14 December 2020, the International Criminal Court Bar Association (ICCBA), the only representative body representing the interests of Counsel representing Accused and Victims at the ICC, held a side-event at the Assembly of State Parties of the Cour. SILC was represented on the panel by Jennifer Naouri, Vice-President of the ICCBA, and Dov Jacobs, Chair of the Counsel Support Staff Committee.
The event was designed as a conversation with the ICCBA about the report of the Independent Expert Review (IER report) of the ICC released last September. This 350-page comprehensive report explores avenues for reform of the ICC, amidst increasing cricitism received by the Court in recent years from practictioners, civil society, States and academics.
The IER report identifies a key number of areas that are, according to the assessment of the experts, deserving of improvement, and the reforms proposed cover the whole spectrum of the operation of the Court, from the broader institutional set-up, the internal workings of Chambers, the OTP and the Registry, to specific aspects of the Court's judicial practice in the past 20 years.
While the Accused and the Victims have a general shared interest in having a truly functional Court in all aspects of its operations, a considerable number of themes discussed in the report touch specifically upon issues which are crucial to ensure respect for a fair trial for the Accused and Victims. Among those themes are: the need for judicial consistency, the need to drastically improve disclosure practices of the OTP, the need to improve the expeditiousness of the process, the need to guarantee effective participation of victims, the need to reform the legal aid system in order to ensure that Defense and Victims' teams have adequate facilities, etc.
Of course, the reactions to this report are inevitably diverse, some considering that it did not go far enough on certain points, while others considering that it went too far. But the report is meant as a first step in an ongoing discussion on the reform of the ICC that will continue this week during the New York part of the Assembly of State Parties where normally, decisions should be taken on how to implement the proposals in the report. A notable point in that respect is that the IER explicitly calls for the ICCBA to be part of any future conversation on the reform of the ICC.
During the event, Jennifer Naouri touched upon the key issue of evidence, which is the heart of any criminal trial. She addressed, among other things, the importance of rigorous assessment of evidence and its source, in order to preserve due process rights, and the urgent need for reform of the OTP's disclosure practices, during all phases of the proceedings. On this last point, Jennifer Naouri provided invaluable insight on the OTP's past practices of disclosing, for example, key evidence relating to upcoming witness mere days before they were to appear in Court.
As for Dov Jacobs, he discussed what is a stake during the confirmation of charges phase of the proceedings, analysing the IER proposals and building on them to make suggestions that would improve the relevance of a key innovation in the ICC framework and an indispensable safeguard for the rights of the Accused. Dov Jacobs in particular warned against allowing the Prosecutor to use cumulative charging as a policy and highlighted the risks of implementing change through the Judge's best practice manual.
These presentations and the lively Q&A that ensued illustrate how crucial it is to include practictioners of the Court both from the perspective of the accused and the victims in order to put in place a reform that is truly useful for the actual daily users of the Court.
The video of the event can be seen here: