Legal Consistency in the ICC Jurisprudence: A Brief Critique of the ICC’s Response to Recommendations on the Jurisprudence Made in the Independent Expert Review Report

[Audrey Fino is a lecturer in international human rights, humanitarian and public international law at the University of Groningen, legal consultant at the Extraordinary Chambers for the Courts of Cambodia and a PhD researcher. The views expressed in this blog are those of the author alone.]

A year or so after the publication of the ‘Report of the Independent Expert Review of the International Criminal Court and the Rome Statute System’ (Report), interest in it has waned. The International Criminal Court’s ‘Overall Response of the International Criminal Court to the Report,’ published in June this year (Response) has all but gone unnoticed. Yet the provisional agenda of the upcoming ICC’s Assembly of States Parties (ASP) includes, besides the more attention-grabbing elections of the Deputy Prosecutors, the ongoing review of the Rome Statute system. This blog addresses some of the recommendations made to promote coherent and accessible jurisprudence and decision-making, and the ICC’s response to them (see Report paras 607-632; Response paras 387-397). It focuses specifically on Recommendation 217 and part of Recommendation 218 (collectively ‘Recommendations’).

Recommendation 217 states that ‘[r]ecognising the importance of legal certainty and consistency, the Court should depart from established practice or jurisprudence only where that is justified on grounds precisely articulated in the decision/judgment.’ Meanwhile, in relevant part, Recommendation 218 reads:

Before departing from practice or jurisprudence approved by the Appeals Chamber, the Chamber should be required, by procedures stated in a Regulation of the Court, to identify the point precisely in a written notice to parties requesting written submissions thereon. Argument should be heard before deciding the point either as a preliminary issue or in the context of the appeal.

The author argues that the Recommendations are not so controversial that the ICC should reject them. Rather, they are merely restating the already settled international law.

Even immediately after the Report was released, the recommendations surrounding the promotion of a coherent and accessible jurisprudence did not garner much comment. One wonders whether this is because, compared to its other findings and recommendations on, for instance, the ICC’s alleged culture of bullying and harassment or the lack of inclusion and advancement of women in the workplace, these issues were less newsworthy. Or was it because these recommendations possibly impinged on judicial independence, a pillar of justice, and the rule of law? The processes leading to judicial decision-making are indeed shrouded in secrecy and confidentiality and thus hardly accessible to practising lawyers. The answer is probably a combination of all these factors.

One cannot, however, downplay the importance of developing a coherent and accessible jurisprudence. It is in the interest of all those working in this field, not least the parties to and participants of any criminal trial, that the law be foreseeable and accessible. This will not only make daily legal work more efficient for practitioners but it is above all a fundamental aspect of the principle of legality―that no one shall be held guilty of any criminal offence on account of conduct which did not constitute a criminal offence at the time it was committed―as set forth in article 22 of the Rome Statute and in international and regional human rights treaties.

Recommendation 217: Exceptionally Departing from Established Practice and Jurisprudence

In its Response to Recommendation 217, the ICC is trite. It notes that all ‘Chambers of the Court already carefully consider previous jurisprudence before reaching their own decisions’ (Response para 387). Recommendation 217 did however not revolve around the consideration of existing jurisprudence (Response paras 387, 389). Rather, it was about the ICC Chambers ‘departing from established practice or jurisprudence’ without providing sufficient reasoning as to why. Granted, the ICC may not have wanted to delve into the intricacies of the specific case referred to in the Report, the Bemba Judgment on appeal, but it need not have been so legalistic in its Response. It relies solely on a literal reading of Article 21 (2) of the Rome Statute that provides that the ICC ‘may apply principles and rules of law as interpreted in its previous decisions’. In this context, it recalls that there is no system of binding precedent at the ICC, as is the case in some domestic jurisdictions (See Response para 388; Emphasis in the Response).

This argument is disingenuous. It is the settled law of international criminal procedure that earlier decisions of appeals chambers are authoritative and will only be departed from in exceptional circumstances. The ICTY’s seminal Aleksovski Appeal Judgment held that ‘a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.’ (para 107). This standard was also followed by the ICTR appeals chamber (para 92) and the ICC Appeals Chamber’s own earlier jurisprudence.

