personae in respect of this crime. Indeed,
inasmuch as jurisdiction is limited to political and military leaders of countries
that have ratified the Kampala amendments (without having used the opt out),
this dispels any lingering doubts that the exercise of jurisdiction would some-
how contravene the so-called Monetary Gold principle.20
Making otp investigations contingent on a green light from the unsc is not
only not legally required, it would also be detrimental to the Court’s legitimacy
and nullify the potential of the Kampala amendments. It would make otp in-
vestigations hostage to political interests and create a perception of victor’s
justice and double standards. Investigations into the conduct of any P-5 ally
would be all but excluded. More generally, the prospect of any investigations
into crimes of aggression would be extremely remote: Security Council resolu-
tions referring to “(acts of) aggression” indeed remain rare—not a single such
resolution has been adopted since the end of the Cold War.21 By voluntarily
subjecting itself to the whims and vagaries of the unsc, the otp would undo
18 See Hathaway & Shapiro, supra note 14; also see generally, supra note 15.
19 See e.g., General Assembly Resolution 38/7, The Situation in Grenada, (2 November 1983)
(concerning the US intervention in Grenada); see further Dapo Akande, Oxford Institute
for Ethics, Law, and Armed Conflict, Prosecuting Aggression: The Consent Problem and
the Role of the Security Council, Working Paper, Paper No. 10/2011, nt. 26 (May 2010),
http://www.elac.ox.ac.uk/downloads/dapo%20akande%20working%20paper%20
may%202010.pdf (last visited July 17, 2018).
20 Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judgment,
i.c.j. Rep. 1954 (Jun. 15), p. 19, 33 (According to the Monetary Gold principle, international
courts must abstain from deciding a case where the rights and obligations of the non-
consenting third State form “the very subject-matter” of the case). Also see e.g., Akande,
supra note 19, 17 et seq. (On the application of the principle to icc prosecution of
aggressors).
21 See Nicolaos Strapatsas, “The Practice of the Security Council Regarding the Concept of
Aggression,” in Claus Kreß & Stefan Barriga (eds.), The Crime of Aggression: A Commentary
(Cambridge: Cambridge University Press, 2017), p. 178, 180–82, 201–202.

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264 Ruys
the main achievement of the Kampala negotiations, where it was indeed de-
cided to essentially decouple the jurisdiction of the Court, as an independent
judicial organ, from the unsc decision-making process.22
In conclusion, the otp should make full use of its competence under the
Kampala amendments—including in respect of military operations by coali-
tions that encompass both states that have ratified the amendments and states
that have not.23 At the same time, the preferred approach must be for investi-
gations to be started pursuant to a state referral, rather than on a proprio motu
basis. Indeed, to the extent that a crime of aggression presupposes an act of
aggression which, in light of its scale, effects and character, qualifies as a mani-
fest breach of the UN Charter, it can normally be assumed that the victim of
such aggression will declare itself as such and will raise the matter before the
icc.24 When the “victim State” refrains from so acting, this raises doubts as to
whether there indeed exists a manifest breach of the UN Charter. Admittedly,
there may be situations where a state referral is de facto unlikely or impossible
and which call for a proprio motu investigation, e.g., where an aggressor over-
runs another country and installs a puppet regime. It is also conceivable that a
victim state uses the threat of a state referral as leverage in negotiations with
the aggressor (e.g., to arrive at a peace agreement). Such situations may call for
restraint from the otp and must be assessed on a case-by-case basis.
III The otp Should be Careful Not to Exercise Its Competence in Such
a Way as to Erode the Legal Framework Governing the Use of
Force25
A specific challenge resulting from the—now activated—icc jurisdiction over

the crime of aggression is that it will force the Court to tackle a new domain of
international law, which it has hitherto not had to explore. As is well-known,
the jus contra bellum is one of the oldest branches of international law—and
also one of the most hotly debated. In spite of the somewhat utopian assertion
in the Nicaragua v. U.S. case that there exists “general agreement” on what
22 Save for the six month cooling period envisaged under Article 15 bis (7) and (8) of the
Rome Statute.
23 As long as actual prosecutions are limited to nationals of states that have ratified the
amendments.
24 That is, if both victim and aggressor have ratified the Kampala amendments.
25 This section draws, inter alia, from Tom Ruys, “Criminalizing Aggression: How the Future
of the Law on the Use of Force Rests in the Hands of the icc” (2018) 29 E.J.I.L. 887.

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amounts to an “armed attack” in the context of the right of self-defense,26 the

truth is that the “law on the use of force” is rife with controversies. In particular,
there has been strong pressure in recent years to loosen some of the traditional
legal restrictions on the recourse to force. To some extent, this tendency is un-
derstandable, given the evolving nature of threats to state security (chiefly the
advance of trans-national terrorist groups, such as isil/Daesh). At the same
time, calls for a more flexible regime on the recourse to force tend to create a
slippery slope, opening room for abuse and threatening to erode the funda-
mental prohibition of Article 2 (4) of the UN Charter.
One implication of the activation of the icc’s jurisdiction over the crime of
aggression is that the icc (and the otp in particular) will henceforth play a key
role in the interpretation of the jus contra bellum. Just as the case-law of the
icc (and the icty and ictr before it) has left, and continues to leave, its mark
on the interpretation of the law of armed conflict, the same will become true
in the realm of the jus contra bellum. It is imperative in this context that the
icc build on the existing acquis in this domain, as reflected in the case-law of
the icj, legal doctrine and state practice, and, moreover, that it be aware of the
implications that its approach may have for this legal regime.
The Rome Statute provides for a variety of tools that can potentially be used
to justify a refusal to investigate, or prosecute, alleged crimes of aggression.
Possible escape routes include the presumption of innocence and the require-
ment to construe the definition of crimes strictly (Articles 66 and 22 of the
Rome Statute); the notion of mistake of fact (Article 32 of the Rome Statute),27
and; duress and defense of others (Article 31 (c)–(d) of the Rome Statute). By
contrast, a leader’s alleged lack of an aggressive intent or an alleged mistake of
law will not normally shield him or her from prosecution.28 An additional
route results from the substantive threshold introduced at Kampala. Indeed,
pursuant to the Kampala definition, not any recourse to force can give rise to a
crime of aggression:only uses of force that, by their “character, gravity and
scale,” constitute a “manifest” violation of the UN Charter can qualify as such.
26 Nicaragua v. U.S., supra note 15, ¶ 195.

27 Consider, e.g., an accidental incursion of a state’s territory or airspace by troops or aircraft
from a neighboring state.
28 See International Criminal Court, Elements of Crimes, Doc. No. RC/11 as adopted Kampala
(Jun. 11, 2010) [hereinafter Elements of Crimes] (In particular, see where it is stressed that
in the context of the crime of aggression, “there is no requirement to prove that the per-
petrator has made a legal evaluation as to the ‘manifest’ nature of the violation of the
Charter of the United Nations.” Elements of Crimes 43. Instead the Elements of Crimes re-
quire that the perpetrator “was aware of the factual circumstances that established that
such a use of armed force was inconsistent with the Charter of the United Nations.”).

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266 Ruys
Thus, an isolated and relatively small-scale drone strike or a minor border skir-
mish would not possess the gravity and scale required under Article 8 bis (1) of
the Rome Statute. Although the icc has been given “very little guidance as to
where to draw the line in the sand,”29 the Court should use the above tools
when appropriate. At the same time, it should do so cautiously, without turning
the crime of aggression into a dead letter and signing off on a climate of
impunity.
The most controversial of the above-mentioned tools concerns the require-
ment pertaining to the “manifest character” of the breach. This criterion was
introduced specifically to exclude prosecutions in respect of military interven-
tions falling in the grey zone of the jus contra bellum, that is, interventions that
are not manifestly unlawful, but which are nonetheless of ambiguous legality.
The archetypical example of such intervention is that of a bona fide unilateral
humanitarian intervention (such as nato’s Kosovo intervention in 1999),
where one or more third states intervene militarily to protect foreign nationals
from ethnic cleansing or massive human rights violations in a third state, yet
absent proper authorization from the unsc. Even if the majority view—to
which the present author subscribes—holds that unilateral humanitarian in-
terventions remain unlawful de lege lata and require the imprimatur of the
unsc, there is a strong, and legitimate, feeling that the authors of such inter-
vention should not be put on par with the Nazi leaders put on trial in Nurem-
berg, and should not become the subject of criminal prosecution. Apart from
the much-debated humanitarian intervention doctrine, several other border-
line cases have been put forward. Possible candidates include action in self-
defense against an allegedly imminent threat of an armed attack, action in
self-defense against a non-state armed group conducting cross-border attacks
(without substantial involvement of a third state), or so-called “protection of
nationals” operations abroad. Two observations are nonetheless in order.
First, the otp should be cognizant that any finding that a recourse to force
is not of such character as to qualify as a “manifest” violation of the UN Char-
ter will reinforce the perception that interventions of the type concerned are
not “unambiguously unlawful.” This will be the case even if the Prosecutor (or
the Court) would refrain from taking an express position on the application of
the jus contra bellum (and simply find there to is no “manifest” breach of the
UN Charter). As Murphy aptly observes:
29 Carrie McDougall, The Crime of Aggression Under the Rome Statute of the International
Criminal Court (Cambridge: Cambridge University Press, 2013), p. 132.

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[A] distinction of this type will likely be lost in the public domain; when
the icc determines that the leaders of an intervention will not be inves-
tigated or indicted for aggression, the natural perception is that the icc
believes the intervention to be legal. Arguing that an intervention might
still be a violation of Article 2 (4) but just is not within the scope of the
icc’s jurisdiction is the type of position that will likely gain little traction
in the realm of political and popular discourse, which tends to approach
such issues in more a black/white (legal/illegal) fashion.30
Thus, a decision of this type would probably leave its mark on state practice
and opinio juris, possibly leading a growing number of states to (more) explic-
itly embrace the legality of the category of interventions concerned, e.g. in na-
tional military doctrines, and potentially leading to a shift in the justificatory
discourse at the international level, from which the legal regime on the use of
force derives much (if not most) of its compliance pull. It follows that, in order
to avoid undue damage to the primary rules of the jus contra bellum frame-
work, the icc should exercise the necessary restraint in applying the “manifest
character” criterion. In particular, it may be preferable to use other approaches
to close an investigation into alleged crimes of aggression, for instance, by
holding that a relatively minor intervention is not sufficiently manifest in
terms of scale or gravity, rather than by playing the card of the “borderline
case.”
Second, in examining alleged crimes of aggression, the icc should not stop
at verifying the existence of an initial casus fœderis or “just cause” (in the olden
“just war” terminology), but should also verify whether other jus contra bellum
parameters are duly complied with. By way of illustration, in respect of unilat-
eral humanitarian intervention, the icc should arguably first verify whether
the operation constituted a reaction to a grave and large-scale humanitarian
crisis (produced either by state action, state neglect or a failed state situation),
and whether other options were reasonably exhausted. In this context, rele-
vant indications (rather than autonomous requirements) may include, among
other things, the collective nature of an operation carried out by multiple states,
or the fact that an attempt was made to secure prior unsc approval. Yet, be-
yond this, the Court should also pay heed to the proportionality question. In
particular, the Court should verify, having regard to the planning and imple-
mentation, that the operation did not manifestly exceed the aim of ending the
30 Sean D. Murphy, “Criminalizing Humanitarian Intervention” (2009) 41 Case W. Res. J. Int’l

L. 341, 369.

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268 Ruys
humanitarian catastrophe that triggered it. Similar considerations apply muta-

tis mutandis in respect of protection of nationals operations.
In a similar vein, in respect of the generally established exceptions to the
prohibition on the use of force, the icc should not content itself with ascer-
taining that a military operation constitutes a reaction to a prior “armed at-
tack” (in case of self-defense) or was undertaken pursuant to a formal authori-
zation of the unsc. Rather, the Court should additionally verify that the state
did not deliberately engage in a manifestly disproportionate response in the
aftermath of an armed attack, or that it did not manifestly overstep the bound-
aries of the unsc mandate. By the same token, with respect to so-called “inter-
ventions by invitation,” in addition to verifying the existence of a valid request
to intervene, the Court must ascertain that the intervening state did not mani-
festly exceed the scope of the invitation. Whether the icc should feel called
upon to tackle the permissibility of intervention by invitation in situations of
civil war31 is a different matter altogether. One possible answer could be that,
in such scenario, what is at stake is not so much a breach of the prohibition on
the use of force, but rather a possible breach of the non-intervention principle
and especially the right of self-determination, implying that no crime of ag-
gression could be said to arise.
It goes without saying that the activation of the icc’s jurisdiction over the
crime of aggression presents the Court with daunting challenges. It forces the
icc to assume the role of key interpreter in one of the most sensitive domains
of international law. Depending on how it implements this role, the icc may
well contribute to a certain erosion of the legal framework governing the use of
force, indirectly lending credence to some more “expansionist” claims in legal
doctrine. Conversely, if the icc manages to strike the right balance, it may well
contribute to bringing greater legal certainty in the jus contra bellum and pro-
voking a rapprochement between competing interpretations of the outer limits
of the legal framework governing the use of force.
Given its unprecedented nature, the prosecutions of individual leaders of
“crimes against the peace” proved to be one of the most controversial aspects
of the Nuremberg proceedings,32 yet it was undoubtedly also one of its main
31 See further Erika de Wet, “The Modern Practice of Intervention by Invitation in Africa and
Its Implications for the Prohibition of the Use of Force” (2015) 26 European Journal Inter-
national Law 979.
32 Controversy at the time focused not so much on the allegedly political nature of the of-
fense, but primarily on the compliance with the non-retroactivity principle in criminal
law.

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achievements. The time is ripe for the icc to pick up the legacy of Nuremberg,
reminiscent of its hard-learnt lesson that:
To initiate a war of aggression… is the supreme international crime, dif-

fering only from other war crimes in that it contains within itself the ac-
cumulated evil of the whole.33
33 The International Military Tribunal for Germany, Judgment, 22 Nuremberg Trial Proceed-
ings 410, 426 (Sep. 30, 1946), http://avalon.law.yale.edu/imt/09-30-46.asp (last visited July
17, 2018).

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Chapter 23
The Crime of Aggression and the Responsibility

to Protect
Sarah Sewall
1 Summary
Recent activation of the icc’s responsibilities for the crime of aggression com-
plicates prospects for the evolution of the emerging norm of the Responsibility
to Protect (r2p). Yet r2p’s potential to prevent mass atrocities is a critical com-
plement to the icc’s post-facto prosecution of such crimes. While the icc can-
not be expected to prioritize support for r2p above its own role, it has a re-
sponsibility to ensure that it does not deter action to prevent mass atrocities.
Humanitarian intervention, like aggression, is undertaken by states. There is
as yet no humanitarian exception to the un Charter prohibition on the states’
uses of force that would parallel the Charter’s recognition of a state’s right to
self-defense. The norm of humanitarian intervention lacks conceptual clarity,
operational maturity, and legal codification. Defining humanitarian interven-
tion remains a fundamentally political exercise akin to defining aggression,
which has long been the purview of the un Security Council (unsc). The icc’s
responsibility for the crime of aggression therefore will concern those states
that might consider future humanitarian interventions. Definitional uncer-
tainties, coupled with the difficulties of creating a humanitarian carve-out
within the crime of aggression, creates significant individual liabilities for state
officials contemplating any decision to direct the state to assume risks and
costs on behalf of suffering foreign civilians.
As the Office of the Prosecutor (otp) develops its approach to prosecuting
individuals for the crime of aggression, the office should weigh competing and
distinct objectives such as institutional relevance, legal standards, practical
impact, and the Court’s broader normative purpose. A frank assessment sug-
gests that the number and types of states currently adopting the Amendments
regarding the crime of aggression will produce few opportunities for the otp
to investigate or prosecute crimes of aggression whose character, gravity, and
scale could constitute a manifest violation of the un Charter. Accordingly, the
otp would not compromise its likely contributions and could avoid unintend-
ed broader consequences by articulating a highly conservative approach to its

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The Crime of Aggression and the Responsibility to Protect 271
mandate, one that privileged unsc action and set Iraq’s 1991 invasion of Ku-
wait as a standard. Particularly in its first decade, the Court can afford such a
posture, which may also increase states’ willingness to ratify the Amendments
relating to aggression. Activation of the icc’s mandate in the political realm of
state-conducted aggression should not impede the un’s imperfect but encour-
aging progress toward articulating human rights limitations upon the very
state sovereignty it has so assiduously privileged.
2 Argument
With the December 2017 activation of the Amendments on the crime of ag-
gression, the icc theoretically is poised to realize the boldest ambitions of in-
ternational law, addressing individual accountability for what the Nuremberg
Trials deemed the “supreme” crime of aggression. Yet the Court simultaneously
finds itself at risk of undermining its mandate to protect individuals from
genocide, war crimes, and crimes against humanity.
This comment explores this dilemma. It begins by tracing the gap that has
emerged between international law and an evolving international norm re-
garding the use of force to protect civilians. It reviews the complexities of mili-
tary operations that aim to protect civilians and the attendant difficulties of
clearly distinguishing humanitarian intervention from other uses of force. The
comment explains why the activation of icc jurisdiction over the crime of ag-
gression may deter states from using military forces for civilian protection. The
comment then considers how the otp should weigh competing and distinct
objectives such as its institutional relevance, legal standards, and the Court’s
broader normative purpose as the Office develops an approach to its new re-
sponsibility for prosecuting individuals for the crime of aggression.
For both practical and idealistic reasons, this comment suggests that the
otp adopt a highly conservative approach to the crime of aggression.
The Court’s apparent dilemma emerges from the rise of a global human
rights culture—a development which largely tracks the evolution of the Unit-
ed Nations. Since the UN General Assembly’s 1948 Universal Declaration of
Human Rights to its 2005 endorsement of the R2P, states have acknowledged
and gradually codified the expectation that persons, in addition to states, enjoy
inalienable rights. The icc charged initially with establishing individual ac-
countability for grave crimes against persons, itself was born of this dynamic.
The protection, and de facto elevation, of human rights creates friction with
sovereignty, the basic building block of international politics. R2P lies at the
center of this friction. The nascent doctrine of military intervention as an

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272 Sewall
international responsibility when states cannot or will not protect their citi-
zens offers a proactive, pragmatic response to the recurring scourge of state-
committed mass atrocities. It is a signal triumph in the evolution of world gov-
ernance, suggesting that global rules may protect persons as much as states.
Yet in its immaturity (and perhaps its audacity), R2P challenges the current
legal and political order. The UN Charter does not yet accommodate the emerg-
ing norm; there is no “humanitarian intervention” exception for the use of
force such as exists for self-defense. Only the unsc can legally authorize a mili-
tary operation to protect civilians in another state without its consent. Thus,
the Court has been cast into a normative and political conundrum which it is
ill-suited to navigate.
At this point in history, the UN General Assembly’s unanimous endorse-
ment of R2P cannot guarantee unsc support for military operations under-
taken for humanitarian reasons. nato’s 1999 air campaign to protect Kosovars
illustrates the gap between norms and law. Security Council members had po-
litical allegiances and sensitivities about protecting sovereignty, making it im-
possible to obtain legal authorization for Operation Allied Force. Supporters of
Allied Force were left defending it as “legitimate,” if not legal, and appealing to
a higher morality than the UN Charter. Even the UN’s subsequent authoriza-
tion of follow-on peacekeeping efforts in Kosovo was insufficient to remove
from coalition members the political taint of having acted illegally.
Global support for R2P was then gravely wounded by the evolution of the
2011 French, American, and British air campaign in Libya. Critics charged
these governments with deception, arguing that bombing portrayed as civilian
protection became dedicated to regime change as the campaign progressed.
Critics also condemned the civilian casualties resulting from Western bomb-
ing. When the mission in due course left Libya effectively ungoverned, unsta-
ble, and violent, buyers’ remorse set in. Brazil’s stinging rebuke, which found
wide resonance, called for modifying the R2P doctrine to “responsibility while
protecting.”
If the unsc authorization made the operation legal, critics nonetheless
deemed it illegitimate either because it was not a true or an effective humani-
tarian intervention. This raises interesting questions about how to judge an
R2P operation. Must state leaders’ intentions be pure, devoid of self-interest
or other motivation? If personal or national ego or fealty to an ally reinforced
desires to stop Gaddafi’s troops from massacring inhabitants of Benghazi,
does that undermine humanitarian purpose? The initiators of the air cam-
paign did not launch the attack for revenge, punishment or conquest. Yet it
toppled the government and led to Gaddafi’s death. Was it deceit, ineptitude
or unavoidable?

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I believe the campaign’s evolution reflected lack of clarity about initial ob-
jectives and the operational implications of the civilian protection mission,
which was then assigned to military organizations whose standard operating
procedures enabled a slippery slide into alignment with an armed party in a
civil war. Whether inexcusable or understandable, the Libya intervention re-
vealed ignorance and institutional autopilot, not mendacity or conspiracy. But
the ongoing public disputes suggest how malleable and imperfect humanitar-
ian intervention can be.
Three widely cited early examples of humanitarian interventions reinforce
this point: Vietnam’s 1979 invasion of Cambodia, Tanzania’s intervention in
Uganda in 1978, and India’s 1971 entry into the Pakistani civil war. These were
not tailored, defensive operations designed primarily to save lives. Each facili-
tated a form of regime change. Each is properly understood as an effort to ad-
vance the intervening state’s interests as much as advance humanitarian goals.
Does that make them crimes of aggression? Should they have not occurred?
Would the world nonetheless desperately plead for military intervention to
end the next auto-genocide?
The 1994 French intervention in Rwanda offers yet another twist on the
theme of complexity in humanitarian action. With UN authorization, France
created a “safe zone” after the peak of 1994 genocide. French actions by design
largely served to protect not the Tutsi victims, but the very French-supported
Hutu who had prosecuted the Rwandan genocide. It was protection, but with
a macabre twist. Did the evil that Operation Turquoise shielded from retribu-
tion normatively disqualify the French intervention as humanitarian?
The tensions among operational realities, motives and outcomes, and legal
status become more complex the closer one looks at humanitarian interven-
tion. Should we prefer an “illegal” humanitarian intervention regarded as
nonetheless legitimate, or a legal military operation that masks other objec-
tives or has negative humanitarian effects? How should the icc consider the
legality of humanitarian intervention, knowing that the unsc cannot be relied
upon to authorize the use of force when vulnerable citizens are most in need?
Could the otp countenance prosecution of officials for seeking to fulfill the
same mandate that the icc itself has pursued for fifteen years?
The otp must consider the impact of its approach to the crime of aggres-
sion upon the future prospects for R2P. States do not undertake humanitarian
intervention lightly. By definition, the military protection of foreign civilians
involves sacrifice that cannot be justified purely on realpolitik grounds. This
is why humanitarian intervention is rare, and why it is often carried out by
coalitions that spread political, economic and military risks which might
overwhelm a single nation. This is also why these operations tend to be

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274 Sewall
economical—and sometimes miserly—in their scope, time, size, and expo-

sure of forces, which in turn shapes their outcomes. Arguably the single biggest
impediment to effective humanitarian action, though, is weak “political will”
to take any risk at all on behalf of a non-citizen.
This gives rise to concern that the icc’s new role will narrow the aperture
for R2P. Why would political leaders risk possible prosecution to take what
they regard as optional and selfless action? This is the reality now facing offi-
cials in states that have ratified or acceded to the amendments on the crime of
aggression to the Rome Statute of the icc. At the moment, that group includes
few countries that historically have participated in humanitarian operations,
but the total number of nations willing to invest their blood and treasure on
behalf of humanitarian interests is itself small.
One possible route to protect government leaders from the uncertainties of
the icc’s response to humanitarian action would be state notification of intent
to opt out of the icc’s jurisdiction over the crime of aggression, as the amend-
ments adopted by the parties specifically permit.
Despite uncertainties regarding how this could occur, “opting out” offers a
creative solution to the dilemma—and by voting with their feet, states could
create a de facto humanitarian exception in the icc’s mandate. But encourag-
ing the opting out also normalizes an a la carte justice model. This workaround
would be unhealthy for the icc institutionally and for global justice generally.
The icc’s new role also may affect states that are not party to the Rome Stat-
ute and States Parties that have not yet adopted Amendments regarding the
crime of aggression. This includes a majority of states with a record of partici-
pating in humanitarian interventions—both the most militarily powerful and
a larger number of states of more modest capability such as members of
ecowas.
One possible effect is political turbulence created by a court whose very ex-
istence now suggests that humanitarian action might be considered a crime.
For states that have led humanitarian interventions, the possibility that the
icc theoretically might investigate such an effort weakens government
arguments to justify saving foreigners from mass atrocities. Further, the icc is
sure to become a highly visible magnet for politically-motivated requests for
action—even where the Court lacks jurisdiction to do so. Already nato has
faced what it considers a spurious investigation by an international tribunal;
the International Criminal Tribunal for the Former Yugoslavia’s investigation
of potential war crimes during the Kosovo conflict left a toxic legacy long after
the Tribunal declined to proceed further.
Because humanitarian action will fail to obtain unsc authorization
when Council members are divided, an absence of legal authorization virtually
guarantees high-profile political charges of illegality. Those protests likely will

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invoke the icc, regardless of whether the Court has jurisdiction over the state
leaders involved. The Court provides a platform for questioning the legitimacy
of those seeking to do the right thing. It may also have potential ripple effects
if states attempt to mirror the icc by adopting national legislation or invoke
claims of universal jurisdiction to investigate or indict state leaders for human-
itarian intervention.
Given the icc’s status as an international body, any investigation or com-
mentary on a military operation would be seen as highly detrimental to the
nations involved—to their global reputations, by association to their friends
and allies, and to their domestic constituencies. Even allegations made to the
Court may be politically costly. The icc predictably will be exploited by politi-
cal enemies to discredit humanitarian intervention they oppose on other
grounds. For states considering leading or joining military action to protect
civilians abroad, this could be a critical straw tipping the balance against sav-
ing foreign lives.
A different unintended consequence for the Court could be sustained reluc-
tance to accept the crime of aggression Amendments on the part of states that
might otherwise do so until such time as it is clear that the icc would not
consider humanitarian intervention a crime of aggression.
How might the otp achieve this goal? Some countries, including the United
States, have urged the Court to create a humanitarian intervention carve-out.
The otp might issue a policy paper that articulated its general intention to
exempt humanitarian intervention from consideration as a potential crime of
aggression. It could take the position that there is sufficient uncertainty about
whether military action intended primarily to protect civilians consistent with
the doctrine of R2P is “manifestly” unlawful, thereby signaling its intention to
preserve space for states to act on humanitarian grounds. This might over time
assist with “normalizing” R2P as a matter of international law, assuming that
subsequent otp action regarding investigation or prosecution remained con-
sistent with the policy statement.
Of course, the otp would face difficulties—either privately or in a public
policy statement—in doing so. How would the otp surely distinguish a true
humanitarian intervention from an act or crime of aggression? The otp might
parse an act of aggression from a crime of aggression, but this begs the ques-
tion of the respective elements of each. In a real world of mixed motives and
unintended consequences, should one rely upon stated or implied intentions?
Operational conduct? Humanitarian effect? At what point in time does one
evaluate the action?
Moreover, if the otp dared to make such a distinction, declaring that that
intervention in the name of humanitarian protection would not be equated
with the crime of aggression, different consequences would follow. States

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276 Sewall
would more boldly mask or rationalize all manner of force abroad as protec-
tion missions. Already we have countless historical examples of incursions and
occupations conducted in the name of protecting abused minorities in other
states. More recent Russian actions in Crimea and Eastern Ukraine can be de-
fended in the same vein. A humanitarian carve-out protecting individuals
from prosecution for the crime of aggression might simply make R2P a flag of
convenience.
International aggression is action undertaken by states, and the unsc alone
has been responsible for determining whether states have committed aggres-
sion under the UN Charter. As many have observed, such determinations are
fundamentally political, a reality that underlies many nations’ unease with the
icc’s venture into this territory. If the unsc’s determination of aggression is
fundamentally political, so too is its willingness to authorize (or not) actions
taken to fulfill R2P. The unsc remains the institution positioned to reconcile
the normative vision of R2P and the UN Charter. The icc has been tasked with
a taut legalism that threatens its broader purpose.
Even if the risks of deterring humanitarian action should not be the icc’s
primary concern, the risks are real. The otp’s most direct means of protecting
the icc from this dilemma is to rely primarily upon the unsc as the threshold
for action. Of course, setting the bar so high for taking investigatory or prosecu-
torial action has its own costs, primarily in disappointing expectations for an
independent body that would apply more consistent and objective criteria
than the unsc has been willing to countenance. Still, the practical question
must be asked—what would the otp be giving up if it were to adopt such a
posture at least in its initial phase? Or, if preserving scope for R2P suggests that
the otp should follow a conservative posture, might it also serve the Court to
do so for very different reasons?
The icc faces formidable barriers to action against individuals for the crime
of aggression in all but a small minority of cases. It can act only in cases where
both the victim and aggressor have ratified the relevant amendments. Most of
the militarily powerful and active states appear unlikely in the short term to
accept the vulnerabilities of external jurisdiction over matters of politics and
international security that have belonged to the unsc. These “outsider” states
beyond the otp’s reach include the P5 members and many that historically
have been engaged in territorial disputes. Certainly, the amendment-ratifying
states’ governments will change over time, and leaders and circumstances can
surprise. Thus, some of the small number of states currently within reach of the
Court might become subjects of otp concern. The current list of s ignatories,
though, suggests that the otp is unlikely to face near term choices regarding
the crime of aggression.

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Furthermore, as much as the Court will want to demonstrate its relevance,

it must not trivialize itself. With a mandate to examine action in cases whose
character, gravity, and scale could constitute a manifest violation of the UN
Charter, Iraq’s 1991 invasion and occupation of Kuwait provides a useful stan-
dard. The icc cannot afford to pursue the small-bore cases of occasional shoot-
ing or skirmish across national lines. To do so would evince an overweening
ambition that would validate skeptic’s fears and undermine the Court. Given
the number and the character of states accepting the icc’s new role thus far,
the otp has little hope of fulfilling high expectations of independent action
outside of unsc action.
Why not turn this into a virtue by adopting a conservative approach, linking
icc investigations and prosecutions to the unsc determinations? The Court
may find further advantage in this approach. The “outsider” states remain an
important audience for the otp if the Court aims to become a truly universal
instrument. Their questions and concerns regarding definitions, subjects, and
scope for action will take time to address in practice, if the Court can do so at
all. While a conservative approach theoretically relinquishes scope for inde-
pendent action by the otp, it offers hope of becoming a more universal Court.
And, in turn, it would preserve room for military actions protecting individuals
from mass atrocities.
The icc was created to prosecute crimes of genocide, war crimes, and
crimes against humanity. Humanitarian intervention seeks to prevent these
acts from occurring. The icc must not, in the name of prosecuting the crime
of aggression, dissuade states from acting to protect individuals from mass
atrocity crimes.

