Reflection… Looking back so the view looking forward is clearer.
Unknown
Unrealistic expectations often lead to disappointment while simple unbiased attention and detachment to outcome lead to pleasant surprises.
Gary Hopkins
While the Nuremberg trial has come to symbolize a grand moment of moral clarity, the Tokyo trial is engrossing precisely because it remains so controversial. Nuremberg is exalted precisely by lawyers and human rights activists as a template for recent efforts at international justice from Bosnia to Rwanda to the permanent International Criminal Court, while Tokyo is seen as an embarrassment best forgotten. The suffering of Asians gets little attention in the United States and Western Europe. If Nuremberg stands as a metaphor for ethical purity, then Tokyo represents a dive into murk.
Gary J Bass, Judgement at Tokyo: World War II on Trial and the Making of Modern Asia, p. 12
It seems inconceivable that prior to the early 1990s, there were no functioning international(ized) criminal tribunals/courts (ICTs). Since the establishment of the initial ad hocs – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – a slew of ICTs have come and gone or morphed into mechanisms. More are expected. Regional tribunals have emerged, filling in some of the gaps and picking up the slack. The application of universal jurisdiction in domestic courts is on the rise, though, only few states with highly developed prosecutorial and judicial systems are genuinely capable of handling cases of mass atrocities with due regard for international procedural and substantive justice standards.
And then there is the International Criminal Court (ICC). Established in 2002, it is a permanent fixture, ushered in with great fanfare and enthusiasm and hope, as the bulwark against impunity – the vanguard that would lead the charge, set the standards, and cast its shadow to presage and prompt. But after more than two decades in existence, with scant trials and even scanter convictions, the jury is still out. Permanence and relevance are not mutually inclusive. Nor does calling something permanent immunize it from withering to defunction. Even the most ardent devotees of the ICC (I am an unsentimentally strong, but clear-eyed and guarded supporter) must admit that thus far the ICC has underperformed.
A tribunal of this kind is bound to stumble in its early stages as it finds its sea legs. The ICTY and ICTR broke trail, having only the Nuremberg and Tokyo trials to go by, and from a half a century earlier. Presumably, the processes, best practices, and lessons learned from the ad hocs would have served the ICC well. Reinventing the wheel was unnecessary. Knowledge and experience and modalities from which to incorporate and adopt and be guided by – even if the wheel is designed differently with novel complexities and challenges – are invaluable commodities, available at no cost.
Indisputably, circumstances vary when comparing the ad hocs to the ICC. The ICC’s mandate covers the globe, not just a region or a state. Whereas the ad hocs answered to and were financed by the United Nations Security Council, the ICC answers to the Assembly of States Parties, which, as the legislative body of the ICC, lords over the selection of the Judges and Prosecutor and the two Deputy Prosecutors, amendments to the Statute and Rules of Procedure and Evidence, and funding matters.
And granted, analogies rarely serve as clear guides as to how a particular ICT, such as the ICC, should function. Nonetheless, the early architects of the ICC’s internal functioning would have profited by being observant of the ad hocs’ legacy – what worked reasonably well, or not so well, or not at all. Cognizant they were, but as I recall, the negative attitude towards and resistance to looking at and considering anything that the ad hocs had to offer was shortsighted and hubristic. Would a more receptive and collaborative (and less insecure) attitude have made a difference? Perhaps.
Considering the organic nature of ICTs, occasional tinkering is as inevitable as it is essential. Awareness, nimbleness, and recalibration are crucial for a vibrant and robust ICT. There is nothing profound in what I’m saying. Surely the ICC upper echelon knows this, and more. Yet, despite the good will, abundance of enthusiasm (now waning), ample funds and resources, and meaningful support by many of the States Parties, the ICC yet to hit its stride, to punch at its weight (let alone above it as it could were it running on all cylinders), and meet the lofty expectations profusely heralded at its birth.
