International Criminal Courts: Progress Made, Progress Needed
By Samuel Linehan
The International Criminal Court
On 29 October 2014, Chatham House and Doughty Street Chambers hosted the Sir Richard May Memorial Lecture. The speakers were Lord Justice Adrian Fulford and Judge Howard Morrison. The chair was Elizabeth Wilmshurst. The speakers discussed the major steps made in the trial of international crimes and addressed the challenges that still remain.
Sir Richard May was the first British judge at the ICTY, and as such the first British judge on an international criminal tribunal since the IMTs. He presided in Milošević and made a significant contribution to international criminal procedure as a member of the Rules Committee. His Memorial Trust aims to raise awareness of international humanitarian law by supporting interns from developing countries. So far it has sent more than 40 interns to the international criminal tribunals.
Lord Justice Fulford
Speaking on the theme of the evening, Judge Fulford was wary of the 'miasma of legacy' that surrounds such discussions. He spoke frankly on the fate of his 'brainchildren,' the Office of Public Counsel for Victims ('OPCV') and the Office of Public Counsel for Defence ('OPCD'). In this connection he noted that castles built in the air tend to go up in smoke. His intention had been that these offices would provide professional and independent specialist in-house counsel and that self-employed counsel would be the backup option. The representation of victims and the accused is central to the ICC, which is at a crossroads. The outcome of the ReVision project to restructure the Registry (which includes these offices) is critical.
Judge Fulford saw victim participation as the most aspirational provision of the Rome Statute, and the most distinctive feature of the ICC. The Court is also most vulnerable to criticism in this respect. There is a concern that this valuable idea will be replaced by mere tokenism. In Lubanga the relatively low number of victims made the task easier. However the system now struggles to cope under the heavy burden of applications. The Kenya model gives rise to concerns, as the victims are effectively self-selecting, subject to the Common Legal Representatives' assessment. There is therefore a risk that 'victim' will turn into an amorphous category. Collective representation would be better premised on identified victim groups.
In relation to ReVision, there is certainly a case for structural change to reduce duplication of work and confusion among victims. However in its current form, the proposal is for OPCV to decide on representation. This will compromise the key element of choice of counsel, and in turn the lawyer-client relationship. This has unfortunately been foreshadowed by the Kenya model. In all, the original vision of victims as a third arm of the Court is obscured, and a central element of the Court may be undermined. If change is necessary, it should not be predicated only on streamlining of process and budget.
In relation to the defence, Sir Fulford was concerned that structural change will undermine equality of arms with the prosecution. What is really needed is something along the lines of the Office of the Prosecutor, with budgetary and functional independence. ReVision proposes a new defence office under the aegis of the Registry, which will effectively provide support services to external counsel. Alongside will be established a self-governing external association of defence counsel, along the lines of the ADC-ICTY. There is here a risk that funding will be reduced to the defence office, which must provide real support, for example in relation to the ICC's 'somewhat hostile e-Court environment.' The external association must be carefully governed in order to avoid protectionism or exclusivity.
There is therefore a concern that the Court will become institutionally lopsided. The OPCV and OPCD were creatures of a 2003 imagination, when anything was possible. They may be destined for an early demise after a turbulent life. Judge Fulford warned that once struck down they cannot be resuscitated or replaced.
Judge Morrison
Judge Morrison opened by noting the invaluable contribution of interns to the international criminal justice project, and the importance of organisations such as the Sir Richard May Trust. In a wide-ranging speech he responded to current and future concerns and criticisms.
The ICC has been criticised in some quarters as less active than the ad hoc tribunals. This is a false comparison, as the jurisdictions and political environments are very different. The ICC should be considered not as a supranational court but more as a series of ad hoc tribunals for each situation.
Judge Morrison suggested that the proposition in some quarters of a zero-growth budget was ill-conceived, as new situations continue to arise. Arguing that 'you get what you don't pay for,' he noted that the ICC's annual budget would only buy half an F35 fighter jet. The Court can be more efficient; but money is needed.
On the future of this field of law, Judge Morrison said that it is nonsense to suggest that international criminal and humanitarian law have peaked or plateaued. An expanding global population can only result in more conflicts over resources; the legal solution is preferable to the military.
On state cooperation, its central importance has become very obvious in the last few months, as has the effect of its absence. States knew what they were signing up for, and should behave with mature responsibility.
Judge Morrison finds the allegation of anti-African bias at the ICC personally disturbing. It is a fact that five of the cases were self-referrals, and two were Security Council referrals. If the ICC had not acted on these (self-)referrals it would probably be subject to the same criticism.
The structure of the Pre-Trial Chamber is ripe for reform. The current procedure of a mini-trial is long-winded and expensive. It was the result of a compromise at the Rome Conference. Judge Morrison believes that a far better approach would be for a single judge to determine whether there is a case to answer.
Looking to the future, the big question is the membership of the USA, Russia, India and China. All are unlikely, but the greatly increased cooperation of the USA is cause for optimism. In general the ICC is a body with a very broad portfolio. It needs informed support and criticism, rather than the current partisan and emotional debate. The ICC is not a human rights body; nor a PhD factory; nor an employment agency. It is a serious criminal court that must be allowed to work. 'Law or war' may be a trite motto, but it is often true.
Questions
Responding to questions, the speakers noted that one-sided referrals can be problematic. The ICC does not want only to prosecute the losers in civil wars. Balance depends on both cooperation and prosecutorial policy.
Both were quietly optimistic on the effect of the rise of the BRICS countries (Brazil, Russia, India, China and South Africa). The general mood is far less hostile to the ICC than it used to be, and the two Security Council referrals are evidence of international confidence in the institution.
On complementarity, it is primarily up to the Prosecutor to ensure that member states are genuine in their efforts to prosecute Rome Statute crimes, and do not merely use it as a smokescreen for inactivity. The ICC does need to be more proactive, but the political reality of its relationship with states is a significant brake on movement.
Both argued that the Security Council should accept the consequences, budgetary and otherwise, of referrals. Referral in itself is not a solution; there is a risk that it may be used to put matters on the back burner.
The ICC could provide lessons for domestic practice. Judge Fulford suggested that the Court has helped to inspire a new approach to victims and witnesses in England and Wales. He was less keen on the idea of televising court proceedings, as it could become a distraction. Judge Morrison disagreed on this point, as he had found that court users soon became used to the presence of cameras. Both speakers had found that video links were invaluable for saving time and money, and most importantly for reducing the stress involved in giving evidence
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