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Part 6
The Rome Statute 20th Anniversary Issue: Imagining
the icc’s Future

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Reform Proposals
By the time of the twentieth anniversary of the adoption of the Rome Statute,
the icc had enjoyed some notable success: the institution was firmly estab-
lished; many investigations were underway; several arrests had been effectu-
ated; and trials had been successfully completed. However, the icc was also
enduring substantial criticism, some of which is reflected in contributions
above. For example, only a few trials had been completed, arrests had proven
hard to effectuate, costs of operating the Court were high, the icc bureau-
cracy was seen by some as bloated and inefficient, and the Court’s legitimacy
was being challenged by many African governments, politicians, and com-
mentators, purportedly due to its investigative and prosecutorial focus on
situations in Africa. In that context, leading commentators proposed reforms
of the Rome Statute, the icc as an institution, the icc’s relationship with
states and international organizations, and various practices of the Organs of
the Court.
The following question was featured on www.iccForum.com from June
2018 through December 2018:
In the Rome Statute’s third decade, what key reforms could make the in-
ternational criminal justice project stronger, more efficient, and more
effective?
Twenty years ago, on July 17, 1998, the adoption in Rome of the icc’s
founding statute was a significant milestone in the development of inter-
national criminal justice. To mark the twentieth anniversary of the Rome
Statute, we look ahead to the next ten years and consider the future of
international criminal justice.
Two decades on since the adoption of the Rome Statute, the Interna-
tional Criminal Court (“the Court”) has issued arrest warrants or sum-
monses to appear against approximately forty persons, and verdicts have
been issued following trial with regard to five individuals for core crimes;
trials against another four are ongoing. Alongside proceedings for core
crimes, the Court also completed the trial of five individuals for offenses
against the administration of justice. All the triggering mechanisms are

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Reform Proposals 281
fully operational: of the situations currently under investigation, five situ-

ations have been referred by States Parties, two by the Security Council,
and three initiated proprio motu by the Prosecutor. There are now ten
situations under investigation and a further ten situations at the prelimi-
nary examination stage. Thousands of courtroom hours, innumerable
court filings, and a rich body of academic commentary have resulted in a
better understanding of the issues and challenges related to the opera-
tions of the Court, as well as the system of international criminal justice
created by the Rome Statute.
Operational issues include, for example, the length and complexity of
the legal process, resulting (at least partly) from innovations in the Rome
Statute such as the preliminary examination procedure, admissibility
challenges, the pre-trial process including the confirmation of charges,
victims’ participation, and the reparations phase. The Court recently ac-
quired jurisdiction over the crime of aggression, bringing into operation
a series of unique procedures.
In light of past practice, is there a need to amend the Statute or rules,
or is it more a case of changing strategies, policies, or processes to en-
hance operational efficiency and effectiveness of the Court in the next
decade? Are there changes that should be made to the practice of the
Chambers, or the policies and strategies of the otp?
The wealth of information gathered over twenty years also demon-
strates the importance and impact of state cooperation in the Court’s
ability to efficiently and effectively conduct its operations. Cooperation
has been a major challenge, especially in investigations or prosecutions
involving incumbent government officials or powerful warlords. Even
where the Court has made a formal finding of non-cooperation and re-
ferred the matter to the Security Council and/or the Assembly of States
Parties, to date these bodies have taken no effective steps to facilitate co-
operation. What can be done to ensure cooperation and sanction
non-compliance?
In addition, while the workload at the Court has continued to increase,
States Parties have not agreed to corresponding increases in the Court’s
budget. Should this trend continue, are there innovative ways for the
Court to manage the challenges consequent on limited or inadequate re-
sources? Are there alternate strategies to be employed in budgetary
matters?
Will the Rome Statute system, as it currently stands, still be up to the
task in 2028? Are changes needed to ensure enhanced efficiency and

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282 Steinberg
e ffectiveness of the Court and the system of international criminal jus-

tice as a whole? What key reforms could be made so that, as the Rome
Statute comes to the end of its third decade, the international criminal
justice project is stronger, more efficient, and more effective than ever?

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Chapter 24
Reforms to Reduce Costs and Increase Efficiency

William Schabas
1 Summary
The finances of the International Criminal Court (“the Court”) have been a
source of ongoing tension between the Assembly of States Parties, which votes
the budget, and the Organs of the Court, which prepare the budget. Instead of
protesting the insufficient funding, the Court could undertake reforms that
would reduce its operating costs, increase its efficiency, and enhance its pro-
ductivity in terms of the core of its mandate and the purpose for its existence.
Three issues are addressed here.
The first involves reconfiguring the Chambers and the Divisions, within
which the judges sit. Both the Pre-Trial Chambers and the Appeals Chamber
do not have enough work to justify the number of judges who work full-time
within them. The Court already recognizes this by assigning judges from the
Pre-Trial Chambers to sit in the other Chambers. Presently, and for the foresee-
able future, the Pre-Trial Division probably requires only one Chamber instead
of two or more. It is more difficult to address the shortage of work in the Ap-
peals Chamber. One option is an amendment to the Rome Statute while an-
other is to assign its members to part-time status.
The second concerns the participation of victims in the proceedings and
the function of the Court in awarding reparations. Victim participation is fore-
seen in the Rome Statute. It has taken on huge proportions, well beyond what
is required by the Rome Statute. A proper audit is required to assess the real
cost of victim participation. Then this must be reassessed in light of the rather
modest contribution that the presence of victim representatives during the
proceedings has provided. As for reparations, huge attention has been devoted
to a system that provides individual victims with exceedingly modest awards.
These are drawn from voluntary contributions to a Trust Fund whose operat-
ing costs exceed the amount that it actually delivers to the victims.
The third concerns prosecution of offenses against the administration of
justice. This is provided for in Article 70 of the Statute. The Rules of Procedure
and Evidence quite explicitly contemplate the prosecution of offenses against
the administration of justice by national jurisdictions. This is consistent with

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284 Schabas
the principle of complementarity which underpins the philosophy of the

Court. Yet, in recent years, the Court has devoted huge resources in prosecut-
ing such cases, far out of proportion to their importance and their gravity.
2 Argument
I Reform the Chambers

The executive summary of the 2017 Annual Report from the International
Criminal Court to the General Assembly of the United Nations begins by de-
claring that:
The International Criminal Court continued to experience a heavy work-

load during the reporting period.1
It is good to be told this because the casual observer might not get the impres-
sion that this is an institution with a “heavy workload.” Many people visit the
Court, but few actually get to attend a hearing. That is because, despite the
“heavy workload” of the Court, there does not appear to be much courtroom
activity. Most of the time, the three elegant modern courtrooms in the new
permanent premises appear to be idle.
This comment was written during May 2018. According to the hearing
schedule on the website of the Court, eight days of trial are scheduled in the
Ongwen case. There is nothing else in May nor is anything scheduled for June
or July. The next court dates reserved in the calendar are in September, when
three days have been set aside for the Appeals Chamber hearing in the Bashir
case. The pattern was much the same for the first four months of the year. In
fact, there have only been regular hearings this year in Ongwen. The other two
trials, Gbagbo et al. and Ntaganda, seem to have been relatively dormant, and
in 2018 there have been only a few trial days in these cases. If the workload is so
heavy, why are the courtrooms almost always empty?
The Budget proposed to the Assembly of States Parties in late 2017 explained
that in the coming year “[i]n the Trial Division, three cases will continue at the
trial hearing stage.”2 Incidentally, the Proposed Programme Budget for 2018
1 International Criminal Court, Report of the International Criminal Court on its Activities in
2016/17, UN Doc. A/72/349, at 2 (Aug. 17, 2017).
2 Assembly of States Parties, International Criminal Court, Proposed Programme Budget for
2018 of the International Criminal Court, Doc. No. ICC-ASP/16/10, ¶ 156 (Sep. 11, 2017).

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Reforms to Reduce Costs and Increase Efficiency 285
projected there would be 400 hearing days.3 Elsewhere, it speaks of 160 days of
planned trial hearings.4 But, at mid-year, it is hard to see where these targets
came from. Of course, even when hearings are not underway, judges in the
Trial Chambers need to prepare interlocutory decisions and read submissions
by the parties. But the relative paucity of courtroom activity suggests a work-
load that is anything but heavy. But what about the other Divisions?
During the calendar year 2017, the Appeals Chamber issued six significant
decisions, three in the Gbagbo et al. case and three in the Ntaganda case.5
These were interlocutory rulings dealing with issues of admissibility of evi-
dence, detention, and jurisdiction. In total, the Appeals Chamber decisions is-
sued in 2017 amounted to 197 pages averaging about 300 words per page. But
most of these pages consisted entirely of descriptive reviews of the positions
taken by the parties. The substantive portion, which is usually given the head-
ing “Determination by the Appeals Chamber,” amounts to fewer than 60 pages
spread over the six rulings. During 2017, none of the members of the Appeals
Chamber issued a separate or dissenting opinion. Moreover, in each of the de-
cisions, judges were “borrowed” from the other Divisions because one or more
of the members of the Chamber could not sit because of conflicts. The Appeals
Chamber has been more active in the early months of 2018, and, no doubt, dur-
ing 2017, it was working on the decisions it issued the following year.
The Pre-Trial Division was even less productive during 2017. Pre-Trial
Chamber ii issued two decisions concerning the Court’s futile efforts at
apprehending President Bashir of Sudan.6 These two rulings totaled 75 pages,
3 Id. ¶ 35; see also id. at p.48.

4 Id. ¶ 75.
5 Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA 4, Judgment on Mr Bosco Ntaganda’s Ap-
peal Against the Decision Reviewing Restrictions on Contacts of 7 September 2016 (Mar. 8,
2017); Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA5, Judgment on the Appeal of Mr.
Ntaganda Against the “Second decision on the Defence’s challenge to the jurisdiction of the
Court in respect of Counts 6 and 9” (Jun. 15, 2017); Prosecutor v. Laurent Gbagbo and Charles
Blé Goudé, ICC-02/11-01/15 OA10, Judgment on the Appeal of Mr. Laurent Gbagbo Against the
Decision of Trial Chamber I of 10 March 2017 entitled “Decision on Mr Gbagbo’s Detention”
(Jul. 19, 2017); Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC-02/11-01/15 OA11
OA12, Judgment on the Appeals of Mr. Laurent Gbagbo and Mr. Charles Blé Goudé Against
Trial Chamber I’s Decision on the Submission of Documentary Evidence (Jul. 24, 2017); Pros-
ecutor v. Laurent Gbagbo and Charles Blé Goudé, ICC-02/11-01/15 OA9, Judgment on the Ap-
peal of Mr. Laurent Gbagbo Against the Oral Decision on Redactions of 29 November 2016
(Jul. 31, 2017); Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA6, Judgment on the Appeal
of Mr. Bosco Ntaganda Against the “Decision on Defence request for leave to file a ‘no case to
answer’ motion”(Sep. 5, 2017).
6 Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, Decision under Article 87(7)
of the Rome Statute on the Non-compliance by South Africa with the Request by the Court

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of which about half could be considered to be substantive in nature. Judge

Perrin de Brichambault issued separate opinions amounting to more than 60
pages. Pre-Trial Chamber I issued an arrest warrant in the Libya Situation,
a short decision of 17 pages, of which about five are substantive in nature.7
Maybe one of the Pre-Trial Chambers also held in camera proceedings and
issued sealed arrest warrants. In recognition of the modest workload of the
Pre-Trial Chambers, its judges have been reassigned to the other Divisions on
a temporary basis, where they are engaged in trials and in reparation-related
activity.8
Heavy workload? It looks like the real problem of the Court is that it doesn’t
have enough work. It would be unfair to blame the modest productivity of the
Pre-Trial Chambers and the Appeals Chamber on their members. Essentially,
the Pre-Trial Chambers operate in response to applications from the Prosecu-
tor. The Appeals Chamber hears some of its cases as of right, but most of the
interlocutory decisions require leave to appeal from judges in the other Di-
visions. If anything, however, the judges of the other Divisions have tended
to be rather generous in granting leave to appeal. For example, in December
2017, a Pre-Trial Chamber granted the Kingdom of Jordan leave to appeal a
decision, holding that it violated the Rome Statute by failing to arrest Omar
Al Bashir. The Chamber admitted that “the plain meaning” of the requirement
in Article 82 that such an appeal “affect[s] the fair and expeditious conduct
of the proceedings or the outcome of the trial does not appear to encompass
the matter at hand.” However, it “considers it appropriate in the present cir-
cumstances to give that requirement an extensive interpretation based on
its object and purpose.”9 This is a pretty feeble explanation. The Chamber
suggested an Appeals Chamber ruling might advance the proceedings against
Bashir. The p
roblem is that this is an appeal by Jordan, not by Bashir and not by
the Prosecutor. Jordan isn’t a party in the The Prosecutor v. Al Bashir case and
consequently has no right to appeal under Article 82. Jordan is only a party in
the incidental proceedings pursuant to Article 87. It is hard to see how those
proceedings can be advanced by a ruling of the Appeals Chamber or, for that
for the Arrest and Surrender of Omar Al-Bashir (Jul. 6, 2017); Prosecutor v. Omar Hassan Ah-
mad Al Bashir, ICC-02/05-01/09, Decision under Article 87(7) of the Rome Statute on the Non-
compliance by Jordan with the Request by the Court for the Arrest and Surrender [of] Omar
Al-Bashir (Dec. 11, 2017).
7 Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, ICC-01/11-01/17, Warrant of Arrest
(Aug. 15, 2017).
8 Proposed Programme Budget for 2018 of the International Criminal Court, supra note 2, ¶ 161.
9 Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Decision on Jordan’s Request
for Leave to Appeal, ¶ 15 (Feb. 21, 2018).

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matter, what possible interest Jordan has in advancing them. But the appeal
generates activity for an underworked Appeals Chamber, and so it is welcomed
by all concerned.
A situation where a majority of the judges of the Court does not have enough
work in their own Divisions to keep them busy full-time suggests shortcomings
in the operating practices of the Court and, probably of even more importance,
flaws in the design of the Rome Statute. It is quite unsatisfactory for judges to
be borrowed more or less systematically from one Division because its work-
load is meagre in order to assist judges in another Division who are short of
personnel. Would it not be enough to have one Pre-Trial Chamber? Increas-
ingly, the functions of the Division have been shortened and simplified. Where
possible, the work has been delegated to a single judge instead of a three-judge
Chamber. Originally, one-third of the judges of the Court was devoted to pre-
trial work. Perhaps that made sense in the early years because there was little
if any activity in the other Divisions. But practice shows that the pre-trial du-
ties can be fulfilled by only a few judges, perhaps even one. She or he might
borrow a couple of judges from the Trial Division on a case by case basis where
a full three-judge panel is really required.
The Rome Statute does not even permit reassignment of judges of the Ap-
peals Chamber. Thus, there is no quid pro quo whereby the judges of the
Appeals Chamber in a sense repay the other Divisions who have loaned them
judges to fill gaps in the Appeals Chamber benches. One solution that appears
reasonable, although it will be extremely unpopular with the members of the
Appeals Chamber, is to put them on part-time status. Article 35(3) of the Stat-
ute permits the Presidency to designate judges who sit part-time. This provi-
sion was applied in the early years of the Court, but there is no reason why it
cannot be used in order to take account of a Division with a rather light work-
load, one that is prevented by the Statute from sharing the burdens of the other
Divisions. Appeals judges, other than the President of the Court, would not
need to reside in The Hague. The members of the Appeals Chamber would be
called upon as needed and remunerated for each day that they are on duty. It
seems a great luxury to have a full-time bench of five Appeals Chamber judges,
some of whom are disqualified from sitting in specific cases, where the produc-
tivity is so modest.
These changes to the practice of the Pre-Trial Division and the Appeals Divi-
sion would not require an amendment to the Rome Statute.
II Victim Participation and Reparations

Victims are part of the Rome Statute framework in two ways. They may partici-
pate in proceedings and they may claim reparations. These two aspects of the

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288 Schabas
Rome Statute are distinct. One does not depend upon the other. Together, how-
ever, they have often been heralded as great innovations of the Rome Statute
regime and major improvements over previous international criminal justice
institutions.
To date, the results of these two features of the Rome Statute have been
quite underwhelming. Victim representatives are present at most stages of the
proceedings, where they often participate quite actively by making representa-
tions, filing submissions, and expressing the interests of victims in various
ways. The victims themselves are rarely present in the courtroom. The vast ma-
jority has never been to The Hague. Their interests are assured by legal repre-
sentatives. It cannot be denied that this has made a useful contribution to the
proceedings. The issue, however, is whether the scale of the contribution justi-
fies the enormous cost for the institution as a whole. Assessing the contribu-
tion of victims, an expert study prepared in 2014 under the auspices of the
University of Amsterdam observed that in Lubanga, “none of the evidence elic-
ited by victims was accepted by the Court.” In Bemba, it said that:
[T]he indications are that questioning by victims’ representatives has

done little more than duplicate the evidence already elicited by the
Prosecution.
The experts concluded that there were:
[F]ew empirical indications of victims’ contribution to the evidential

and forensic search for the truth.10
The expert study quite wisely focused attention on the issue of cost. It did not
dispute the principle of victim participation, but implied that the rather thin
contribution it was making might not justify the expense. It referred to the
budget of the Victims Participation and Reparations Section and the Office of
Public Counsel for Victims, which it said totaled a little over €3 million for the
previous year. But that gives a very incomplete picture of what is involved in
victim participation because it does not account for the increased length of
proceedings that results from having a third party in the courtroom.
10 Guénaël Mettraux, Shireen Avis Fisher, Dermot Groome, Alex Whiting, Gabrielle Mc-
Intyre, Jérôme De Hemptinne & Göran Sluiter, University of Amsterdam, Expert Initiative
on Promoting Effectiveness at the International Criminal Court 181–82 (Dec. 2014),
https://dickinsonlaw.psu.edu/sites/default/files/Groome-ICC-Expert-Report-Dec-2-2014.
pdf (last visited July 26, 2018).

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According to the website of the Court, some 451 filings were made during
the calendar year 2017. The number can only be approximate, because the
website will register a translation of a filing as a distinct document. Neverthe-
less, the information on the website gives a useful picture of the situation. Of
the total, 266 originated in the Office of the Prosecutor, 53 were from the de-
fense, 73 were from the Office of Public Counsel for Victims, and 61 were from
the legal representatives of victims. Thus, the various victim representatives
account for 134 filings—about 30% of the total. Costs are associated with each
one of these filings. They must be studied by the Office of the Prosecutor, by
defense counsel, and by the judges. They may provoke other filings from the
parties and lead to a decision from which there may be an application for an
appeal. Oral representations may also be associated with these submissions.
The Court should undertake a full audit of the total cost involved in victim
participation so that informed decisions can be taken about the value of the
contribution that victim participation makes to the proceedings. The discus-
sion should not be about the theoretical benefit of victim participation but
rather about whether the added cost and the lengthening of proceedings can
be justified by what seems to be somewhat inconsequential added value.
The reparations themselves have been largely collective in nature, with
funding going to a range of non-governmental organizations. Very little trickles
down to individuals. In the Katanga case, the approximately 300 victims of a
terrible massacre were each awarded individual reparations of $250. This is not
a typo. One or two or three zeros have not been omitted inadvertently. Two
hundred and fifty dollars.11 Individual reparations will also be provided in the
Al Mahdi case, but the precise amount has not yet been set.12 Perhaps the vic-
tims of the destructions of the Timbuktu structures will be more fortunate
than the poor citizens of Bogoro who didn’t even get enough to buy a new iPad.
With the exception of Jean-Pierre Bemba, those convicted by the Court have
been determined to be indigent. To date, all reparations have been financed by
the Trust Fund for Victims. To that extent, the role of the Trust Fund in the
collective reparations process bears similarities with the work of international
development non-governmental organizations.
However, successful international development non-governmental organi-
zations must demonstrate an acceptable balance between the costs of delivery
and the actual benefits. The Trust Fund for Victims would never survive in such
an environment because its costs of operation actually exceed the amount of
11 Prosecutor v. Germain Katanga, ICC-01/04-01/07, Order for Reparations Pursuant to Arti-

cle 75 of the Statute, ¶ 300 (Mar. 24, 2017).
12 Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Reparations Order (Aug. 17, 2017).

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290 Schabas
benefits it delivers to victims. In 2016, the Trust Fund for Victims had total rev-
enue of €3,632,000.13 More than half of this—€1,885,000—came from the
funds of the Court itself as a charge for administrative expenses of the Secre-
tariat of the Trust Fund for Victims.14 The balance—€1,727,000—was in the
form of voluntary contributions, mainly from wealthy States Parties, with Swe-
den the biggest contributor. The actual amount that the Trust Fund paid out to
“victims” in 2016, entirely in the form of grants to various organizations, was
€1,530,372.15 The total expenditures of the Trust Fund for the same period
amounted to €3,902,000. In other words, the cost of delivering €1.5 million to
victims was about €2.4 million. The main beneficiaries of the Trust Fund for
Victims appear to be the professionals who work in The Hague at the seat of
the Court, as well as airline companies and hotels.
But, as in the case of victim participation, these numbers do not tell the full
cost of administering the reparations system. A substantial amount of judicial
and administrative activity within the work of the Court is devoted to identify-
ing victims and awarding them reparations. There are costs of the litigation.
Time is consumed by judges, by translators, by lawyers. As with the participa-
tion of victims, the Court should prepare a full audit of the expense involved in
delivering reparations to victims. Then let the Assembly of States Parties, and
the global public, assess the legitimacy and the credibility of a costly system
where the victims themselves appear to receive little more than a tiny fraction
of the total that is expended in their names and justified on their behalf. It ap-
pears that several million euros of the Court’s financial resources are being
directed to an extremely inefficient system for the delivery of projects of vari-
ous kinds that are said to benefit the victims of international crimes. It would
probably be better for the Court to redirect this to prosecutions, and to restrict
activities related to reparations to cases where this is justified by the resources
of the offender.
13 Assembly of States Parties, International Criminal Court, Financial Statements of the

Trust Fund for Victims for the Year Ended 31 December 2016, Doc. No. ICC-ASP/16/13, at 14
(Aug. 8, 2017).
14 Assembly of States Parties, International Criminal Court, Financial Statements of the In-
ternational Criminal Court for the Year Ended 31 December 2016, Doc. No. ICC-ASP/16/12, at
10 (Aug. 31, 2017).
15 Financial Statements of the Trust Fund for Victims for the Year Ended 31 December 2016, su-
pra note 13, at 23. See also Assembly of States Parties, International Criminal Court, Report
to the Assembly of States Parties on the Projects and the Activities of the Board of Directors of
the Trust Fund for Victims for the Period 1 July 2016 to 30 June 2017, Doc. No. ICC-ASP/16/14
(Aug. 21, 2017).

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III Offenses against the Administration of Justice

Representatives of the Court sometimes present its performance by talking
about its record of convictions. They claim that there have been nine convic-
tions and only one acquittal. But of the nine convictions, the majority are not
for “the most serious crimes of concern to the international community as a
whole,” to borrow the words from the Preamble of the Rome Statute. They are
for offenses against the administration of justice in accordance with Article 70
of the Statute. The five convictions for Article 70 offenses have resulted in an
average sentence of thirteen months in prison, much of which was served in
pre-trial detention. This is likely to be revised upwards for three of the defen-
dants following their appeal, but only slightly. The maximum sentence for an
Article 70 conviction is five years’ imprisonment.
Despite the insignificance of these five prosecutions, at a procedural level
they were treated like other prosecutions under the Rome Statute. At least
fourteen judges have been involved at various stages, but that number is going
to increase because the proceedings are not over. Pre-Trial Chamber ii issued
a 55-page decision on the confirmation of charges.16 The Trial Chamber issued
a verdict of some 458 pages17 followed by a sentencing decision of 100 pages,18
and that is not counting the 26 written decisions and 80 oral decisions that it
delivered in the course of the trial. The Appeals Chamber decision totals 699
pages,19 but it also issued twelve interlocutory decisions. And the whole busi-
ness isn’t finished yet because the sentences were overturned for three of the
defendants and remanded back to the Trial Chamber for a new determina-
tion. Inevitably, the new ruling will be appealed. According to the Court’s web-
site, 2,082 documents now make up the record of the case. This compares with
an average of somewhat more than 3,000 for the trials of Lubanga, Katanga,
and Bemba. But it should be borne in mind that, unlike the other three big
trials, victims did not participate in the Article 70 cases, and that would have
added several hundred documents to the file. In other words, the Bemba et al.
16 Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda

Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13, Decision Pursuant to
Article 61(7)(a) and (b) of the Rome Statute (Nov. 11, 2014).
17 Prosecutor v. Bemba et al., ICC-01/05-01/13, Judgment Pursuant to Article 74 of the Statute
(Oct. 19, 2016).
18 Prosecutor v. Bemba et al., ICC-01/05-01/13, Decision on Sentence Pursuant to Article 76 of
the Statute (Mar. 22, 2017).
19 Prosecutor v. Bemba et al., ICC-01/05-01/13 A A2 A3 A4 A5, Judgment on the Appeals of
Mr. Jean-Pierre Bemba Gombo, Mr. Aimé Kilolo Musamba, Mr. Jean-Jacques Mangenda
Kabongo, Mr. Fidèle Babala Wandu and Mr. Narcisse Arido Against the Decision of Trial
Chamber vii entitled “Judgment pursuant to Article 74 of the Statute” (Mar. 8, 2018).

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292 Schabas
rticle 70 proceedings are of much the same order of magnitude as the hand-
A
ful of prosecutions by the Court for the core crimes.
This amounts to a quite extraordinary expenditure of the resources of the
Court for what remains a very, very minor matter. Attempts to bribe witnesses
would never pass the famous gravity threshold that is imposed on “real” cases.
For example, the Prosecutor declined to proceed in a situation where nine
people lost their lives because it was not of sufficient gravity.20 As for the com-
plementarity criterion, the issue doesn’t even arise in such prosecutions. Yet
cases involving the administration of justice might well be prosecuted by na-
tional courts where the crimes took place, as is contemplated in the Rules of
Procedure and Evidence. The Rome Statute says it is the duty of every state to
exercise its criminal jurisdiction over those responsible for international
crimes. Why isn’t this also the case with crimes of fraudulent and dishonest
conduct committed in the course of international proceedings that take place
on their territory?
To the extent that the Court insists on retaining its ability to prosecute Ar-
ticle 70 cases, consideration might be given to developing an expedited mecha-
nism whereby trials could take place in a simple hearing before a single judge
with an appeal before a three-judge chamber. Dispense with the confirmation
hearing and with interlocutory appeals. Alternatively, defense counsel who
misbehave might well be dealt with using a disciplinary paradigm rather than
one of international criminal justice. These proposals might be accomplished
through amendments to the Rules of Evidence.
20 Office of the Prosecutor, International Criminal Court, Situation on Registered Vessels of

Comoros, Greece and Cambodia: Article 53(1) Report, ¶¶ 71–2 (Nov. 2014), https://www
.icc-cpi.int/iccdocs/otp/OTP-COM-Article_53(1)-Report-06Nov2014Eng.pdf (last visited
July 26, 2018).

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Chapter 25
Building Support through Enhanced Cooperation,

Outreach, and Knowledge-Sharing
Adama Dieng
The International Criminal Court (icc) was established as a permanent in-

dependent institution to prosecute individuals accused of the most serious
crimes of international concern including genocide, crimes against human-
ity, and war crimes. Many years of painstaking and protracted regional and
international diplomacy preceded its adoption to secure consensus on the
importance of creating a permanent international criminal court that could
investigate and prosecute these serious crimes. The process that led to the
coming into force of the Rome Statute in July 2002 was the shortest in the his-
tory of treaty ratification processes, signaling not only the commitment of the
international community to challenging impunity, but also a solid reaffirma-
tion that when humanity decides to come together with a common cause, even
seemingly insurmountable challenges can be resolved. Indeed, the negotiation
and adoption of the Statute remains one of the single most important achieve-
ments of the last century in the fight against impunity. Since its adoption, more
than half of the world’s states have joined the Court. More than thirty States
Parties are African, which represents the biggest regional bloc so far.
While it is true that the majority of countries represented at the Rome
conference was of the view that it would be a positive development in global
governance to operationalize an international criminal justice regime to hold
accountable individuals who commit gross atrocities and violations against
human rights, the Rome Statute had its opponents too. At the 1998 Rome con-
ference, 120 voted for the final draft of the Rome Statute, but 21 abstained and
7 voted against. The failure of powerful countries, including the United States,
Russia, China, and India, to proactively support the Court and subject them-
selves to its criminal jurisdiction, immediately began to raise alarm bells about
the reach and, ultimately, the efficacy of a Court whose remit would essentially
be confined to the middle and weaker powers within the international system.
Be that as it may, the creation of the icc heralded in a new era in which the
international community accepted the long-recognized reality that interna-
tional peace and security cannot be maintained or guaranteed if some of those
who commit the worst atrocities are simply allowed to walk free.

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294 Dieng
From the outset, the icc was envisaged as a court of last resort. The Court
does not have primary jurisdiction over national authorities, but rather plays
a subsidiary role and supplements the domestic investigations and prosecu-
tions of the most serious crimes of international concerns. Ideally, national
criminal jurisdiction should take precedence in efforts to address impunity.
Under international law, states have a right to exercise criminal jurisdiction
over acts within their jurisdiction. Under the Rome Statute, the principle of
complementarity was therefore to ensure that states abide by that duty, either
by investigating and prosecuting the alleged perpetrators themselves, or by
supporting international prosecution in case of their failure to do so.
However, despite this clear role of states as primary duty bearers to prose-
cute international crimes, such as those enumerated in the Rome Statute, most
states where these crimes have been committed have been unable, and in
some cases unwilling, to exercise jurisdiction to investigate and prosecute
these crimes. This failure or inability has provided a basis for icc intervention.
The Court has intervened in different African countries, such as the Central
African Republic, the Democratic Republic of Congo, Kenya, Uganda, Sudan,
Mali, and Libya, whether on its own decision, self-referral from these coun-
tries, or based on a UN Security Council referral.
It is precisely this intervention of the Court that has had some observers and
commentators questioning the moral integrity of the icc, with the accusation
being that cases are not being pursued based on the universal demands of jus-
tice, but according to the political expediency of pursuing cases against weaker
countries in the international system. Indeed, these accusations have been so
strong that some African countries, and indeed the African Union, have called
for a mass withdrawal from the Rome Statute based on unfair targeting of Afri-
can people by the Court.
To some observers, and the African Union in particular, the desire of African
countries was to see the Court become a deterrent for the most heinous crimes
which, in the past, had gone unpunished despite their devastating impact on
the continent. The belief was that the Rome Statute embodied the promise
that the Court would be an impartial institution to advance global justice
based on the long-cherished notion of sovereign equality of states and non-
interference in internal affairs. Perhaps demonstrating the unflinching com-
mitment to global justice, African countries supported the Rome Statute de-
spite the inclusion of Article 27, which categorically rejected special treatment
for heads of states. In other words, African countries supported the Rome Stat-
ute despite its provisions which made no exemption based upon the status of
an individual. However, it is claimed this belief turned out to be wishful think-
ing because the icc has not apprehended and brought before the Court any

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Building Support Through Enhanced Cooperation, Outreach 295
individual from outside Africa. While it is true that the Court continues to con-
sider other situations outside Africa, almost two decades after the entry into
force of the Rome Statute, it is only people from Africa who have appeared
before the Court.
The Court has been accused of indifference to the atrocities ongoing in Syr-
ia, Iraq, Afghanistan, Myanmar, and elsewhere. The African Union has sup-
ported mass withdrawal from the Rome Statute by its member states. Burundi
has already submitted its withdrawal notification as required by the Statute.
While South Africa and The Gambia have both announced their intentions to
pull out of the Court, circumstances in these countries have prevented them
from doing so. Other States Parties have threatened to do so if certain condi-
tions are not met. Key among the concerns raised by these countries is the lack
of fairness in the prosecution decisions of the Court, perceived by some to
disproportionately target African leaders. As we move forward, one cannot
rule out the possibility of more countries considering possibility of withdrawal
from the Rome Statute. As seen in Burundi and elsewhere, when states with-
draw from their international commitments, especially those related to the
advancement and protection of human rights, it is individuals who suffer pre-
cisely because of the denial of an independent avenue to pursue accountabil-
ity claims against their tormentors.
Despite the above criticism and threats facing the icc, we believe that the
ideals and values that inspired the creation of the Court still hold true almost
two decades after the Rome Statute came into force. There is a need for a can-
did conversation between all stakeholders, especially between member states
and the Court, to identify and address legitimate concerns of all stakeholders.
While the Court is likely to face serious challenges in fulfilling its mandate now
and in the future, candid and honest dialogue can help address some of these
challenges. Indeed, the icc cannot be indifferent to these concerns precisely
because doing so would abandon the victims whose only hope is the ability of
the Court to efficiently investigate and prosecute those most responsible of
committing atrocity crimes.
International cooperation is key to the future and success of the Rome Stat-
ute of the International Criminal Court. Without a robust strategy to promote
international cooperation between and among member states (individually
and through regional and international organizations), civil society, and non-
States Parties to the Rome Statute, the Court will find it increasingly difficult to
fulfill its mandate. Cooperation recognizes the reality that for the Rome Statute
to function efficiently and fulfill its mandate, the Court requires unflinching
support from both state and non-state actors such as civil society and victims’
groups. It is further recognized that the Court does not have law enforcement

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296 Dieng
machinery of its own. Without police of its own, the icc relies, and indeed
will continue to rely by significant measure, on the goodwill and trust of out-
side actors to enforce its decisions. Such goodwill cannot be achieved if those
actors view the Court as biased or as an institution keen to promote selective
justice, especially against weaker countries, while being indifferent to atroci-
ties committed elsewhere. The Court has to earn this trust and goodwill
through engagement with key stakeholders. Doing this will enhance mutual
trust and cooperation and strengthen the capability of the Court to fulfill its
mandate enshrined in the Rome Statute.
It is also true that the Court has to enhance its cooperation with the Assem-
bly of States Parties (asp) to the Rome Statute. This is critical because, increas-
ingly, the asp has failed to impose serious sanctions on countries that have
failed to follow through on their international commitments provided for un-
der the Rome Statute. Going forward, the asp, as the deliberative organ of the
Rome Statute, will have to take seriously its obligation by imposing necessary
measures against states that do not honor their obligations. To further enhance
its independence and impartiality, the Court will have to refine its approach as
to how transparent to make its decisions to investigate and prosecute. While it
is true that the Prosecutor has published policy papers on this aspect, it is es-
sential that these criteria are explained and elaborated in public outreach
forums, especially to the victims in the field and during meetings with govern-
ment and non-government officials in different forums. This will help dispel
accusations of bias and the unfair targeting of individuals.
The icc is an indispensable institution to pursue justice for victims when
national judicial mechanisms lack the capacity, willingness, or jurisdiction to
prosecute those responsible for the most serious crimes. It is also an interna-
tional institution with the credibility and, indeed, the ability to investigate and
prosecute those accused of serious crimes of international concerns, especial-
ly in countries where legal mechanisms of accountability are weak or altogeth-
er nonexistent. This is true especially if these crimes are being committed by,
or at the auspices of, the governments or officials that are meant to protect
these victims. To achieve this, the Court will have to continue enhancing its
outreach approach especially in the field to clarify and elaborate its mission to
those it is meant to serve. The approach will ensure that icc puts victims at the
core of what it does in pursuing accountability for crimes committed.
Whenever possible and practical, the Court should encourage and support
states’ exercise of the complementarity principle which confers primary juris-
diction on states to investigate and prosecute crimes within the jurisdiction of
the Court. When a state is encouraged and supported to pursue accountability
for serious crimes, it diminishes the role and involvement of the Court in the

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Building Support Through Enhanced Cooperation, Outreach 297
affairs of that state. The Court could contribute to this goal through knowledge
sharing with states, such as the provision of the technical support of experts
with established competence in the investigation and prosecution of these
sorts of crimes. The Court could also appeal (through its good offices of the
President, Prosecutor, and Registrar) to member states to offer support to
countries willing but unable to prosecute such crimes within the domestic
context. Such cooperation could contribute not only to the delivery of justice
for the victims but also strengthen domestic legal and judicial institutions to
address such crimes and general human rights violations that lead to the com-
mission of such crimes.
Let me conclude by reiterating that, in the future, the efficiency and effec-
tiveness of the Rome Statute that established the International Criminal Court
will certainly depend on a constructive relationship between the Court and its
stakeholders with varied interests and expectations from the Court. It will fur-
ther depend on how the Court recognizes and utilizes its unique mandate as
an impartial and independent institution created to pursue accountability for
atrocity crimes of serious international concern. As experience has shown,
continued engagement with the United Nations and its key member states,
especially those that are not members to the Rome Statute such as the US, will
significantly determine the extent to which the Court fulfills its mandate. This
is especially important given the critical role and ability of the United Nations
and its member countries to support the work of the Court in far flung areas
where it may lack necessary skills and infrastructure to conduct credible inves-
tigations against those accused of committing crimes.
The past two decades have shown that the Court is capable of reinvent-
ing itself by building necessary infrastructure to fulfill its mandate. For the
years to come, to enhance its effectiveness and efficiency, the Court will have
to strengthen collaboration with member and non-member states alike to
achieve its objectives. Rather than undermining the Court by withholding sup-
port and cooperation, States Parties and non-States Parties should work collec-
tively to ensure that the Court becomes an effective and strong institution that
meets the objectives of its founders, namely to administer international crimi-
nal justice without fear or favor, contribute to the fight against impunity, and
promote respect for the rule of law and human rights. Striving for a strong, effi-
cient, effective, independent, and impartial Rome Statute of the International
Criminal Court, is the only hope for humanity to “put an end to impunity for
the perpetrators of these crimes and thus contribute to their prevention.”

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Chapter 26
Returning to Customary Law

Fausto Pocar
1 Summary
After twenty years since the Rome Statute (“the Statute”), and fifteen since its
operation, the International Criminal Court’s (icc) contribution to the estab-
lishment of a universal legal framework for the adjudication of international
crimes is still very limited. This is due, in part, to the Court strictly adhering to
the Statute as the applicable law and neglecting customary international law,
which governs the actual legal framework for international jurisdiction as from
Nuremberg with the significant addition of the case law of the International
Criminal Tribunal for the former Yugoslavia (icty) and International Criminal
Tribunal for Rwanda (ictr). More attention should be given, also through a re-
vision of Article 21 of the Statute, to customary law. A return to customary law
would add value to the jurisprudence of the Court, making it more universal and
a source of inspiration for domestic jurisdictions including those in countries
which have not ratified the Statute—still the majority from the point of view of
the population protected by the Statute. On a different note, a step forward to-
wards universality could be achieved by referring to universal jurisdiction—in
particular, with respect to war crimes under the Geneva conventions—and
making use of it in the framework of the principle of complementarity, which
governs the relationship between the icc and States Parties.
2 Argument
The variety of models adopted in the establishment and operation of the nu-
merous international and hybrid criminal courts and tribunals established
since 1993—from the icty to the ictr to the most recent Court for Kosovo—
manifestly shows the absence of any clear strategy of the international com-
munity in shaping a consistent and coherent legal and judicial framework
wherein criminal jurisdiction should be exercised. Rather—save perhaps with
respect to the icty and ictr, and possibly to the Special Court for Sierra Le-
one (scsl) mandated to follow the rules of procedure and the jurisprudence of
the first two tribunals—the international community expresses an approach

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Returning to Customary Law 299
guided by the diversity of the situations leading to the creation of any specific
court. The sole common denominator is of trying to fight impunity, but there's
no clear perception of the far reaching scope of the jurisdiction of the judi-
cial bodies that were established, thus making it perhaps imprudent to rely on
previous experience to suggest appropriate remedies for improving the perfor-
mance of the icc.
It is a fact, however, that these ad hoc courts and tribunals—especially the
icty, the ictr, and the scsl—have produced a significant amount of juris-
prudence and have tried to establish a coherent legal framework, mostly based
on the assessment and interpretation of customary international law, building
on their respective case law with a view to avoid legal fragmentation, while
still respecting each other’s judicial independence. If one considers the exist-
ing international case law in the field of international criminal law, almost its
totality has been issued by these courts in the last twenty-five years and is con-
sistent with a common legal framework warranted under customary interna-
tional law. The icc was created under the Rome Statute as the only permanent
international jurisdiction aimed at progressively replacing the recourse to ad
hoc courts and tribunals to exercise criminal jurisdiction over war crimes, in-
cluding aggression, crimes against humanity, and genocide, when domestic
jurisdictions would be unable or unwilling to do so. But, so far, by contrast
to the ad hoc courts, the icc has issued only a few judgments in its fifteen
years of a ctivity, thus contributing only to a very limited extent to the above-
mentioned legal framework.
Its contribution has been even lower because the icc has, in general, taken
a prudent approach in interpreting Article 21 of the Statute, which identifies
the law applicable by the Court as being in the first place the Statute and re-
lated documents, and only in the second place, where appropriate, customary
international law. The Court has made little reference to customary interna-
tional law in dealing with the cases brought before it for adjudication, thus
contributing to fragmenting the legal framework of international criminal law
based on customary international law rather than to consolidating it. In the
Katanga Trial Judgment, it emphasized that the Statute establishes a hierarchy
of the sources of applicable law, and that:
[A] chamber shall apply the subsidiary sources…only where it identifies

a lacuna in the provisions of the Statute, the Elements of Crimes and the
Rules.1
1 Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgment Pursuant to Article 74 of the Stat-

ute, ¶ 39 (Mar. 7, 2014).

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300 Pocar
In stating such a narrow position, the Court also accepted, in the light of the
Vienna Convention on the Law of Treaties, that it might be appropriate to refer
to customary international law, including as assessed by the jurisprudence of
the ad hoc tribunals and other courts on the matter, “for purposes of interpre-
tation of the Statute.”2 Subsequently, in the Bemba Gombo Trial Judgment, the
Court recognized that the boundaries between referring to customary interna-
tional law to fill in a lacuna in the applicable law and doing so for the purposes
of interpretation of the Statute may be fluid, but stressed that:
[I]t must not use the concept of treaty interpretation to replace the ap-
plicable law.3
Having already expressed criticism on other occasions with respect to the nar-
row approach taken by the icc in interpreting Article 21 of the Statute, I will
not repeat it here. However, I wonder whether it would not be appropriate, in
the near future, to revisit the statutory provision concerning the applicable law
to overcome the reluctance of the Court to follow an interpretation of such
provision in favor of a wider approach than the one followed so far. The advan-
tages of a future reference by the Court to customary international law rather
than just to treaty law would be significant.
First, referring to customary law would ensure continuity of the case law
as developed since the Nuremberg and the Far East trials through the ad hoc
tribunals, avoiding a break with the past that has not proven satisfactory as
leading to fragmentation rather than to consolidation of the existing legal
framework. A continuity in the vision of law and justice between the ad hoc
courts and tribunals and the icc will only benefit the role of the latter, as the
continuity in the legal vision of the post wwii tribunals has benefitted the ad
hoc tribunals. It must be borne in mind that international criminal law relates
to crimes which are a matter of concern to the entire international community,
and that many of the pertinent rules are jus cogens. While it is not against such
rules to exercise jurisdiction to a more limited extent, customary law appears
to be the best legal framework to regulate international criminal law. Consider
also that domestic courts, to which the Court’s jurisdiction is complementary,
are bound by customary law.
Second, referring to customary law would foster the universal nature of the
Court’s jurisprudence, especially now that the codification carried out in the
2 Id. ¶ 47.
3 Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Judgment Pursuant to Article 74 of
the Statute, ¶ 79 (Mar. 21, 2016).

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Returning to Customary Law 301
Rome Statute has not proven to be able to reach universality of application.

After twenty years, around two thirds of the members of the United Nations
have ratified the Statute, but the pace of ratifications has dropped dramatical-
ly, denunciations are on the way, and the people protected by the Statute hard-
ly represents forty percent of the world population. It is true that a simple
return to customary international law would not resolve the problem of the
universality of the Court’s jurisdiction, but it would contribute to the univer-
sality of its jurisprudence. If the task of applying a treaty is given to an
international court which is also mandated with the application of customary
international law—which is, unlike treaty law, universal—that court can play
an important role in merging the provisions of the treaty into the general cus-
tomary legal framework, making the applicable law truly universal. The poten-
tial role of an international court in helping to make a treaty universal, if given
this role, should not be underestimated. While a judicial decision based only
on treaty provisions represents but a limited precedent for the states that are
not parties to the treaty, the application of customary international law by a
court makes that precedent significantly more valuable to all states. Although
formally binding only on States Parties, a decision will have to be regarded by
other jurisdictions, including domestic courts, as a precedent under general
international law. Thus, its value will extend far beyond the limited circle of the
States Parties to the treaty, which established the Court and the geographical
boundaries of its jurisdiction.
A reform in the sense just proposed would enhance the role of the icc and
make it stronger and more effective. As mentioned above, it could be carried
out without a legislative intervention, if the Court were to adopt a wider and
more fluid interpretation of the statutory provision on the applicable law.
However, as the Court is reluctant to do so, it may be encouraged by a clear
recommendation of the Assembly of States Parties (asp), or directed to do so
through a revision of the Statute, that would delete the words “in the first
place” and “in the second place” in Article 21(1), (a) and (b), thus setting those
letters in a sequence rather than a hierarchical order.
On another note, the universality of the Court’s jurisdiction could be en-
hanced by adding a new mechanism to deal with situations not covered by the
Rome Statute because of the lack of ratifications. The Statute aims at filling
in this gap through referrals by the Security Council. However, as the imple-
mentation of these provisions depends on the special majority required under
Chapter vii of the UN Charter, it is possible only if the permanent members
of the Council reach an agreement thereon. Furthermore, once the referral has
been authorized, the continuous support of these members is critical for the
successful activity of the Court. Unfortunately, on occasion of the two referrals

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302 Pocar
authorized so far, this support—and, indeed, the support of other countries in-
cluding States Parties to the Statute—has been provided but only in part, and
the investigations of the prosecutor have only resulted in the approval of arrest
warrants that have never been carried out. Other situations, which would have
clearly required a referral, have not been referred by the Security Council, thus
showing the weakness of this procedure under the Rome Statute. This situa-
tion is far from being satisfactory and demands a careful analysis by both the
UN bodies involved and the Court to find more convincing solutions.
In this context, the question could be raised whether referrals by the Secu-
rity Council to the icc represent the only means to deal with situations con-
nected with states that are not parties to the Statute, or whether other means
could be envisaged to ensure that justice is done when crimes occur in such
states? For example, the principle of universal jurisdiction might be applied,
by allowing the Court to exercise jurisdiction over international crimes wher-
ever they are committed, irrespective of the nationality of the perpetrator,
provided that the alleged perpetrator is in a State Party. Under the Geneva
Conventions, states are entitled to exercise universal jurisdiction over the grave
breaches of such conventions, irrespective of the place of commission of the
breach and the nationality of the perpetrator, or, if they are unable or unwilling
to do so, they are under an obligation to refer the case to another state which
would accept to prosecute. Why should such an inter-state application of the
principle aut dedere aut judicare not be extended to the relationship between
the Court and the States Parties, with a view to give effect to the provisions of
the Geneva Conventions and ensure a higher degree in their implementation?
A referral of this kind would represent a significant addition with respect to
the self-referral currently recognized by the Statute to States Parties, and might
find its basis in the principle of complementarity that governs their relation-
ship with the icc.
Whether such a development would require a statutory modification or
could be pursued by way of interpretation of the Statute and the obligations
of States Parties under the Geneva Conventions which are generally regarded
as reflecting customary international law, may be questionable. In any event,
the issue is whether states and the asp are prepared to favor the jurisdic-
tion of the Court to render it more effective worldwide. The definition of any
comprehensive and clear strategy in promoting and ensuring the international
and universal adjudication of war crimes and crimes against humanity re-
quires political will and a careful analysis of the achievements and failures of
the judicial framework built up so far. Should no initiative be urgently taken in
this regard, the goal of a universal international criminal justice system may
face increasing difficulties and remain unachieved.

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Chapter 27
Reforms to Enhance State Cooperation and Address

Witness Interference
Goran Sluiter
1 Summary
The two biggest threats to the effective functioning of the icc are (1) inter-
ference with witnesses and (2) states which refuse to cooperate with the
Court. This comment argues for reforms that could assist in addressing these
problems.
It is argued that interference with witnesses finds its root causes in lengthy
investigations and a non-objective, partisan approach to investigations. Giving
the judge in the Pre-Trial Chamber a stronger role in the pre-trial investigations
may assist in reducing the instances of witness interference. Article 57(3)(c) of
the Statute offers the necessary basis for the Pre-Trial Chamber to take on this
role and is flexible enough to ensure that a more active judicial involvement in
investigations is only done when the circumstances of a particular case so
require.
In regard to non-cooperation, the conclusion is that, until now, the ap-
proach in the case law of the Court and in the Assembly of States Parties (asp)
has been quite disappointing. In the interest of taking cooperation seriously, it
is advised that all findings of non-compliance under Article 87 (7) of the Stat-
ute are automatically referred to the asp. In addition, the asp should develop
more robust reactions against non-cooperative states. Sanctions, such as tak-
ing away the right to vote for some time, or an increase in the annual contribu-
tion, should be available and should be proportionate to the harm done to the
effective functioning of the Court. Otherwise, for some States Parties, non-
cooperation may become “business as usual.”
2 Argument
All supporters of the icc are keen on working on a more effective and stronger
international criminal justice system. I am therefore happy to contribute to
this particular topic of ucla’s highly valued Human Rights and International
Criminal Law Online Forum.

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304 Sluiter
In the limited space available to me, I will concentrate on what I consider to

be the two biggest threats at present to the effective functioning of the icc.
These are:
1. The quality of fact-finding, especially the problem of interference with
witnesses;
2. The non-cooperation by states.
I The Quality of Fact-finding

The cases that are brought before the icc are still highly dependent on fact-
finding and testimonial evidence. It follows from a number of cases that,
unfortunately, witnesses are being subjected to various forms and degrees
of interference. For example, as the icc Prosecutor said in relation to the Kenya
case:
There was a relentless campaign to identify individuals who could serve

as Prosecution witnesses in this case and ensure that they would not tes-
tify. This project of intimidation preceded the start of our investigation in
Kenya, intensified in the weeks leading up to the beginning of the trial,
and continued throughout the life of the case.
As a result, potential witnesses told us they were too afraid to commit to testi-
fying against the accused. Others, who initially gave us accounts of what they
saw during the post-election period, subsequently recanted their evidence and
declined to continue cooperating with the Court.
In addition, at public prayer rallies, local politicians and community leaders
branded prosecution witnesses as liars who had all given false evidence. On
social media, anonymous bloggers engaged in a steady stream of speculation
about the identity of protected witnesses. This speculation frequently devolved
into vitriolic commentary about witnesses’ motives for cooperating with the
Court.1
It exceeds the scope of this comment to analyze in detail the exact causes
and nature of interference in all icc investigations. Suffice it to say that we
have been fortunate enough that in some cases, such as the Lubanga trial—
the first icc case—several instances of influencing witnesses came to light, as
these witnesses themselves admitted in court that their initial statements pro-
vided to the prosecution were false and the result of instruction by so-called
1 Fatou Bensouda, International Criminal Court, Statement Regarding Trial Chamber’s Deci-
sion to Vacate Charges (Apr. 6, 2016), https://www.icc-cpi.int/Pages/item.aspx?name=otp-
stat-160406 (last visited Jun. 8, 2018). (This statement was made following the vacating of
charges in the Kenya case against William Samoei Ruto and Joshua Arap Sang).

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Reforms to Enhance State Cooperation 305
intermediaries. We do not know how many other instances of witness interfer-

ence may have taken place in the totality of icc investigations which have not
been discovered and have thus resulted in instances of false testimony—or no
testimony at all. Also, looking at the statement of the Prosecutor in the Kenya
case, and bearing in mind the problems with intermediaries instructing wit-
nesses and the prosecution of bribing witnesses by defendant Bemba and his
co-accused, I think it is safe to conclude that the problem of witness interfer-
ence is at present the greatest threat to accurate fact-finding at the icc.
With this cloud of possible interference of witnesses hanging over the func-
tioning of the Court, the question arises of which steps and reforms could be
taken to reduce this and to enhance the quality of fact-finding?
Some steps have already been taken. The use of intermediaries by the otp
and the ensuing interferences with witnesses in the icc’s first cases have led,
in 2014, to the adoption of Guidelines Governing the Relations between the
Court and Intermediaries.2 When the interference of witnesses comes within
the purview of Article 70 of the Rome Statute (the Statute), amounting to an
offense against the administration of justice, criminal prosecutions at the icc
can be initiated. This happened in respect of Mr. Bemba and four co-accused
resulting in convictions and sentences. In the Kenya case, arrest warrants have
been issued against suspects of witness interference, but nobody has been ar-
rested and surrendered to the Court yet.
I am unpersuaded that the Guidelines on Intermediaries and the prosecu-
tion of criminal witness interference will suffice to address the problems.
It seems to me that, at the heart of the problem of witness interference, are
the facts that:
1. the investigations stretch out too long before the commencement of the
trial, and
2. the parties have a partisan, non-objective approach towards their collec-
tion of evidence, and engage in fact-finding without judicial supervision.
The key to reducing the instances and severity of witness interference thus lies
in limiting the period of time that witnesses can, prior to trial, be the object of
attempts of interference. A stronger role for the judge in the pre-trial investiga-
tions can serve to ensure that the period of time between first contacting the
witness and taking testimony in court is limited as much as possible and that
the investigations of the parties are under “judicial supervision” in a broader
sense.
2 International Criminal Court, Guidelines Governing the Relations between the Court and
Intermediaries (Mar. 2014), https://www.icc-cpi.int/iccdocs/lt/GRCI-Eng.pdf (last visited July
26, 2018).

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306 Sluiter
The role of the judge in pre-trial investigations is a matter that divides crimi-
nal justice systems. In the continental European tradition—notably in a coun-
try like France—judge-led investigations excluding the parties is the norm,
at least in more serious cases; in French, this investigating judge is called the
juge d’instruction. This approach to investigations serves to ensure objective
and comprehensive fact-finding without the risk of investigations being dis-
torted by a partisan approach. Judge-led investigations have long been un-
known in international criminal justice, until the establishment of the eccc.
Adhering to Cambodian procedural law, which is based on the French system,
all investigations at the eccc are exclusively conducted by an office of two co-
investigating judges.3
In adversarial criminal justice systems, such as in the US or the UK, the
judge has only a small role in fact-finding, limited to issuing the warrants that
may be necessary for certain investigative activities. The approach of using
party-driven investigations, without significant judicial involvement and over-
sight, has also prevailed in international criminal justice.
Between the extremes of either exclusive judicial investigations, or inves-
tigations only by the parties, there are more flexible options. In the Nether-
lands, for example, the pre-trial judge has a supervisory function in pre-trial
investigations, which—depending on the needs of the investigation—may
result in a greater or more marginal role.
It seems to me that the system of the icc, with the creation of the Pre-Trial
Chamber and bearing in mind some of its powers, is flexible enough to give the
judge a stronger role in the investigations. We have already witnessed some
developments which point towards a more active Pre-Trial Chamber and a
stronger judicial role in the investigations, especially with the aim of dealing
with the problem of (potential) interference with witnesses.
Article 56 of the Statute, entitled “Role of the Pre-Trial Chamber in relation
to a unique investigative opportunity,” has been used to take testimony prior to
trial. This provision was included in the Statute to secure evidence prior to trial
in case there is a strong risk it will not be available later on; the most men-
tioned example is that of a terminally ill witness. The Article 56 collection of
evidence is, in principle, to be triggered by the Prosecutor, but it can also be
3 See Extraordinary Chambers in the Courts of Cambodia, Law on the Establishment of Extraor-
dinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During
the Period of Democratic Kampuchea, eccc Doc. No. NS/RKM/1004/006, at Article 23 new
(Oct. 27, 2004), https://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_
amended_27_Oct_2004_Eng.pdf (last visited July 26, 2018); Extraordinary Chambers in the
Courts of Cambodia, International Rules (Rev.9), at Rules 55–69 (amended Jan. 15, 2015),
https://www.eccc.gov.kh/sites/default/files/legal-documents/Internal_Rules_Rev_9_Eng.pdf
(last visited July 26, 2018).

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initiated on the Pre-Trial Chamber’s own initiative under Article 56 (3) of the
Statute, subject to appeal by the Prosecutor.
With specific reference to risks of witness interference, the Pre-Trial Cham-
ber justified the use of Article 56 in the Ongwen case as follows:
The ptc Single Judge specified the Article 56(2) measures enabling him
to take the Witnesses’ testimony. Pursuant to Article 56(1)(a) of the Stat-
ute, he found a unique investigative opportunity to take the Witnesses’
testimony in light of a risk that it may not be available subsequently for
the purposes of a trial. In so finding, he considered specific meetings,
publications and other events with the potential to taint the Witnesses’
evidence, in conjunction with the risks inherent in the passage of time, in
particular, the possible recurrence of events with the potential to taint
the Witnesses’ evidence.4
This use of Article 56 is not without criticism. The question arises whether
hearing witnesses prior to trial out of fear of interference later on amounts to
“unique investigative opportunities” as intended by the drafters and whether
the defense is not significantly disadvantaged by having to cross-examine
these witnesses without proper preparation and knowledge of the Prosecu-
tion’s case.
The question may arise why another provision in the Statute has not been
used to deal with the problems pertaining to witness interference. Article 57(3)
(c) of the Statute empowers the Pre-Trial Chamber, without requiring an ap-
plication from the parties, to protect witnesses and also to preserve evidence.
Arguably, this proprio motu power in the preservation of evidence could open
the door to a more active judicial involvement in the pre-trial collection of evi-
dence, which might even go as far as conducting judicial investigations—if so
required by the circumstances of a particular case. However, commentaries to
this provision in the Rome Statute—and the very limited case law on this
point—show that the views are divided whether or not the Pre-Trial Chamber
could use this provision to take on a much stronger role in the pre-trial investi-
gations; furthermore, the Prosecutor has objected against encroachment on
her investigative powers that could be the result of a stronger judicial role in
the collection of evidence.5
4 Prosecutor v. Dominic Ongwen, ICC-02/04-01/15-520, Decision on Request to Admit Evidence

Preserved Under Article 56 of the Statute, ¶ 8 (Aug. 10, 2016).
5 See Fabricio Guariglia, Kenneth J. Harris & Gudrun Hochmayr, “Article 57: Functions and
Powers of the Pre-Trial Chamber,” in Otto Triffterer (ed.), Commentary on the Rome Statute of

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308 Sluiter
Looking at the idea behind having a Pre-Trial Chamber at the icc to start
with, namely ensuring the preservation of evidence, there does not seem to be
that much against having a stronger role of the Pre-Trial Chamber in the inves-
tigations.6 And that was even without the drafters having anticipated rather
widespread and structural problems regarding the interference with witnesses.
It is therefore my opinion that a flexible—and thus at times strong—role
for the Pre-Trial Chamber in the collection of evidence can improve the quality
of fact-finding and has the potential of reducing instances of witness interfer-
ence. When the Pre-Trial Chamber considers it to be in the interests of
justice—or necessary—Article 57(3)(c) of the Statute empowers the Chamber
to take a variety of steps and measures to ensure the preservation of evidence.
For example, on the basis of Article 57(3)(c) of the Statute, the Pre-Trial Cham-
ber could require to be kept informed about the existence and nature of con-
tacts with the parties’ witnesses. It could also deal with all possible interfer-
ence risks, including ordering additional protective measures, which is
mentioned as a separate power in Article 57(3)(c) of the Statute.
The advantage of using Article 57(3)(c) in a more active—even pro-
active—manner is that it enables the Court to enhance the quality of fact-
finding w ithout having to resort to amendments to the Statute, or even to the
Rules of Procedure and Evidence. As has been done in other matters, the Pre-
Trial Chamber, if there is a need to do so in a particular case, can develop a
protocol aimed at being informed of and supervising the investigations of the
parties, or even substitute these investigations in respect of certain witnesses
whom the Chamber deems particularly vulnerable. When the circumstances
so dictate, this could, in my view, go as far as prohibiting further contacts be-
tween a party and a witness and have a pre-trial statement taken directly by
the Chamber.
Obviously, such a potentially far-reaching role for the Pre-Trial Chamber in
certain investigations is not without problems. It raises the structural question
whether the emphasis may gradually shift from the trial to the pre-trial phase
and thereby risks threatening the external publicity of international criminal
proceedings. Especially in international criminal trials, justice must be seen to
be done. It is not helpful in this regard if there is a development which contrib-
utes to evidence not always being presented at a public trial. But, that said, it
does not have to be a consistent development in all cases; the law is flexible
the International Criminal Court: Observers’ Notes, Article by Article, 2nd ed. (Oxford: Beck/
Hart, 2008), p. 1126.
6 See William A. Schabas, The International Criminal Court—A Commentary on the Rome Stat-
ute (Oxford: Oxford University Press, 2010), p. 697.

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enough to adjust the role of the Pre-Trial Chamber to the needs and threats in
a particular investigation.
In cases where the Pre-Trial Chamber exercises a firmer grip on pre-trial in-
vestigations, another issue relating to the organizational structure of the Court
needs to be addressed. The Pre-Trial Chamber will have to be up to the task and
be able to deliver on the promises it may make in both policies and practices as
it undertakes more involvement in the investigations. This means more staff,
especially more staff specialized in investigations and their challenges. Also,
with the election of judges and the allocation of them among the Chambers,
care should be taken that there is sufficient experience and expertise in crimi-
nal investigations.
To conclude on this point, reform of the Pre-Trial Chamber in the direction
of a stronger role in the investigations will not be without controversy, prob-
lems, and costs. However, I am convinced that the problems in investigations,
especially interference with witnesses, are significant, and we should not be
burying our heads in the sand. The judges themselves appear to have acknowl-
edged the seriousness of the problems with witness interference and have
already started to take a stronger role in investigations by making use of Article
56. I believe, however, that Article 56 is not the best basis to continue on this
path of a stronger judicial role in the investigations. Article 57(3)(c) of the Stat-
ute offers a more solid and also flexible legal basis to take a variety of measures
to protect the quality and integrity of the investigations, if the circumstances
of a particular investigation so require.
II Non-cooperation by States
One of the greatest frustrations of every supporter of an effective icc is unde-
niably the current non-cooperation by states. This does not really concern
states which are not a party to the Statute, as they have no obligation to coop-
erate unless such cooperation is required by another source of law than the
Statute, such as a Security Council Resolution or Article vi of the Genocide
Convention. But states that have voluntarily joined the icc and have accepted
all the obligations in the Statute, have refused to cooperate with the Court and
appear to get away with it. With South Africa’s non-cooperation having been
recently addressed by the Court and with Jordan’s non-cooperation still pend-
ing at the level of the Appeals Chamber, we have arrived at a critical phase in
the Court’s life when it comes to dealing with non-cooperation. The worst
thing that could happen to the effective functioning and authority of the Court
is that non-cooperation is increasingly considered “business as usual.”
I recently published an article in which I tried to address many of the prob-
lems resulting from non-cooperation and how the Court, especially the asp,

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310 Sluiter
should respond to this.7 It exceeds the scope of this comment to deal with all
those issues here as well. I will focus on some major points.
Before I do, I’d like to emphasize that there may not always be much differ-
ence that the law alone can make in ensuring cooperation with the Court. The
recent history of international criminal justice has demonstrated how impor-
tant unwavering political pressure on non-cooperating states is to have legal
obligations—finally—enforced. The reality, simply, is that the icc does not
presently benefit from the same degree of political pressure that was available,
for example, to the icty when the European Union insisted on the arrests of
Karadzic and Mladic. Rather, the Security Council, which referred the situa-
tions of Libya and Sudan to the Court, has let down the Court in a painful man-
ner when it comes to having these mandates effectively fulfilled.
With the limitations of the law in mind, a solid legal framework regarding
non-cooperation is nevertheless an important pre-requisite for subsequent ef-
fective enforcement measures. A number of problems have arisen in the
Court’s practice until now.
First of all, the fact remains that the icc’s law on cooperation has been the
result of a compromise and is not necessarily always geared towards effective
cooperation. Simply, the drafters did not always make the interests of the Court
prevail. An interesting example in this regard is Article 97 of the Statute,
dealing with consultations between the Court and the requested state, which
allows a state to raise potentially every problem it may encounter in executing
a request for cooperation. These consultations should result in a resolution of
the cooperation dispute, but, also looking at the drafting history, it is not said
that this resolution should be in favor of an effectively functioning Court. In its
case law, the Chambers, dealing with Article 87(7) litigation, have tried to
interpret and apply Article 97 in a manner that would favor effective coopera-
tion, but this approach may not be in keeping with the drafting history.8 The
bottom-line is that the entire law on cooperation, together with the law and
procedures on the enforcement of cooperation obligations, would have bene-
fited from substantive obligations which would unequivocally be in favor of an
effective Court.
7 Göran Sluiter, “Enforcing Cooperation: Did the Drafters Approach It the Wrong Way?” 16
J. Int’l Crim. Just. (forthcoming 2018).
8 See Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, Decision under Article
87(7) of the Rome Statute on the Non-compliance by South Africa with the Request by the
Court for the Arrest and Surrender of Omar Al-Bashir (Jul. 6, 2017) [hereinafter South Af-
rica Non-Compliance]; Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-309,
Decision under Article 87(7) of the Rome Statute on the Non-compliance by Jordan with
the Request by the Court for the Arrest and Surrender [of] Omar Al-Bashir (Dec. 11, 2017).