In fact, prior to the Bemba Appeals Judgement, the ICC Appeals Chamber had held that while it was ‘not obliged to follow its previous interpretations of principles and rules of law through binding stare decisis; rather it is vested with discretion as to whether to do so,’ ‘absent “convincing reasons” it would not depart from its previous decisions.’ (See also Prosecutor v. Jean-Pierre Bemba Gombo, para 16). This, it continued, was to ensure ‘predictability of the law and the fairness of adjudication to foster public reliance on its decisions (para 14).

Public international lawyers will note that, similarly, the International Court of Justice (ICJ) does not adopt a theory of precedent (see arts 38(1)(d), 59 of the ICJ Statute). It has held, however, that it will not depart from its settled jurisprudence unless it finds ‘very particular reasons to do so’ (para 53).

The absence of binding precedent has not detracted from the actual influence and authority the ICJ has among both States and the legal community at large. Such authority arguably ensues from its practice of consistently referring to its own previous jurisprudence and that of its predecessor, the Permanent Court of International Justice (and from the quality of its judgements) (for example, in Bosnia and Herzegovina v Serbia and Montenegro paras 399-402 and the Arrest Warrant case paras 36, 40]. It is this same authority that the ICC Chambers should strive to achieve.

In short, there is nothing extraordinary about Recommendation 217. In this author’s view, the ICC is merely being called upon to implement the settled international law.

Recommendation 218: Notifying the Parties of, and Hearing Submissions on Any Potentially Diverging Point of Practice or Law

Turning to Recommendation 218, the Response’s argument that this means that ‘judges would be required to reveal their inclination to change existing jurisprudence in advance’ in violation of the principle of confidential deliberations is misconstrued. Pursuant to article 22 of the Rome Statute, the accused has the right to be informed of the charges against them. According to fair trial standards, this information which has to be given fully and timely, must indicate both the law and the alleged general facts on which the charges are based. Any potential change to the applicable practice (e.g. as set forth in a regulation) or law will thus likely affect the fair trial rights of the parties and participants involved in the case. This is especially true in an international criminal trial where it is not always obvious what the law is, for instance, because of legal lacunae or issues with identification of unwritten custom. Relatedly, the ICTY appeals chamber has held that even when acting proprio motu, a trial chamber is not relieved of the ‘normal duty of a judicial body first to hear a party whose rights can be affected by a decision to be made.’ (para 27) Failure to hear a party is inconsistent with the requirement to hold a fair trial.

Moreover, the suggested requirement―to notify the parties of a potential change in the settled jurisprudence and to provide them with the opportunity to make submissions―is not new to the ICC legal system. For instance, Regulation 55 (2) of its Regulations of the Court (on judicial recharacterisation) holds that the trial chamber ‘shall give notice to the participants of such a possibility (of legal recharacterisation) and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions.’ (Emphasis added; see also Thomas Lubanga Dyilo judgement on appeals regarding recharacterisation, ICC-01/04-01/06 OA 15 OA 16, paras 85, 93, 95, 98)

The author thus submits that, in this regard, the Appeals Chamber, being the final arbiter of the law, is already legally bound to notify and give the parties an opportunity for adversarial debate when it is considering a potential change in its settled law. It need not be resistant to adopting this Recommendation.

Conclusion

The ICC judiciary’s ‘comprehensive internal review’ of all the recommendations made (Response para 7) is welcome news but it is not enough to satisfy the concerns raised in the Report. The Response is marked by a seeming reluctance to truly address the underlying issues raised in the Report. This is evident from the legalistic stance taken. Nor are these legal issues merely related to internal ‘working methods,’ as the Response suggests (Response para 389). They impinge on aspects of fair trial, in particular the right of the accused to be informed of the nature, the cause, and the content of the charges against them.

The principles of judicial independence and secrecy of deliberations that are being brought by the ICC as a reason to push back on the implementation of the Recommendations are ultimately guarantees of a fair trial. It is this same objective of ensuring a fair trial that the Recommendations seek to promote. There should thus be no disconnect between the Recommendations on the one hand, and the ICC’s position on their implementation, on the other. As Professor Akehurst once wrote, ‘judicial consistency is the most obvious means of avoiding accusations of bias’ (p 51). The upcoming ASP should be an opportunity for the ICC to candidly and effectively engage with its stakeholders to ensure its jurisprudence is consistent, accessible and authoritative.