key: cord-0055450-ftusbzkg
authors: Abtahi, Hirad
title: The International Criminal Court during the COVID-19 Pandemic
date: 2020-12-21
journal: nan
DOI: 10.1093/jicj/mqaa058
sha: 359a5ad9929041c1e9b97f31327621ce2d435902
doc_id: 55450
cord_uid: ftusbzkg

Since COVID-19 was declared a pandemic by the World Health Organization, the International Criminal Court (ICC) has taken a series of measures to ensure the continuation of its activities. To this effect, the Court has adjusted its proper administration both in Headquarters and Country Offices by moving to (partial) virtual offices mode. In so doing, the ICC has striven to ensure that staff well-being and business continuity go hand in hand. On this basis, the Court has worked towards the execution of its mandate, i.e. the prosecution and trial of individuals alleged to have committed one or more of the ICC Statute crimes. Against this background, the Court has had recourse to a combination of technological and sanitary measures in order to conduct pre-trial, trial and appeals proceedings in a fair and expeditious manner. These proceedings have ranged from the execution of arrest warrants and transfer of suspects to the Court’s custody through to the holding of hearings in the courtroom. By adapting itself to the evolving nature of COVID-19 — and reactions to the virus — the ICC will ensure that it remains resilient in the face of this unprecedented global sanitary crisis.

On 12 March 2020, the COVID-19 outbreak was declared a pandemic by the World Health Organization (WHO). 1 Worldwide, restrictive measures were being introduced in order to contain the spread of the virus, culminating in partial or complete lockdowns. 2 On 15 March 2020, the Netherlands (the 'Host State') began its so-called 'intelligent lockdown', consisting of restrictive measures such as the prohibition of gatherings, closing of schools, cafés, restaurants, sport centres and institutions, in an attempt to slow down the spread of the virus. 3 On 17 March 2020, the International Criminal Court (ICC or 'the Court') moved to 'virtual offices', 4 following the guidelines of the WHO and the United Nations (UN). 5 The ICC headquarters building ('Headquarters') closed down to the diplomatic community and the public, while the number of staff able to access Headquarters was reduced significantly. Travel was limited to essential missions and personal travel of staff was strongly advised against. In situation countries, as a result of local authorities' guidelines, operations and investigative activities were additionally impacted. 6 In these circumstances, the ICC focused on ensuring the physical safety of staff, minimizing adverse impact on key operations and ensuring business continuity. 7 To perform its mandate, i.e. the prosecution and trial of atrocity crimes falling within its jurisdiction, the ICC must rely on a solid administration spread across continents. Accordingly, the following will first focus on the latter before moving to the former in order to address the ICC's approach to the management of the COVID-19 pandemic.

This section will expand upon the COVID-19-related measures taken by the ICC with respect to its business continuity and staff well-being. Being headquartered in The Hague with multi-continental country offices, the ICC has had to combine applicable national measures with its own 'extraterritorial' status. In other words, the ICC has combined each location's public health measures with its own.

On 9 March 2020, three days before the WHO declared COVID-19 a pandemic, the Presidency, the Prosecutor and the Registrar (the 'Principals') established the Crisis Management Team (CMT) as an inter-organ task force mandated to advise them on the management of the pandemic, both institutionally and from the staff well-being angle.

As part of the move to virtual offices, staff were gradually given access to a 'virtual desktop' through the Citrix Application. 8 For Country Offices, this approach would incorporate local authorities and UN guidelines. 9 The overall rapid transition to virtual offices and confinement at home, among other reasons, would evidently present challenges in well-being and productivity. All divisions, sections and units were encouraged to maintain daily contact in order to facilitate the transition to virtual offices. These, as well as meetings, were carried out through platforms such as Signal and WebEx. 10 In parallel, guidelines and instructions were made available to optimize virtual offices. Several initiatives regarding mental and physical well-being, productivity and resilience were launched, thereby enhancing the already-existing 'ICC Staff Wellbeing Framework'. The Staff Union Council (SUC) set up several barometers with respect to working from home while data from the Occupational Health Unit (OHU) provided a clearer insight on overall staff health. Attended by the Principals, live webinars were organized on issues as varied as productivity, well-being, and resilience.

