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II. Building an Effective and Credible Court

In the context of the significant external challenges to the court’s legitimacy and authority set out above, it is more important than ever that all possible efforts are made by the court and its states parties to build an effective, fair, and credible institution.

As documented in our recent report, “Courting History: The Landmark International Criminal Court’s First Years,” ¹⁷ the court’s accomplishments are many. The prosecutor has opened four investigations and brought criminal charges against 13 alleged perpetrators of the world’s worst crimes, including genocide; four suspects are in ICC custody in The Hague; and three have been committed for trial. Against many odds and in the face of innumerable difficulties, the Registry has established field offices in unstable environments; provided protection to witnesses; facilitated the participation of increasing numbers of victims in ICC proceedings; and provided defense lawyers with a court-funded, independent office to provide essential legal support in service of fair trial rights.

The court has experienced a number of disappointing delays in its proceedings in 2008. A confirmation of charges hearing in the Katanga and Ngudjolo case went forward in June only after a number of adjournments, and a confirmation of charges hearing in the Bemba case planned for November has been postponed by one month at this writing.

As noted above, proceedings in the Lubanga case, which was to be the court’s first trial, have been stayed conditionally. Because of the prosecution’s over-reliance in its investigations on article 54(3)(e), a key provision in the Rome Statute that permits the prosecution to enter into important confidentiality agreements with information providers, the prosecution had in its possession over 200 documents containing potentially exculpatory material that could not be turned over to the court or the defense because the information providers did not consent. The trial chamber felt that the OTP’s inability to disclose this information may have compromised Lubanga’s right to a fair trial, leading it to stay the proceedings.¹⁸ The appeals chamber recently affirmed the trial chamber’s decision to impose a conditional stay of the proceedings, ¹⁹ and the prosecutor continues to seek a solution to disclosure that would satisfy the trial chamber’s fair trial concerns and would permit the trial to commence.²⁰

Given the Rome Statute’s many innovations, and, in particular, its mix of common and civil law traditions with a bench of judges drawn from these different traditions to match, it is perhaps inevitable that there have been some delays in the court’s first proceedings.²¹ At the same time, we encourage court officials to continue to assess whether the efficiency of proceedings can be improved.

Not surprisingly, in grappling with the enormous challenges of setting up an unprecedented judicial institution, ICC officials have made mistakes. Increased efforts by states parties and by the court itself are required to consolidate progress and to make improvements in several areas, including increasing investigative capacity; outreach and public information efforts, especially on the part of the Office of the Prosecutor in coordination with the Public Information and Dissemination Section of the Registry; and field engagement in situation countries. This will obviously require ongoing support from states parties, including financially.

In “Courting History,” we discuss in more detail both the court’s progress and its failings, making recommendations throughout aimed at improving the court’s fairness and effectiveness. We focus in this present memorandum on four areas in which states parties can have a particular role to play in building a more effective court: insisting on reinforcing the “One Court” principle; providing the court with the most highly qualified judges; ensuring adequate resources for the court’s work, while preserving at all times its independence in judicial and policy decisions; and establishing an independent oversight mechanism. In addition, we join in the team papers prepared by the Coalition for the International Criminal Court on budget and finance, the independence of Committee on Budget and Finance (CBF) members, communications, the Trust Fund for Victims (TFV), establishment of an independent monitoring mechanism, the review conference, and, as already indicated above, cooperation.

A. Reinforcing the “One Court” principle

Following early concerns expressed by the Committee on Budget and Finance and observers about division and a lack of coordination, the court’s organs committed themselves in 2004 to a “One Court” principle prioritizing coordination between them while respecting each’s independence. Concrete steps taken by the court’s president toward implementing the “One Court” principle have included increasing the frequency of meetings of the Coordination Council—a body composed of the president, prosecutor, and registrar which facilitates administrative coordination—and establishing inter-organ working groups, such as the Strategic Plan Project Group and the Victims’ Participation Working Group.

While the independence of the prosecutor and chambers must be respected, internal coordination is key to meeting the court’s unique responsibilities, particularly in areas including outreach and field operations where those responsibilities overlap. Tensions and duplications may be inevitable in a developing institution working out complicated issues of policy and practice, but as the court matures, a lack of inter-organ coordination continues to manifest itself. There have been some examples in recent months that have emerged in the public domain.

For example, the Office of the Prosecutor and the Registry have been engaged in extensive litigation before the chambers over where responsibility for protection of prosecution witnesses should lie, leading at one point to the withdrawal of key sexual violence charges in the Katanga and Ngudjolo case. While the resolution of the issue lies now with the appeals chamber and the sexual violence charges were reinstated, enlarged, and recently confirmed by the pre-trial chamber,²² this dispute is a disappointing setback given that there had been agreement previously between the two organs that the Registry would be responsible for witness protection, a decision with which Human Rights Watch strongly agreed.²³

Disagreements between the Registry and the Secretariat of the Trust Fund for Victims over administrative matters have held up the implementation of projects approved by the chambers in February and March 2008. A facilitator has been appointed from The Hague Working Group on the implementation of the TFV’s regulations. The CBF in its report on the court’s 2009 proposed budget also called attention to “some internal discussions about the relationship of the Secretariat to the Registrar for the purposes of administration” and noted “that there appeared to have been some functions created in the Secretariat which ought to be performed by the Registry and it requested the Court to review these arrangements.”

These examples represent some of the ways in which a lack of coordination within the court is hampering its development. And, in the context of external challenges to the court’s legitimacy, they convey a sense of internal disorder that detracts from the good progress in many areas and leaves the court vulnerable to unprincipled attack. In their dialogue with court officials—whether through the informal New York and The Hague Working Groups or in bilateral contacts—states parties should reinforce the importance of the “One Court” principle to the institution’s success.

During this ASP session, states parties should:

• Explicitly reference the importance of the “One Court” principle in their statements during the ASP general debate; and

• Support strengthening existing language on the “One Court” principle in the ASP omnibus resolution to give the principle more prominence.

B. Election of judges

In January 2009, ICC states parties will vote to elect six new judges to the ICC. Human Rights Watch attaches the greatest importance to the nomination and election of the most highly qualified candidates. As the ICC develops, the bench needs to build the credibility of the court. These new judges will be elected to nine-year terms and will greatly influence the work of the ICC for many years. States parties, in turn, as the nominators and electors of judges, have the greatest opportunity to influence the success of the court by providing it with the best possible bench.

The nominations period for judicial candidates remains open at this writing; thus far, there are 17 candidates. At this point of the development of the court, the nomination (and subsequent election) in particular of “List A” candidates, that is, those candidates with criminal law expertise and prior experience in criminal proceedings as judges, prosecutors, or defense lawyers, is particularly important. Court proceedings are picking up in speed and volume at the ICC; the practice of other international and hybrid criminal tribunals indicates that seasoned practitioners are needed on the bench to conduct proceedings in the most efficient manner. Human Rights Watch urges states parties to nominate additional candidates in the time remaining, particularly those candidates with criminal law expertise and prior experience in criminal proceedings.

Many elections at the United Nations and other international institutions have been characterized by “vote-trading,” where states agree to support one another’s candidates with minimal regard to the individual’s qualifications. Vote trading over ICC positions could lead to the election of poorly qualified judges, and hence to a bench that will not be the most skilled and representative. Looking forward to elections in January, Human Rights Watch urges states parties to put aside narrow interests and vote only for the most highly qualified judges.

Human Rights Watch asks the President of the ASP Bureau to appeal again to states parties to refrain from using vote-trading in respect of the election of judges of the court.²⁴ In addition, we recommend that the ASP

• Include in the omnibus resolution of this session language underscoring the importance to the court’s success of the election of only the most highly qualified judges in January 2009.

C. Ensuring adequate resources and the court’s independence

1. Overview of issues raised by the 2009 budget proposal

As funders of the ICC, states parties have an obligation to ensure that the court has resources adequate to the task set by the Rome conference. We recognize that the difficult economic conditions presently experienced around the world create real hardships for states parties in their national budgets and that the court shares responsibility to ensure efficiency in its operations and to properly manage its resources. At the same time, however, this cannot be a license for denying the court resources necessary to its mandate, particularly those essential to ensuring fair proceedings and the court’s impact within affected communities.

Indeed, the Committee on Budget and Finance in its report on the work of its eleventh session—while indicating that the court must increasingly find ways to live within the means available to it—recognizes that “there [is] decreasing room to contain costs through the rigorous analysis of each year’s estimates.”²⁵ Instead the court’s costs are driven by evolving judicial and policy decisions on “length of proceedings, legal aid for the accused, legal aid for victims, protection of witnesses and victims, and participation of victims.”²⁶ These “cost drivers” come from the trial of complex cases, facilitation of effective victim participation, and rigorous adherence to fair trial guarantees, all of which are intimately related to the very “raison d’être” of the ICC—providing quality and fair justice in a meaningful way—and cannot be compromised.

While we very much agree with the CBF’s assessment that there “would be risks if decisions within the Court continued to push costs up without a corresponding understanding and acceptance in the Assembly of the need to fund those costs,”²⁷and we too encourage continued dialogue between the court and states parties, we wish to emphasize that states parties should understand that ultimate judicial and policy decisions belong to the court.

The CBF also recommends that the Registry “provide a statement of financial implications to chambers on matters under consideration, preferably prior to decisions being taken” and that “the Presidency advise chambers of the need to take appropriate account of costs in their deliberations.”²⁸ The independence of the court, including its judges, must be maintained. While concerns of efficiency can and do underlie judicial and policy decisions, we believe that it should be up to the judges to decide when financial information would be of use to their decision making on a specific issue before them.

We join in the recommendations advanced in the Coalition for the International Criminal Court team paper on budget and finance. Accordingly, we address here only three further issues with budgetary implications: institutional support for the defense, outreach, and family visits for indigent defendants.

2. Institutional support for the defense

Fair trials, including full respect for the rights of defendants, are paramount for the court’s credibility. In practice, respecting fair trial rights begins with ensuring equality of arms between the defense and the prosecution. The ICC has worked diligently to develop and implement an innovative approach to legal aid and the facilitation of the effective representation of defense interests. In doing so, the ICC has built on lessons learned from experience at other international tribunals.

An illustration of this is the practice of the Office of Public Counsel for the Defence (OPCD), which provides substantive support to the defense, operating independently of the Registry. The OPCD carries out its mandate in three primary ways: by assisting defense counsel who appear before the court; by supporting, and in some instances, representing the interests of the defense during the situation phase of proceedings; and through advancing the rights of the defense within and outside of the ICC.

When it comes to the OPCD’s assistance of defense counsel who appear before the court, we understand that some have questioned whether there may be unnecessary and costly overlap where defense counsel is funded through the legal aid system. Defense counsel practicing before the ICC are not necessarily specialists in international criminal law,²⁹ however, and it is our strong view that the OPCD plays an essential role in increasing their efficiency and efficacy. For example, the OPCD maintains a database of template motions on standard procedural issues, which can be particularly helpful during the initial stages of representation. The OPCD also operates as an institutional memory for defense issues—including through the preparation of memoranda on issues ranging from victims’ participation and a defendant’s provisional release through to disclosure and the ICC’s jurisdiction; that institutional memory can be shared with multiple defense teams. Where defense teams are funded by legal aid, their time saved, as well as the court’s time saved through counsel properly instructed in its procedures and case law, can ultimately reduce the burden on the court’s budget.

To help ensure efficient and effective legal representation, the OPCD must be adequately resourced. Account must be taken that, as indicated above, the OPCD carries out a number of other tasks beyond assistance to individual defense teams, including acting as court-appointed ad hoc counsel during the situation phase and in some limited instances as duty counsel (that is, a provisional attorney assigned to a defendant by the court until he or she chooses permanent counsel), saving funds otherwise paid out to defense counsel from the legal aid budget. We support the recommendation of the Committee of Budget and Finance to allocate to the OPCD a much-needed P-4 Legal Adviser/Counsel on a General Temporary Assistance basis for one year.³⁰ This modest addition would, for example, double the office’s capacity to appear in court as necessary. Accordingly, we urge the ASP to

• Support the addition of a P-4 Legal Adviser/Counsel for the OPCD.

Further, we note that the CBF has indicated that “[t]he need for this post beyond 2009 should be assessed following the Assembly’s consideration of the relationship between the legal aid scheme and OPCD and the most cost-effective means of providing ad hoc and duty counsel.”³¹ In our view, the considerable value of the OPCD in assisting defense teams at the ICC and its overall contribution to the efficiency of proceedings would merit renewing this post in the future. We recommend that the ASP:

• Include language in the budget resolution underscoring the importance of effective and efficient legal representation for the defense during proceedings before the ICC; and

• Indicate a willingness to consider funding this P-4 position on a permanent basis.

We also welcome the dialogue between The Hague Working Group and the court on legal aid, including especially the work of the facilitator on legal aid. We hope that this has helped to clarify for states parties a number of aspects regarding legal aid for defendants, and, in light of this experience, we recommend that the ASP:

• Express support in the omnibus resolution for the work of The Hague Working Group facilitator on legal aid and encourage continued discussions on legal-aid related issues, including legal aid for victims’ legal representatives.

3. Outreach

Robust outreach and public information campaigns are of critical importance to ensure the relevance of the court’s work to affected communities—often located far from the court’s seat—and to foster wider understanding of the court through the dissemination of objective information about its mandate, its operations, and, equally important, its limitations. The latter can be particularly important to build support for the court where the court’s detractors are engaged in spreading misinformation about the court to suit their own purposes.

