When hope and history rhyme: ICC performance to determine credibility and viability

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Convener for the American NGOs Coalition for the International Criminal Court John L. Washburn. C: CICC

In this latest contribution to our 20th anniversary blog series “When hope and history rhyme,” Convener for the American NGOs Coalition for the International Criminal Court John L. Washburn traces the origins of several of the challenges facing the International Criminal Court (ICC), offering the Court’s detractors genuine and practical solutions that will allow the ICC to achieve the vision agreed upon in Rome in 1998.

Coalition Convenor Bill Pace is right that the negotiations for the Rome Statute began with a feeling by those in favor that this effort would most likely not succeed, but it absolutely had to be tried. This led to a main feature of the psychology of the negotiations – surprise. For most, the success of each phase of the negotiations was a surprise mixed with the fear that failure next time loomed. Surprise diminished, but lasted right through the Rome conference. The tumultuous celebration at the approval of the statute on the conference’s last night was an outburst of ecstatic surprise.

Nonetheless, most US delegates and those backstopping them in Washington were convinced that it was an orgy of jeering and taunting directed at them for voting against the Statute. The United States had an expert and hard -working delegation that made many major contributions to the Statute. However, it was burdened by instructions from a government which would not listen to what the delegation tried to tell it about the nature of the negotiations and the vision of the Court most other countries held. Perhaps all that was simply too much of a surprise for Washington.

Now here to stay whether functional or weak, the Court is no longer a surprise except for some who do not see that most of its weaknesses and the threats to it are either inherent in international organizations or from compromises in the Statute. These are lack of enforcement, life threatening underfunding, and, too slow judicial processes, determining standards of evidence, managing the participation of victims, dysfunction in the Assembly of States Parties and problems in serving and relating to defense counsel.

A special weakness comes from exporting much of the politics and too many management practices from the United Nations to the ICC. Personnel practices, regional politics, the struggle for consensus in decision making, and attitudes toward funding and the budget are some of these exports. The United Nations conducted the negotiations for the Rome Statute and most government delegates and early ICC staffers had experience at the United Nations. This made it natural that they should adopt its procedures and political practices.  Now that these have been used for so long, it will be hard to change them, but the effort should be made. As a single-purpose organization very different from the United Nations and its encyclopedic agenda, the ICC would be much stronger if it created its own practices, especially in management.

However, the Assembly of States Parties would greatly improve its operations and decisions if it adopted some of the structure of the governing bodies of many other international organizations. The Assembly has only one standing committee – on budget and finance, which reports directly to it. Otherwise, working groups and task forces of states parties report to the Assembly’s officials and secretariat, known collectively as the Bureau. These groups and task forces do very good work and involve the Court’s member states in its activities and the work of the Assembly. However, they are not a substitute for standing committees which are each responsible for a particular organ, main unit or fundamental function of the ICC. They would bring a balance with the Committee on Budget and Finance to the Assembly’s debates and over time become continuously expert about their subjects.

The Court’s performance from now on will determine its credibility and viability in the long future. The Court will not have a consistently strong performance unless it can manage these improvements and problems in its design. The Court can make that effort successfully only if it has the resources. Civil society must make a high priority of helping the ICC get them.

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John L. Washburn, a U.S. lawyer and graduate of Harvard Law School, is the Convener for the American NGOs Coalition for the International Criminal Court (AMICC) and Co-Chair of the Washington Working Group on the International Criminal Court (WICC). Among other positions, he was previously a member of the United States Foreign Service and acted as a director in both the Executive Office of the Secretary-General of United Nations and the United Nations Department of Political Affairs. Washburn attended most of the United Nations negotiations on the International Criminal Court since 1994, including all of the 1998 diplomatic conference in Rome.

This post is the fifth of our “When hope and history rhyme” blog series, commemorating the 20th anniversary of the Coalition for the ICC. Starting July 17, 2015, and continuing until July 17, 2016, posts in this series offer reflections from Coalition staff, civil society members and officials on 20 years of fighting impunity, lessons learned and challenges for the future of global justice.

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