Last but not least, the Presidency and the Registrar have strived to ensure that the management of the ICC Detention Centre caters for the continuous well-being of the detainees.

With the easing of lockdowns in the European Union (EU) and Host State in the early weeks of May 2020, the Principals agreed on a phased 'gradual return' of staff to Headquarters, as broadly provided in the Annex to the Presidential Directive 'Policy concerning the physical reopening of the Court's Buildings and the related terms of access and use in connection with the COVID-19 Pandemic'. 11 Phases I and II commenced on 8 June and 1 July 2020, respectively, through staff whose work at the headquarters would improve the productivity of the Court's core activities, e.g. staff performing functions required for the resumption of court proceedings, subject to being granted medical clearance. The main difference between Phase I and II consisted of the increased capacity of staff presence. The common denominators to both phases were staff presence being the exception; the mandatory wearing of face masks within Headquarters' common areas, specifically where the 1.5 metres physical distancing could not be observed; a minimum of 15 square metres per person occupancy of open plan offices; as well as maximum occupancy of confined spaces such as elevators, stairs or else direction of foot traffic flow in busy areas. 12 Additional safe working space measures within Headquarters included: availability of sanitizers; structural changes and/or additional signage identified for implementation; minimizing where possible the need to touch surfaces such as door handles and ensuring enhanced cleaning where this is not possible. 13 Already, during Phases I and II, a number of events were facilitated and took place partly from Headquarters, such as meetings with ministers and diplomats, and interviews with candidates for the Prosecutor's position. 14 Abiding by the above criteria, Phase III would begin, with a planned and controlled staff build-up to full capacity. 15 In contrast to Phases I and II, Headquarters would re-open to visitors in Phase III and facilities such as the gym, library and catering would resume operating. 16 Entering into that phase would depend on the evolution of pandemic situation both worldwide and in the Host State.

On the basis of the foregoing, which focused on staff well-being, the following measures were aimed at ensuring efficiency to the core mandate of the ICC, i.e. the prosecution and trial of mass atrocity crimes. Carrying out judicial activities related to crimes scene(s) located thousands of kilometres away from the courtroom in the midst of a pandemic presented great challenges, especially in terms of the continuation of operations in the field (e.g. investigations), and conducting courtroom hearings. Against the backdrop of international 12 ICC/PRESD/G/2020/001, annex, available online at https://edms.icc.int/RMWebDrawer/Record/ 2692957 (visited 23 July 2020). 13 Ibid. 14 See Belgium's Minister of Foreign Affairs and of Defence visits the ICC, ICC-CPI-20200709-PR1530, 9 June 2020, available online at https://www.icc-cpi.int/Pages/item.aspx?name¼ pr1530 (visited 23 July 2020); Election of Prosecutor (2020), available online at https://asp. icc-cpi.int/en_menus/asp/elections/prosecutor/Pages/Prosecutor2020.aspx (visited 7 August 2020). 15 ICC/PRESD/G/2020/001, annex, available online at https://edms.icc.int/RMWebDrawer/Record/ 2692957 (visited 23 July 2020). 16 Ibid. lockdowns and travel bans, the ICC nonetheless conducted its judicial proceedings in the most effective way possible.