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The second problem relates to the Court’s case law under Article 87(7) of the
Statute. The procedure under this provision is aimed at establishing a judicial
finding of non-compliance, which is the condition for subsequent measures by
the Assembly of States Parties or the Security Council. The litigation under
Article 87(7) has (i) not always been of sufficient quality, and (ii) also has come
to mix too much law with politics.
The lack of quality in Article 87(7) case law can be illustrated by the fact
that, after years of litigation and many decisions, there is still no persuasive
substantive analysis by the Court on the issue of state immunity as an obstacle
to the arrest and surrender of Sudanese sitting president Al Bashir. It is only
very recently that the Appeals Chamber has chosen to address this matter
thoroughly; in the appeals procedure in Article 87(7) litigation involving Jor-
dan’s failure to arrest Al Bashir, the Appeals Chamber has called for amicus
curiae briefs, with a view to be thoroughly informed on all international law
issues surrounding the arrest of Al Bashir by States Parties.9 It begs the ques-
tion why this had not been done already a long time ago.
Another shortcoming of the case law under Article 87(7) is the discretion
that has been granted to the competent Chamber, following a decision by
the Appeals Chamber, to decline to refer non-compliance to the asp.10 This
raises the question about what criteria should guide the Chamber in refer-
ring non-compliance to the asp. Rather, one would expect that when the
non-compliance is considered serious enough to trigger Article 87(7) proceed-
ings, referral to the asp should be automatic. It would then be up to the asp to
take appropriate action. The exercise of non-referral discretion by Chambers
has resulted in a number of unsatisfactory decisions. A few states, such as Ni-
geria and South Africa, have been spared the referral of their non-compliance
to the asp, whereas other states in identical situations have been referred
for their non-compliance to the asp. Moreover, the reason why some non-
cooperation has not been referred to the asp has led to some remarkable ob-
servations, amounting to an encroachment upon the powers of the asp. For
example, the non-referral of South Africa was based, in part, on the view that
subsequent action by the asp was unlikely to be effective in obtaining the re-
quested cooperation.11 I don’t think this is the message that should be sent to
non-cooperative states.
9 Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09 OA2, Order Inviting Ex-
pressions of Interest as Amici Curiae in Judicial Proceedings (Pursuant to Rule 103 of the
Rules of Procedure and Evidence) (Mar. 29, 2018).
10 The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11 OA 5, Judgment on the Prosecu-
tor’s Appeal Against Trial Chamber V(B)’s “Decision on Prosecution’s Application for a
Finding of Non-compliance under Article 87(7) of the Statute,” (AC, Aug. 19, 2015),
11 See South Africa Non-Compliance, supra note 8, at ¶ 135.

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312 Sluiter
Finally, we should look at the role of the asp in enforcing cooperation.

One must admit that the mandate of the asp in terms of dealing with non-
cooperation is not particularly persuasive. Pursuant to Article 112(f), the asp is
empowered to consider any question relating to non-cooperation. “To consid-
er” does not endow the asp directly with specific powers, but is broad enough
to develop a robust and active approach by the asp towards non-cooperation.
What we see in practice is, however, quite disappointing. Over the years, the
asp has taken a great variety of initiatives in organizing its dealings with non-
cooperation. On the basis of the asp’s internal documents on procedures on
non-cooperation, the following measures appear at present available to react
against non-cooperation:
– Emergency Bureau meeting, at which it can be decided what further action
can be taken;
– Open letter from the President of the asp, on behalf of the Bureau, to the
state concerned, reminding that state of the obligation to cooperate and
requesting its view on the matter;
– A meeting of the Bureau, at which a representative of the state concerned
would be invited to present its views on how it would cooperate with the
Court in the future;
– Holding a public meeting on the matter to allow for an open dialogue with
the requested state;
– Submission of a Bureau report on the outcome of the aforementioned dia-
logue to the plenary session of the asp, including a recommendation as to
whether the matters require action by the Assembly;
– Appointment in the plenary session of the asp of a dedicated facilitator to
consult on a draft resolution containing concrete recommendations on the
matter.12
None of the measures can be considered to be effective for seriously sanction-
ing non-cooperation. When non-cooperation seriously hampers the effective
functioning of the Court, one would expect the development and use of more
robust enforcement measures. Those could include a financial sanction or tak-
ing away, for some period of time, the right to vote in the asp. I realize that a
more robust approach towards enforcement within the asp may create ten-
sions and problems, but one should also not underestimate the consequences
of continuing on the present path. Regrettably, non-cooperating states see that
there is nothing to fear in case of non-cooperation and, as a consequence, non-
cooperation has appeared to have become business as usual.
12 Assembly of States Parties, Strengthening the International Criminal Court and the Assem-
bly of States Parties, ICC-ASP/10/Res.5, at Annex ¶ 14 (Dec. 21, 2011).

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This trend needs to be reversed. I therefore propose the following reforms,

which can all be put in place without amending the Statute:
– I would urge for a reversal of the current jurisprudence and ensure that re-
ferrals of judicial findings of non-cooperation to the asp, which were con-
sidered to be important enough to initiate the proceedings under Article
87(7), to the asp are automatic upon a finding of non-cooperation.
– A possible framework for enforcing non-cooperation within the asp could
consist of a number of measures, or administrative sanctions, that can be
imposed against the non-cooperating state. If an administrative sanction is
appropriate, which sanction would be necessary and proportionate under
the circumstances should depend on a number of factors, including the de-
gree to which the non-cooperation has undermined the functioning of the
Court and whether the cooperation was provided at a later stage. Clearly,
failure to execute an arrest warrant, knowing that there is probably no likely
later opportunity to provide the requested assistance, should rank as a seri-
ous instance of non-cooperation which substantially undermines the func-
tioning of the Court; it justifies a more severe reaction compared to other
forms of non-cooperation. Another relevant factor could be whether or not
the non-cooperating state is a “first offender” or has failed to cooperate with
the Court in the past.
– Applying the aforementioned factors, the asp, or rather a specialized com-
mittee within the asp, could then impose a range of measures and ad-
ministrative sanctions which, in order of severity and bearing in mind the
particular context of the Court, could consist of the following:
i. a formal warning;
ii. losing the right to present nationals as candidates for icc elected
positions;
iii. losing the right to vote within the asp for a specified period of time; or
iv. an administrative fine, for example in the form of increase in the an-
nual contribution to the Court.

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Chapter 28
Improving Investigative, Arrest, and Prosecution

Strategies
Richard Dicker
I The Court Is More Important Now Than Ever
As the twentieth anniversary of the completion of the Rome Statute of the In-
ternational Criminal Court approaches, a telling reality stands out: an effective
International Criminal Court (icc) is more important in today’s difficult world
than we ever had imagined at the Rome Diplomatic Conference. A cursory re-
view of the Court’s workload and today’s headlines bears out the need for the
Court to rise to the challenges it faces in the third decade since Rome.
The Court has a far larger docket than anyone would have ever thought pos-
sible during the years of negotiations. Of course, this was a time when, accord-
ing to one prominent US political scientist, with the end of the Cold War, we
had reached “the end of history.” Among states within the icc’s jurisdiction—
including Mali, Georgia, the Democratic Republic of Congo, Central African
Republic, the United Kingdom—that prediction has long since been proven to
be erroneous.
In addition to the countries where the icc has authority, in armed conflicts
raging across non-ICC member countries, militaries and insurgents are inflict-
ing shocking atrocities on victims. Civilians in Syria, Iraq, Yemen, South Sudan,
and Myanmar have endured unspeakable crimes committed with complete
impunity. Despite the gravity and scale of these crimes, the Court reach does
not extend to non-member states. In Rome, the states negotiating the Court’s
jurisdictional reach required United Nations Security Council approval before
the Court could adjudicate crimes committed in non-member states.
The proliferation of the most serious crimes requires key stakeholders—
States Parties and civil society as well as Court staff—to step up their game.
These changes are necessary for the Court to meet the challenges of its third
decade. The obstacles will only intensify, and definite changes are required to
surmount them.
The Office of the Prosecutor (otp) experienced a difficult first decade char-
acterized by a poor selection of cases and charges, both of which is reflected in
the recent Appeals Chamber decision in Bemba which left victims of those

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Improving Investigative, Arrest, and Prosecution Strategies 315
crimes in the Central African Republic without any redress. The Office has
worked to draw lessons from missteps and implement better investigative and
proofing practices, but it’s a long road to go. The quality of investigations has
improved as the otp implemented more rigorous internal review practices
and expanded the range of investigative methodologies it employs, including
reliance on forensic evidence and tracking of financial assets.
Currently, the icc’s otp has opened ten ongoing investigations in as many
different countries, possibly also soon to include Afghanistan. It is simultane-
ously conducting Preliminary Examinations in ten countries with the Philip-
pines and Venezuela as the most recent additions. As the Court takes on more
situations, there is a risk that the Prosecutor will have to “hollow out” its inves-
tigative strategy. That is, the icc may take on more situations, but do less and
less in each to correlate demand with limited resources—especially given con-
straints on its budget. In fact, experience in the icc’s existing situations shows
that just the opposite is required—more investigations and prosecutions are
needed in each of these situations in order to fulfill the Court’s mandate. This
will require additional resources, but it will also require the otp to set priorities.
Going into its third decade, the icc’s investigations and prosecutions need
to reflect coherent and effective strategies for delivering meaningful justice to
affected communities. Such strategies would require multiple investigations,
deeply rooted in the country-specific context, and designed to bring to trial
those most responsible for the gravest crimes representative of underlying pat-
terns of icc crimes. While the icc may not be the only judicial institution at
work—indeed icc prosecutions should be supplemented by additional na-
tional prosecutions—its intervention comes with high expectations within af-
fected communities. As the leading edge of international justice, the otp
needs to try to be sensitive to those expectations. The gaps that remain in de-
livering on the icc’s mandate in situations where the Court is pursuing its
mandate need to be thought through and addressed.
There are currently fifteen fugitives at liberty on icc arrest warrants. Lessons
from the first international tribunals, operating in more favorable conditions
than the icc faces, underscore the importance of a proactive arrest. strategy.
Combining public and private advocacy with both carrots and sticks to induce
apprehension, the Prosecutor is the Court’s chief advocate for arrest. The use
of smart, strategic messaging is vital. In many cases, but not all, identifying suc-
cessful arrest strategies requires in-depth knowledge of the countries where
the suspects reside.
With the upcoming third and final Strategic Plan, the Prosecutor has the op-
portunity to codify a new set of practices on investigative approaches, arrest,
and situation “exit strategies” before the completion of her nine-year tenure.

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316 Dicker
On the bench, hopefully, the Appeals Chamber will have the opportunity to
review the extremely high standard of admissibility it set in the al-Senussi
case. That judgment used the argument of the icc not being “a human rights
court” to ignore real questions about the independence and impartiality of the
Libyan court trying Abdullah al-Senussi.
We also look forward to the judges formulating a better theory for allowing
victims to choose their common legal representative than what we saw in the
Ongwen case. Victim participation is a bridge to the communities looking to
the Court for redress. There is a worrying trend of judges taking over decision-
making about who will represent victims in the proceedings. Victims have the
right to choose counsel or be assisted by the Registry in selecting a common
legal representative. Court-appointed counsel were envisioned only as a last
resort. Unfortunately, in Ongwen, the views and preferences of victims about
their counsel have been downgraded to a relevant, but not necessarily deter-
minative or even predominant, consideration in the judges’ decision-making.
Exercising real choice matters because it helps forge a sense of trust among
victims that counsel will represent their views. This is not the only way to em-
power victims or ensure effective representation, but the icc needs to take
every opportunity to deepen its local impact and legitimacy.
II Support from States Parties
Underlying effective investigation and arrest is robust cooperation from icc

member states on which the Court depends. As the Court ramps up its perfor-
mance, it absolutely needs stronger backing from States Parties. This is neces-
sary to make the Court’s daily judicial work possible and, through private and
public diplomacy by states, to protect its mandate, independence, and legiti-
macy when these are under threat. Robust engagement by States Parties is an
essential requirement for the icc.
Challenges to and controversy about the icc’s mandate will never fully re-
cede or abate. As long as the icc is doing its job, it will engender intense op-
position from those who have reason to fear accountability. Given trends on
the current global landscape, this is likely be all the more true in the future as
the icc diversifies its regional scope beyond Africa. The commitment of States
Parties to the Court, a global judicial institution rooted in defense of the rule of
law, is an essential protection.
Looking at the icc’s history, the Court overcame efforts by the United States
government, in the early years of the administration of US President George
W. Bush, to undermine the Court. This was possible due to unified, firm support

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Improving Investigative, Arrest, and Prosecution Strategies 317
by States Parties. More recently, collective efforts by icc States Parties led to
substantial progress in responding to the first announced withdrawals from
the Rome Statute.
Political support is one key prong, but as its docket has grown, the Court
needs more resources to do its work effectively and efficiently. The otp needs
to hire staff to start new investigations and buttress those in progress. The Of-
fice needs further investment to support the preliminary examination process
to expedite analysis in determining whether or not to open a full investigation
as well as using the examination process as a catalyst for national prosecu-
tions. There is a need for greater outreach and field presence on the ground
with affected communities, and activities to facilitate victim participation and
reparations proceedings.
But several years of steady pressure by a few States Parties to hold down any
meaningful growth in the Court’s budget has distorted the annual negotiations
on the Court’s pressing needs. A number of the Court’s largest contributing
states have taken a punitive approach to the icc’s resource imperatives by in-
sisting that the budget grow only commensurate with the annual rate of infla-
tion. Citing a “zero nominal growth” theory that is starkly out of line with de-
mands on the icc, this misguided insistence not only hamstrings the
Prosecutor, but risks infringing on her independence as a judicial actor. While
the Court’s current annual budget of approximately 150 million euros is a sig-
nificant amount of money, it pales in comparison to the full cost of a single
day’s post-conflict peacekeeping operation, let alone a military deployment.
Meanwhile, the annual budget negotiations have moved away from an ap-
praisal of the Court’s resource needs and become a race to lower the bottom
line according to what the larger States Parties are willing to pay. This has also
limited prospects for charting a course to securing a budget for the Court that
will afford meaningful justice to a greater number of victims. This urgently
needs to change.
III Civil Society Worldwide Has Been a Great Champion and Supporter
of the icc Despite Disappointments
Here too is room for growth. While supporting the Court, we have to be realis-
tic about expectations of what the icc will be able to accomplish and manage
better what we say about the institution’s limitations. At the same time, we
have to become more articulate in conveying concerns and criticisms of Court
practice in principled and constructive ways.

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318 Dicker
The icc has been through difficult periods in its relatively short history.
While the Court’s cases have attracted bouts of political backlash, concerted
efforts by and among States Parties have led to important results in overcom-
ing opposition and stemming, for now, threats of additional withdrawals from
the Rome Statute.
But the world situation has changed around the icc, leaving it to manage
on a more difficult terrain using the tools with which it was established. The
stakes, however, are higher than before and more is called for in order for the
Court to be effective in its third decade. The imminent twentieth anniversary
of the completion of the Rome Statute is a moment for sober stocktaking and
planning for the future. The range of unfolding anniversary activities provides
an opportunity for precisely that kind of reflection and re-affirmation, as well
as planning for the serious challenges ahead. Stakeholders need to make the
most of it.

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Chapter 29
Meeting Challenges: Politics, Trial Processes, and

Early Judicial Work
Leila Sadat
I Introduction
The adoption of the Rome Statute of the International Criminal Court by 120
states on July 17, 1998 marked an uneasy revolution in international law and
practice.1 A response to the devastation wrought by war and the commission
of atrocity crimes,2 the Rome Statute was negotiated just after the collapse of
the Soviet Union in 1989, but still in the shadow of possible nuclear war. The
Statute’s adoption was a sign of faith and optimism in the capacity of interna-
tional law and international institutions to prevent and contain violence and
create a more peaceful and prosperous world.
At the time of the Court’s establishment, euphoria and skepticism about
both its utility and its prospects were present in roughly equal measure. It
was thought that it might take decades to reach the sixty ratifications neces-
sary to bring the treaty into force and most observers were surprised when
that goal was achieved after only four years. The ngo Coalition for the Inter-
national Criminal Court (the cicc), which began campaigning for the Court
in 1995, set as its goals for the treaty a fair, effective, and independent Court.
Twenty years later, the Court has become operational and these objectives
can be assessed and measured rather than speculated upon, although it is
admittedly hard to gauge the long-term impact of the Court’s activity at this
early stage.
1 Leila Nadya Sadat and S. Richard Carden, “The New International Criminal Court: An Uneasy
Revolution” (2000) 88 Georgetown Law Journal 381, http://heinonline.org/hol-cgi-bin/get_
pdf.cgi?handle=hein.journals/glj88&section=24.
2 M. Cherif Bassiouni, “The Normative Framework of International Humanitarian Law: Over-
laps, Gaps and Ambiguities” (1998) 8 Transnational Law & Contemporary Problems 199 at 203,
https://heinonline.org/HOL/Page?handle=hein.journals/tlcp8&div=22&id=&page=&collect
ion=journals, later version available at https://digital-commons.usnwc.edu/cgi/viewcontent
.cgi?referer=&httpsredir=1&article=1436&context=ils.
(An estimated 170 million died in more than 250 conflicts that took place after World War ii).

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320 Sadat
With 900 staff hailing from more than 100 countries3 and 123 States Parties,
the Court has grown considerably faster than experts predicted twenty years
ago. It has 11 Situations under investigation, 26 cases pending or complete, and
10 Preliminary Examinations under way. As a “justice start up,”4 tasked with
investigating and prosecuting the “most serious crimes of concern to the inter-
national community as a whole,”5 the icc is, by definition, an institution asked
to bring the rule of law into some of the most difficult and dangerous situa-
tions in the world, a mission that requires it to confront state power on an on-
going basis.
Turning the complex and heavily negotiated provisions of the Statute into a
blueprint for a functioning international institution has clearly been both ex-
hilarating and exhausting for those involved and has been more difficult than
the construction of the ad hoc international criminal tribunals due to the wid-
er scope of the icc’s mandate. The Court has had some significant successes,
securing convictions of individuals for serious crimes including enlistment, re-
cruitment, and use of child soldiers (Lubanga);6 attacks upon cultural property
and heritage (Al Mahdi);7 and sexual and gender-based violence (Ntaganda).8
It has also begun the process of issuing reparations and its focus on victims is
much more significant than predecessor institutions. The shadow of the Court
looms large in the mind of victim groups, civil society advocates, governmen-
tal officials, rebel leaders, the media, and even in the decisions of other na-
tional courts. The annual meeting of the Court’s Assembly of States Parties
brings together states, ngos, and other stakeholders to discuss not only mat-
ters of importance to the icc itself, but global justice, peace, and s ecurity more
3 About, icc, https://www.icc-cpi.int/about (last visited June 11, 2018). Assembly of States Par-
ties, International Criminal Court, Report of the Bureau on equitable geographical representa-
tion and gender balance in the recruitment of staff of the International Criminal Court, Doc. No.
ICC-ASP/16/35, ¶ ¶ 11, 16 (Nov. 22, 2017), [hereinafter Staff Recruitment], https://asp.icc-cpi
.int/iccdocs/asp_docs/ASP16/ICC-ASP-16-35-ENG.pdf. (Of these, and not including elected
officials, the Court has 449 Professional Staff with 90 nationalities as of July 31, 2017). Id. at 22.
4 The Reckoning (Skylight Pictures, Jul. 14, 2009), https://vimeo.com/ondemand/thereckon-
ing/19673413. (Quotes Christine Chung, an icc otp prosecutor).
A/CONF.183/9 at pmbl., cl. 4 (July 17, 1998), [hereinafter Rome Statute], https://www.icc-cpi
.int/resource-library/Documents/RS-Eng.pdf.
6 Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74
of the Statute (Apr. 5, 2012), https://www.icc-cpi.int/CourtRecords/CR2012_03942.PDF.
7 Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Judgment and Sentence (Sep. 27,
2016), https://www.icc-cpi.int/CourtRecords/CR2016_07244.PDF.
8 Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Judgment Pursuant to Article 74 of the Stat-
ute (July 8, 2019), https://www.icc-cpi.int/CourtRecords/CR2019_03568.PDF.

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Meeting Challenges 321
g enerally. At the international level, having an institution focused upon global

justice whose mission must be factored into the resolution of difficult interna-
tional issues has changed the equation in a way that is hard to quantify,9 but is
deeply significant. At national and regional levels, the icc has encouraged the
establishment of new courts and other mechanisms to address international
crimes—an example of “positive complementarity” inspired by the Rome Stat-
ute system.
The icc has also faced considerable challenges. These include critiques of
its legitimacy from State and non-States Parties alike, difficulties apprehending
defendants (15 of whom are at large as of this writing), lengthy trials involving
difficulties of proof, and problematic jurisprudence and jurisprudential meth-
odologies in several areas of the law. Critics have alleged that the Court is both
too strong and too weak;10 that it is targeting Africa because it is a tool of the
West11 and, at the same time, is bringing politically motivated prosecutions
against Western states;12 that the Office of the Prosecutor (otp) has targeted
defendants who are too high ranking to be brought before the Court;13 or, as
others have complained, has only brought cases against low-level accused.14 As
Darryl Robinson has written, whatever it does, “the icc cannot win.”15 The
9 Scholars are studying it closely. See, e.g., Daniel Krcmaric, “Should I Stay or Should I Go?
Leaders, Exile, and the Dilemmas of International Justice” (2018) 62 American Journal of
Political Science 486, https://doi.org/10.1111/ajps.12352; William Burke-White, “Bargaining
for Arrests at the International Criminal Court: A Response to Roper and Barria” (2008) 21
Leiden Journal of International Law 477, https://doi.org/10.1017/S0922156508005049.
10 Jack Goldsmith, “The Self-Defeating International Criminal Court” (2003) 70 University of
Chicago Law Review 89 (2003), http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi
?article=5158&context=uclrev.
11 See, e.g., A. Taylor, “Why So Many African Leaders Hate the International Criminal
Court” Washington Post, 15 June 2015, https://www.washingtonpost.com/news/world-
views/wp/2015/06/15/why-so-many-african-leaders-hate-the-international-criminal-
court/?noredirect=on.
12 See, e.g., T. Cruvellier, “Can the International Criminal Court Be Saved From Itself?,” New
York Times, 17 December 2017, https://www.nytimes.com/2017/12/17/opinion/icc-symbol-
ic-migrants-europe.html. (Expresses doubt as to the likelihood of success of the Court’s
investigations into U.S. actions in Afghanistan).
13 See, e.g., Simon Tisdall, “Bashir Slips Out of Court’s Grasp,” The Guardian, 11 June 2009,
https://www.theguardian.com/commentisfree/2009/jun/11/sudan-law. (Recounts
criticisms from African and Western officials).
14 See, e.g., William A. Schabas, “The Banality of International Justice” (2013) 11 Journal of
International Criminal Justice 545 at 550, https://academic.oup.com/jicj/article/11/3/545/
814499.
15 Darryl Robinson, “Inescapable Dyads: Why the International Criminal Court Cannot Win”
(2015) 28 Leiden Journal of International Law 323, https://heinonline.org/hol-cgi-bin/

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322 Sadat
Court occupies, to paraphrase the late U.S. Judge Patricia Wald who served at
the International Criminal Tribunal for the former Yugoslavia (icty), “a small
center in a whirling international vortex” in which almost everything it does
“has political implications.”16 Criticism of the Court is, therefore, inevitable.
Nonetheless, it is worth asking what actions the organs of the Court can under-
take either to minimize or diffuse those criticisms or respond to them with
useful reforms.
This short comment considers three challenges the Court must meet to be-
come the fair, effective, and independent Institution envisaged in the summer
of 1998. These are:
1. political challenges to the Court’s power, authority and independence;
2. challenges stemming from difficulties of the Court’s trial processes; and
3. concerns about the Court’s early case law.
This comment also suggests steps that the Court could undertake to meet
these challenges.
II Three Key Areas of Concern
A Political Challenges
The world in 2018 is not the world of 1998, and it is not sensible to assume that
the world of 2028 is likely to be much better. The 1990s were a time of conflict,
but also of hope, and renewed focus upon international law and institutions.17
Twenty years later, the Cold War seems resurgent as the Security Council is
again paralyzed by bitter disagreements between the great powers, particular-
ly the Russian Federation and the United States. This has made effective action
on some of the worst atrocity situations in the world (e.g. Syria) extremely
challenging. Ratifications of the Rome Statute have slowed considerably, leav-
ing seventy states, including many major powers, outside the Rome Statute
system, and this situation is unlikely to improve soon. Two states that have
been the subject of Preliminary Examinations have withdrawn from the
get_pdf.cgi?handle=hein.journals/lejint28&section=28, draft version available at https://

ssrn.com/abstract=2491187.
16 Patricia M. Wald, “Running the Trial of the Century: The Nuremberg Legacy” (2006) 27
Cardozo Law Review 1559 at 1581–1582, https://heinonline.org/hol-cgi-bin/get_pdf
.cgi?handle=hein.journals/cdozo27&section=65.
17 G.A. Res. 44/23 (Nov. 17, 1989), https://undocs.org/A/RES/44/23. (In November 1989, the
U.N. General Assembly declared 1990–1999 as the “United Nations Decade of Internation-
al Law.”).

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S tatute in response,18 which is their sovereign right, but worrying. Talk of a

“mass exodus” of African Union members has punctuated discussions about
the Court at its annual Assembly of States Parties meetings for the past few
years,19 sparked by indictments of African leaders who fought their battles
both in and outside the courtroom,20 attacking the Court politically as well as
the specific cases against them, and even, as discussed below, attempting to
amend or reinterpret key Rome Statute provisions in their favor to preserve
their immunity from the Court’s jurisdiction.21
The hostility of the United States towards the international criminal justice
project has also posed a major challenge.22 The lack of U.S. support has not
proved fatal to the Court, but it has weakened it. Given that the Nuremberg
trials were very much an “American show,”23 U.S. attacks on the Court also
18 Office of the Prosecutor, International Criminal Court, Report on Preliminary Examina-

tion Activities 2017, ¶ 289 (Dec. 4, 2017), https://www.icc-cpi.int/itemsDocuments/2017-
PE-rep/2017-otp-rep-PE_ENG.pdf. (Burundi notified the U.N. Secretary-General of its
withdrawal on October 27, 2016, which became effective on October 27, 2017). Press Re-
lease, International Criminal Court, icc Statement on The Philippines’ Notice of With-
drawal: State Participation in Rome Statute System Essential to International Rule of Law
(Mar. 20, 2018), https://www.icc-cpi.int/Pages/item.aspx?name=pr1371. (The Philippines
deposited a written notification of withdrawal on March 17, 2018).
19 See, e.g., Memorandum to African States Parties of the International Criminal Court for
the Assembly of States Parties 14th Session, at 2 (Nov. 17, 2015), https://www.hrw.org/sites/
default/files/supporting_resources/civil_society_memo_to_african_icc_states_parties_
on_asp_2015.pdf. (In January 2015, then AU Chair Robert Mugabe of Zimbabwe threat-
ened to urge African states to withdraw from the icc). Sidiki Kaba, Assembly of States
Parties President, Speech at the Fifteenth Session of the Assembly of States Parties (Nov.
16, 2016), https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/ASP15-Opening-Statement-PASP-
ENG.pdf.
20 See, e.g., John Mukum Mbaku, “Africa and the International Criminal Court: Is There
Room for Cooperation?” (2017) Georgetown Journal of International Affairs, https://www
.georgetownjournalofinternationalaffairs.org/online-edition/africa-and-the-inter
national-criminal-court-is-there-room-for-cooperation.
21 See generally Yvonne M. Dutton, “Bridging the Legitimacy Divide: The International Crim-
inal Court’s Domestic Perception Challenge” (2017) 56 Columbia Journal of Transnational
Law 71 at 109, http://jtl.columbia.edu/wp-content/uploads/sites/4/2018/01/Dutton_56-
CJTL-70.pdf; Assembly of States Parties, International Criminal Court, Report of the Work-
ing Group on Amendments (Thirteenth Session), Doc. No. ICC-ASP/13/31, ¶ 12 (Dec. 7, 2014),
https://asp.icc-cpi.int/iccdocs/asp_docs/ASP13/ICC-ASP-13-31-ENG.pdf. (Introduced Ke-
nya’s proposal to amend Article 27 of the Rome Statute).
22 See, e.g., Göran Sluiter, “The International Criminal Court” (2005) 23 Netherlands Quar-
terly of Human Rights 480 at 480–482, https://journals.sagepub.com/doi/abs/10.1177/01693
4410502300311 (last visited Aug. 8, 2019).
23 Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (Cam-
bridge, Mass.: Belknap Press, 2007), p. 233.

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324 Sadat
pose a more existential and fundamental challenge to the Institution than

challenges by other states. Although instrumental in the establishment of the
Yugoslavia and Rwanda Tribunals in the 1990s, and relatively supportive in
terms of funding, intelligence sharing, and the secondment of personnel, the
United States has been less positive about the icc. This has jeopardized the
ability of some countries to cooperate with the Court and deprives the Court
of financial and logistical support. It also leads to arguments that the Court is
not even-handed because it cannot compel U.S. persons to appear before it
even though the U.S. has participated in Security Council referrals to the Court
in three cases involving non-States Parties (whilst exempting or attempting to
exempt its own nationals from the Court’s jurisdiction): Sudan,24 Libya,25 and
Syria.26 The accusation of double standards erodes perceptions that the Court
is fair and independent. The Prosecutor’s request to open an investigation into
the Situation in Afghanistan, which may implicate U.S. persons and policies,
may obviate some of the critique directed towards the icc itself, but may lead
to other difficulties when the Court finds itself on the receiving end (again) of
punishing treatment from the United States.27
The absence of Russia, China, and India is equally problematic, but for dif-
ferent reasons. These populous and influential states are nuclear armed, and
two of them, like the United States, can refer situations to the Court and sus-
pend investigations in their capacity as permanent members of the U.N. Secu-
rity Council. Following the U.S. example,28 the Russian Federation denounced
24 S.C. Res. 1593 (Mar. 31, 2005), https://undocs.org/S/RES/1593(2005). (Voted to refer the
Situation in Darfur to the icc; the United States abstained).
25 S.C. Res. 1970 (Feb. 26, 2011), https://undocs.org/S/RES/1970(2011). (Voted unanimously to
refer the Situation in Libya to the icc).
26 U.N. scor, 69th Sess., 7180th mtg., U.N. Doc. S/PV.7180 (May 22, 2014), https://undocs
.org/S/PV.7180. (On May 22, 2014, a Resolution was introduced by France to refer the situ-
ation in Syria to the icc. The United States and 12 other nations voted in favor. China and
the Russian Federation voted against the resolution, preventing its adoption).
27 See, e.g., J. Bolton, “The Hague Aims for U.S. Soldiers,” Wall Street Journal, 20 November
2017, p. A17, https://www.wsj.com/articles/the-hague-tiptoes-toward-u-s-soldiers-1511217
136. (“The icc constitutes a direct assault on the concept of national sovereignty” and
that “America should welcome the opportunity…to strangle the icc in its cradle.”).
28 Leila Nadya Sadat, “Summer in Rome, Spring in the Hague, Winter in Washington? U.S.
Policy Towards the International Criminal Court” (2003) 21 Wisconsin International Law
Journal 557 at 557–558, https://heinonline.org/HOL/LandingPage?handle=hein.journals/
wisint21&div=25&id=&page=; see also Edward T. Swaine, “Unsigning” (2003) 55 Stanford
Law Review 2061 at 2064–65, https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?httpsr
edir=1&article=2136&context=faculty_publications.

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its signature of the Rome Statute in November 2016, reacting to reference by

the Prosecutor to Russia’s “occupation” of Crimea.29
It is not just large countries that have spurned the Court, however. Following
the indictment of Sudanese President Omar Al Bashir of Sudan in 2009, mem-
bers of the African Union, asserting that the Court was “targeting Africa,”
launched a campaign against the Court. Sudan asserted that the Court was a
“political organ of the EU…built to indict Africans,” and that it had no obliga-
tion to cooperate with it as a non-State Party to the Statute, even pursuant to a
Security Council Resolution, in a reprise of the U.S. arguments made at Rome
against the Statute.30 The AU campaign involved a refusal to arrest Omar Al
Bashir during his international travels (including to icc States Parties);31 an
effort to persuade the Security Council to defer the Sudan case (and later the
Kenya cases, which also involved indictments of a Head of State); to amend the
Statute to permit the General Assembly (as opposed to the Security Council) to
suspend an investigation or prosecution;32 long sessions at the icc Assembly
of States Parties on “Indictment of Sitting Heads of State and Government and
its Consequences on Peace and Stability and Reconciliation”33 (and similar
topics such as “Africa and the icc” in subsequent years); the adoption of a new
Rule of Procedure and Evidence, 134 quater to permit Heads of State to be ex-
cused from trial and represented by counsel only;34 and the adoption of a new
29 See, e.g., S. Walker and O. Bowcott, “Russia Withdraws Signature from International
Criminal Court Statute,” The Guardian, 16 November 2016, https://www.theguardian
.com/world/2016/nov/16/russia-withdraws-signature-from-international-criminal-court-
statute.
30 “Sudan’s FM: ‘icc is a court built to indict Africans,’” Al Jazeera, 29 October 2016, https://
www.aljazeera.com/programmes/talktojazeera/2016/10/sudan-fm-icc-court-built-indict-
africans-161027112211288.html.
31 “Sudan’s Omar al-Bashir,” bbc News, 6 April 2016, http://www.bbc.com/news/world-afri-
ca-16010445. (Bashir made diplomatic visits to South Africa, Saudi Arabia, and Egypt de-
spite the international travel ban).
32 H. Goitom, “African Union: Amendment to Rome Statute of International Criminal Court
Sought,” Global Legal Monitor, 16 February 2010, http://www.loc.gov/law/foreign-news/
article/african-union-amendment-to-rome-statute-of-international-criminal-court-
sought/.
33 Assembly of States Parties, International Criminal Court, Special Segment as Requested by
the African Union: “Indictment of sitting Heads of State and Government and its conse-
quences on peace and stability and reconciliation,” Doc. No. ICC-ASP/12/61 (Nov. 27, 2013),
https://asp.icc-cpi.int/iccdocs/asp_docs/asp12/icc-asp-12-61-eng.pdf; Beth Van Schaack,
icc Assembly of States Parties Rundown, Just Security (Nov. 27, 2013) https://www.justse-
curity.org/3862/icc-assembly-states-parties-rundown/.
34 Probably in contravention of Article 63(1) requiring the accused to be present during the
trial, and Article 27’s admonition that the “Statute shall apply equally to all persons with-
out any distinction based on official capacity.”

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326 Sadat
treaty, the Malabo Protocol,35 providing for immunity for Heads of State in di-
rect contravention of customary international law and the Rome Statute.36
Given these political difficulties, which are not likely to improve any time
soon, the Court must endeavor to satisfy its supporters and win over its detrac-
tors, keeping in mind that it must remain fair and independent. The Court
alone cannot change the political framework within which it operates, and
much of the political blowback it experiences is because “it is working.”37 Yet
sometimes the Court is its own worst enemy, appearing aloof and bureaucratic
rather than engaged and open. It can engage in more extensive outreach to
explain its activities and do the kind of “public diplomacy” necessary for an
institution to earn public support and trust. It can do more to educate the
public about its work, make its website much more user friendly (even the lat-
est version is extraordinarily difficult to navigate), produce or sponsor books
and videos explaining the importance of its work, and engage in more victim-
centered activities that underscore the importance of justice and reparations
for afflicted communities. The Court’s Registry, which receives about 52 per-
cent of its budget,38 is largely responsible for these actions. It should ensure
that visitors to the Court are treated as valued members of its public constitu-
ency, not as impediments to its effective functioning. After all, the Court is a
publicly funded state institution that must be accessible and open to the inter-
national community it serves. Finally, although there has been some discus-
sion of whether nationals of non-States Parties should be employed at the
Court,39 their presence at the Institution not only allows them to become am-
bassadors for the Court in their home countries but indicates the Court’s desire
to one day truly achieve universal ratification. The Court’s Assembly of States
Parties must provide sufficient funds to allow the Registry and other organs of
35 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice
and Human Rights art. 46A bis (2014) [hereinafter Malabo Protocol], https://au.int/sites/
default/files/treaties/36398-treaty-0045_-_protocol_on_amendments_to_the_protocol_
on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf.
36 Leila Nadya Sadat, Official Immunity at the International Criminal Court (Forthcoming).
37 William Pace, Convenor of the cicc, Remarks at Netherlands Ministry of Foreign Affairs
Conference Held in Honor of the Opening of the Permanent Premises (Apr. 19, 2016).
38 Assembly of States Parties, International Criminal Court, Resolution of the Assembly of
States Parties on the Proposed Programme Budget for 2018, the Working Capital Fund for
2018, the Scale of Assessment for the Appointment of Expenses of the International Criminal
Court, Financing Appropriations for 2018 and the Contingency Fund, Doc. No. ICC-ASP/16/
Res.1 (Dec. 14, 2017), https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP16/ICC-
ASP-16-Res1-ENG.pdf.
39 See Staff Recruitment, supra note 3.

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the Court to carry out this important work, so critical to ensuring the Court’s
political survival.
B Challenges Relating to the Trial Process and Functioning of the

Institution
A difficult political climate requires the Court to be scrupulous about its trial
processes, so it can demonstrate that it is indeed “fair, effective, and impartial,”
and able to perform the core tasks assigned to it by its Statute. This has, to date,
been a major weakness of the Institution although it is improving with time
and experience. Trials are too slow, evidence is often insufficiently robust, and
the Pre-Trial Chambers have, in particular, often issued rulings that are difficult
to understand and created difficulties for both the prosecution and the defense
as well as consumed a great deal of time.
During the Preparatory Committee discussions that preceded the Rome
Conference, the view was often expressed that the ad hoc international crimi-
nal tribunals relied too heavily on common law procedures for their function-
ing and had become too adversarial.40 This, it was thought, was leading to long
trial times and delays, problems with evidence, and excessively lengthy judi-
cial opinions with verbose majority and dissenting opinions. There was also
considerable concern about having an “independent prosecutor” that could
bring cases on his or her own initiative. As one U.S. State Department official
worried aloud, no one wanted an “independent counsel for the universe.”41
Responding to these and other concerns, during the negotiations, the
French government introduced a new draft that relied much more heavily on
civil law procedure. By the time that 165 states and 250 ngos had finished with
the Statute on July 17, 1998, it was a curious blend of common and civil law
procedures that was very unlike the statutes of earlier ad hoc tribunals and
seemed more like a civil law than a common law system. It imposes an obliga-
tion to pursue the truth and investigate “incrimination and exonerating cir-
cumstances equally,” on the Prosecutor,42 allows the defendant to make an
unsworn statement, and permits the introduction of all evidence relevant to
the case, excluding only evidence that might be unduly prejudicial to the
40 Silvia A. Fernández de Gurmendi, ‘The Process of Negotiations’, in Roy S. Lee (ed.), The
International Criminal Court: The Making of the Rome Statute (Boston: Kluwer Law Inter-
national, 1999), pp. 217, 221–24.
41 Leila Nadya Sadat, The International Criminal Court and the Transformation of Interna-
tional Law (Ardsley-on-Hudson, N.Y.: Transnational Publishers 2002), p. 229 n.12. (Refer-
ences the ongoing investigation of U.S. President Bill Clinton by Independent Counsel
Kenneth Starr).
42 Rome Statute art. 54(1)(a).

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328 Sadat
a ccused’s right to a fair trial.43 Terms like “indictment,” used to describe the
charging document at the ad hoc tribunals, disappeared from the Statute to be
replaced with language that was sui generis (document containing the charg-
es) and difficult to understand.
It was hoped that the introduction of a civil-law style Pre-Trial Chamber
that could function as a sort of collective investigating magistrate would pro-
vide a bulwark against frivolous or insufficient cases moving forward. It may
have done so, but at a considerable cost. It was also hoped that the Pre-Trial
Chamber confirmation process would streamline cases and make proceedings
more efficient, which clearly has not been the case. The Pre-Trial phase of the
Lubanga case, for example, lasted nearly three years, from March 16, 2006 until
the opening of the trial in January 2009. The trial then took another three years,
and the appeal took an additional two and a half years after that, meaning that
the case was not “over” until December 1, 2014, eight years after Lubanga’s
transfer to The Hague. In contrast, the icty’s first case against Duško Tadić
took half that time—two years from arrest and transfer to the Tribunal to the
issuance of the Trial Chamber’s judgment; and an additional two years for the
appeal.
Some of these difficulties were unavoidable. Complementarity, a core prin-
ciple of the Rome Statute, was unknown at the ad hoc tribunals, and Chambers
wrestled with its meaning and interpretation in the Court’s early cases. Also, as
I have written elsewhere, it seemed in 1998 as if the quid pro quo for obtaining
an “independent” Prosecutor, and for making the jurisdictional regime of the
Statute strong and automatic (at least over genocide, crimes against humanity,
and war crimes) in Rome was that states demanded an extremely complex pro-
cedure for challenging jurisdiction and admissibility.44 Thus the icc pre-trial
process is not slow and cumbersome because the Institution is failing to re-
spect the Statute: it is slow, cumbersome, and complicated because that is how
the framers of the Rome Statute intended it, largely because they feared the in-
dependence of the Court. It could be helpful to amend the Statute, in particu-
lar articles 17, 18 and 19, to provide for more clarity and more efficiency, per-
haps limiting the number of challenges and requiring them to be brought
earlier in the proceedings.
In addition, the insertion of a Pre-Trial Chamber phase has added a second
layer of judicial “bureaucracy” to the proceedings. It has also made procedure
at the icc quite different from the procedure at the ad hoc tribunals, making it
difficult to draw upon the “best practices” of those institutions to help the
43 Rome Statute arts. 67(1)(h), 69(4).

44 Sadat and Carden, supra note 1, at 417.

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Court become operational and efficient quickly. For example, the Pre-Trial
Chambers initially rejected the notion that the prosecution could plead modes
of liability in the alternative, requiring the case to rest on one theory; alterna-
tive modes of liability had been permitted at the ad hoc tribunals, and is now
permitted at the icc.45 Because pre-trial proceedings are very brief however,
and the facts not fully elucidated, this often turned out to be a problem later in
the trial, requiring the Trial Chambers to rely upon Regulation 55 to “recharac-
terize” the charges, a cumbersome process that is inefficient and potentially
prejudicial to the accused.46 Pre-Trial Chambers also crafted complicated the-
ories of liability in the Court’s early cases, decisions that were often lightly foot-
noted explorations of untested legal theories. They rejected the practice of
“witness proofing”47 and demanded high levels of corroboration in the proof
adduced by the Prosecution even at very early stages during the pre-trial
phase.48 They thus endeavored to exercise control over the shaping of the case
45 Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on the
Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kipro-
no Kosgey and Joshua Arap Sang, ¶ 36 (Mar. 8, 2011), https://www.icc-cpi.int/CourtRe-
cords/CR2011_02585.PDF. (Declines to make findings on both principal and accessory li-
ability in the alternative). But see, e.g., Prosecutor v. Dominic Ongwen, ICC-02/04-01/15,
Decision on the Confirmation of Charges Against Dominic Ongwen, ¶ 149 (Mar. 23, 2016),
https://www.icc-cpi.int/CourtRecords/CR2016_02331.PDF. (Retains an alternative mode
of liability in the charges as requested by the Prosecutor).
46 See, e.g., Prosecutor v. Germain Katanga, ICC-01/04-01/07, Defence’s Document in Support
of Appeal Against the Decision on the Implementation of Regulation 55 of the Regula-
tions of the Court and Severing the Charges Against the Accused Persons (Jan. 10, 2013),
https://www.icc-cpi.int/CourtRecords/CR2013_00188.PDF; see also Dov Jacobs, “A Shifting
Scale of Power: Who is in Charge of the Charges at the International Criminal Court?,”
in William A. Schabas, Niamh Hayesm, and Yvonne McDermott (eds.), The Ashgate Re-
search Companion to International Criminal Law: Critical Perspectives (London: Taylor
and Francis, 2013), p. 205, earlier draft available at https://papers.ssrn.com/sol3/papers
.cfm?abstract_id=1971821.
47 The Pre-Trial Chamber and, subsequently, the Trial Chamber ruled against the practice of
“witness proofing.” See Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on
the Practices of Witness Familiarisation and Witness Proofing (Nov. 8, 2006), https://
www.icc-cpi.int/CourtRecords/CR2007_01245.PDF; Prosecutor v. Thomas Lubanga Dyilo,
ICC-01/04-01/06, Decision Regarding the Practices Used to Prepare and Familiarise Wit-
nesses for Giving Testimony at Trial, ¶ 57 (Nov. 30, 2007), https://www.icc-cpi.int/Cour-
tRecords/CR2007_04887.PDF. These decisions have been criticized. See, e.g., Susana Sá-
couto & Katherine Cleary, Am. U. Wash. C.L., wcro, Witness Proofing at the International
Criminal Court (Jul. 2009), https://www.wcl.american.edu/impact/initiatives-programs/
warcrimes/our-projects/icc-legal-analysis-and-education-project/reports/report-7-witn
ess-proofing-at-the-international-criminal-court/.
48 See, e.g., Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the Confirma-
tion of Charges, ¶ 119 (Dec. 16, 2011), https://www.icc-cpi.int/CourtRecords/CR2011_22538

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330 Sadat
(consistent with an inquisitorial style procedure), a shift that may not have
been required or even supported by the Rome Statute itself.49
It is vital that the icc become more successful at managing the trial and
pre-trial process so that trials take less time and cases are managed more effi-
ciently. This is a burden shared by the otp, the Judiciary, the Registry, and even
the Assembly of States Parties. The otp, which was heavily criticized especially
in the Court’s early days, has been responsible for some of the procedural and
evidentiary problems that have arisen to date, such as the difficulties stem-
ming from the Prosecutor’s reliance upon intermediaries in the Lubanga case50
and indicting defendants without sufficiently comprehensive investigations
and evidence.51 Yet this does not relieve the Chambers’ obligation to increase
the speed and consistency with which they apply the Statute. Whilst a return
to a more adversarial approach may not be the solution, the Court needs to
operate as a criminal court, not as an international bureaucracy. Defendants
have the right to be tried in a reasonably short period of time, victims need
redress sooner rather than later, and it is expensive and inefficient for trials to
drag on for years.
The otp has responded to many of the legitimate criticisms directed at it by
adopting policies and strategies to guide its activities, including policies on
case selection and prioritization, on victims’ participation, on children in
armed conflict, on sexual and gender-based violence, and on the interests of
justice. In 2013, it also adopted a Code of Conduct for the Office, two reports on
Prosecutorial Strategy, and a Strategic Plan.52 Chambers have been less active
in responding to concerns about the need for reform. Perhaps there need to be
.PDF. (Notes the lack of corroboration of the testimonies of several witnesses). Prosecutor
v. Laurent Gbagbo, ICC-02/11-01/11, Decision Adjourning the Hearing on the Confirmation
of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute (June 3, 2013), https://www
.icc-cpi.int/CourtRecords/CR2015_04878.PDF. (Explains the Chamber’s approach to evi-
dence and, notably, the Chamber’s reluctance to accept anonymous hearsay from differ-
ent documentary evidence as corroborating each other).
49 Jacobs, supra note 46.
50 Larry D. Johnson, “The Lubanga Case and Cooperation between the UN and the icc: Dis-
closure Obligation v. Confidentiality Obligation” (2012) 10 Journal of International Crimi-
nal Justice 887, https://doi.org/10.1093/jicj/mqs048.
51 See, e.g., Prosecutor v. Callixte Mbarushimana, supra note 48, at ¶¶ 291–303. (Finds the
Prosecutor’s evidence to be insufficient to establish contribution to a common plan). See
also Int’l Bar Ass’n, Evidence Matters in icc Trials 56 (Aug. 2016), https://www.ibanet.org/
Document/Default.aspx?DocumentUid=864b7fc6-0e93-4b2b-a63c-d22fbab6f3d6. (Dis-
cusses the need for stronger investigations and comprehensive evidence following the
Mbarushimana case).
52 Policies and Strategies, icc otp, https://www.icc-cpi.int/about/otp/Pages/otp-policies
.aspx (last visited June 11, 2018).

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stricter deadlines not only for the issuance of judgments and other decisions,
but for the conduct of proceedings.53 There is now a Chambers Practice Man-
ual directed primarily at the Pre-Trial Chambers, as well as to otp and defense
counsel. It is clear from reading the text that the Pre-Trial Chamber process,
particularly the confirmation proceedings, has been fraught with difficulty.
Given that it involves only a perfunctory hearing (live witnesses are discour-
aged) and the Pre-Trial Chambers are admonished to “keep the reasoning
strictly limited to what is necessary and sufficient for the Chamber’s findings
on the charges,”54 one wonders what the purpose of the pre-trial confirmation
process really is. Either the Statute should be amended to remove the confir-
mation process entirely, allowing the icc to revert to the practice at the ad hoc
tribunals, or clearer rules should be established for its implementation. This
leads me to my final point, which raises concerns about the early jurispru-
dence of the Court.
C Challenges Stemming from the icc’s Early Judicial Work

One of the most important measures of the Court’s effectiveness is the quality
and impact of its judgments. Although there is no formal doctrine of stare de-
cisis at the icc, the judgments are highly influential within the Court itself,
particularly the judgments of the Appeals Chamber. They also represent im-
portant contributions to the interpretation and elaboration of customary in-
ternational law and they may provide guidance to national systems applying
“Rome Law” in their national legal systems. Judgments can be read, analyzed,
and studied for decades after the proceedings have ended, and the public looks
to them to understand what is and what is not prohibited by the Statute. In
short, the Court’s jurisprudence is a primary “product” of the Court. The otp
may be the “engine” of the Court, receiving communications from the public,
investigating crimes, and bringing indictments where the evidence leads it, but
the judges are driving the train.
Looking at the jurisprudence of the Court thus far, one feels that perhaps
the judicial branch of this Institution has not yet found its voice. This is, after
all, the living embodiment of the Nuremberg Tribunal and the Nuremberg
principles, the world’s first international criminal court, intended to be at the
center of a new system of global justice in which no one is above the law. Whilst
53 Following the writing of this comment, on November 29, 2019, the judges of the Court
updated the Chambers Practice Manual to do exactly that. See Press Release, ICC Judges
update Chambers Practice Manual to include timeframes for the rendering of key deci-
sions, Nov. 29, 2019, https://www.icc-cpi.int/Pages/item.aspx?name=PR1502.
54 International Criminal Court, Chamber’s Practice Manual (May 12, 2017), https://www
.icc-cpi.int/iccdocs/other/170512-icc-chambers-practice-manual_May_2017_ENG.pdf,
also archived at https://iccforum.com/media/background/general/2017-05-12_ICC-
Chambers_Practice_Manual-Eng.pdf.
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332 Sadat
of course the Rome Statute is the primary text that the judges must apply, it is
a text embedded in an international legal system, not just a set of rules,55 and
the meaning of the Statute must always be considered in context.
Chambers have not yet settled upon a clear methodology to be used in inter-
preting the Rome Statute, although some recent judgments have made signifi-
cant strides in this direction.56 The absence of methodology was particularly
evident in their approach to modes of liability, which constructed from the
relatively simple text of article 25(3) a stunningly complex system based upon
the “control of the crime” theory of legal scholar Claus Roxin, that departed
from customary international law and the text of the Statute itself. I—and
others—have written about that jurisprudence extensively and this is not the
place to re-engage that debate.57 But this is not the only example. It has also
evidenced itself in the Ntaganda Appeals Chamber’s decision on the question
of liability for crimes of sexual violence against child soldiers, which in my
view was correctly decided but could have been reinforced with additional ref-
erences and analysis.58 There is a similar concern regarding the several deci-
sions of the Court addressing the problem of immunities (either procedural or
substantive) under article 27, one of the most important elements of the Stat-
ute with a lineage tied directly to the International Military Tribunal at Nurem-
berg. This jurisprudence is neither entirely coherent nor completely convinc-
ing. Yet it concerns an issue of vital importance to the Court—so important
that the Appeals Chamber requested amicus submissions on the question.59
55 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clar-
endon Press, 1995).
56 Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgment Pursuant to Article 74 of the
Statute, ¶¶ 43–49 (Mar. 7, 2014), https://www.icc-cpi.int/CourtRecords/CR2015_04025
.PDF; Prosecutor v. Jean-Pierre Bemba Gombo, supra note 8, at ¶¶ 75–86.
57 Leila Nadya Sadat and Jarrod M. Jolly, “Seven Canons of ICC Treaty Interpretation: Making
Sense of Article 25’s Rorschach Blot” (2014) 27 Leiden Journal of International Law 755,
https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/lejint27&se
ction=51, earlier draft available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id
=2355430.
58 Patricia Viseur Sellers, Int’l Institute of Humanitarian Law, Ntaganda: Re-Alignment of a
Paradigm (Apr. 2018), http://www.iihl.org/wp-content/uploads/2018/04/Ntaganda-VI.pdf.
59 Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, The Hashemite Kingdom
of Jordan’s Appeal Against the “Decision under article 87(7) of the Rome Statute on the
Non-compliance by Jordan with the Request by the Court for the Arrest and Surrender
[of] Omar Al-Bashir” (Mar. 12, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_01658
.PDF; Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09 OA2, Order Inviting
Expressions of Interest as Amici Curiae in Judicial Proceedings (Pursuant to Rule 103 of
the Rules of Procedure and Evidence) (Mar. 29, 2018), https://www.icc-cpi.int/CourtRe-
cords/CR2018_01892.PDF.
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As to sources, there seems to be a tendency to set aside past precedent from

the ad hoc tribunals or other courts even when it would properly inform the
Court’s judgments, and there does not seem to be a clear notion of when the
Court feels it is or is not useful and appropriate to do so. Whilst there was some
criticism of the icty for its extensive and often teleological approach to issues
of interpretation, opinions like Tadić and Erdemović, to name just two, were
extensively researched, replete with references to national case law, customary
international law sources, and other authorities. They are still referenced and
cited because of their quality and significance. icc Chambers, however, often
eschew the jurisprudence of the ad hoc international criminal tribunals even
when it is relevant and appropriate to the issue at hand,60 and rarely conduct
the kind of in-depth survey of state practice needed to establish either a rule of
customary international law or a general principle of law.
Finally, although many judgments and dissents are beautifully written and
researched, some decisions do not exhibit the clarity of exposition and ele-
gance of prose one might expect from the world’s first global criminal court. Of
course, it is traditional in many civil law systems for judgments to be opaque
and even cryptic, and not to permit public dissent. The Court also works in two
languages and proceedings are often conducted through interpreters. Yet once
the drafters of the Rome Statute decided to permit majority and dissenting
opinions, and left so many interpretative questions open in the Statute, it be-
came incumbent upon the Court’s judges not only to elaborate upon their rea-
soning in detail, but to consider writing to the larger public eagerly awaiting
and digesting their opinions rather than to just a handful of international crim-
inal law scholars and specialists. Judges may have felt timid or uncomfortable
about doing this in the Court’s early years; but as the Rome Statute moves into
its third decade, they may wish to wield their pen with greater confidence.61
After all, to paraphrase one of the great Justices of the United States, it is “em-
phatically the duty of the Judicial Department to say what the law is.”62
60 Sadat and Jolly, supra note 56. (To an outside observer, this appears like an effort to distin-
guish the Rome Statute from the statutes of earlier tribunals for the sake of doing so, at
the cost of unnecessarily fragmenting international criminal law).
61 Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA5, Judgment on the Appeal of Mr Nta-
ganda Against the “Second decision on the Defence’s challenge to the jurisdiction of the
Court in respect of Counts 6 and 9,” ¶ 67 (June 15, 2017), https://www.icc-cpi.int/CourtRe-
cords/CR2017_03920.PDF. (There is a reference by the Appeals Chamber itself, for exam-
ple, to defense counsel’s accusation of “judicial activism” due to the “seemingly unprece-
dented nature” of the Appeals Chamber’s conclusion in the Ntaganda case. Whilst the
Chamber refutes the accusation, its rebuttal could be much stronger and an explanation
of the logic clearer).
62 Marbury v. Madison, 5 U.S. 137 (1803).

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334 Sadat
III Conclusion
The icc has grown more quickly than was expected in 1998. The Court has had
undeniable successes, but significant growing pains as well. This comment
suggests that greater awareness of the political environment in which it is em-
bedded, better public outreach and transparency, more effective trial process-
es, including a significant reform of the pre-trial confirmation process in par-
ticular and the complex regime governing challenges to jurisdiction and
admissibility, and having the judges develop a stronger voice and more coher-
ent judicial methodology will help ease the Court into a successful third de-
cade. At the inauguration of the permanent premises in 2016, the Mayor of the
Hague, J.J. van Aartsen, referred to the icc’s new premises as the “Peace Palace
of the 21st Century.” With the entry into force of the aggression amendments
this summer, it may become just that; but it will take a concerted effort, more
resources, and political support from states and civil society for that dream to
really become a reality.

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Chapter 30
Focusing on Core Messages and Human Rights

Carla Ferstman
1 Summary
The highest officials of the icc cannot afford to be swayed by states’ wavering
commitment or selective engagement to international criminal justice. They
must remain resolute in specifying what they really need to do the job entrust-
ed to them and calling out States Parties and others when they fail to afford the
necessary support. If the icc focused more on underscoring the core messages
of its work, this would help make international criminal justice more accessi-
ble and significant to the public. The Court should also strengthen its commit-
ment to human rights in the enforcement of international criminal law. Im-
provements in both of these areas would contribute to a more robust Court
capable of meeting the challenges for the next decade and beyond and would
make a lasting contribution to international criminal justice.
2 Argument
There is a certain fatalism to the question:
What key reforms could make the international criminal justice project
stronger, more efficient, and more effective?
Clearly the “international criminal justice project” would be all of those things
if it had a bigger budget—which states are not prepared to give it. It would be
more efficient and effective if fugitives were isolated and arrest warrants were
implemented. Garnering greater power to enforce its mandate and secure
compliance with its decisions is fundamental, though again, states are reluc-
tant to provide greater powers to the Court in these areas or to support the
Court’s efforts in all instances without exception, as opposed to giving support
when doing so aligns with a state’s immediate national interests. The short an-
swer to “what could be done better” is “everything.” The long answer will invari-
ably be comprised of a lengthy, and probably unrealistic, wish-list or rant about

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336 Ferstman
how horrible the Court is doing and how the “international criminal justice
project” is buckling under the weight of selective prosecutions and referrals
and significant impunity gaps. None of this is helpful. The Court is still evolv-
ing, as are states’ complementary efforts to investigate and prosecute crimes of
international concern. The Court has done some important work as have a
great number of states. Yet the icc is impeded by its paltry budget and the
weaknesses of its Statute and the framework for its implementation. This is a
product of states’ wavering and selective commitment to the “international
criminal justice project”—both to the Court itself and to all else they must do
to counter impunity for the worst crimes at home and abroad.
The Court is somewhat limited in its capacity to implement reforms that
tackle these core truisms. But this shouldn’t end the matter. The highest offi-
cials of the Court cannot afford to be swayed by states’ wavering commit-
ment or selective engagement to international criminal justice. They must
remain resolute in specifying what they really need to do the job entrusted to
them and calling out States Parties and others when they fail to afford the
necessary support. States’ brow beating of Court officials to reduce budgetary
tasks is a case in point.1 When the Court submits to such pressures, it rein-
forces States Parties’ misguided belief that brow beating is appropriate or
that budgets are inflated projections that are simply there to be cut. Similarly,
(while this practice is evolving), when the Court fails to take States Parties to
task for their failure to cooperate or refrains from castigating the Assembly of
States Parties for giving only lukewarm political support to the Court in the
face of non-cooperation, it reinforces the perception that cooperation is
optional.
Beyond those fundamental challenges, there are certain (and indeed many)
problem areas which are well within the Court’s capacity to improve. I will fo-
cus on a few of these, in particular: improving the ritualistic significance of
international criminal justice and strengthening the commitment to human
rights in the enforcement of international criminal law, and in so doing,
strengthening victims’ ability to engage effectively with the Court and to re-
ceive timely reparations. Improvements in these areas, none of which requires
amendment to the Rome Statute, can contribute to the strengthening of the
core of the icc’s operations and in so doing, enhance the Court’s legitimacy
1 See, e.g., Matt Cannock & Jonathan O’Donohue, “Don’t Ask and You Won’t Receive—Will the
icc Request the Resources It Needs in 2019?” (2018) Amnesty Int’l (“(T)he icc itself has be-
come complicit in the crisis by scaling down on its budget requests. Rather than developing
its annual request on rigorous, well-justified and full estimates of the resources it needs to
perform its functions effectively, the Court appears to have developed its request based on a
guess of what states are willing to pay.”).

