The dismissal last month of the International Criminal Court (ICC) chief prosecutor, Karim Khan, for “serious misconduct and a serious breach of duty”, following allegations involving a junior lawyer in his office, has cast another chink of light into the shockingly toxic work environment within the Court that has persisted for decades.

The ICC was established by the Rome Statute on 17 July 1998 following the five-week-long United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Based in The Hague, Netherlands, the Court opened its doors, following ratification by 60 states, on 1 July 2002.  It is a treaty-based international organisation governed by the Assembly of States Parties (ASP) — its signatories — with a mandate to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, when and if its signatory states are unwilling or unable to prosecute those crimes domestically.

That then is the theory claimed of the Court by its founders, enablers, supporters and apologists. It is similar to the statutory blurb some poor salesman is obliged to read out to someone thinking of buying insurance, entering into mobile phone contracts or changing their utilities supplier. The reality has been shambolic. The ICC has been in trouble for quite some time. Commentators have noted that “It is now ordinary to read that the ICC is ‘failing’ or ‘in crisis’”. While much of the focus on its difficulties has been on the Court’s public shortcomings, commentators have increasingly made the point that the ICC’s ability “to deliver justice” and enforce good governance is also inextricably linked to its internal integrity and governance.

The reality is that the Court has manifestly failed in both respects, externally and internally. Even diehard supporters of the ICC have grudgingly charted its decline over the past two decades. Its ability to function externally, to deliver justice, has been derailed by systemic prosecutorial misconduct, repeated evidentiary problems, courtroom fiascos and lacklustre judging by often woefully underqualified judges with little to no real-time courtroom experience. It has become increasingly clear that not only did the prosecutors and judges not know what they were doing, but they were actually making things up as they went along (what could possibly go wrong?). In short, proceedings were summed up even by sympathetic legal bloggers as “slapstick comedy” and by critics as “dangerous theater”. By 2019, seventeen years into its existence, things had got so bad that four former Presidents of the Assembly of States Parties publicly announced that “[t]he International Criminal Court needs fixing”. The ASP subsequently commissioned an Independent Expert Review (IER) of the Court, which reported back on 30 September 2020 with 384 recommendations to address failings at the Court, of which 76 were highlighted as needing to be urgently “prioritised”.

At face value, six years on, little if anything was done to “fix” the Court.

What has become clear is that the Court is equally dysfunctional outside of the courtroom. There are more than 22 core legal texts, administrative issuances, codes of conduct, and related policies as well as an Independent Oversight Mechanism (IOM) meant to deal with allegations against elected and employed Court officials. They don’t appear to have had much effect. One such document was the ICC’s 2006 strategic plan which proclaimed as one of its three central goals to establish the ICC as a model of public administration. The reality was very different, with ICC staff members stating that the first ICC chief prosecutor, Luis Moreno-Ocampo, ran the Office of the Prosecutor (OTP) “like a police state”, with a “culture of fear” that was “very real” and “sapping.”

A Forum for International Criminal and Humanitarian Law (FICHL) report written by three of the ICC’s most important initial employees revealed that a “sense of fear” and “intimidation” within the Office of the Prosecutor under the newly installed first Chief Prosecutor Luis Moreno-Ocampo had set in within a year of the Court becoming operational. Twenty-two top staff members in the OTP left the court within a few years. FICHL notes in passing that “Several government officials and leaders of non-governmental organizations knew about the problems already from late 2003 onwards.”

The rot........

© The Times of Israel (Blogs)