During the pandemic, moving to the virtual offices in Country Offices and in the Headquarters reduced the ability of ICC personnel to collect evidence in the field, and access to databases proved to be challenging. 17 All teams were asked to reprioritize other activities not requiring travel. 18 Chambers issued decisions on specific matters even though 'cases and situations under investigation or at the trial stage [were] affected by the COVID-19 crisis'. 19 Judicial proceedings continued before Pre-Trial Chambers during the months of virtual offices. As for Trial Chambers, they were either in the judgment drafting phases of cases or preparing cases for trial. 20 The Appeals Chamber too was working on various interlocutory and final appeals. 21 Thus, as far as the written component of the conduct of judicial proceedings was concerned, the Court continued to work smoothly in virtual office due in no little part to the formidable work of the Registry in facilitating the holding of virtual meetings and email exchanges in a secure environment. The matter would, however, be different with respect to courtroom activities. In other words, how to organize what seems to be a contradiction in terms: holding hearings in the courtroom during the phase of 'virtual' offices? These provide a wide range of discretion to the Pre-Trial, Trial and Appeals Chambers on determining whether any hearings deemed necessary can take place by way of: physical hearings held in one or more of the ICC's courtrooms, remote hearings facilitated through the use of communications technology (not requiring physical presence in a courtroom) or a combination thereof. 23 When doing so, each Chamber considers the compliance of the proposed hearing format with rights and protections under the Rome Statute of the International Criminal Court (ICC Statute) and the Rules of Procedure and Evidence. 24 In addition, they require consideration to be given to the restrictions in place in the state(s) in which the parties and participants are located. 25 The Annex to the document also establishes a detailed 'Occupational Health and Safety Protocol' for the holding of Court hearings during the COVID-19 pandemic. 26 These Guidelines were elaborated in consultation with the judges, and in light of the experiences of the Pre-Trial, Trial and Appeals Chambers as described below.

On 29 April 2020, Trial Chamber X in the case of The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan) issued an order 'providing information on the methods of work to minimise the impact of COVID-19 and related measures on the conduct of proceedings'. 27 The order was issued in light of the pre-scheduled hearing of 14 July 2020, although it could serve as a basis for other scheduled hearings in the following months as well. Being mindful of the logistical challenges which arose as a result of virtual offices, the Chamber issued the order so that it could collect suggestions from the Registry and other stakeholders on finding an appropriate method of conducting the hearings. 28 As previously mentioned, the Chamber noted that travel between the Host State and Mali had been severely impacted by measures taken in order to contain the pandemic. Therefore, the Registry submitted that hearings could be held as 'entirely remote hearings, semi-remote hearings, hearings at the Court and any combination thereof'. 29 On 9 June 2020, Ali Muhammad Ali Abd-Al-Rahman was taken into ICC custody, after surrendering voluntarily in the Central African Republic. His surrender and transfer to Headquarters was carried out through close cooperation with the Central African Republic, Chad, France, the United Nations 23 Ibid., § 2. 24 Ibid., § 3. 25 Ibid., § 4. 26 Ibid., Annex. 27 Trial Chamber X issued the 'Order to provide information on methods of work to minimise the impact of COVID-19 and related measures on the conduct of proceedings', ICC-01/12-01/18, 29 April 2020, available online at https://www.icc-cpi.int/CourtRecords/CR2020_01727.PDF (visited 23 July 2020). 28 The Trial Chamber invited the Registry, the Parties and the Participants of the case to discuss possible scenarios for organizing the court proceedings in a manner that is most effective and taking into consideration the rights of the accused, as well as the safety of those involved. 29 Registry's Observations on Methods of Work to Minimise the Impact of COVID-19 and Related

Measures on the Conduct of Proceedings, ICC-01/12-01/18, 20 May 2020, § 12, available online at https://www.icc-cpi.int/CourtRecords/CR2020_02021.PDF (visited 23 July 2020).

Multidimensional Integrated Stabilization Mission in the Central African Republic and the Host State. 30 On 15 June 2020, his first appearance from the ICC Detention Centre took place via video-link before Pre-Trial Chamber II's Single Judge in presence of the Office of the Prosecutor (OTP) and the Defence. The Single Judge set out 7 December 2020 as the provisional date of Mr Abd-Al-Rahman's Confirmation of Charges hearing. From 22 to 24 June 2020, the Appeals Chamber of the ICC held a partially virtual hearing in the case of The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé (Gbagbo and Blé Goudé) in order to receive observations from parties and participants on the Prosecutor's appeal against the acquittal decision in this case. 31 The hearing took place before the judges and their legal staff, with the participation of the OTP, acquitted persons and their counsel, the Office of Public Counsel for Victims and the Registry. 32 Having to make adjustments as a result of the pandemic, the parties were free to participate either from the Headquarters -in the courtroom, meeting rooms or offices, distanced from each other as necessary, and subject to OHU medical clearance -or from external locations. 33 On 14 July 2020, the Al Hassan trial commenced before Trial Chamber X, as pre-scheduled. 34 The hearing continued the following day, with the end of the OTP's opening statements. 35 Due to the COVID-19 pandemic, the public gallery was open to a limited number of media representatives, the diplomatic community and the public. 36

17 July 2020 marked the twenty-second anniversary of the adoption of the ICC Statute. To celebrate its Day of International Criminal Justice amidst the COVID-19 pandemic, the ICC decided to focus on the theme of resilience in crisis and conflict, 37 since not only do atrocity crimes continue to unfold across the globe, but also some may instrumentalize global health crises such as the COVID-19 pandemic in order to restrict human rights. From that perspective, it is easy to conceive how the risks of such violations increase. In these circumstances, global institutions such as the ICC must remain in a position to fulfil their mandate. It is not surprising that resilience has also been an essential theme during the virtual offices for the ICC staff both in the Headquarters and the Country Offices. The Principals, as advised by the CMT, have continuously encouraged resilience through their staff well-being incentives and messages.

The COVID-19 pandemic brought about a global health challenge not experienced for a century, in terms of spread and depth, leading to an anticipated fall of 4.9% of global growth in 2020. 38 With regard to the ICC, the institution has organized itself rapidly in order to ensure that it can continue to fulfil its core mandate, i.e. investigations, prosecutions and trials of atrocity crimes with least perturbation. Accordingly, the ICC had to optimize the work of its bureaucracy in a period of lockdown and transition to virtual offices so as to ensure that the judicial process could go forward. The holding of court hearings at all three levels: pre-trial, trial and appeals marked the highlight of the ICC's resilience in the face of the COVID-19 adversities. These activities took place under the statutory requirement that the hearings be fair and expeditious. Against this background, the ICC did and will continue to do, its utmost to address the related challenges linked, inter alia, to witness testimony, victims participation-reparations and the presence of the accused in the court proceedings. These pertain not only to the question of physical and remote attendance, but also, in the former's case, to sanitary matters insofar as transportation to and presence in the courtroom are required. Evidently, in light of the pandemic's recurring waves across the globe, the approach has been based on the optimization of available tools. In the case of the ICC, the challenge concerns the execution of its mandate during successive waves of total and partial lockdown, whether in Country Offices (impact on gathering evidence) or the Host State (impact on bringing evidence).

While there is still a long road ahead to return to the pre-pandemic situation, none of the aforementioned achievements could have been possible without the commitment and resilience of elected officials and staff at the ICC. Mindful of these exceptional circumstances, the Court has presented the leanest possible, carefully reflected budget decrease for 2021 of 0.5% as against the approved budget for 2020. 39 

Virtual offices refer to 'working from home (working remotely) at the duty station

Administrative Guidelines for Offices on the Novel Coronavirus (COVID-19) Pandemic', CEB Human Resources Network, version 3.0

Report of the Committee on Budget and Finance on the Work of Its Thirty-fourth Session

Proposed Programme Budget for 2021 of the International Criminal Court, ICC-ASP/19/10/AV

Situation in Darfur (Sudan): Ali Kushayb Is in ICC Custody

See also Transcript

Appeals Hearing in the Gbagbo and Blé Goudé Case: Practical Information

Public redacted version of 'Defence Rule 134(1) Observations

Public redacted version of 'Prosecution Response to Defence Rule 134(1) Motion

Al Hassan Trial Opens at the International Criminal Court

Crisis Like No Other, an Uncertain Recovery

Proposed Programme Budget for 2021, supra note 8