By Sophie van Leeuwen
Six new ICC judges will be elected in December. But how qualified are these people? William Pace, Convenor of the Coalition for the International Criminal Court is leading a campaign to ensure they are highly qualified for the job. The ICC state members will gather in December during the Assembly of State Parties (ASP) for the elections.
Q: What are the criteria to select judges?
The ICC needs six people with extensive courtroom experience, great experience in international law, international humanitarian law and hopefully broader experience in international justice.
Today, many people have been trained at, for example, the Yugoslav tribunal and the Rwandan tribunal. We hope governments will look for people who have real experience at those levels.
Q: You hope? So… you might not get the best judges?
Unfortunately, governments don’t always nominate the best people. This also happens on the national level, often for political reasons. So yes, we might not get the best candidates. We are campaigning to ensure that the highest qualified candidates are nominated and elected to the ICC bench to ensure its fairness, efficiency and independence.
Q: Bad news for international justice?
We know there has to be a tremendous improvement in how international trials and the investigations are run. I hope the international community will work together in order to achieve this. At the urging of civil society, the first judicial elections were held last year, with states undertaking their own qualified assessment of the judicial candidates. This will happen again for the December elections.
Big powers know best how to get their candidates elected, even if they might not be the best person for the job. Some people also see the ICC as a nice step in their career. But no one wants a surgeon without experience in surgery. We need the same value applied to the ICC. We must have best practice justice in the future.
Q: Will here be an Ivorian or Kenyan judge?
Out of 17 nominations, there are candidates from Benin, Ghana, DRC, Madagascar, Tunisia, France, Lithuania, Brazil, Korea, Croatia, Estonia, Poland, Hungary, Timor-Leste, Germany, Sweden and Georgia.
Q: Does the CICC train ICC judges?
CICC does not provide any training. Our main focus is to increase the quality of the nomination and election procedures.
Most of the new judges are not completely ready to go. Many think they are. But it’s a difficult job. The ICC works with multiple legal systems, with different kinds of forensic investigations. People in the courtroom are speaking a local language from a country you have very little experience with. It’s much more complex than other courts. It’s very challenging. These complexities of international justice and the ICC alone warrant serious orientation and training.
Q: Is it possible to judge without knowing the political context?
Judges have to be completely independent, so I think the answer is yes. Of course, the ICTY often devoted considerable court time to providing the historical, political, demographic and geographic context. The international tribunals have demonstrated different degrees of success and failure, but they do hold people accountable for serious crimes. They also persuade national institutions to improve their law institutions.
Q: Ex-prosecutor Ocampo has been criticized for the OTP investigation and strategy in Kenya. Does that prove the importance of context?
The difficulties the ICC experienced in Kenya are both similar and different to other situations. In Kenya, the ICC appeared to investigate crimes allegedly committed by different ethnic and political leaders of those groups who committed post-election violence. In some of the first ICC situations, it was obvious the first prosecutor decided that to investigate crimes in a country, he needed the cooperation of government institutions. Therefore, he would not first concentrate on crimes that were possibly committed by government actors, but instead others who committed crimes. Another consideration is that if you can’t access a territory, how do you conduct a thorough investigation?
CICC members strenuously disagreed with the so-called sequential prosecution approach, and we think events have confirmed our view. Since 2012, ICC Prosecutor Bensouda has committed to avoid investigations of only one side. But if in five or ten years, we see only one side of the perpetrators of the crimes investigated, we’ll have a serious existential challenge to the system.
Q: Justice on one side, how can you end it?
Unfortunately, in many national systems, people in power think they are exempt from prosecution and investigations. It happens with big powers and small nations. It happened in Rwanda. Since the 1994, genocide only one side has been investigated. The Rwandan president fiercely opposed any change in this policy. This has been a serious problem in most of the special and ad hoc tribunals, and the ICC must change this perception.
But there are sophisticated and effective ways to change this. If many of the 122 of the member states of the ICC treaty adopt laws and institutions to investigate the ICC crimes, no matter where they occur and no matter who commits the crimes, then the international legal order will transform radically. Already, 15-20 states in Europe, Africa, South and North America, Eastern Europe and Asia have begun these processes – assisting in international arrests, putting individuals in their countries on trial for international crimes committed on other territories. Ex-leaders are tried in other countries, like the former Chadian dictator Habré in Senegal. That’s an important and progressive step. Leaders responsible for ICC crimes all over the world have to check is they can travel to a foreign country. I hope we’ll see many other democracies taking on trials themselves.
Q: Many people feel the ICC judges aren’t impartial. How can we trust the ICC?
While biased or controlled judges are sometimes found in national systems, you don’t see a lot of politically motivated judges at the international level. Every judge at the ICC must act impartially based on the Rome Statute and fair trial standards. The judicial panels are composed of three judges from different regions and legal systems. Some people have alleged that in different international trials, some judges have been not met the highest standards. But, this is more often due to incompetence than a lack of impartiality.
Impartiality of the judges can also be seen in their thorough questioning of evidence presented by the prosecution and defense. Judges and prosecutors also often disagree with each other on legal interpretations, express dissenting opinions on majority decisions, which shows that there is a robust and impartial examination of the case before them.
Q: Why do judges keep postponing some of the cases, even after confirmation of charges?
There are a number of reasons. One reason may be that due to the different juridical systems the judges come from, different judges will have different ideas and standards regarding the investigation and the prosecution requirements at different phases of the trial. There is a mixed interest. If the evidence is not convincing, a judge might say: Go and find more evidence. That is a reason why trials can take so long. Operating in different languages and crimes from many different situations at the same time, and long delays in arrests, and lack of cooperation by governments and international organizations, protection of witnesses, relocation of witnesses – the list of reasons for delays is very long.
But to say it’s all the ICC’s fault, is not accurate. National leaders sometimes interfere, witnesses change or withdraw their testimonies. There are also very many logistical difficulties that the Court encounters, with translators for example. On a national level that happens also. One cannot expect the Court not to have any problems.
Q: What is the influence of the Security Council on the ICC? And on the judges?
ICC judges, as well as the prosecutor, are independent from interference by the Security Council. The UNSC does have extraordinary powers to refer situations to the ICC prosecutor for investigation. The Security Council and especially its veto or permanent members (US, Russia, China, France, UK) have been extremely selective and hypocritical when it comes to referring situations. If Council members are protecting someone, they will never pass a resolution. By doing this, they often protect themselves. But, this selectivity is under serious challenge at the UN.
Q: How is the ICC going to ensure that Justice is achieved to those who were affected in Kenya?
The ICC alone cannot fully redress the harm caused by the murders, torture, displacement, economic damage in Kenya. The ICC is doing its utmost to address impunity and charge those believed to be most responsible for the commission of crimes against humanity. Most of the defendants currently before the Court have resources greater than the ICC. These resources, if an accused is found guilty, could be used as reparations for victims of the PEV. However, as an ICC member state that has enacted the Rome Statue into its national law, it is the responsibility of the Kenyan government first and foremost to investigate and prosecute those responsible for the PEV and provide reparations to the victims. The Kenya government has not so far.
An Advisory Committee will assess the 17 candidate judges in September, after which a report will be released by the Assembly of States Parties in October 2014.