While initially slow to recognize the importance of outreach and public information, the court, particularly the Public Information Dissemination Section (PIDS) in the Registry, has made impressive strides in the past two years. Accomplishments include an ever-increasing range of outreach activities and the use of more field-based staff to devise and implement the court’s strategic plan for outreach.³² At the same time, however, it is clear that there is much room for improvement, particularly in developing more targeted and tailored outreach campaigns with greater impact on the ground.

In light of the court’s progress and the challenges still ahead, there are a number of steps states parties can take in aid of the court’s outreach programs.

We supported the additional resources requested this year by PIDS to produce audio-visual materials on the upcoming trials and judicial proceedings, to be shown to local communities. We note, however, that the CBF recommended that the additional resources not be approved given the level of unutilized capacity in PIDS; the Committee recommended instead that PIDS meet its changing needs by redistributing its currently unused capacities.³³

As also expressed in team papers of the Coalition for the International Criminal Court, the effectiveness of audio-visual materials depends on having sufficient field staff to broadcast the materials and to organize effective outreach presentations in which the materials can be presented to remote communities. We would oppose redeploying resources within PIDS at the expense of much-needed staff resources in the Court’s field offices or of any other key outreach resources.

Accordingly, the ASP should:

• Request the Registry to fund the additional audio-visual producer position requested by PIDS through redeployment of non-field resources available to PIDS, through temporary redeployment of resources for field-based positions while those positions are under recruitment, or by reallocating other Registry resources to PIDS for this purpose, subject to informing the Committee and the Assembly of such reallocations; and

• Urge PIDS to immediately recruit for the posts yet to be filled that are critical to the effective implementation of the Court’s outreach strategy, in particular, the field positions.

In addition, an updated outreach strategy would be timely in light of the court’s experience gained during the last two years of outreach activities. In this session’s omnibus resolution, the ASP should:

• Invite PIDS to prepare an updated “Strategic Plan for Outreach of the International Criminal Court” for presentation to the eighth session of the ASP.

To better inform themselves about the court’s outreach activities, states parties’ delegates should:

• Attend the outreach meeting to be organized by the court in the margins of the ASP.

4. Family visits

As a standard bearer for international justice, the ICC is obliged to uphold the highest standards of criminal justice administration. This obligation—while relevant to the court’s many and varied responsibilities—takes on importance during pre-trial detention, where the court acts to deprive of their liberty persons who are presumed to be innocent.

The right of all detained persons to family visits is well recognized.³⁴ It bears at least

on the right to family life in addition to established detention standards. The ICC’s rules state that a “detained person shall be entitled to receive visits,” and the Regulations of the Registry state that the “Registrar shall give specific attention to visits by family of the detained persons with a view to maintaining such links.”³⁵

In most cases, however, realizing this right at the ICC without financial and other assistance will be impossible for indigent pre-trial detainees and their families. In light of the ICC’s vast territorial jurisdiction, persons detained at the seat of the court in The Hague will likely find themselves held far from where their alleged crimes have been committed and their families are located. Lengthy pre-trial proceedings—sometimes coupled with detention by national authorities before surrender to the ICC—mean that pre-trial detention, during which time detainees enjoy a presumption of innocence, may stretch for a period of several years. Without court-paid family visits, indigent ICC detainees may go for several years without in-person contact with their family members.

Under the circumstances, Human Rights Watch supports the court’s proposal to fund family visits for indigent ICC detainees awaiting trial. At this ASP session, states parties should:

• Approve a policy of funding of these visits, as well as the corresponding resources required in the court’s regular budget.

D. Establishing an independent oversight mechanism

Under article 112(4) of the Rome Statute, the ASP “may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.”

Human Rights Watch joins in the Coalition for the International Criminal Court team paper on the establishment of an independent oversight mechanism. The court cannot presume to be immune from the scandals, bad practices, and corruption well-known to international institutions, and states parties should take every opportunity to protect the court by ensuring adequate oversight. Those seeking to undermine the court’s credibility will be hard-pressed where the court avoids giving good grounds to do so.

We encourage the ASP to move forward purposefully toward the establishment as soon as possible of an independent oversight mechanism uniquely suited to the ICC, and we welcome the work done by the ASP Bureau facilitator and the court to put forward proposals thus far.³⁶ As part of their discussions, we ask states parties and court officials to examine the court’s existing governance structure. Unlike the court,³⁷ we doubt that these existing structures, even if improved or enhanced, would provide an adequate substitute for a wholly independent oversight mechanism, particularly where criminal misconduct is alleged. At the same time, however, we agree with the CBF that evaluating existing governance structures would be useful, ³⁸ both to highlight gaps in oversight to be met by any new mechanism and with a view toward strengthening those structures to provide increased oversight of management performance.

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