Asian-African Legal Consultative Organization - Forty-Seventh Session
Inaugural Address by Judge Fumiko Saiga:
THE ICC TODAY: ACTIVITIES AND CHALLENGES
18 March, 2009
Introduction
Thank you, Dr. Bin Mohamad, for the kind introduction, and for inviting me to give this presentation. It is a very interesting time to be speaking about the International Criminal Court. Last year (2008) marked the tenth anniversary of the adoption of the Rome Statute, and it is clear that the Court has come a long way since its inception. Although much of the Court's work over the past six years has gone unnoticed by the outside world - either because it was internal to the court or because it was of a confidential nature - today, and especially the past few months, we see much more public judicial activity. There was the start of the first ever trial in the case against Mr, Thomas Lubanga Dyilo, the confirmation hearing in the case against Mr. Jean-Pierre Bemba Gombo and the issuance of the arrest warrant against Mr. Omar Hassan Ahmad Al Bashir.
Of course, the Court is doing much more than what you read about in the press. And what I would like to do in the next half hour is to tell you a bit about how we have reached the point where we stand today, and, more broadly, what the ICC has to offer as a permanent international criminal court.
I look forward to your questions and comments following this address. But before I start, I would like to emphasize that all of the views and opinions I am about to express during this address are my own, and do not express the position of the Court. I also would like to ask for your understanding that I am not in a position to comment on any specific questions related to any of the pending proceedings.
I. Background on the Court
To set the present context, I would like to provide you with some brief background remarks on the legal framework of the Court. If we ask ourselves why the ICC was created, we need only to look to history. The need for the rule of law is often most dire in those situations in which national courts are unable or unwilling to exercise their function. This absence of any judicial redress is felt most strongly when there is no court that can take on cases involving core international crimes, such as war crimes or crimes against humanity. It was probably this consideration, more than anything else, which led to the wide adoption of the Rome Statute, the Court's founding legal document, in 1998. It also explains why the Rome Statute entered into force in near record time, less than four years after its adoption in Rome. States realised that there was a void that needed to be filled and that a permanent international criminal court was not a luxury but a necessity, if the 21st century was to be any different from the preceding one.
The fact that the ICC was created to fill in the gaps left by national jurisdictions also explains the most fundamental aspect of the Court's jurisdiction, namely the principle of complementarity. Unlike some of the other international criminal tribunals, the ICC does not assert primacy over national legal systems. It was considered that there only is a need for an international court to step in if domestic justice is not forthcoming. This is why the ICC has often been described as a court of last resort. Only when domestic courts are, for a multitude of possible reasons, unable or unwilling to prosecute crimes themselves, the ICC will be allowed to step in.
And to demonstrate to you that this is not a hollow principle, I can tell you that my own Chamber is currently considering a request by one of the accused exactly on this point. I can, for obvious reasons, not say much about this request, as it is still sub judice, but I thought I should mention it to you so that you may follow the matter if you are interested. Moreover, I think it is a prime example of one of the ICC's main characteristics - all issues, no matter how difficult or politically sensitive, are subject to clear legal principles and we judges, who are bound to uphold the law - and only the law - are responsible to make sure that the ICC sticks to its legal mandate and does not mutate into something the States Parties had never intended it to be.
This, however, does not mean that the ICC's role within the international legal system is not an important one. Indeed, I believe that the States Parties want the Court to play its part on the international stage. In situations of ongoing conflict and strife, an independent external judicial institution can be a way - sometimes the only way - to ensure that the deterrent aspect of justice and the rule of law is preserved. It would perhaps be presumptuous to think that the existence of the ICC in itself will be enough to prevent conflict or at least the barbarities that so often come with it, but I think it is fair to say that the fact that the ICC exists and that it is permanent, will be a civilising factor for those who, until now, thought they were beyond the reach of the law. Because, unlike its predecessors, the ICC is a permanent court. This means that those who are called to stand trial for alleged war crimes will not be able to just go into hiding and hope that the court will at some point cease to exist, as we are seeing in the former Yugoslavia. The fact that the ICC is here to stay means that suspects will not have peace of mind for the rest of their lives - unless they come to respond to the charges against them in open court.
The ICC's existence also sends a signal of hope to the victims of the most horrible crimes that they are not forgotten by the law. I do not like to speak in grand terms, but the promise of justice, no matter how hard or impossible it may seem to deliver sometimes, is the ultimate raison d'etre of the ICC.
