From the Experts’ consultation process, this lack of collegiality is said to have manifested itself in a variety of ways: poisonous relations, both judicial and personal, following the elections of the Presidency; public expressions of the lack of respect by a Judge towards other Judges; limited Chamber deliberations; excessive adherence and devotion to a Judge’s own legal system; very late circulation of draft written decisions; infrequent intra-Chamber and Intra-Division communications; existence of cliques, factions or open friction among Judges; lashing of disparaging comments on colleagues on the issuance of decisions; deliberate snubbing of associates; persistent failure to reach unanimity; and non-communication.
Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report, 30 September 2020, para. 463.
In 2005, the ICC Judges adopted what may have been considered back then a groundbreaking Code of Judicial Ethics. Groundbreaking not for its contents, but rather for drafting and adopting a code that was to be “advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted” (Art. 11.1). Perhaps because the code was merely seen as advisory, its significance, or better yet, its obligatory nature was unacknowledged – at least by some of the judges.Codes of judicial ethics regulate the judiciary by providing guidance on the judges’ duties, responsibilities, and conduct towards other judges, the parties, witnesses, staff, and the judicial institutions – courts and tribunals. When providing clear and definitive rules governing the judges’ behavior, codes of judicial ethics effectively legislate, whereas when merely providing vague guidance with nebulous and undefined terms, they tend to be susceptible to mailable interpretations, equivocation, inconclusiveness, and ill-compliance. Of course, devising detailed rules for every ethical eventuality a judge is likely to encounter is unrealistic. Judicial canons should be pithy, expressing general principles. Preferably, they should also be accompanied by detailed prescriptive and proscriptive provisions that flush out the canons, and a commentary informing the object and purpose of the canons.
The ICC Code of Judicial Ethics provides no commentary but does merge canonical principles with more fleshed out provisions. Overall, it is a useful Code – at least to career judges and experienced litigators (prosecutors and lawyers) who arrive at the ICC to don the judicial two-toned blue robe. Even for those with prior national experience (who far too often are prisoners of their own legal system), a code that is scant in guidance, inexact in the meaning of terms, and lacking explanatory comments, will be appreciated and applied through their provincially narrow perspective. And it is not just the Code that is interpreted in this fashion – it cuts across all aspects of judges’ interpretation and application of statutory provisions, rules, and regulations. Not to mention their interactions with their colleagues and others. That’s where collegiality comes in.
Missing in the 2005 Code were any references to collegiality. Could this explain why some of the ICC Judges were unaware that they were members of a collegial court, accounting for the rather scandalous finding by the Experts as seen in the opening quote to this post from the Final Report? Perhaps, but doubtful. It is hard to fathom that professional judges assigned to a panel need to be advised that intrinsic to their judicial function is that they communicate openly, forthrightly, and responsibly with their fellow judges in their collective tasks – whether in assessing evidence or applying the law.
But then again, some judges, misguidedly, may have assumed that since collegiality is nowhere expressly found in the Code, presuming its existence for purposes of imposing an obligation could constitute an infringement of the expressed principle of judicial independence, references to which are found in the Preamble and Articles 3, 9, 10, and 11. Besides, what does collegiality mean? Being polite and unoffensive? Being engaged with fellow judges when working together? Being open to exchanging views and even reversing held positions when intellectually persuaded?
It all depends, but basically it should not require a definition that spells out the functions and behavior of judges when working with their colleagues. That could also lead to frustratingly discordant situations Or, where offering a definition may in fact lead to confusion and continuing inertia towards collegiality. Take for instance the term deliberation. Other than expressing the general principle that judges must deliberate in reaching decision, deliberation, like consultation, can occur in a variety of forms. Yet, even when the process is not truly deliberative, it is as hard to argue against a charade masquerading as deliberation, as it is hard to prove its non-occurrence. Here is where the quality of judges comes in.
In a prior post, I discussed the Experts’ Final Report, noting, in particular, their findings concerning some troubling aspects of judicial behavior that should not be countenanced in any national or international court. Amending the Code is no silver bullet, but a welcomed modest step well overdue.
Some pesky issues are systematic and deeply engrained, requiring sustained efforts and vigilance to reconcile. Other issues are personality driven. Judges come from different legal traditions with different legal procedures and legal customs, and with disparate professional experiences (or total lack of any relevant experience). There are also cultural differences, which, unavoidably, could lead to misapprehensions and mistrust. Resolving such issues will require, at a minimum, sustained efforts in devising best practices modalities designed to regulate behavior as opposed to altering attitudes. Be that as it may, the Judges should be commended for taking on board the findings and recommendations of the Experts in not just amending the Code, but in also adopting Guidelines on the Procedure for the Election of the Presidency, discussed below.
Here are the amendments to the 27 January 2021 revised version of the Code of Judicial Ethics of the International Criminal Court, along with my commentary:
Article 1 Subsection (2) was added:
The Code shall be reviewed regularly and amended, as necessary.
Comments: The Experts recommended that the Code be regularly reviewed “at least every five years.” (R184). What “regularly” means is anyone’s guess; it could be another 10 or 15 years before they get around to reviewing and amending the Code. The judges should have adopted the five-year period recommended by the Experts.
Article 3 Subsection 2 was added:
Judges shall decide matters before them on the basis of facts and in accordance with the law, without regard to any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
Comments: It is rather interesting that after its 15-year existence, the judges thought it necessary to insert such specific language that goes to the well-expressed principles of independence and impartiality. Perhaps there was a need to stress the obvious, meaning that some judges may have engaged in or been subjected to outside influences. Concerning the nature of cases that come before the ICC, this additional admonitory language to the judges’ obligation of being independent is commendable.
Article 5 Sub-article 1 has an added sentence, whereas Sub-articles 2, 3 and 5 are new:
1. In interactions with States Parties, civil society, the diplomatic community and other stakeholders, judges will act with care and consideration to ensure the propriety of their communications in such context.
2. Judges shall treat fellow judges, Parties and participants, staff members and others with dignity and respect. Judges shall not engage in any form of discrimination, harassment, including sexual harassment, and abuse of authority.
3. Judges shall act at all times towards one another in a spirit of collegiality and professionalism.
5. Judges’ obligation to act with probity and integrity extends to all aspects of their office, including their participation in decision-making to elect their fellow judges to positions of administrative responsibility, including in the Presidency of the Court and as Presidents of Division. Judges shall vote independent of any external influence and shall not be motivated by personal interests while participating in such elections. Candidates shall refrain from any action that might, in the context of the election, be reasonably perceived as an inappropriate promise, gift, advantage, privilege or reward of a personal nature. Any permitted electoral campaigning shall be in accordance with the principles and standards of this Code and focused on the candidate’s professional experience and attributes which qualify her or him for the office sought and/or plans for her or his term of office. All limitations on electoral campaigning established in the Guidelines on the Procedure for the Election of the Presidency must be respected, any violation of which shall be a violation of this Code.
Comments: Sub-article 1 seems to have been included to curtail interactions between judges, States Parties, and others as part of the overall need to eliminate inappropriate contacts and communications that may compromise – if not in fact, in perception – the independence and impartiality of the judges, and more crucially, the ICC as a judicial institution. Sub-article 2 addresses the findings that at the ICC a culture of tolerating inappropriate conduct and behavior, including sexual harassment, has existed over the years. Sub-section 3 introduces the concept of collegiality, while also reminding judges of their obligation to act toward each other professionally. Again, welcomed language that informs of the absence of judicial collegiality and professionalism, which, unquestionably, has contributed to the Experts’ conclusion of the pervasive toxic atmosphere at the ICC among some of the judges. Sub-section 5, complemented by the Guidelines on the Procedure for the Election of the Presidency, is meant to reign in some of the lobbying and horse-trading involved in past elections of members of the Presidency. Rumors abound about the last election: supposedly sweeteners were offered by candidates to judges for their votes. Not that lobbying and horse-trading does not occur at other tribunals, but considering the degree of the after-election acrimony found by the Experts, one conclusion can be drawn – the conduct during past elections was neither in the spirit of collegiality nor (more disquieting) within acceptable judicial decorum.
Article 8 This is an added article on loyalty:
Judges shall comply with their duty of loyalty towards the Court.
Comments: It is puzzling that a loyalty article was thought necessary to include to the Code after 15 years of its adoption. The oath taken by the judges should suffice. However, considering the amendments to Articles 3.2, 5.1, and 5.5, as well as some of the findings by the Experts, perhaps it was considered necessary to include this article to ensure that the judges fully grasp and appreciate their obligations towards the ICC, with loyalty toward the institution being forthrightly expressed in all of their dealings related to the ICC as well as in their personal affairs where their conduct would directly or indirectly impact on the image and reputation of the ICC.
Article 10 Previously Article 9, has added language to sub-article 2:
In commenting on decisions or judgements of the Court, judges should show at all times judicial restraint and be mindful of the principles set out in this Code.
Comments: Some judges have been indiscrete in their criticisms against not just the parties (defense lawyers have been maligned by judges at speaking events), but also their fellow judges. Considering that such comments risked bringing the ICC into disrepute, query whether any disciplinary measures have ever been taken. The fact that there is a need to spell out the inappropriateness of such communications further informs about the cluelessness of some of the judges in knowing the impact of their words and actions on the ICC as a judicial institution.
Article 12 The second sentence in sub-article 12 (previously 11) which read “They [the principles embodied in the Code] are advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted” was replaced with:
They apply to the judges at all times, and continue to apply to former judges where relevant, for instance in respecting the secrecy of deliberations or maintaining confidentiality.
Comments: It is interesting that the reference to the advisory nature of the Code was deleted entirely – perhaps to place greater emphasis on the obligatory nature of the Code, which, if faithfully complied with, should in no way interfere with the judges’ judicial independence. The added language seems to plug in a lacuna, in that the Experts found that there appeared to be some confusion as to whether former ICC judges continue to be constrained by the Code with respect to their confidential activities at the ICC.
It is refreshing to see that the judges did not hesitate too long to make some of the adjustments recommended by the experts. To that end, it also merits highlighting that in tandem, the judges adopted the Guidelines on the Procedure for the Election of the Presidency on 19 January 2021. Rather than commenting on it, I invite your attention to Section 6 Ethical Obligations. Little is left to the imagination as to why it was necessary to draft the Guidelines complementing the Code, and to a large extent, address some of the past unwelcomed behavior surrounding Presidency elections.
Section 6 Ethical Obligations
1. Judges will exercise their responsibilities in respect of the election of the Presidency with probity and integrity and in full compliance with the principles and standards of the Code of Judicial Ethics, including in respect of electoral campaigning. Judges shall vote independent of any external influence and shall not be motivated by personal interests while participating in such elections. Candidates shall refrain from any action that might, in the context of the election, be reasonably perceived as an inappropriate promise, gift, advantage, privilege or reward of a personal nature.
2. The only forms of electoral campaigning permitted, regardless of whether direct or indirect, shall be those expressly permitted in sections 1(2) and 3 of the present Guidelines.
3. No discussion or communication amongst judges concerning the potential outcome of a Presidency election may occur unless all judges who will vote in the Presidency election are given the opportunity in good faith to participate in any such discussion or communication. This does not preclude a newly elected judge, at her or his own initiative only, from speaking privately with outgoing judges only, in order to seek information about one or more candidate. Guided by the ethics of collegiality, any such discussion should be constructive and neutral in nature.