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Focusing on Core Messages and Human Rights 337
and the inherent value of the “international criminal justice project.” In the
long run, such operational improvements might also pave the way for the nec-
essary paradigm shift that will really strengthen the Court and the “interna-
tional justice project” as a whole—the recognition that international criminal
justice is a laudable end goal and not simply a cynical tool for some states in
the pursuit of their national or foreign policy objectives.
Regard must be had to the processes of reflection already initiated within
the Court and Assembly of States Parties aimed at improving efficiencies and
effectiveness, some of which have considered several of the problem areas that
form the subject matter of my contribution. These include, the Bureau of the
Assembly of States Parties’ Study Group on Governance2 as well as the Judges’
lessoned learned processes and a number of organ specific and Court-wide
dialogues on forward-looking strategies.
I Improving the Ritualistic Significance of International Criminal

Justice
The significance of international criminal justice is in large part a product of
what significance it engenders around the world. While it might seem irrel-
evant to comment on the importance of justice rituals in the same breath as
promoting structural efficiencies, rituals and symbolism can be highly relevant
for notions of effectiveness. Efficiencies which have the result of reducing the
symbolic weight of the “international justice project” can undermine its legiti-
macy and in so doing, its effectiveness. The “international justice project” must
be imbued with significance, and the Court and other justice actors outside of
it should actively foster that significance, continually. The icc is permanent;
the work that it does is exceptionally important given the extreme gravity of
the crimes it tackles, and the capacity of the Court in the long-term to foster
peace and to transform divisive narratives that have led to mass victimization.
The Rome Statute symbolizes the international community’s resolve to end
impunity for these crimes and contribute to their eradication. These words,
reflected in the Rome Statute’s preamble should not be empty statements or
lofty goals. They should be embodied in the day-to-day messaging of the icc
and how it goes about its work.
Referring to the “international justice project” is unhelpful. A project de-
notes an experiment or draft, a proposed or planned undertaking, something
short-term. One of the most important aspects of the Rome Statute is its per-
manence; it was not created in response to a particular set of crimes or country
2 International Criminal Court, Establishment of a study group on governance, Doc. No. ICC-
ASP/9/Res.2 (Dec. 10, 2010).

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338 Ferstman
context; the Rome Statute is an embodiment of States Parties’ enduring com-

mitment to eradicate impunity for international crimes. It is important that
the messaging around the icc and international criminal justice more broadly,
conveys this sense of permanence and solidity. This message requires contin-
ual reinforcement.
There is a malaise that can set into an organization and which can affect the
internal work culture, the organization’s messaging and inevitably its opera-
tions. Staff can be beaten down by work pressures, impossible deadlines, and
the daily grind and trauma of dealing with horrific subject matters, cases that
never seem to end and difficult protagonists all with competing demands—
whether they are the bosses, States Parties, legal counsel, ngos or victims
groups. This inevitably affects morale and ultimately the work and how that
work is communicated. The icc must be imbued with vision, a sense of pur-
pose and most importantly, a conviction that what it is doing is supremely
important. This must be communicated regularly, both internally and exter-
nally, and staff must receive the necessary support.3 It is not just an interna-
tional organization; the employees, at whatever level within the organization,
are not just doing a job.
The ritualistic ceremony that is the commencement of an investigation,
trial, judgment and in the case of a conviction, the sentencing and the award of
reparations, are all crucial moments to reinforce those messages. Needless to
say, it can be difficult to maintain the momentum when these different phases
of proceedings are so prolonged. Nevertheless, public outreach and media
work and consistent messaging are all vital to reinforce the sense of purpose
and meaning inherent in the international proceedings—in the situation
countries and globally. Much is being done already but more can be done and
done with passion.4 There is a reason that the Nuremberg trials have captured
the imagination of the public and are still being debated seventy years on. The
icc trials concerning for instance, the Democratic Republic of the Congo,
Uganda, and Ivory Coast, must achieve the same level of renown.
Choosing the right situations and cases reinforces this messaging. While
this is also evolving, if the Prosecutor gives the impression of avoiding some
of the gravest abuses which would bring it on a collision course with power-
ful states, this undermines the legitimacy of the institution and gives fodder
3 See Office of the Prosecutor, International Criminal Court, Office of the Prosecutor: Strategic
Plan 2016–2018, Doc. No. ICC-ASP/14/22, ¶¶ 31, 32, 93, 94 (Aug. 21, 2015) (References to work of
a Task Force on Working Climate, as well as core values).
4 See How can the icc Improve its Outreach Efforts?, icc Forum (Feb. 17, 2015), https://iccforum
.com/outreach (last visited May 27, 2018).

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to states to seek to further obstruct her Office’s work. At the same time, the
Prosecutor should not waste precious resources or victims’ goodwill with cas-
es that have little prospect of resulting in a conviction. Gravity should not be
about regional parity but about the heinousness or gravity of the crimes. What
“gravity” means is contentious, contextual, and is likely to change over time.
Coming up with a clear framing of the term is fraught with difficulties. The
Prosecutor has gone quite far in setting out how she understands the concept5
which is important both to reinforce the message about what the icc is for and
why it is acting, but also to aid with transparency and the legitimate exercise
of prosecutorial functions. This has been further aided by the Prosecutor’s
practice of publishing an annual report on preliminary examinations. Even
greater clarity in this area, reinforced by consistent application of gravity prin-
ciples to actual and future situations and cases, is crucial.
Part of the challenge for the icc is the fact that some of the gravest crimes
are not in immediate reach of the Court, whether because of the lack of clear
personal jurisdiction or impasses with referrals by the Security Council. It is
important for the Prosecutor to engage creatively in these contexts, as she is
beginning to do, for instance in respect of Afghanistan, Iraq, and Myanmar.
II Strengthening the Commitment to Human Rights in the Enforcement

of International Criminal Law
Both the effectiveness and efficiency of “the international justice project”
would be enhanced if there was a greater commitment to human rights in the
enforcement of international criminal law, both at the icc and before domes-
tic courts. The Rome Statute references “internationally recognized human
rights” in Article 21(3) which sets out the applicable law. However, the framing
of this is somewhat limited; the provision sets out that the application and in-
terpretation of law must be consistent with internationally recognized human
rights. The Court is thus obliged to interpret its law in a manner that safeguards
human rights. While important, this is somewhat different from what are argu-
ably a weaker formulation than, for instance, recognizing that the various or-
gans of the Court are bound to respect the human rights of those persons im-
pacted by their actions.
5 Office of the Prosecutor, International Criminal Court, Policy Paper on Case Selection and
Prioritisation (Sep. 15, 2016), https://www.icc-cpi.int/itemsDocuments/20160915_OTP-
Policy_Case-Selection_Eng.pdf (last visited August 2, 2018); Office of the Prosecutor, Interna-
tional Criminal Court, Policy Paper on Preliminary Examinations (Nov. 2013), https://www
.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_Preliminary_Examinations_2013-ENG.pdf (last
visited August 2, 2018).

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340 Ferstman
The International Criminal Court is not a party to human rights treaties,

though it is increasingly recognized that international organizations like the
icc can have human rights obligations in certain contexts, to the extent that
their mandates and corresponding spheres of activity impact on rights protec-
tion.6 International criminal tribunals including the icc, have recognized the
need for their procedures to respect the rights of the accused. While arguably
much more can be done in this regard,7 particularly in respect of the right to a
trial without undue delay and the equality of arms between the prosecution
and the defense, there is little debate that the accused have rights which war-
rant protection before the Court.
In contrast, the icc’s understanding of victims’ rights is more nuanced. Ar-
ticle 64(2) of the Rome Statute makes the distinction clear:
“The Trial Chamber shall ensure that a trial is fair and expeditious and is
conducted with full respect for the rights of the accused and due regard for
the protection of victims and witnesses” (emphasis added).
It is recognized that victims and witnesses must be protected, but they are not
recognized as rights holders in the same sense as accused persons; victims
have certain procedural rights to participate and claim reparations, but the
wider human rights that they might benefit from under domestic law or pursu-
ant to human rights treaties, are not recognized, specifically. For instance, un-
der human rights law, there is an obligation on states to investigate and prose-
cute the most serious human rights abuses which constitute crimes under
international law,8 and victims are recognized to have a variety of procedural
rights in the process such as the right to file a complaint, the right to receive
information about the follow-up of the complaint, and the right to some kind
6 See generally, Carla Ferstman, International Organizations and the Fight for Accountability:
The Remedies and Reparations Gap (Oxford: Oxford University Press, 2017).
7 Guido Acquaviva, “Human Rights Violations before International Tribunals: Reflections on
Responsibility of International Organizations” (2007) 20 Leiden J. Int’l L. 613; Jean d’Aspremont
& Catherine Brölmann, “Challenging International Criminal Tribunals Before Domestic
Courts,” in August Reinisch (ed.), Challenging Acts of International Organizations Before Na-
tional Courts (Cambridge: Cambridge University Press, 2010), p. 111; Lorenzo Gradoni, “The
Human Rights Dimension of International Criminal Procedure,” in Göran Sluiter et al. (eds.),
International Criminal Procedure: Principles and Rules (Oxford: Oxford University Press, 2013),
p. 74.
8 This obligation is reflected in a range of treaties and conventions, including the Genocide
Convention, the Geneva Conventions 1949 (grave breaches provisions), the UN Convention
Against Torture, the Convention Against Enforced Disappearances, and has been reflected in
numerous judicial decisions.

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of administrative or judicial review upon a decision not to pursue an investiga-

tion or prosecution.9 Victims and their families also have the right to know the
truth about the abuses they suffered, including the identity of perpetrators and
the causes that gave rise to the violations.10 While the Rome Statute stipulates
that victims have the right to be kept informed, there is little opportunity for
them to complain when that or other rights they arguably should have are not
complied with.
Victims have the opportunity to provide views and concerns at phases of
proceedings that directly concern them in accordance with Article 68(3) of the
Rome Statute. Over time, the icc has introduced a number of efficiencies in
the victim participation process, namely the streamlining of the application
process and several changes to victim legal representation aimed at reducing
the bureaucracy of the process. Some of these measures have been helpful. In
particular, requiring victims to identify themselves individually for a participa-
tion process that is essentially collective and largely undertaken by counsel is
a waste of time and resources. Thus, efforts to simplify the application process
are important and could go even further. However, other measures have been
more problematic: a streamlined application process ultimately will not guar-
antee a real voice to victims before the Court, because of the limited (and at
risk of further shrinking) budget afforded to counsel to consult with victims
directly on the ground, which is all the more problematic when considering
the obvious limitation for victims to present their views personally to the
bench in The Hague. Furthermore, despite this emphasis on victim’s legal
representatives (as opposed to victims themselves) appearing before the
Court, some efficiencies have been detrimental to victims’ autonomy and
choice, in particular the tendency for the Court to impose common legal rep-
resentatives for victims without consulting or taking due account of victims’
choice as to who they wish to represent their interests.11 Also, victims’ ability
to interact with the judges at some of the most crucial moments for them has
9 See, generally, redress & Institute for Security Studies, Victim Participation in Criminal
Law Proceedings: Survey of Domestic Practice for Application to International Crimes
Prosecutions (Sep. 2015), https://redress.org/wp-content/uploads/2017/11/Englishvictim-
rights-report.pdf (last visited May 30, 2018).
10 See, e.g., United Nations Human Rights Council, Resolution 9/11: Right to the Truth, UN
Doc. A/HRC/RES/9/11 (Sep. 24, 2008); Velásquez-Rodríguez v. Honduras, Judgment, Inter-
Am. Ct. H.R. (Ser. C) No. 4 (Jul. 29, 1988); Al Nashiri v. Poland, Judgment, echr, App. No.
28761/2011, ¶¶ 494–495 (Jul. 24, 2014).
11 See redress, Representing Victims before the icc: Recommendations on the Legal Repre-
sentation System (Apr. 2015), https://redress.org/wp-content/uploads/2017/12/1504repren
tingvictims.pdf (last visited May 30, 2018).

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342 Ferstman
been curtailed. For instance, victims have been unable to engage the Court in
an effective way when an investigation is prolonged or shelved, or a prosecu-
tion remains open in principle but without activity and without real prospect
of activity down the road.12
Thus, it is fair to say that there have been progressive efficiencies, but the
effectiveness of victim participation can still be questioned—because vic-
tims’ direct access to the Court is limited, and that limitation is not balanced
out by extensive field-based consultations or effective processes and sufficient
resources to enable victims to adequately consult with counsel. It becomes
more about the principle of victim participation than any sense of complying
with the intended purpose of it—to empower victims, to give them a voice in
proceedings. More effort should be spent to understand the legal culture in
situation countries and to better reflect in the procedures what victims per-
ceive to be meaningful participation. Greater creativity with on the ground
consultations, use of video technology, and in situ hearings, may help amplify
the meaningfulness of victim participation.
The Registry’s practice of consulting victims when the Prosecutor decides to
open an investigation on her own initiative, so that they “may make represen-
tations to the Pre-Trial Trial Chamber” in writing,13 is an important experience
for the Court of timely and effective field-based consultations which have led
to important submissions before the Court. For example, the consultation pro-
cess regarding an Afghanistan investigation resulted in 699 representations be-
ing transmitted to the Court. These consisted inter alia of representations in-
troduced on behalf of approximately 6,220 individual victims; a further 12
representations were introduced by individuals and by organizations on be-
half of approximately 1,163,950 victims and 26 villages, and another represen-
tation was submitted by an organization reportedly on behalf of approximate-
ly 7 to 9 million people.14 The representations covered a range of topics linked
12 Carla Ferstman, “Prosecutorial Discretion and Victims’ Rights at the International Crimi-
nal Court: Demarcating the Battle Lines” (2016) Acta Juridica, https://papers.ssrn.com/
sol3/papers.cfm?abstract_id=3121540 (last visited August 2, 2018); Sarah Williams & Han-
nah Woolaver (eds.), Civil Society and International Criminal Justice in Africa: Challenges
and Opportunities (Durban: juta, 2016) p. 17. See also Gilbert Bitti, “The icc and the Treat-
ment of Sources of Law under Article 21,” in Carsten Stahn (ed.), The Law and Practice of
the International Criminal Court (Oxford: Oxford University Press, 2015), p. 437.
13 International Criminal Court, Rome Statute of the International Criminal Court, art.
15(3), U.N. Doc. A/CONF.183/9 (July 17, 1998), as amended [hereinafter Rome Statute].
14 Situation in the Islamic Republic of Afghanistan, Doc. No. ICC-02/17, Final Consolidated
Registry Report on Victims’ Representations Pursuant to the Pre-Trial Chamber’s Order
ICC-02/17-6 of 9 November 2017, ¶¶ 28–29 (Feb. 20, 2018), https://www.icc-cpi.int/Cour-
tRecords/CR2018_01449.PDF (last visited August 2, 2018).

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to the potential investigation and were an important first glimpse for the Court
of local views and perspectives. This type of direct and field-based engagement
is a model for victims’ engagement throughout the court proceedings and is a
condition precedent for counsel who might be engaged in later phases, to
make veritable representations on victims’ behalf. Further thought should be
given to how such engagement can be maintained throughout proceedings.15
In terms of efficiency and effectiveness, it is appropriate for the icc to put
in place measures to ensure a speedy trial—not only to guarantee defense
rights, but also in recognition of victims’ right to an effective remedy without
delay, including reparations. The Court has taken and continues to take steps
to address the length of criminal proceedings which is positive, however far
too little has been done to address the significant delays in the reparation
phase of proceedings.
In the Court’s first prosecution, Thomas Lubanga was found guilty on March
14, 2012 and sentenced several months later. A first decision on the principles
for reparations was adopted by the Trial Chamber on August 7, 2012, and an
appellate decision on reparations was issued nearly three years later, on March
3, 2015. More than three years later, the full implementation of the reparations
award remained outstanding. It is without doubt that the enforcement of repa-
rations is a complex process, yet it is not beyond the capacity of the Court with
the assistance of the Trust Fund for Victims to put in place the necessary struc-
tures to implement reparations awards, as many claims that commissions, hu-
man rights courts, truth commissions and other processes have done with a
modicum of success. It is inexcusable for the process to be so prolonged.
Thus, while there is a lot of reference to rights, implementation is patchy,
and those whose rights are ignored by the Court have little recourse to vindi-
cate them. This is a problem of effectiveness, but also one of accountability.
One should also be mindful of the message it sends to states about the need to
follow through on treaty commitments. There is no license to ignore obliga-
tions when they become complicated.
15 Mikel Delagrange, “The Path towards Greater Efficiency and Effectiveness in the Victim
Application Processes of the International Criminal Court” (2018) 18 Int’l Crim. L. Rev. 540.

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Chapter 31
Peace Negotiations as “Interests of Justice”

Talita de Souza Dias and Dapo Akande
1 Summary
We believe that a key reform that has the potential to make the international
criminal justice project stronger, more efficient, and more effective is the con-
sideration of peace negotiations as an additional factor in the Prosecutor’s de-
cision of whether or not to pursue an investigation or prosecution “in the inter-
ests of justice,” in accordance with Article 53(1)(c) and 2(c) of the Rome Statute.
At present, this would require a revision of the Policy Papers issued on this
question, in particular, the 2013 Policy Paper on Preliminary Examinations and
the 2007 Policy Paper on the Interests of Justice. Significantly, we believe that
this reform has the potential to prevent or alleviate, at least in part, some of the
most pressing problems mentioned by the International Criminal Court’s
(icc) Office of the Prosecutor (otp) in its question for this issue of the icc
Forum, namely, the lack of state cooperation, limited budget, and lengthy or
complex proceedings.
2 Argument
I Four Considerations on Peace, Justice, and Political Solutions

Our argument—that certain kinds of peace negotiations should be considered
as part of the “interests of justice” justifying the deferral of criminal investiga-
tions or prosecutions in situations of active armed conflict—starts from four
main assumptions:
First, although it is difficult to measure the actual impact of both prose-

cutorial and political solutions in situations of ongoing armed conflict
where atrocity crimes have been committed, each plays an important
role in the achievement and sustenance of peace, as well as the protec-
tion of human rights.
Second, while justice is an important component of the attainment of
sustainable peace in situations of armed conflict that have been marred
by violations of human rights and international humanitarian law,

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Peace Negotiations as “Interests of Justice” 345
retributive justice in the form of criminal prosecutions is not the only

way in which justice can be achieved for victims of those violations. At-
tention should be paid to a variety of justice mechanisms that can also
bring the healing that international criminal justice promises.
Third, it may be the case that the political mechanisms aimed at
achieving peace, and judicial mechanisms—particularly criminal
accountability—cannot be conducted at the same time. Indeed, in some
circumstances, the situation of violence or conflict on the ground may be
so extreme that, for peace to be ultimately achieved, the judicial or pros-
ecutorial component can only start after certain minimum conditions
are secured through a politically negotiated process. Even in cases where
violence has been temporarily contained, the situation may be so uncer-
tain or unstable that the initiation of criminal proceedings could jeopar-
dize what has been achieved so far through a peace negotiation. This
would most likely occur when those accused in the criminal proceedings
are in a position to effectively conduct the peace talks or to influence the
situation of violence on the ground.1 The combination of the second and
third considerations may mean that in certain circumstances, particu-
larly where peace negotiations are attentive to justice concerns and the
interests of victims, the setting aside of criminal prosecutions may lead
to justice which in terms of quality and scope is more desirable.2 Thus, it
may be in the very interests of justice in the long-run that certain crimi-
nal proceedings are temporarily set aside so that peace negotiations can
be attempted.3
Fourth, a prosecutorial policy that takes these considerations into ac-
count can contribute to preventing or remedying some of the challenges
1 Talita de Souza Dias, “‘Interests of Justice’: Defining the Scope of Prosecutorial Discretion in
Article 53(1)(c) and (2)(c) of the Rome Statute of the International Criminal Court” (2017) 30
Leiden J. Int’l L. 731; Kenneth A. Rodman, ‘Is Peace in the Interests of Justice? The Case for
Broad Prosecutorial Discretion at the International Criminal Court’ (2009) 22 Leiden J. Int’l
L. 99, 101–02; Linda M. Keller, “The False Dichotomy of Peace Versus Justice and the Interna-
tional Criminal Court” (2008) 3 Hague Justice Journal 12, 13; Matthew R. Brubacher, “Prosecu-
torial Discretion Within the International Criminal Court” (2004) 2 J. Int’l Crim. Just. 71, 82;
Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Oxford:
Princeton University Press, 2000), p. 222; Priscilla Hayner, Building a Future on Peace and
Justice, The Challenge of Justice in Negotiating Peace: Lessons from Liberia & Sierra Leone
(Jun. 2007), https://www.ictj.org/sites/default/files/ICTJ-Liberia-SierraLeone-Workshop-
2007-English_0.pdf (last visited Aug. 2, 2018).
2 Priscilla Hayner, “Acting in the Interests of Justice (Chap. 8),” in The Peacemaker’s Paradox:
Pursuing Justice in the Shadow of Conflict (New York: Routledge, 2018), p. 9.
3 Id. at 9.

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346 DE SOUZA DIAS and Akande
that the International Criminal Court (ICC, the Court) currently faces
with regards to state cooperation, budgetary constraints, and lengthy or
complex procedures. This is because, as we will explain in more detail
later on, by knowing that the Prosecutor has the ability and willingness to
defer an investigation or prosecution for the sake of peace negotiations
with a justice component, states can be reassured that the Court will not
interfere when a political solution is necessary. This can lead to more
state cooperation in specific cases and to greater overall support for the
Court, including of a financial nature. In the same vein, by allowing peace
negotiations to be tried out first, the Prosecutor can avoid the initiation
of criminal proceedings which, at a certain point in time, would be too
cumbersome or costly in the face of difficult security or political condi-
tions on the ground. Furthermore, if the political solution turns out to be
successful both with regard to the attainment of peace and with regard to
instilling local justice mechanisms which might be of a restorative vari-
ety, no investigation or prosecution might need to be initiated at all.4
II The Legal Interpretation of the “Interests of Justice” under Article

53(1)(c) of the Statute
Let us now turn to the legal basis of our argument. As has been extensively
discussed elsewhere, Article 53(1)(c) and 2(c) allows the Prosecutor of the icc
to use her discretion for the purposes of temporarily setting aside a criminal
investigation or prosecution “in the interests of justice.” In more detail, the
language of Article 53(1)(c) of the Statute treats the interests of justice as a
countervailing consideration to the gravity of the crime and the interests of
victims,5 which, at the stage of the initiation of a formal investigation follow-
ing preliminary examinations, are more likely to weigh in favor of criminal pro-
ceedings.6 On the other hand, Article 53(2)(c) treats the interests of justice as a
balancing test under which “all the circumstances, including the gravity of the
crime, the interests of victims, the age or infirmity of the alleged perpetrator,
and his or her role in the alleged crime,” should be weighed with the view of
making a decision not to bring or proceed with criminal charges against spe-
cific individuals.7
4 Id. at 12.
5 Office of the Prosecutor, International Criminal Court, Policy Paper on the Interests of Justice
2 (Sep. 2007) [hereinafter otp Interests of Justice], https://www.icc-cpi.int/NR/rdonlyres/
772C95C9-F54D-4321-BF09-73422BB23528/143640/ICCOTPInterestsOfJustice.pdf (last visit-
ed Aug. 2, 2018); Maria Varaki, “Revisiting the ‘Interests of Justice’ Policy Paper” (2017) 15 J. Int’l
Crim. Just. 455, 459.
6 Varaki, supra note 5.
7 de Souza Dias, supra note 1, at 737, 739, 751.

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Aside from the text of those provisions, three principal interpretative tools
favor a broad interpretation of the interests of justice. First, the word “justice”
is ordinarily broad and, even in the context of international criminal justice, its
use has not been restricted to criminal proceedings or retributive justice in a
strict sense.8 Rather, and because we are talking about what are “the interests of
justice”—not justice in itself—any factors that are beneficial to international
criminal justice, in the pursuit of its diverse aims or functions, could be consid-
ered as such interests. Those functions include, in particular, retribution, crime
deterrence and prevention, symbolic or expressive justice, and reparations or
restorative justice.9 The same outcome would be justified by the multifaceted
object and purpose of the Rome Statute, as reflected in its Preamble.10 Simi-
larly, other provisions that form part of the context of Article 53 of the Statute,
such as Articles 13 and 16, allow criminal proceedings to be either initiated or
deferred for the purposes of upholding goals such peace and security and alter-
native justice mechanisms.11 Thus, an interpretation of Article 53(1)(c) and
2(c), in accordance with Article 31 of the Vienna Convention on the Law of Trea-
ties12 would support a broad reading of the “interests of justice,” including all
factors that are broadly considered to foster international criminal justice in all
of its functions.
Furthermore, it is important to stress that the broad discretion enjoyed by
the Prosecutor under Article 53(1)(c) and 2(c) is countered by the mandatory
nature of the judicial review of her decision not to proceed with the interests
of justice, in accordance with Article 53(3)(b) of the Statute.13 This contrasts
with the initiation of preliminary examinations under Article 15(1) and (2)
(which has no mechanism of judicial review) and with the non-mandatory re-
view process for the Prosecutor’s decisions on the jurisdiction of the Court and
the admissibility of a case, pursuant to Article 53(3)(a). This is yet another in-
dication that the array of factors that can be considered under the interests of
justice provision is wider than those that come within the scope of other dis-
cretionary decisions. A mandatory review process also dispels criticisms of po-
liticization that are normally associated with a strict view of the interests of
justice. Lastly, Article 53(4) of the Statute reaffirms the temporary nature of a
decision based on the interests of justice. It provides that the Prosecutor may
8 Id. at 740–41; Varaki, supra note 5, at 457–58.

9 de Souza Dias, supra note 1, at 740–41; Keller, supra note 1, at 36–47; Allison Marston Dan-
ner, “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the In-
ternational Criminal Court” (2003) 97 Am. J. Int’l L. 510, 543.
10 de Souza Dias, supra note 1, at 745–47; Varaki, supra note 5, at 463.
11 de Souza Dias, supra note 1, at 745; Varaki, supra note 5, at 464.
12 Adopted on 23 May 1969, 331 UNTS 115.
13 de Souza Dias, supra note 1, at 744; Varaki, supra note 5, at 459.

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reconsider her decision at any time based on new facts or information. This
demystifies the common assumption that stopping an investigation or prose-
cution for the sake of policy factors may cause a definite blow to international
criminal justice.
Despite such ample interpretative support for a broad approach to the inter-
ests of justice, the Office of the Prosecutor (OTP)’s current view of the consid-
erations coming within the scope of Article 53(1)(c) and 2(c) is quite narrow.
As summarized in the 2013 Policy Paper on Preliminary Examinations and the
2007 Policy Paper on the Interests of Justice, the otp does not presently con-
sider that peace processes or other justice mechanisms can be considered by
the Prosecutor when using her discretion not to initiate an investigation or
prosecution.14 Rather, these are said to be “complementary” to international
criminal justice and within the mandate of other institutions.15 Only those fac-
tors explicitly listed in Article 53(1)(c) and 2(c) can be considered as “interests
of justice.”16 At most, the interests of victims could be defined more broadly
and eventually encompass concerns about their security and psychological
well-being that would weigh against the initiation of criminal proceedings.17
Yet the fact that other institutions have the primary purpose of addressing
peace and security and alternative justice mechanisms does not exclude the
icc’s crucial role in managing its own impact on those considerations, nor
does it mean that those considerations fall outside the scope of Article 53’s
provisions on the “interests of justice.”18
Moreover, as we hinted at earlier, factors such as the security situation on
the ground and the prospects of a successful prosecution can be important
indicators of whether or not it is appropriate to initiate or continue criminal
proceedings in the midst of peace negotiations. Indeed, although it is de
batable whether the security situation on the ground and the prospects of a
14 otp Interests of Justice, supra note 5, at 1, 4–9; Office of the Prosecutor, International
Criminal Court, Policy Paper on Preliminary Examinations, 67–71 (Nov. 2013) [hereinafter
Preliminary Examinations], https://www.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_
Preliminary_Examinations_2013-ENG.pdf (last visited Aug. 2, 2018). See also Office of the
Prosecutor, International Criminal Court, Policy Paper on Case Selection and Prioritisa-
tion, 33 (Sep. 15, 2016), https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_
Case-Selection_Eng.pdf (last visited Aug. 2, 2018).
15 otp Interests of Justice, supra note 5, at 1, 7–9; Preliminary Examinations, supranote 13,
at 69.
16 otp Interests of Justice, supra note 5, at 4–7, 9.
17 Id. at 5–6; Preliminary Examinations, supra note 13, at 68.
18 International Criminal Court, Certain Expenses of the United Nations (Article 17, Paragraph
2, of the Charter), Advisory Opinion, I.C.J. Rep. 151, 163 (Jul. 20, 1962); de Souza Dias, supra
note 1, at 743.

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successful prosecution are, in themselves, “interests of justice,”19 they can cer-

tainly be relevant factors when considered in connection with an ongoing
peace process that has the prospect of achieving forms of justice other than
retribution. Nevertheless, the otp does not presently consider that the securi-
ty situation on the ground, the prospects of a successful prosecution, or even
the inclusion of other justice mechanisms in a peace process could be part of
the interests of justice analysis even in connection with other factors. Para-
doxically, the Office has openly acknowledged that those two criteria must in-
form the selection and prioritization of cases for prosecution, in accordance
with Article 54(1)(b).20 However, unlike the otp seems to suggest, it is difficult
to separate, both temporally and substantially, the discretion that the Prosecu-
tor exercises for the purposes of “prioritising cases” from a decision to initiate
a prosecution based on the interests of justice.21 The two happen virtually at
the same time and are based on the same evidence and context. Furthermore,
the discretion used in the selection and prioritization of cases does not differ,
in nature or degree, from the one that the Prosecutor exercises when deciding,
at an earlier stage, whether or not to proceed with an investigation in the inter-
ests of justice. Significantly, by removing those factors from the scope of Arti-
cle 53(1)(c) and 2(c), especially when they are related to a peace negotiation,
the Prosecutor escapes the mandatory judicial oversight which should exist for
decisions involving such sensitive political issues.22
As was mentioned earlier, we believe that the time has come for the otp to
revise its policy on the interests of justice. In the next ten years of the Rome
Statute, the icc and the broader project of international criminal justice would
benefit enormously from the inclusion of peace negotiations, particularly
those with a justice component within the scope of Article 53(1)(c) and 2(c).
III Peace Negotiations as “Interests of Justice”

Despite the otp’s current reluctance to consider issues of peace and security
under Article 53(1)(c) and 2(c), there is a significant and increasing number of
scholars who support the inclusion of those factors as part of the interests of
19 See Danner, supra note 9, at 544–45; Linda M. Keller, “Comparing the ‘Interests of Justice’:
What the International Criminal Court Can Learn from New York Law” (2013) 12 Wash. U.
Global Stud. L. Rev. 1, 10; Philippa Webb, “The icc Prosecutor’s Discretion Not to Proceed
in the ‘Interests of Justice’” (2005) 50 Crim. L. Q. 305, 316 (Arguments in favor of including
those factors within the scope of Article 53(1)(c) and 2(c)).
20 Preliminary Examinations, supra note 13, at 4–5, 15, 51.
21 Id. at 33, 49.
22 Varaki, supra note 5, at 465–66, 470.

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justice test, on both legal and political grounds.23 As we explained earlier, it is

our own view that peace and security, and in particular peace negotiations, are
broadly within the realm of interests pursued by international criminal justice
and by the icc itself, especially in the context of its deterrent and preventive
functions.24 Indeed, unlike some have argued, it is not as if the “interests of
justice” will suddenly be equated to the broader “interests of peace” once the
Prosecutor decides to defer an investigation or prosecution in favor of peace
negotiations.25 Rather, peace is temporarily favored because and to the extent
that it is also an interest pursued by international criminal justice.26 Peace may
not only contribute to better justice in the future, but it is also an inherent aim
of justice.27 In sum, international criminal justice and its various functions
might be better served if one or more specific criminal prosecutions or investi-
gations are temporarily set aside to attempt a peace settlement.
Although the otp has refused to acknowledge this openly, an earlier otp
policy paper stressed that:
[N]o investigation can be initiated without having careful regard to all

circumstances prevailing in the country or region concerned, including
the nature and stage of the conflict and any intervention by the interna-
tional community. Furthermore, the Prosecutor will have to take into ac-
count the practical realities, including questions of security on the
ground.28
Similarly, in a document commissioned by the former Prosecutor entitled

“Draft Regulations of the Office of the Prosecutor,” experts suggested that the
“interests of justice” should be defined to include the following factors:
23 See, e.g., Hayner, supra note 2; Varaki, supra note 5, at 467–70; de Souza Dias, supra note 1,
at 751; Rodman, supra note 1; Darryl Robinson, “Serving the Interests of Justice: Amnesties,
Truth Commissions and the International Criminal Court” (2003) 14 European Journal of
International Law 481, 481–505, 493–98; Brubacher, supra note 1, at 81–84; Webb, supra
note 18, at 316; Michael P. Scharf, “The Amnesty Exception to the Jurisdiction of the Inter-
national Criminal Court” (1999) 32 Cornell Int’l L.J. 507, 524.
24 See International Criminal Court, Rome Statute of the International Criminal Court, Pre-
amble, clause 5, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute].
25 otp Interests of Justice, supra note 5, at 1, 4.
26 de Souza Dias, supra note 1, at 741; Hayner, supra note 2, at 9.
27 Hayner, supra note 2, at 9.
28 Office of the Prosecutor, International Criminal Court, Paper on Some Policy Issues Be-
fore the Office of the Prosecutor 2 (Sep. 2003) [hereinafter 2003 Policy Issues], https://
www.legal-tools.org/doc/f53870/pdf/ (last visited Aug. 2, 2018).

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(a) the start of an investigation would exacerbate or otherwise destabilize a

conflict situation;
(b) the start of an investigation would seriously endanger the successful
completion of a reconciliation or peace process […].29
In another expert paper, drafted at the request of the otp, experts suggested
that approaches other than prosecution should not be summarily dismissed by
the Prosecutor.30
We believe that this is a better approach than the one adopted in the 2007
and 2013 Policy Papers. This is because it takes due account of the legal and
factual justifications we set out earlier for including peace negotiations within
the scope of the “interests of justice” test. Indeed, this approach is in line with
an interpretation of Article 53(1)(c) and 2(c) of the Rome Statute that takes
into account the text, context, and object and purpose of this provision, in ac-
cordance with Article 31 of the Vienna Convention on the Law of Treaties.
Moreover, from a factual perspective, as we mentioned earlier, allowing inves-
tigations and prosecutions to be temporarily suspended for the benefit of po-
litical processes can contribute to the achievement of both peace and justice
in the long run. Lastly, we believe that this approach can better contribute to
addressing some of the icc’s present challenges relating to state cooperation,
budgetary constraints, and lengthy or complex proceedings. Indeed, having an
otp that is more willing to defer criminal proceedings in favor of peace nego-
tiations is conducive to more state cooperation and overall political and finan-
cial support for the icc. This is particularly the case where failure to cooperate
is due to a state preference for a political rather than a judicial solution to a
certain conflict or situation. Furthermore, if the peace settlement turns out to
be successful, the initiation of a complex criminal procedure would be avoid-
ed, with all the financial, human, and operational costs that this would have
entailed.
29 Office of the Prosecutor, International Criminal Court, Draft Regulations of the Office of
the Prosecutor (Annotated) 47 n.79 (Jun. 3, 2003) [hereinafter 2003 Draft Regulations],
https://www.jura.uni-muenchen.de/fakultaet/lehrstuehle/satzger/materialien/istghdrre.
pdf (last visited Aug. 2, 2018).
30 Office of the Prosecutor, International Criminal Court, Informal Expert Paper: The Prin-
ciple of Complementarity in Practice 23 (2003) [hereinafter Complementarity in Prac-
tice], https://www.icc-cpi.int/RelatedRecords/CR2009_02250.PDF (last visited Aug. 2,
2018).

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IV Useful Criteria for Assessing Whether Peace Negotiations Are in the

“Interests of Justice” in Concrete Cases
Having established that on both legal and policy grounds the “interests of jus-
tice” test should include peace negotiations, it is perhaps useful to draw some
criteria or guidelines that could assist the Prosecutor in making such an assess-
ment in particular situations or cases.31 We are mindful of the fact that there is
no one-size-fits-all solution to this question and that the evaluation of whether
or not a certain political settlement is “in the interests of justice” is to be con-
ducted on a case-by-case basis. However, it is possible to set out some param-
eters that could be applied in particular cases. For this purpose, some of the
documents issued by the otp itself, especially the earlier ones, are particularly
helpful.
A Support from Relevant Stakeholders, Particularly Victims

The first criterion which can be useful in assessing whether it is appropriate to
set aside an investigation or prosecution in favor of a peace negotiation is the
level of support that the latter has from those who have been affected by the
conflict or situation, including the general public in the domestic community
concerned and, particularly, the victims.32 Support from the international
community, as represented by groups of states or international institutions,
may also be relevant in assessing whether or not a peace negotiation is in the
interests of justice.33 This “support” criterion is justified on both legal and pol-
icy grounds. On the one hand, the interests of victims, including direct and
indirect ones, is an explicit factor listed in both Article 53(1)(c) and 2(c) of the
Statute. Thus, it is only natural that the victim’s views and interests should also
inform the consideration of whether peace negotiations are in the interests of
justice. Consideration of support from the general public is grounded on the
widespread recognition of self-determination and democratic governance as a
human right and a general principle in international law.34 Lastly, support
31 See Hayner, supra note 2, at 13–14; Keller, supra note 18, at 10–11; Webb, supra note18, at
316–18; Danner, supra note 9, at 543–45; Robinson, supra note 22, at 497–98 (In support of
clear guidelines and proposing a series of criteria for assessing issues of peace and secu-
rity and alternative justice mechanisms).
32 Hayner, supra note 2, at 13; Complementarity in Practice, supra note 29, at 24 n.73.
33 Complementarity in Practice, supra note 29, at 23 n.73.
34 General Assembly Resolution 217 (iii) Article 21(3), Universal Declaration of Human
Rights (10 December 1948), http://www.un.org/en/ga/search/view_doc.asp?symbol=A/
RES/217(III) (last visited Aug. 2, 2018); General Assembly Resolution 2200A (xxi), Inter-
national Covenant on Civil and Political Rights, Articles 19, 21, 22, 25, 999 U.N.T.S. 171 (19 De-
cember 1966) (entered into force Mar. 23, 1976), https://treaties.un.org/doc/publication/
unts/volume%20999/volume-999-i-14668-english.pdf (last visited Aug. 2, 2018); General

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from the international community may be a good indicator that other interna-
tional rules and standards are being complied with, particularly international
human rights law.35 On a policy level, it appears that peace processes that have
the support of victims and the domestic and international communities have
greater chances of success.
B Social Inclusiveness
As with the previous criterion, the degree of participation that a certain po-
litical settlement affords to the relevant stakeholders can assist the prosecutor
in determining whether or not it is in the interests of justice to give such a
settlement a try. Inclusiveness refers not only to the elites or those holding a
position of power in the conflict or situation, but also to those that have been
marginalized by it, such as victims and political minorities that are otherwise
affected by the alleged crimes.36 Considering how inclusive a certain political
settlement is should also be a good measure of its democratic pedigree and its
prospects of success.
C Transparency and Public Scrutiny

For a peace negotiation to have better chances of succeeding, and for it to en-
sure the continued participation and approval of the relevant stakeholders,
it is necessary that the relevant process is carried out in a transparent man-
ner and is subject to some form of public scrutiny. Scrutiny, in this context,
does not necessarily mean judicial control, but an accessible way in which the
general public and other stakeholders can continue to express their views and
measure the success and appropriateness of the peace talks. This form of scru-
tiny can be express or implied in the terms of the peace settlement, or it can be
set up by a subsequent agreement or instrument. However established, public
scrutiny plays a key role in the Prosecutor’s continued assessment of whether
or not the peace negotiation remains in interests of justice. Indeed, in accor-
dance with Article 53(4) of the Statute, the Prosecutor can, at any time, de-
cide to resume the investigation or prosecution. Significantly, mechanisms of
Assembly Resolution 64/155, Strengthening the Role of the United Nations in Enhancing
the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of
Democratization (Dec. 18, 2009), http://dag.un.org/bitstream/handle/11176/146935/A_RES
_64_155-EN.pdf (last visited Aug. 2, 2018); See also Robinson, supra note 22, at 497.
35 Complementarity in Practice, supra note 29, at 23 n.73; Robinson, supra note 22, at 498.
36 Christine Bell, Political Settlements Research Programme, What We Talk About When We
Talk About Political Settlements: Towards Inclusive and Open Political Settlements in an
Era of Disillusionment 9–10 (Sep. 1, 2015), http://blogs.sps.ed.ac.uk/politicalsettlements/
files/2017/09/201509_WP_1_Bell_What-We-Talk-About.pdf (last visited Aug. 2, 2018).

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public scrutiny can provide the otp with the necessary information on how
the public views the peace settlement over time, after the initial buzz about it
has settled down.
D The Extent of a “Justice Component”

Since we are talking about a peace negotiation being in “the interests of jus-
tice,” it is crucial that its goals include the achievement of justice in one or
more of the senses or functions that we mentioned earlier, i.e. retribution, de-
terrence, crime prevention, restoration, reparations, or symbolic justice. In-
deed, for a political process to be able to contribute to the achievement of
long-lasting peace and the establishment of a solid foundation for internation-
al criminal justice, it must, to some extent, contemplate one of the latter’s aims
or functions. In the context of a peace agreement, a “justice component,” in
this broader sense, can include the following non-prosecutorial forms of jus-
tice: the provision of reparations for victims, a broad judicial reform, new
vetting mechanisms, the establishment of a truth and reconciliation commis-
sion, or other alternative forms of justice.37
E Security Situation on the Ground, Particularly the Risk of

Escalation of Violence
As mentioned earlier, the security situation on the ground can be a useful way
to measure, in concrete situations, whether a peace negotiation is indeed nec-
essary or more pressing than a prosecutorial solution at a certain point in
time.38 In particular, if the risk of escalation of violence is high, whether it is
due to the initiation of the criminal proceedings or not, then it might be neces-
sary and appropriate give some space to a political settlement.
Some commentators have referred to this criterion within the broader con-
sideration of the “necessity” of setting aside the investigation or prosecution.39
Indeed, given the exceptional nature of an interests of justice decision,40 ne-
cessity is an overriding criterion to be considered when balancing all the spe-
cific factors coming within Article 53(1)(c) and 2(c). Necessity tells us that it is
37 See Hayner, supra note 2, at 9; Complementarity in Practice, supra note 29, at 23 n.73;
Robinson, supra note 22, at 497–98; Danner, supra note 9, at 544.
38 See Preliminary Examinations, supra note 13, at 50(e), 51(e); 2003 Policy Issues, supra note
27, at 2; 2003 Draft Regulations, supra note 28, at 47 n.79; Complementarity in Practice,
supra note 29, at 74. See also Hayner, supra note 2, at 13; Keller, supra note 18, at 10; Danner,
supra note 9, at 544–45.
39 de Souza Dias, supra note 1, at 742–43; Robinson, supra note 22, at 495–97; Complemen-
tarity in Practice, supra note 29, at 23 n.73.
40 de Souza Dias, supra note 1, at 735, 739, 742, 746; otp Interests of Justice, supra note 5, at 1,
3–4, 9; Robinson, supra note 22, at 486, 493, 497.

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only when the investigation or prosecution cannot be carried out, i.e. when a
deferral is the only means to ensure that the “interests of justice” are satisfied,
that a decision pursuant to Article 53(1)(c) and 2(c) can be made.41 Significant-
ly, one of the factors that can render a deferral necessary is the security situa-
tion on the ground, in particular, the risk of escalation of violence.42 If the se-
curity and lives of those involved in the conflict or situation are at risk, it may
be unwise and reckless to start or continue a criminal investigation or prosecu-
tion. This is not only to avoid the escalation of violence (in cases where the
criminal proceedings themselves risk having such an effect), but also to pre-
serve the lives and security of those within the otp itself in charge of conduct-
ing the investigation on the ground.43
In sum, in the context of a peace negotiation, the security situation on the
ground is an additional criterion that can inform the Prosecutor’s assessment
of whether or not a political solution is more appropriate than a judicial one at
a certain point in time. In addition, the security situation on the ground can
also influence the prospects of a successful investigation or prosecution, which
is also a criterion that the Prosecutor can take into account when assessing
whether or not a peace negotiation is in the “interests of justice.” Without a
safe environment on the ground, there is no way investigations can be con-
ducted, particularly for the purposes of gathering the necessary evidence.44
F Prospects of a Successful Investigation or Prosecution

The prospects of a successful prosecution are already being considered by the
Prosecutor as part of her case selection and prioritization strategy, i.e. when
selecting which prosecutions to initiate after conducting investigations. How-
ever, we believe that this criterion should also inform the evaluation of wheth-
er or not it is in the interests of justice to suspend an investigation or prosecu-
tion for the sake of attempting a peace negotiation. If the prospects of
conducting successful investigations or prosecutions are low, especially due to
an ongoing armed conflict or difficult security conditions on the ground, this
should weigh in favor of attempting a peace negotiation. In those circumstanc-
es, allowing some space for a political solution can either avoid the initiation
of a disastrous investigation or prosecution, or allow successful prosecutions
to be established in the future. Thus, the prospects of a successful investigation
41 de Souza Dias, supra note 1, at 742; Robinson, supra note 22, at 496.
42 de Souza Dias, supra note 1, at 742–43.
43 2003 Policy Issues, supra note 27, at 2, 6.
44 Id. at 2, 6.

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or prosecution can also be a relevant criterion for evaluating the appropriate-

ness of a peace negotiation under Article 53(1)(c) and 2(c).45
By “successful investigation or prosecution,” we not only mean those that
will eventually lead to a conviction. Rather, in the present context, being suc-
cessful means that the Prosecutor foresees that she will be able to gather the
necessary evidence and support to secure an arrest warrant or summons to
appear, to present a plausible case at the Confirmation of charges hearing, or
to continue pursuing a case that is already in the trial stage, even if, at the end,
the accused is acquitted. In considering whether there are good prospects of
gathering evidence, the following factors can be relevant:
1. security on the ground;
2. state cooperation in allowing access to evidence;
3. complexity of documentary evidence, including translation, volume, and
content;
4. difficulties with obtaining witness or expert testimony.46
Aside from evidentiary considerations, prospects of success also include pro-
ceedings that the Prosecutor foresees will run smoothly. Smooth proceedings
are those which tend to be free from procedural embarrassments such as ac-
cused persons who have demonstrated an unwillingness to be present at trial,
or the inability to protect witnesses or court officers, all of which might lead to
excessively lengthy or cumbersome trials.
G Other Criteria
Aside from the criteria listed above, and the other factors already listed in Ar-
ticle 53(1)(c) and 2(c), other commentators have proposed the following fac-
tors to be considered in the context of a peace negotiation:
1. compliance with international rules or standards,
2. absence of an intent to shield the perpetrators,
3. effectiveness of the bodies in charge of implementing the agreement,
4. provision of a sense of closure or justice to victims.47
It is worth noting that the list of criteria to be considered in the interests of
justice test, either in the context of peace negotiations or in different circum-
stances, is not closed. Indeed, as can be inferred from the wording of Article
53(1)(c) (implicitly) and 2(c) (explicitly), all the relevant circumstances must
45 Id. at 7; Webb, supra note 18, at 315–16; Danner, supra note 9, at 545; Keller, supra note 18,
at 10.
46 Preliminary Examinations, supra note 13, at 51, 70; 2003 Policy Issues, supra note 27, at
1–2.
47 Hayner, supra note 2, at 13–14; Complementarity in Practice, supra note 29, at 23–24 n.73;
Robinson, supra note 22, at 497–98.

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be taken into account for the purposes of balancing out the interests of jus-
tice.48 Thus, the list of criteria suggested above is merely indicative. Other cri-
teria may become relevant in concrete scenarios, and it is difficult to predict all
the factual considerations that may come within the scope of Article 53(1)(c)
and 2(c). It is also important to note that the various criteria suggested above
overlap among themselves and with other factors that are explicitly or implic-
itly recognized in Article 53(1)(c) and 2(c). In any event, the point is that clear
guidelines, and, in particular, examples of criteria to be taken into account by
the Prosecutor in the context of peace negotiations, can not only assist her in
making an informed decision, but also provide more transparency and ac-
countability to this process.
3 Conclusion
In sum, we believe that a key reform that would be instrumental to making the
icc and the bigger project of international criminal justice stronger, more ef-
ficient, and effective is the inclusion of peace negotiations and related criteria
in the analysis of whether or not to pursue an investigation or prosecution in
the “interests of justice” under Article 53(1)(c) and 2(c) of the Rome Statute.
This is grounded on both legal and factual considerations. Crucially, the con-
sideration of peace negotiations as part of a decision not to initiate an investi-
gation or prosecution in the interests of justice would prevent or alleviate, at
least in part, some of the current challenges that the icc has faced in terms of
state cooperation, budgetary restrictions, and length or complexity of criminal
proceedings. Moreover, in practical terms, this reform would require very little
operational or financial resources. Indeed, aside from a change of heart within
the otp (which is arguably the most difficult part), all that our proposed re-
form would require is the revision of the existing policy papers issued by the
otp on the interests of justice. A new policy paper on this question should be
drafted and published to explicitly include peace and security considerations
and, in particular, peace negotiations together with the more specific criteria
suggested above. These could be incorporated in the form of clear guidelines.
This reform would take very little time and effort, and yet it could contribute to
making the next ten years of the Rome Statute less turbulent than its first
twenty.
48 de Souza Dias, supra note 1, at 739, 751.

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Chapter 32
Reflections on the icc’s Relationship with the

United Nations and Regional Courts
Bing Bing Jia
1 Summary
After some fifty years of a hiatus following the military trials conducted after
the Second World War, the discipline of international criminal law, but espe-
cially its institutional and procedural part, saw a resurgence in the 1990s. The
momentum for the establishment of an international criminal court finally
came to fruition with the adoption of the Rome Statute by a un-convened dip-
lomatic conference on June 17, 1998. The Statute entered into force on July 1,
2002. The pivotal role of the un in this process has been unmistakably domi-
nant. The operation of the icc has recently come under much strain, and it has
been exposed to refusals to implement its arrest warrants as well as threatened
withdrawals by certain States Parties to the Rome Statute.
On this occasion, it is only proposed to reflect on one early theme in the
process of development—namely, the icc’s relationship with the un.
In 1994, the International Law Commission (ilc) recommended the estab-
lishment of the icc as an independent court. The sense was, however, that
even the successful experiment with a fair number of such ad hoc tribunals
could not replace a permanent court. In view of this parallelism, a general
question at present is whether changes are still needed in the system of the
Rome Statute to attain a court of universal support or, more realistically, one
both representative and protective of the international community in the
shape of the un.
The primary thought is that the existence of a permanent criminal court
outside the un system may just be a cause for the weakened authority of the
icc. During the ilc sessions in 1994, the majority of the members preferred
the treaty route to establish the future court, but some members still:
[F]elt strongly that the court could only fulfil its proper role if it was made
an organ of the United Nations by amendment of the Charter.

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Reflections on icc’s Relationship with the United Nations 359
Agreement was reached for a close relationship with the un. The problem with
this approach is twofold: how to ensure the universal character of the court
and how close the relationship with the un should be?
The preceding problem has so far been unresolved. In the Relationship
Agreement, infra, between the un and the icc, the operative rules on coopera-
tion and judicial assistance are either subject to the rules of the un Charter or
“rules of the organ concerned” or confined to communicative steps. The paral-
lel existence of the icc and the un means that the court will not be a part of
the un system, and the cooperation between them is no more than voluntary
in substance.
A secondary thought is whether “circuit” chambers can be established in
regional courts, vested with similar subject matter jurisdiction. This is so as to
facilitate more inclusive access to the icc system and more effective imple-
mentation of a localized version of international criminal law, while at the
same time showing sufficient respect for cultural differences. The African
Court of Justice and Human and People’s Rights could provide an example,
which is however uncommon in important aspects.
As of July 17, 2018, the legal order of the Rome Statute would be completed.
While testing times lie ahead, the current problems experienced by the icc
should prompt a rethink of its set-up to start early.
2 Argument
The idea of a permanent criminal court was floated during the early days of the
20th century,1 but efforts to realize it were suspended in 1954 when the United
Nations General Assembly (unga) deferred “consideration of an international
criminal jurisdiction” until it could take up again the definition of aggression
and the Draft Code of Crimes against the Peace and Security of Mankind.2 That
1 William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute,
2nd ed. (Oxford: Oxford University Press, 2016), p. 1–2.
2 General Assembly Resolution A/RES/1187 (xii), International Criminal Jurisdiction
(11 December 1957), http://legal.un.org/docs/?symbol=A/RES/1186(xii) (last visited Aug. 2,
2018); General Assembly Resolution A/RES/1186 (xii), Draft Code of Offences Against the Peace
and Security of Mankind (11 December 1957), http://legal.un.org/docs/?symbol=A/
RES/1186(xii) (last visited Aug. 2, 2018) (The two resolutions, adopted on the same day, de-
ferred the Assembly’s consideration of the draft Code of Crimes against the Peace and Secu-
rity of Mankind).

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360 Jia
occasion, following the adoption by the unga of Resolution 3314 (xxix) on

December 14, 1974 and Resolution 36/106 on December 10, 1981, arose when the
unga adopted A/RES/44/39 on December 4, 1989.3 Eventually, after some fifty
years of hiatus following the military trials conducted after the Second World
War, the discipline of international criminal law, but especially its institutional
and procedural part, saw a resurgence in the 1990s.4 During that decade, the
momentum for the establishment of an international criminal court gathered
pace,5 and finally came to fruition with the adoption of the Rome Statute of
the International Criminal Court by a UN-convened diplomatic conference on
June 17, 1998 (Rome Statute).6 The complicated steps theretofore taken by the
unga to establish that court (icc) have been well documented, and thus are
unnecessary to repeat here.7 After a short lapse of time for ratification, the
Rome Statute entered into force on July 1, 2002, triggering, soon afterwards, the
full operation of a permanent court of international criminal justice. The piv-
otal role of the UN in this process has been unmistakably dominant.
The operation of the icc has recently come under such strain in rapidly
changing circumstances of the post-2002 world, that this treaty-based court,
shorn of substantial links to the overarching system of the UN which is the
embodiment of the international community, has been exposed to refusals
to implement its arrest warrants as well as threatened withdrawals by certain
3 General Assembly Resolution 3314 (xxix), Definition of Aggression (14 December 1974),
https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/NR073916.
pdf?OpenElement (last visited Aug. 2, 2018); General Assembly Resolution, Draft Code of Of-
fences against the Peace and Security of Mankind, A/RES/36/106 (10 December 1981), http://
www.un.org/documents/ga/res/36/a36r106.htm (last visited Aug.2, 2018); General Assembly
Resolution, International Criminal Responsibility of Individuals and Entities Engaged in Illicit
Trafficking in Narcotic Drugs Across National Frontiers and Other Transnational Criminal Ac-
tivities: Establishment of an International Criminal Court with Jurisdiction over such Crimes,
A/RES/44/39 (4 December 1989), http://www.un.org/documents/ga/res/44/a44r039.htm
(last visited Aug. 2, 2018) (Resolution 3314 approved a definition for aggression, and Resolution
A/RES/36/106 invited the International Law Commission to resume its work on the draft Code of
Crimes against the Peace and Security of Mankind).
4 Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell & Alex Whiting,
Cassese’s International Criminal Law, 3rd ed. (Oxford: Oxford University Press, 2013), pp. 4–5.
5 Benjamin B. Ferencz, “International Criminal Court,” in Rudolf Bernhardt (ed.), Encyclope-
dia of Public International Law, Vol. 2 (Amsterdam: North-Holland, 1995), p. 1123, 1126.
A/CONF.183/9, as amended [hereinafter Rome Statute]. See also The States Parties to the
Rome Statute, International Criminal Court, https://asp.icc-cpi.int/en_menus/asp/states%20
parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (last visited
Jun. 13, 2018) (The number of States Parties stands at 123).
7 Roy S.K. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Issues,
Negotiations, and Results) (New York: Springer, 1999).

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States Parties to the Rome Statute.8 One of the factors contributing to this de-
velopment is that, during the past sixteen years, the icc has been put through
its paces with a caseload that is interesting in variety but unbalanced in geo-
graphical scope, resulting in a loss of confidence among African States Parties.9
Given the question proposed by the icc Forum for this discourse, it is only
proposed to reflect, in the light of the icc’s mixed record of successes and fail-
ures, on one early theme in the process of development—namely, the icc’s
relationship with the UN—re-consideration of which might help the icc’s
work in future.
It is known that, in its annual report of 1994, the International Law Commis-
sion (ilc) recommended the establishment of the icc as an independent
court, albeit in a relationship with the UN organization.10 In view of its perma-
nency, and all the necessary trappings of a law court, a standing court was re-
garded, unsurprisingly, as something more desirable than ad hoc tribunals es-
tablished to deal with particular conflicts or situations.11 The experience of the
International Criminal Tribunal for the Former Yugoslavia, for instance, seems
8 Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09 OA2, Order Inviting Ex-
pressions of Interest as Amici Curiae in Judicial Proceedings (Pursuant to Rule 103 of the
Rules of Procedure and Evidence) (Mar. 29, 2018); See also Max du Plessis, “Prosecutor v.
Al-Bashir: Decision Under Article 87(7) of the Rome Statute on the Non-Compliance by
South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-
Bashir” (2017), 56 International Legal Materials 1061.
9 African Union, Protocol on Amendments to the Protocol on the Statute of the African
Court of Justice and Human Rights, art. 16 (2014) [hereinafter Malabo Protocol], https://
au.int/sites/default/files/treaties/7804-treaty-0045_-_protocol_on_amendments_to_the_
protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf (last
visited Aug. 2, 2018) (The African Union Assembly adopted an amendment protocol on
June 27, 2014 to forge ahead with the establishment of an international criminal section
in the proposed African Court of Justice and Human and People’s Rights). See also Abel S.
Knottnerus & Eefje de Volder, “International Criminal Justice and the Early Formation of
an African Criminal Court,” in Kamari M. Clarke, Abel S. Knottnerus & Eefje de Volder
(eds.), Africa and the icc: Perceptions of Justice (Cambridge: Cambridge University Press,
2016), 376, 378–83 (Discusses the background and implications of the creation of the Ma-
labo Protocol).
10 International Law Commission, General Assembly A/49/10, Report of the ilc on the Work
of its Forty-Sixth Session, 2 May–22 July 1994 (1994) [hereinafter The 1994 Report], http://
legal.un.org/docs/?path=../ilc/documentation/english/reports/a_49_10.pdf&lang=EFSXP
(last visited Aug. 2, 2018) (The 1994 Report Article 4 provides in part that: “the Court is a
permanent institution open to States Parties in accordance with this Statute.” The 1994
Report Article 2 provides for the establishment of a relationship with the UN. Both provi-
sions, after having been amended during subsequent negotiations, are inserted in the
Rome Statute under Articles 1 and 2, respectively).
11 Id. ¶ 52.

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362 Jia
to support the ad hoc approach, and its legacy is clearly positive for the progress
of international criminal law.12 That is just about what can be said of the ad hoc
approach after the successful test run of that tribunal. The sense is that even the
successful experiment with a fair number of such ad hoc tribunals could not
replace a permanent court, given the past and relevant debate in the ilc. In
view of this parallelism, the present situation in which the icc finds itself raises
a general question of whether changes are still needed in the system of the
Rome Statute to quickly attain a court of universal support or, more realistical-
ly, one both representative and protective of the international community in
the shape of the UN. The chances of solidification of that status are intertwined
with the enhancement of the efficacy of the court in dispensing criminal jus-
tice. Two thoughts are tentatively offered below.
The primary thought is that the existence of a permanent criminal court
outside the UN system may just be a cause for the weakened authority of the
icc. In this respect, the emergence of the icc makes for interesting reading.
Originally, a recommendation to have a penal court alongside the Permanent
Court of International Justice (pcij) was made in 1920 by the Advisory Com-
mittee of Jurists that planned the establishment of the pcij.13 Due to the find-
ing by the Third Committee of the Assembly of the League of Nations, that
there was no international criminal law as recognized by “all nations,” except
the idea that perhaps a criminal department might be set up in the pcij if need
be, there was no resolution adopted by the Assembly on the subject.14 In 1947,
the unga-appointed Committee on the Progressive Development of Interna-
tional Law and its Codification revisited the idea of installing a criminal cham-
ber in the International Court of Justice (icj).15 However, the Sixth Committee
of the unga did not take it up, possibly in view of strong resistance to the idea
by representatives of Egypt, Poland, the UK, ussr, and Yugoslavia in the for-
mer committee.16 A comment on this episode is that the Committee revisiting
this idea did not feel constrained by the fact that the matter was not raised
12 The 1994 Report, supra note 10, ¶ 467; Gerhard Werle & Florian Jeßberger, Principles of In-
ternational Criminal Law, 3rd ed. (Oxford: Oxford University Press, 2014), p. 16, margin 52;
cf. “Symposium on the International Criminal Tribunals for the Former Yugoslavia and
Rwanda: Broadening the Debate” (2016) 110 Am. J. Int’l L. Unbound 205, 205–62.
13 United Nations, Historical Survey of the Question of International Criminal Jurisdiction—
Memorandum Submitted by the Secretary-General, UN Doc. A/CN.4/7/Rev.1, at 8–10 (1949),
http://legal.un.org/ilc/documentation/english/a_cn4_7_rev1.pdf (last visited Aug. 2,
2018).
14 Id. at 11–12.
15 Id. at 25–26 (Sure, there was also the suggestion of a special court based on a treaty).
16 Id. at 29–30.

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during the negotiations of the UN Charter, of which the Statute for the icj was
an integral part. It would therefore be possible to speculate that they might
have thought that the criminal chamber could be added to the UN system by
amending the Charter and the icj Statute at any time afterwards. The installa-
tion of the chamber was, in short, a separate matter from the organizational
arrangements that were required for the universal organization.
When the ilc completed its work for the year of 1994, its annual report re-
vealed that, in respect of the methods to establish the future icc, arguments
similar to those of 1947, as mentioned in the preceding paragraph, were made
by members of the commission.17 What should also be noted is that some
members of the ilc were anxious to ensure “the international or universal
character of the court as an organ of the international community rather than
a limited group of States parties,”18 and that there was a general agreement “on
the importance of establishing a close relationship” between the UN and the
future icc “to ensure its international character and its moral authority.”19
While the majority of the ilc members eventually preferred the treaty route to
establish the future court,20 some other members still “felt strongly that the
court could only fulfil its proper role if it was made an organ of the United Na-
tions by amendment of the Charter.”21 Their strong reservation was driven
home, and agreement was reached for:
[A] close relationship with the United Nations, both for administrative
purposes, in order to enhance its universality, authority and permanence,
and because in part the exercise of the court’s jurisdiction could be con-
sequential upon decisions by the Security Council.22
The problem with this approach, however, is twofold: how to ensure the uni-
versal character of the court and how close the relationship with the UN
should be? Ultimately, if the relationship is one of willingness and nothing
more, it simply amplifies separation between the two organizations.
In view of the Relationship Agreement existing between the UN and the
icc,23 it is felt that the preceding problem has so far been unresolved, indicating
17 The 1994 Report, supra note 10, ¶ 51.

18 Id.
19 Id. ¶ 53.
20 Id. at 29, commentary (4) on Art. 2.
23 International Criminal Court, Negotiated Relationship Agreement between the Internation-
al Criminal Court and the United Nations, Doc. No. ICC-ASP/3/Res.1, entry into force 4 Oc-

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364 Jia
a possible cause for the recent (and future) woes of the icc. Article 2 of the Re-
lationship Agreement— “Principles”—declares in paragraph 1 the UN’s recog-
nition of the icc as “an independent permanent judicial institution.” The
meaning of independence could vary from that of the separate existence of the
court from the UN system to the one of judicial independence of the court from
interference, including from the UN. Article 2, however, seems to embody the
former meaning, confirmed by the remaining two paragraphs.24 Further, the
rule central to the agreement is found in Article 3 of the Relationship Agree-
ment, “Obligation of cooperation and coordination,” which states:
The United Nations and the Court agree that, with a view to facilitating
the effective discharge of their respective responsibilities, they shall
cooperate closely, whenever appropriate, with each other and consult
each other on matters of mutual interest pursuant to the provisions of
the present Agreement and in conformity with the respective provisions
of the Charter and the Statute.
The operative rules on cooperation and judicial assistance are provided for in
Part iii of the Relationship Agreement, but are either subject to the rules of the
UN Charter or “rules of the organ concerned” (Articles 15 and 18) or are con-
fined to communicative steps (Article 17, regarding the interplay between the
UN Security Council (unsc) and the icc). The icc is clearly not envisaged as
part of the UN system. If any, the agreement has cemented the status of the
icc as a completely separate entity in relation to the UN, and more alarmingly,
as a body with “a limited group of States parties.” Can this parallelism enhance
the universality of the court?
The parallel relationship of the icc to the unsc—an important topic dur-
ing the negotiations of the Rome Statute,25—is, in general, reflected in Ar-
ticle 17 of the Relationship Agreement. The relationship is built on such ar-
rangements of the Rome Statute as Articles 13(b) (referral of a situation under
Chapter vii of the UN Charter), and 16 (request for deferral of investigation or
prosecution under Chapter vii of the UN Charter), and, by extension, 87(7)
tober 2004 [hereinafter Relationship Agreement].

24 Id. Art. 2(2) (“The Court recognizes the responsibilities of the United Nations under the
Charter”). Id. Article 2(3) (“The United Nations and the Court respect each other’s status
and mandate”).
25 See, e.g., Lionel Yee, “The International Criminal Court and the Security Council: Articles
13(b) and 16,” in Roy S.K. Lee (ed.), The International Criminal Court: the Making of the
Rome Statute (Issues, Negotiations, and Results) (The Hague: Kluwer Law, 1999), p. 143.

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(reporting of non-compliance by a State party with an icc request for coop-

eration in a situation referred to the court by the unsc). But this passing on
of requests back and forth does not synthesize the functions of the two bod-
ies, let alone integrate them in any meaningful manner. The bipolarity of this
relationship is even more pronounced when it comes to the determination of
(an act or crime of) aggression, which, as far as the icc is concerned, is subject
to Article 15 bis (7) of the Rome Statute. This new development may further
distance the court from the UN.
The parallel existence of the icc and the UN means that the court will not
be a part of the UN system, and the cooperation between them is no more than
voluntary in substance. Indeed, while the Relationship Agreement fully recog-
nizes the critical importance of the UN’s assistance, it contains nothing en-
forceable to make that assistance forthcoming when needed. At present, if the
States Parties of the Rome Statute cannot be enforced against by the icc, it is
hardly possible for it to do otherwise with the UN if the latter fails to cooperate
with the icc’s requests. The treaty-based nature of the icc has insulated, and
will continue to insulate, itself from the general membership of the UN. With
it, the possibility diminishes for the icc to represent the international com-
munity. It follows that the nature of the relationship between the icc and the
UN should be examined afresh, but that, for present purposes, it would be left
intact until a different occasion.
A secondary thought is whether “circuit” chambers can be established in
regional courts, vested with similar subject matter jurisdiction.26 This is so as
to facilitate more inclusive access to the icc system and more effective imple-
mentation of a localized version of international criminal law, while at the
same time showing sufficient respect for cultural differences. Once a regional
court is involved as the first instance trial court, the international criminal law
applicable there incorporates the Rome Statute, together with any extra body
of rules that reflect the circumstances of the region. The African Court of Jus-
tice and Human and People’s Rights could provide an example, which is how-
ever uncommon in important aspects.27 Those uncommon provisions raise the
difficult question as to the relevance of the icc in respect of cases which fall
26 Rome Statute, supra note 6, Art. 3(3) (The icc may sit elsewhere outside the Hague).
27 Malabo Protocol, supra note 9, Art. 6 (Provides for an Appellate Chamber in the Interna-
tional Criminal Law Section). Id. Art. 46A bis (“No charges shall be commenced or contin-
ued before the Court against any serving AU Head of State or Government, or anybody
acting or entitled to act in such capacity, or other senior state officials based on their
functions, during their tenure of office”). Id. Article 46H (“The jurisdiction of the Court
shall be complementary to that of the National Courts, and to the Courts of the Regional
Economic Communities where specifically provided for by the Communities”).

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366 Jia
under the jurisdiction of both courts, given that the provisions make no refer-
ence to the icc and that the Rome Statute does not contain a provision similar
to Article 103 of the UN Charter.28
If certain arrangements could be worked out between the icc and regional
courts, it might be possible to treat the icc in The Hague as the seat of the final
Court of Appeal to hear appeals on points of law submitted from the regional
courts. At minimum, the icc provides the venue for trial of any case which
is specifically submitted to it in accordance with the current provision of Arti-
cle 13 of the Rome Statute. The current regime of the Statute will essentially
remain intact but may be augmented to enhance its efficacy.
It is not all doom and gloom. The rumbling clouds of discontent gathering
over Africa have a silver lining in the successful Kampala Review Conference of
2010, which managed to adopt amendments to finally plug the holes in the
Rome Statute. Once the amendments come into effect, and the jurisdiction
over the crime of aggression was activated on July 17, 2018, in accordance with
the decision taken by the Assembly of States Parties in December 2017,29 the
puzzle of the legal order of the Rome Statute would be complete, twenty years
after its adoption in Rome. In legislative terms, therefore, the system of the
Rome Statute has seen marked progress. It is also not uncommon to see slug-
gishness in the operation of a treaty regime that is here to stay forever. The
current level of interest in the icc’s work is perhaps due to the severity of those
international crimes it is empowered to tackle. On that note, it may be con-
cluded that, while testing times lie ahead with future prosecutions of the crime
of aggression, the current problems experienced by the icc should prompt a
rethink of the set-up of this monumental institution to start early among those
who care about, and believe in, its mission.
28 United Nations, Charter of the United Nations, Art. 103 [hereinafter UN Charter] (“In the
event of a conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.”).
29 Assembly of State Parties, International Criminal Court, Activation of the Jurisdiction of
the Court Over the Crime of Aggression, Doc. No. ICC-ASP/16/Res.5 (Dec. 14, 2017).

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Chapter 33
Improving Communication with States

David Scheffer
The fact that a significant number of major powers are not party to the Rome
Statute of the International Criminal Court (icc) may reflect not only the re-
alities of global politics and military might, but also a failure to communicate.
Although I write as an outsider, there appears to be no systemic means by
which the States Parties of the Rome Statute engage in important dialogue
with non-States Parties. Rather, there are ad hoc encounters by icc officials,
particularly the Prosecutor when she needs the cooperation of a non-State
Party. icc judges may visit such countries as the United States and China fre-
quently, but the judges are understandably constrained in what they can dis-
cuss and describe about the Court. There is some interaction between the State
Party and non-State Party officials and scholars at academic conferences about
the icc, but there is little discernible progress towards broadening the Court’s
membership.
It is not all that surprising that achieving universality of the Rome Statute
has stalled among the non-party powers while even expansion among less
powerful nations seems to have hit a wall. The Prosecutor’s application to the
Pre-Trial Chamber on Afghanistan1 and preliminary examination of the Pales-
tine situation2 are potential firestorms in Washington that may ignite any day
there are decisions pertaining to those matters, starting with a tweet from Pres-
ident Donald Trump. Russia drew further distant with its “de-signing” of the
Rome Statute3 in November 2016 after its annexation of Crimea4 and the
1 International Criminal Court, Situation in the Islamic Republic of Afghanistan, Doc. No. ICC-
02/17-7-Conf-Exp, Public redacted version of “Request for authorisation of an investigation
pursuant to article 15” (Nov. 20, 2017).
2 Fatou Bensouda, International Criminal Court, Statement on the Referral Submitted by Pal-
estine (May 22, 2018), https://www.icc-cpi.int/Pages/item.aspx?name=180522-otp-stat (last
visited Aug. 2, 2018).
3 S. Walker & O. Bowcott, “Russia Withdraws Signature from International Criminal Court Stat-
ute,” The Guardian, 16 November 2016, https://www.theguardian.com/world/2016/nov/16/
russia-withdraws-signature-from-international-criminal-court-statute (last visited Aug. 2,
2018).
4 J. Simpson, “Russia’s Crimea Plan Detailed, Secret and Successful,” bbc News, 19 March 2014,
https://www.bbc.com/news/world-europe-26644082 (last visited Aug. 2, 2018).

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368 Scheffer
c ommencement of the Ukraine preliminary examination.5 China remains ab-

sent from the icc world while exercising growing influence in East Asia and
Africa, in particular. Such other nations as Pakistan, Indonesia, Ethiopia,
Rwanda, India, Turkey, Thailand, Vietnam, and Saudi Arabia (as well as most of
the Arab world) remain outside of the icc and show no prospect of joining
anytime soon. Indeed, the withdrawal of Burundi6 and announced withdrawal
of the Philippines,7 as well as continued concerns about South Africa’s future
status with the Court,8 are decreasing the membership count and point to a
political dilemma in search of a realistic solution (or at least attempt at one).
Granted, officials of the icc have been working tirelessly to seek coopera-
tion from States Parties and non-States Parties and to achieve universal mem-
bership for the Court. But there needs to be additional capacity-building to
communicate most effectively with non-States Parties and with those States
Parties that knock on the withdrawal door or block critical cooperation with
the Prosecutor, in particular.
I propose that there be created a “Select Committee of icc State Party Rep-
resentatives” that would fulfill the critical function of communicating directly
with non-States Parties and imminent break-away States Parties, as well as
non-cooperating States Parties, to achieve the Court’s membership, investiga-
tive, prosecutorial, and enforcement objectives. The Select Committee would
be elected every two years (maximum four year terms) by the Assembly of
States Parties and would be comprised of, say, twenty States Parties whose se-
nior foreign ministry and justice ministry officials and members of parliament
would be on standby to convene and travel to relevant capitals for the purpose
of engaging in dialogue with their counterparts in countries that are of interest
and concern to the Court. The membership of the Select Committee would be
subject to the will of the Assembly of States Parties, but there would be guide-
lines on the selection of committed governments and senior and knowledge-
able officials and lawmakers to populate the Select Committee.
5 Preliminary Examination: Ukraine, International Criminal Court, https://www.icc-cpi.int/

ukraine (last visited Jun. 25, 2018).
6 Press Release, International Criminal Court, Statement of the President of the Assembly of
States Parties on the Process of Withdrawal from the Rome Statute by Burundi (Oct. 18, 2016),
https://www.icc-cpi.int/Pages/item.aspx?name=pr1244 (last visited Aug. 2, 2018).
7 Press Release, International Criminal Court, icc Statement on The Philippines’ Notice of
Withdrawal: State Participation in Rome Statute System Essential to International Rule of
Law (Mar. 20, 2018), https://www.dailymaverick.co.za/article/2017-12-07-south-africa-confirms-
withdrawal-from-icc/ (last visited Aug. 2, 2018).
8 P. Fabricius, “South Africa Confirms Withdrawal from icc,” Daily Maverick, 7 December 2017,
https://www.dailymaverick.co.za/article/2017-12-07-south-africa-confirms-withdrawal-from-
icc/ (last visited Aug. 2, 2018).

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Improving Communication with states 369
The selection guidelines would require that at least several of the countries
on the Select Committee be among Security Council permanent members
(thus France or the United Kingdom) and the then-current non-permanent
Security Council members (if other criteria are met) so as to bring the influ-
ence of at least some on that body to bear at any particular point in time. Oth-
er members of the Select Committee should be State Party governments that
are committed to the work of the icc and to paying their annual assessments
to the Court’s budget, and that are willing to undertake advocacy and diplo-
matic interventions to achieve universality and to address problems confront-
ing the Court’s cooperation, or lack thereof, from States Parties and non-party
states.
For example, there is a crying need right now for such a Select Committee,
with its experienced and senior government officials and lawmakers repre-
senting major and not-so-major States Parties of the icc, to be in dialogue with
the U.S. Government. The risks are so high that Washington will react nega-
tively, and perhaps with open opposition, when decisions are reached on Af-
ghanistan and Palestine that a tremendous amount of diplomatic groundwork
must be undertaken in advance. There is no guarantee such an effort would
ameliorate the situation and calm the waters, but there is nothing to be lost in
trying to persuade Washington as to the merit of the icc’s existence and work
and how a non- State Party such as the United States can best build a relation-
ship of trust and even cooperation with the Court. Foreign diplomats, justice
officials, and legislators, external to the Court itself but participating in the
Select Committee, can exercise influence perhaps far more effectively than icc
officials (who can be perceived as pressing their own judicial agendas). The
Select Committee would be intervening as a political body with the political
organs of a non- State Party, often to make just as much a political as a judicial
case to the worried, obstinate, or agnostic non-party government.
But there is also the agenda of the Select Committee to confront diplomati-
cally those States Parties that are obstructionist on cooperation matters or are
on the road to withdrawal from the Rome Statute. Thus, the States Parties com-
peting for election to the Select Committee by the Assembly of States Parties
every two years should demonstrate that they are champions of the Court and
not part of the obstructionist/withdrawal clan. They will have to fight for the
interests of the icc as committed States Parties, and be prepared to absorb the
diplomatic heat in doing so. In a sense, the Select Committee would operate as
a diplomatic arm of the Assembly of States Parties, but not be constrained by
requiring any votes in the Assembly as to how the Select Committee presses
the case forward with any particular government. The mandate of the Select
Committee would emphasize its internal collective decision-making proce-
dures to decide when and how to intervene with recalcitrant States Parties (all

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370 Scheffer
of which are members of the Assembly of States Parties) and with non-States
Parties.
One final thought. If the Assembly of States Parties proves too difficult, po-
litically, to accomplish the creation and to support the operation of the Select
Committee, then one other option to consider might be to turn to the Presi-
dent of the icc to invite qualified States Parties to form the Select Committee
every two or three years.

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Index
Africa 26n15, 27, 33n48, 57, 95, 105n103, 108, Commission of Inquiry on Post-Election
112, 113, 115, 116n8, 118, 120, 121, 123, Violence (cipev) 40n9
125–133, 268n31, 280, 285n6, 295, 310n8, Committee on Budget and Finance
311, 316, 321, 323n20, 325, 342n12, 361n8, (cbf) 118n16
361n9, 366, 368 Côte d’Ivoire (cdi) 24n5, 57, 69, 70, 96n69,
African Union (AU) 77, 93n64, 107, 112, 121, 97n71, 126
122, 125, 126, 128, 131, 132, 294, 295, 323, Content Management System (cms) 104
325, 361n9, 365n27 Convention to Eliminate All Forms of
al Bashir 24, 107, 118, 125, 285n6, 286, 310n8, Discrimination Against Women
311, 325, 332n58, 361n8 (cedaw) 34n48, 62
apprehension 43, 315 crime against humanity 13n5, 34
Army Cyber Command (arcyber) 253
arrest 23, 24, 56, 69, 98n78, 118, 121, 125, 151, Darfur 107, 115n3, 118, 128n2, 130, 133,
155, 156, 161, 162, 169, 172, 191n18, 280, 324n24
286, 302, 305, 310, 311, 313–318, 321n9, Democratic Republic of the Congo
325, 328, 332n59, 335, 356, 358, 360, (drc) 40, 67, 68, 97n71, 101n88,
361n8 188n6, 261n15, 338
asp. See Assembly of States Parties (asp) Department of Justice (doj) 20n37, 148
Assembly of States Parties (asp) 7, 18n28, deter, deterrence 28n22, 53, 76, 78, 142,
19, 53n11, 77, 119–121, 127, 139, 146, 158, 148–150, 151n33, 152–156, 182, 191, 198,
160, 161, 163, 164, 170, 171, 176, 194n36, 200, 228, 232–234, 241, 270, 347,
199, 201, 202, 203n7, 204n10, 224, 236n7, 354
237, 243, 259, 281, 283, 284, 290, 296,
301–304, 311, 312n12, 320, 323, 325, 326, Economic Community of West African States
330, 336, 337, 366, 368–370 (ecowas) 274
ecowas. See Economic Community of West
Bemba, J.P. 13, 289, 291, 300n3, 305, 320, African States (ecowas)
332n56 European Commission 192n27
Bensouda, F.B. 3, 19, 38, 119, 140, 144, 145, 156, European Court of Human Rights
157n2, 235n2, 236n5, 304n1, 367n2 (echr) 116, 192n27, 341n10
bias 42, 68, 81, 86, 139, 147n21, 180, 183, 185, European Union (EU) 310, 325
296 Extraordinary Chambers in the Courts of
Cambodia (eccc) 59, 306n3
car. See Central African Republic (car)
cbf. See Committee on Budget and Finance former Yugoslavia 52, 59n47, 66, 169, 173n40,
(cbf) 194n32, 223, 274, 298, 322, 361, 362n12
cdi. See Côte d'Ivoire (cdi) fugitive 125, 315, 335
Central African Republic (car) 22, 57, 66n1,
67, 69, 70, 88n59, 92, 96n69, 97n74, Gaddafi 152, 154, 155, 272
115n3, 294, 314, 315 Gaza 235n2
Chui 29n28 Gbagbo, L. 13, 154, 155, 284, 285, 330n48
cicc. See Coalition for the International genocide 7, 38, 40, 117n12, 152, 153, 200, 223,
Criminal Court (cicc) 229, 236n6, 271, 273, 277, 293, 299, 309,
Coalition for the International Criminal 328, 340n8
Court (cicc) 103n93, 319 Genocide Convention 309, 340n8

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372 Index
Human Immunodeficiency Virus (hiv) 43 Katanga 29n28, 73n9, 193, 289, 291, 299,
Human Rights Watch (hrw) 92, 93, 103n93, 329n46, 332n56
152 Kenya 16n20, 40–43, 61n1, 77, 96n69, 97n71,
103n93, 108n113, 115, 121, 126, 132, 147,
icc Forum 34n50, 58, 73, 74, 86n49, 88n57, 193n29, 193n31, 239, 294, 304, 305,
94–96, 102n91, 105n101, 106, 140, 144, 145, 331
338n4, 344, 361 Kenyatta 13n8, 107, 108n112, 127, 311n10
icc forum.com 3, 34n50, 48, 58n42, 71n1,
72n6, 77n23, 84n46, 84n47, 88n57, Libya 25n9, 118, 130, 132, 133, 150, 152,
94n66, 112, 136, 139n1, 198, 280, 331n54 154, 227, 272, 273, 286, 294, 310,
immunity 121, 123, 125, 126, 161, 260n9, 311, 324
323, 326, 332 Lord’s Resistance Army (lra) 151
Intergovernmental Organization (igo) 2, lra. See Lord’s Resistance Army (lra)
22–36 Lubanga 15–17, 19n31, 19n32, 29n27, 53n9,
International Court of Justice (icj) 208, 73n9, 288, 291, 304, 320, 328, 329n47,
222, 227, 261–263, 265, 267, 362, 363 330, 343
International Criminal Court (icc) 3, 5, 7, 8,
12, 22, 37, 38, 45, 51–59, 61, 65, 67, 71, 72, Mechanism for International Criminal
74, 115–120, 125, 128–139, 152, 156–163, Tribunals (mict) 165
180–186, 201, 223, 228, 235, 238–241,
259–270, 293, 303, 314, 320, 335, 344, nato. See North Atlantic Treaty Organization
358–367 (nato)
International Criminal Tribunal for Rwanda ngo. See Non-governmental Organization
(ictr) 31n36, 32n39, 32n40, 33n46, (ngo)
34, 36n57, 36n58, 59, 66, 169, 173, 181, Non-governmental Organization (ngo) 6,
187, 265, 298, 299 22–36, 176, 289
International Criminal Tribunal for the North Atlantic Treaty Organization
former Yugoslavia (icty) 33n47, 34, (nato) 243n32, 266, 272, 274
52n4, 59, 66, 147, 169, 173, 174, 181, 187, Ntaganda 13, 72, 284, 285, 320n8, 332, 333n61
194n32, 265, 274, 298, 299, 310, 322, 328,
333, 361 Ocampo 17n26, 194, 195
International Law Commission (ilc) 208, Occupied Palestinian Territory (oPt) 117n13,
358, 360n3, 361 261n15
International Military Tribunal (imt) 223n1, Office of the Prosecutor (otp) 3, 5, 6n1, 6n2,
233, 236, 246n38, 269n33, 332 9, 10n12, 12, 13n6, 15n15, 19n32, 19n34, 22,
Islamic State of Iraq and the Levant 26n14, 27n17, 27n18, 31n36, 32n39,
(isil) 225, 265 32n40, 37, 38, 44n9, 49, 74, 75n18, 94,
Israel 117, 129 138, 148n23, 175, 194n33, 199, 202, 205,
228, 231–236, 246, 249, 253, 254, 270,
jurisdiction 7, 13, 22, 26, 29n25, 33n48, 49, 289, 292n20, 314, 321, 323n18, 338n3,
72n4, 77n32, 113, 115n5, 117, 121–123, 339n5, 344, 346n5, 348, 350, 351n28,
127–129, 132, 149, 152n1, 154, 172, 175–177, 351n29
191, 194, 195n38, 198, 199, 201–207, 210, oPt. See Occupied Palestinian Territory (oPt)
212–226, 231–233, 235–259, 260n6, otp. See Office of the Prosecutor (otp)
262–265, 267, 268, 271, 274–276, 281, oversight 13, 306, 349
283, 285, 292–294, 296, 298–302, 323,
324, 328, 333n61, 334, 339, 347, Palestine 117n13, 127, 130, 367, 369
350n22, 359, 360n3, 362n12, 363, 365, Permanent Court of International Justice
366 (pcij) 362

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Index 373
Public Information and Documentation Sudan 22, 24, 25n9, 61n1, 99n80, 107n106,
Section (pids) 75n16, 80n42, 82, 86, 115n3, 118n18, 123, 125, 132, 149,
94n65, 95 193n29, 193n31, 285, 294, 310, 314, 324,
prevention 48, 77, 150n27, 191, 200, 228, 231, 325
251, 297, 347, 354 survey 7, 28n23, 52, 65, 67–69, 145–148, 151,
Prosecutor 3, 5, 19, 22, 37, 38, 48, 73, 74, 115, 161, 167, 175–178, 187n6, 188n6, 333,
119, 120, 128, 140, 162, 194, 198, 199, 202, 341n9, 362n13
226, 228, 230–235, 239, 240, 266, 281,
285n5, 286, 289, 296, 302, 304, 315, tfv. See Trust Fund for Victims (tfv)
320n6, 338, 344, 361n8, 367, 368 Trust Fund for Victims (tfv) 163, 289,
290, 343
rape 2, 13, 31n37, 34
Registrar, Registry 48–50, 75n18, 81, 86, 93, Uganda 40–43, 46, 68, 69, 77, 92, 96n69,
138, 167, 175, 204, 224, 239n20, 289, 297, 97n71, 98n74, 98n78, 101n88, 103n93, 107,
316, 326, 330, 342 115n3, 118n20, 149, 151, 153, 187n6, 188n6,
Rome Statute, Statute of Rome 8, 12, 22n1, 193n31, 199, 236n7, 237, 261n15, 273, 294,
37, 53, 63, 73n11, 115n1, 120, 125–127, 150, 338
154, 157, 163, 184n15, 189, 201, 223, Uniform Resource Locator (url) 101, 102
228–233, 235n1, 236n8, 259, 265, 274, UN. See United Nations (UN)
280, 283, 286, 287, 291, 293–295, 301, unesco. See United Nations Educational,
305, 314, 319, 336–338, 341, 344, 358, 367 Scientific and Cultural Organization
rpe. See Rules of Procedure and Evidence (unesco)
(rpe) unga. See UN General Assembly (unga)
Rules of Procedure and Evidence (rpe) 8, UN General Assembly (unga) 113, 123, 225,
29n27, 283, 292, 308, 311n9, 332n59, 226, 246, 263, 271, 272, 359, 360, 362
361n8 United Kingdom (UK) 44n9, 61, 77n33, 123,
Ruto 304n1, 329n45 131, 132, 204, 224, 237n13, 242–248,
Rwanda 31n36, 32n39, 32n40, 40, 52, 59n46, 250n51, 251n59, 254n67, 255n68, 256n74,
66, 71n1, 126, 152, 154, 169, 189n11, 223, 257n75, 261n15, 306, 314, 362, 369
273, 298, 324, 362n12, 368 United Nations (UN) 14n11, 22, 24n6, 45n15,
60, 61, 67n4, 81, 92, 103n93, 117, 118,
sadc. See Southern African Development 119n21, 122, 123, 126, 131n12, 131n14, 137,
Community (sadc) 154, 158n3, 173n40, 193n29, 199, 223n1,
scsl. See Special Court for Sierra Leone 232, 236n9, 237n11, 238, 241n25, 242n28,
(scsl) 253, 255, 262, 265n28, 271, 284, 297, 301,
Serbia 187n4, 260n6 314, 322n17, 341n10, 348n17, 353n33,
sexual violence 13, 20, 22, 26, 27, 28n24, 358–366
30n33, 31n36, 32n40, 33–41, 44–46, 115, United Nations Education, Scientific and
332 Cultural Organization
Sexual and Gender-Based Crimes (sgbc) (unesco) 64n12
2, 3, 6, 7n9, 12–16, 20, 22, 23, 25n8, United Nations Security Council
26–39, 42–46 (unsc) 22n2, 28n24, 112, 122, 123,
Sexual and Gender-Based Violence 131n12, 131n14, 137, 173n40, 199, 260–264,
(sgbv) 2–4, 6, 9, 37, 38, 42, 44, 46, 266–268, 270–274, 276, 277, 314, 364,
320, 330 365
Southern African Development Community United States (US) 32n44, 61–63, 116, 121, 123,
(sadc) 126 126, 127, 130–132, 153, 237n13, 252n62,
Special Court for Sierra Leone (scsl) 51n1, 253, 260, 261n15, 275, 293, 316, 322–324,
58–59, 154, 187, 298, 299 333, 367, 369

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374 Index
unsc. See United Nations Security Council 336–343, 345, 346, 348, 352–354,
(unsc) 356
Union of Soviet Socialist Republics Victims and Witness Unit (vwu) 74, 99n82
(ussr) 362 Vienna Convention on the Law of Treaties
US. See United States (US) (vclt) 201, 207–212, 215n39, 217, 219,
US Army Cyber Command (arcyber). See 224, 245n37, 300, 347, 351
Army Cyber Command (arcyber)
war crime 7, 12, 13n5, 13n6, 24, 38, 40, 66n3,
victim, victims 2, 4, 6–9, 12, 14–16, 20, 21, 117n12, 133n15, 169n31, 200, 219, 220, 222,
30n33, 31–33, 34n50, 35, 49, 53, 63, 65, 223, 229, 236n6, 241n24, 246, 269, 271,
68, 74, 98, 99n82, 102n89, 125, 127, 132, 274, 277, 293, 298, 299, 302, 328, 345n1
136, 137, 142–144, 146, 147, 159, 163, 174, warrant 2, 23, 24, 151, 155, 156, 161, 162, 172,
176, 178, 180–182, 185, 187–189, 190n16, 280, 286, 302, 305, 306, 313, 315, 335, 340,
191, 192n25, 193, 196, 232n2, 236, 258, 356, 358, 360
264, 273, 276, 281, 283, 287–291, World War ii (wwii) 60, 61, 117, 226, 300,
295–297, 314, 316, 317, 320, 326, 330, 319n2

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The International Criminal Court: Contemporary Challenges and

Richard H. Steinberg - 978-90-04-38409-5

Richard H. Steinberg - 978-90-04-38409-5

ISBN 978-90-04-38408-8 (hardback)

Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands.

This book is printed on acid-free paper and produced in a sustainable manner.

Richard H. Steinberg - 978-90-04-38409-5

Introduction to Part 1: The Challenge of Obtaining Evidence in SGBV

1 New Institutions to Support First Responders 5

2 Securing Cooperation by Redefining It 12

3 Improving NGO and IGO Capacity to Gather Evidence 22

4 Securing Improved Cooperation 37

Introduction to Part 2: The Outreach Challenge 48

Richard H. Steinberg - 978-90-04-38409-5

5 States Must Support the ICC’s Use of Technology for Outreach 51

6 Formal and Informal Human Rights Communication and

Introduction to Part 3: The Issue of State Party Withdrawal 112

9 Concerning the ICC Withdrawal Problem 115

10 African Withdrawals and Structural Inequities 120

11 A Court Worth Having: Defending the Integrity of the Rome

12 Three Realities about the Africa Situation at the ICC 128

Introduction to Part 4: The Performance Issue and Metrics of

Richard H. Steinberg - 978-90-04-38409-5

13 Methodologies and Design of Performance Indicators 139

14 Empirical Analysis of the Tradeoff between Conflict Termination and

15 Assessing Performance in Context 157

16 The Limited Utility of the ICC’s Performance Indicators 180

17 Performance Indicators: A Double-Edged Sword 186

Introduction to Part 5: The Crime of Aggression Issue 198

18 Understanding the Aggression Amendments 201

19 Difficulties Not to Be Underestimated 223

20 Three Difficult Problems 228

21 The Crime of Aggression: Definition, Jurisdiction, and Scope of

22 Reflections on the ICC’s Role in Prosecuting Aggression 259

23 The Crime of Aggression and the Responsibility to Protect 270

Richard H. Steinberg - 978-90-04-38409-5

Introduction to Part 6: Reform Proposals 280

24 Reforms to Reduce Costs and Increase Efficiency 283

25 Building Support through Enhanced Cooperation, Outreach,

26 Returning to Customary Law 298

27 Reforms to Enhance State Cooperation and Address Witness

28 Improving Investigative, Arrest, and Prosecution Strategies 314

29 Meeting Challenges: Politics, Trial Processes, and Early Judicial

30 Focusing on Core Messages and Human Rights 335

31 Peace Negotiations as “Interests of Justice” 344

32 Reflections on the ICC’s Relationship with the United Nations and

33 Improving Communication with States 367

Richard H. Steinberg - 978-90-04-38409-5

­microfinance, ecumenical, and medical interventions in those villages. UCLA-

Richard H. Steinberg - 978-90-04-38409-5

Richard H. Steinberg - 978-90-04-38409-5

Richard H. Steinberg - 978-90-04-38409-5

This book is a collection of analyses by legal experts and social scientists on

Richard H. Steinberg - 978-90-04-38409-5

Richard H. Steinberg - 978-90-04-38409-5

ADS Atrocity Documentation Survey

Richard H. Steinberg - 978-90-04-38409-5

ICTR International Criminal Tribunal for Rwanda

microfinance, ecumenical, and medical interventions in those villages. UCLA-

© koninklijke brill nv, leiden, �� | doi:10.1163/9789004384095_002Richard H. Steinberg - 978-90-04-38409-5

r equired to disclose certain information to the defense. Most first responders

© koninklijke brill nv, leiden, �� | doi:10.1163/9789004384095_003Richard H. Steinberg - 978-90-04-38409-5

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© koninklijke brill nv, leiden, �� | doi:10.1163/9789004384095_005Richard H. Steinberg - 978-90-04-38409-5