II. The Court's proceedings
Of course, this desire to do justice must also extend to our judicial proceedings. The ICC was created with certain core values in mind - values which are common not only to the State Parties of the Rome Statue, but to all those who are concerned with upholding human rights and the laws of humanity. In fact, Article 21 paragraph 3 of the Statute explicitly requires that the Court must act consistently with internationally recognised human rights standards in all of its activities. This translates into a very high standard of fairness and due process in our proceedings and it is the job of the judges to ensure utmost respect for the rights of the accused and the dignity of victims. This is not just our legal obligation; it is also the only way in which the ICC can maintain its credibility as an independent judicial body.
In this regard, it is important to take note of the role of the judges under the Rome Statute. Unlike judges from other international tribunals, the ICC judges have a distinctly managerial task. We are responsible for overseeing proceedings, ensuring that these are as expedient as possible and guaranteeing the rights of the Defence. Both the Rome Statute and the Rules of Procedure and Evidence provide for extensive judicial powers, such as ordering the parties to produce more evidence or ordering for the protection of confidential information, which allow the judges to play an important role in the proceedings. Although the Office of the Prosecutor is independent and works completely autonomously, the judges are in charge of the way in which the hearings are to be conducted. In other words, although the Prosecutor remains the engine of the criminal process, the Chambers must steer it in the right direction.
Importantly, judges also act as a 'check' on the Office of the Prosecutor, ensuring that only those cases that are soundly entrenched in law and supported by sufficient evidence, are brought before the ICC. In fact, when you analyse the Statute carefully, you will see that there are judicial checks on the Prosecutor at every important step along the way, from the start of the investigation until the conclusion of the trial.
One important such checks is, of course, the Pre-Trial Chamber's power to issue warrants of arrest. This is a very important guarantee against so-called politically motivated prosecutions. The recent decision of Pre-Trial Chamber I to issue an arrest warrant for Sudanese President Omar al-Bashir, but to reject some of the charges, is a case in point. I am obviously not going to comment upon this decision, but I would just like to invoke it as an example of a decision being made exclusively on the basis of the law and strict legal analysis of the evidence.
To give another recent example, the Office of the Prosecutor has received applications both from the Palestinian Authority and many NGOs, to investigate whether crimes had been committed under the Statute during the recent Israeli incursion into Gaza. The Minister of Justice of the Palestinian National Authority came to the Court and lodged a declaration pursuant Article 12, paragraph 3, accepting the jurisdiction of the ICC. Before the Prosecutor can proceed to seize the Court of any related matter, he must act according to statutory requirements, and issues of jurisdiction must be independently assessed by a Chamber before any investigation may begin.
I just give you this as an example to demonstrate that, while the cases the ICC could potentially be dealing with certainly have the potential for being controversial and unpopular in certain corners, the procedures which the Prosecutor must follow before he is able to bring such cases, leave little or no room for anything other than strictly legal considerations.
However, the Court's focus on applying the law also entails limitations, which are not always appreciated by outside observers.
III. The Court's limited jurisdiction
A first important limitation is the ICC's scope of jurisdiction. As most of you here will probably be aware of this, I will not dwell on this point, but just for the sake of clarity, I would like to stress that the Court's jurisdiction is limited in three ways. First, the ICC only has jurisdiction over three categories of crimes: genocide; crimes against humanity and war crimes. These crimes have been defined in great detail by the States Parties and the Court cannot hear cases that do not fall within these definitions, no matter how deserving. Second, the ICC can only look at events occurring after the 1st of July 2002, when the Rome State entered into force, meaning there can be no trials for events that occurred before that date. Third, and perhaps most importantly, the ICC's jurisdiction is limited geographically. The Court can only examine cases occurring on the territory of a State Party or involving the nationals thereof, unless the Court receives a mandate from the UN Security Council. You are all well aware of the political nature of this body and the implications this has. In other words, although the ICC clearly is international, it is not yet a truly universal court. This means that we cannot hear all cases which fall within our substantial jurisdiction (genocide, war crimes or crimes against humanity), simply because they occurred outside the geographical scope of our jurisdiction.