Far from midnight, the ICC is lagging. The promise that once was, has yet to be. Barring some obviously needed fixes based on sobering reflection and considered admissions that course corrections are imperative, if past is prologue, the ICC will continue to huff and puff until eventually it will have no choice but to embrace a more realistic and humbler bearing, settling for playing a far lesser role in international criminal justice than originally envisaged.
Things may appear rosier than the picture I paint, but any keen, objective and informed observer can see cautionary blinking lights going off throughout the ICC. If success is measured through the quality of the proceedings and the quantity of the deliverables (overall judgments as opposed to only convictions), then there is cause for profound, even brutal, reflection for a clearer view forward. But statistics and data alone are not accurate indicators of success.
All ICTs, not just the ICC, aspired, attempted, and accomplished to varying degrees tangential/non-judicial successes and failures (more on this below). But if viewed, first and foremost, as criminal courts applying international criminal law with the view of determining whether the evidence adduced (and properly assessed) establishes guilt or not to the standard of proof beyond reasonable doubt, based on a correct interpretation and application of the law and procedure and fair trial rights, then the level of successes and failures of the ICTs, depends, to some degree, on the source or sources – from whose perspective?
In an earlier post, I noted that it takes four to tango, five if you include civil parties/victims. To that list you can also add civil society, States Parties, donors, and the persons impacted – the ordinary civilians who have lived through and are coping with the ravages of the conflict, crime-ridden events, and inhumane treatment and conditions. So, looking at an ICT’s legacy in trying to gauge whether it has met the expectations for its founding, one must consider the various perspectives, and not just the “official” version generally conveyed as a collective achievement, replete with hyperbole and exaggeration, self-aggrandizing back-patting, bolstered by statistical data and graphs and photos and a laundry list of claimed deliverables.
Issuing an accurate report card demands scrutiny. Legacy symposiums should hold panel discussions and debates where nothing short of brutal honesty is demanded. Alas, thus far I have yet to see or hear of one. Instead, there are the occasional legacy conferences, which, as I’ve posted in the past (here and here) tend to be victory laps orchestrated by the ICT’s President, with the Prosecutor and Registrar tagging alone, singing their own praises, brooking no dissent. Touting the supposed successes, these feel-good, handholding, kumbaya-singing legacy echo-chambers are far from the needed self-criticism. Kudos, however, to the ICC. It had the integrity and fortitude to canvass an assessment of its functioning by a group of independent experts, and for making the Report public – despite its unfaltering findings and conclusions ( see here ).
Reflecting back, I am reminded of the apocryphal story of a bellboy encountering George Best, the celebrated English footballer. Delivering champagne to Best’s room, the bellboy found Best entertaining a scantily clad Miss World on a bed covered with his gambling winnings, at which point the bellboy uttered “So George, where did it all go wrong?” Decieving appearance aside, by then Best was past his prime, his football glory days behind, and his personal life sort of a mess – hardly the success he projected to the awe-struck bellboy. His impulsive query was unassumingly discerning, even if not fully appreciated at that looks-can-be-deceiving moment.
Let me rewind; I seem to have gotten ahead of the narrative.
With the establishment of the ICTs, suddenly there was a need to track and analyze ruling, decisions, and judgments. While law treatises were available to consult, jurisprudence from the ad hocs – both substantive and procedural – was emerging at a rapid clip. Practitioners who wanted to keep abreast with the major decisions and have readily available cogent analysis needed a source to go to. As some academics set out to write scholarly articles and texts, André Klip, professor of criminal law, criminal procedure and international criminal law at Maastricht University, with then-PhD candidate Göran Sluiter, started the Annotated Leading Cases of International Criminal Tribunals series as co-editors. The maiden volume, published in 1999, covered the ICTY for 1993-1998. The series caught on. Indeed, it continues today, churning out valuable insight and analysis in easily graspable prose, making it a valuable source for students, academics, and practitioners. Sluiter has since moved on to a brilliant academic career at the University of Amsterdam. Steven Freeland, emeritus professor of international law at Western Sydney University, has been co-editor for some years, with Enikő Deák as assistant editor. Klip is still at it, still as enthusiastic and committed to the annotated series as when he first started it.
This year marks the 25th anniversary. Over the years, many have contributed summaries and analyses to it, including yours truly. To mark the occasion, Klip, Freeland, and the publisher, INTERSENTIA, decided to do a series of filmed interviews, essentially making a documentary on the state of the ICTs (past, present, future) from various perspectives. In total, seven were selected. I was honored to have been one of them, presenting a (not the) defence perspective.
The two-hour interview was unscripted, and I was unvarnished in expressing my views. Klip, who over the years has been gracious enough to invite me to participate in a couple of symposiums organized by him (both were exceptionally wide-ranging and provocatively thought-provoking), was his low-key self, deceptively steering the discussion with razor-sharp nudges without imposing his views or revealing his take on any of the queries. The two hours went by in a flash. As far as I was concerned, the discussion could have gone on for another two hours, maybe more. The free-wheeling, meandering probing into my thoughts on a variety of issues was rather cathartic. It had been a long time since I had the opportunity to have an in-depth reflection on what I have observed, experienced, considered, and concluded over the past 23 years living in The Hague and focusing exclusively on practicing before the various ICTs.
I won’t give away much; best to wait to see the documentary with all seven participants. The film crew was professional, so we can expect the editing to be as well. As the interview was winding down, I was asked a couple of questions which I would like to share. One was for my impressions on whether the ICTs had met their expressed and intended targets, and to what degree expectations were met. The other question was to name two things I would like to see improved. The substance of the questions is something that I’ve given thought to over the years, have written on, and have discussed. My views have been rather constant for some time. Complete and comprehensive answers require space – far too much for a blog post to be read on the fly, so I’ll keep it short.
One the first question, the answer is that all of the ICTs promised more than they could realistically deliver. Proclaiming to be agents of peace and reconciliation and of establishing the historical truth was overambitious, unrealistic, extravagant, even naïve. Supposedly, the ICTs, and the convictions and sentences meted out by them, are forces for deterrence and rehabilitation. Really? Look around. How have any of the ICTs deterred any of the atrocities being played out on news outlets and social media?
I’ve noted my views above on the true purpose and function of the ICTs. The quality, and in no small measure the quantity, of the results from the past and present ICTs has been uneven, even unexceptional. Not across the board, but widely enough that after more than 30 years in existence, after all the euphoria and pomp and promises and support and resources and lessons that should have been learned, it is time to ask the question asked of Best: where did it all go wrong? Not all has gone wrong. There are a lot of successes to take pride in. But rather than fixating on success (real or fictional) the focus should be on the causes for overpromising and under-delivering lofty ideals that detract from the true purpose of the court. Unless there is a re-think and a re-calibration as to what exactly the ICC should truly focus on, and unless the past unrealizable expectations are managed, then 25 years from now we will be having the same discussion and asking where did it all go wrong?
On the second question, my wish list was modest: (a) better quality of judges and judging, and (b) better quality of defence counsel and defending. Over the years, I’ve carped about the lack of uniformity of the proceedings, the failure to have a meaningful orientation training for elected judges (I would prefer it to be a prerequisite for the nomination list) before being sworn in and claiming their judicial independence – which often is code for I will interpret and apply the statutory provisions and rules as I deem fit through my domestic experience and legal tradition. Arrogant as I may sound, I also think that the defence has been lacking in quality and consistency. I’ve recommended a similar type of mandatory training – primarily focusing on adversarial skills – for counsel on the list and defence staff. The ICC is not a finishing school for LLM graduates and newly minted lawyers looking to get in-court experience. Many on the list, experienced and learned as they may be, lack the requisite skills. This is a fact that exists on all lists of counsel at all ICTs – past and present. Not a problem. Not if targeted skills training is provided, consistently and periodically.
As with all walks down memory lane, thinking back and critically examining the past with the present – even cursorily as was the case during the two hours interviewing session – can be illuminating. Looking back does help us view looking forward clearer.
Thank you Prof. André Klip for inviting me to participate in your legacy project.
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