The cases with which the ICC is currently seized are grouped within four different situations, namely, the situation in Uganda, the situation in the Democratic Republic of the Congo, the situation in Darfur, and lastly, the situation in the Central African Republic. Apart from Darfur, all situations were referred to the Court by the respective incumbent Heads of State. Once a situation is referred as such by a State Party, it is the task of the Prosecution to initiate an investigation against individuals which it deems may be guilty under the Statute.
Recently, there has been abundant press coverage of the activities of the Court, but there remain many misconceptions, often based in misunderstandings about the legal framework of the ICC. A common feature of many reports is the Court's perceived focus on African countries. I will not comment on some of the more acidic accusations that the ICC is a neo-colonial institution, because in my view such remarks are due to a misapprehension of the mechanism by which the Court takes on cases. Although the Prosecutor can, under the Statute, ask permission from the judges to start an investigation on his own initiative, until today all situations were referred to the Court, either by the interested States Parties themselves, or, as was the case with Darfur, by the UN Security Council acting under Chapter VII of the UN Charter. It is thus certainly not correct to think that the Court is only interested in cases from the African continent.
The fact that the situations currently occupying the Court's docket do all involve occurrences in Africa is not a complete reflection of its work. The Office of the Prosecutor has carried out analysis activities on three continents and is currently examining events in Colombia, Georgia and Afghanistan, among others.
This leads me to the second limitation the ICC is facing: the difficult circumstances in which the court operates.
IV. The conditions under which the ICC must exercise its mandate
When you visit the seat of the Court in The Hague and attend a hearing in courtroom I, it is easy to forget that the cases we are dealing with originate from some of the world's most dangerous conflict zones. This has immediate and very important consequences for the way in which our investigators can do their job. But it also has an enormous impact on the way in which we conduct our trials, because most witnesses and victims still live in those dangerous areas. Indeed, because most cases take place whilst in the state from which they emanate there is still ongoing conflict, revealing the identity of witnesses may lead to very real situations of endangerment.
Yet, at the same time, the judges must ensure that the rights of the Defence and the equality of arms principle are fully maintained. The accused have a fundamental right to know who makes accusations against them and the principle that our trial proceedings are public is a fundamental one. There is thus a very obvious tension between the rights of the accused and the safety and security of the victims and witnesses who take part in our proceedings.
The judges are responsible for maintaining the right balance between these competing interests. This sometimes requires delicate balancing acts, whereby we have to engage in complex evaluations of risk and the relative importance of certain information for the Defence. For example, it may be necessary to withhold certain information from the accused in order to protect family members of a certain witness.
On a different level, it is sometimes very difficult for persons, who have gone through the worst ordeals and have been displaced from their homes and have lost almost everything; to come to The Hague and testify. For most of these individuals, it will be the first time they have left their country and you can imagine the shock they experience when they have to appear in a high-tech courtroom and confront the ones that are allegedly responsible for their suffering.
The need to provide protection and to avoid retraumatisation is obvious, but it is not always possible to find perfect solutions - mainly because the defendants also have rights which need to be protected. This is a challenge that will probably stay with us forever, and it is incumbent on the Court to find ways and means to deal with the protection and wellbeing of our witnesses and the victims who wish to participate in our proceedings whilst at the same time ensuring that our trials are absolutely fair to the accused.
Although the ICC certainly bears the main responsibility in this respect, it should not be forgotten that the States Parties also have an important role to play. Without the support of states, the Court is not able to provide protection for our witnesses, who must sometimes be relocated for their security. It is therefore crucial that states are willing to accept a number of witnesses into their territory.
In fact, without the support of our States Parties, the ICC could not function at all.
V. The ICC and the States
The Court does not have its own enforcement organ and therefore it does not have the possibility to arrest persons on its own. The Court also needs the support of states to collect information and to provide protection for the victims and witnesses who are involved with the ICC.
However, sometimes local authorities are as powerless as the Court is - sometimes local authorities will even actively oppose the ICC and try to prevent us from doing our legal duty. This has led some to speak about the "complementarity paradox". In a few words, this phrase highlights that there is some kind of contradiction between the ICC's function as a court of last resort (cases are only admissible when local authorities are unable and unwilling to prosecute) and the Court's almost total dependence on the cooperation of States to carry out its mandate. And there should be no misunderstanding about this: without the cooperation of states, the ICC is very limited in what it can achieve. So, if the ICC has to operate in a region where there is little or no support from the host State, it is absolutely crucial that other States provide cooperation.
And if it can be said that we have already achieved anything, this is to a large extent due to the support we have received from some states. The fact that we have, at the time of speaking, four persons in detention at the Schevenigen detention centre, is thanks to the cooperation of our States Parties. The most recently executed arrest warrant was in the situation of the Central African Republic; Mr. Jean-Pierre Bemba Gombo was taken into custody on Belgian territory by Belgian authorities in May of this year. But there are eight outstanding warrants of arrest; four in the situation in Uganda, one in the situation in the DRC, and three in the situation in the Sudan. It is important that these arrest warrants are carried out and we rely entirely on the cooperation of States Parties to honour their obligations under the Statute in cases where a suspect for whom an arrest warrant has been issued travels within their territory.
Today, there are 108 State Parties to the Rome Statute. That is a good number, considering the short existence of the Court, but it's obviously not enough for a court with universal aspirations. We need more States to join and - very importantly - to take ownership of our institution by providing assistance and support.
There is also a natural connection with the United Nations, with which the Court has a Relationship Agreement. We continue to receive operational and other support from UN field missions and through our Liaison Office in New York. This special relationship will hopefully foster confidence in the Court's work and improve cooperation with other actors. But this is a process that will take a while. The ICC is still very new and the other players must get used to us and develop a better understanding of what we do and how we do it. This sometimes requires some time and a lot of patience, but with some goodwill solutions are always possible.
For example, on January 26th of this year, Trial Chamber I opened the first trial, the case against Mr. Thomas Lubanga Dyilo, a national of the DRC charged with enlisting and conscripting children under the age of 15 to participate actively in hostilities. As you may be aware, this trial almost never took place. The reason for this was that there were serious problems with the disclosure of potentially exculpatory evidence. This was because the Office of the Prosecutor scrupulously honoured his obligations under article 54(3)(e) to keep confidential information that was given to him on the basis of confidentiality agreements he had concluded with information-providers. There was an impasse: the Prosecutor had information which could be important for the defence, but he was not allowed to share it with them because he had obtained it on strict condition of confidentiality.
However, the main problem was that the confidentiality agreements were so restrictive that not even the Chamber was allowed to see the documents to determine whether the information they contained was really important for the accused. Trial Chamber I considered that this violated the rights of the accused and on 13 June 2008, it stayed the proceedings. In the end, the issue was resolved through negotiation between the Prosecutor's office and the information providers, who allowed the Chamber to see the materials.
What is important to note here is that Appeals Chamber agreed with the underlying principle that confidentiality agreements between the Office of the Prosecutor and information providers are binding on the Court as a whole, including the Chambers. The judges therefore have to find alternative solutions, which may include providing the information in a different form or with certain redactions. It is interesting and encouraging to note here that what seemed an intractable problem at the time now appears more like just a hiccup; part of the normal growing pains of the Court. Now that the ground rules are clear to everyone, problems such as experienced with by Trial Chamber I will probably be largely avoided in the future. And, most importantly from a legal perspective, the solution did not require the changing of or the deviation from the texts of the Statute or the Rules.
Conclusion
What can we conclude from all this? First and foremost, there is still a lot of work to be done before the ICC will become a fully mature judicial institution. I remind you, for those who do not follow the Court closely, that the first trial only started in January and that until today no case has completed the entire procedural cycle yet. This means that an important number of legal and procedural questions still remain to be addressed, which does explain why the first cases take a little longer. However, there is no reason to fear that this is not an issue that will resolve itself over time. We are learning from our first experiences and the appropriate lessons will be incorporated in our future cases.
A second conclusion, which can safely be drawn from the past years, is the great importance of international cooperation to the work of the Court. In many of the pending cases, continued and increased cooperation is absolutely necessary. Without an arrest there can be no trial.
Third, in order to secure the legitimacy and efficacy of the ICC, proper communication channels must be developed which do away with some of the mystery that currently surrounds the operations of the Court and its jurisdiction. There is hope that this will be made possible through a shift in the attitude of those countries which are still reticent towards the Court and its activities. But a lot of work still needs to be done. This is why it is so important for the Court to be able to communicate with the world. And this is why it is so important that you have given me the opportunity to address you here today. I thank the organisers for this opportunity and I thank you all for your attention.
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