Some Reactions to Douglas Guilfoyle’s Posts on the Troubles of the ICC

Editor’s note: This post is a response to Douglas Guilfoyle’s recent three part series: ‘This is not Fine: The ICC in Trouble‘ (Part I, Part II, Part III).

It is as if someone at the Court saw Douglas Guilfoyle’s first post here at EJIL:Talk! on the ICC’s troubles and decided that it was crucial to immediately prove him right. 

Last week, on the 22 march 2019, the Court made public a decision from the plenary of Judges allowing Judge Ozaki, who is sitting in the Ntaganda case (currently in the deliberations phase), to also commence her duties as the Japanese ambassador to the Republic of Estonia concurrently to her function as an ICC Judge. Here is not the place to analyse this decision, but it is for me symptomatic of the bubble in which the institution (here the Judges) lives where they seem blind to outside perceptions. Indeed, how can the vast majority of Judges not see that for most people the exercise of a political/diplomatic function is by its very nature incompatible with a judicial function? As noted by the three judges who dissented: 

For the minority, it was evident that the performance of an executive or political function for a State Party by an individual who remained a Judge of the Court was entirely likely to affect public confidence in judicial independence.

This decision is proof – if there was any need for more than provided in the Court’s practice in the past 15 years – of the relevance and timeliness of the 3-part blog series by Douglas explaining why the ICC is not fine and what should be improved. It is a thoughtful and detailed analysis of the Court’s woes and I agree both with its general evaluation and with most of the specific points raised. 

In this post, I would like to humbly propose not so much a response, but a reaction to some of the arguments put forward.

The Utility or Futility of the Pre-Trial Chamber

I would tend to agree with Douglas that today, one has the feeling that the confirmation of charges phase is a waste of time, for example because decisions on the confirmation of charges actually provide very little guidance on the content of the charges (including modes of liability) and relevant evidence. The process appears cumbersome and long and in need of a reform. I would not, however, be as critical as Douglas for a series of reasons.

First, let us not forget that in a number of cases, charges were not confirmed (Abu Garda, Mbarushimana, 2 out of 6 in the Kenya situation…). It is by definition impossible to quantify how much time was saved in each of those cases, but given the length of trial proceedings at the Court so far, it is not unreasonable to consider that it did indeed save time and served its gatekeeper function.

Second, it’s difficult to specifically determine whether some of the problems identified by Douglas with the confirmation process are due to an institutional design flaw (as suggested in the blog posts) or are due to the actual practice of the Judges. For example, PTCs went from a confirmation of a limited number of modes of liability to confirmation of cumulative modes of liability in a very flexible way (see the shift in the Ntaganda and Gbagbo confirmation of charges decisions). Obviously, if PTCs are not going to take a firm position on such a key aspect of the charges, it reduces the usefulness of the preliminary process. 

Another example, is the cautious approach taken by PTCs to evidence at the confirmation phase: they have been extremely weary of making any determination of admissibility of evidence or credibility of witnesses, except in some rare cases (see Mbarushimana or Gbagbo). Maybe if PTCs actually took the time to explain to the Prosecutor (without necessarily issuing a formal admissibility decision) that, even at this early stage, he needs to clean up his act in relation to basic issues such as chain of custody, corroboration and hearsay, this would save time down the line. 

Yet another example is the lack of deference that Trial Chambers have sometimes shown for decisions by the PTC in a given case, whether on substantive or procedural issues. This is everybody’s fault: on the one hand, maybe if PTCs issued more carefully drafted confirmation of charges decisions, the TCs would not be tempted to ignore them, on the other hand, maybe if Trial Judges were not so attached to their own discretion, they would respect more the parameters set by the Pre-Trial Chambers, rather than abuse of Regulation 55 for example.

Third, and in comparison, let’s not idealise the ad hoc practice, simply because we feel the ICC is doing worse. I wonder if a system of rubber-stamping of indictments at the ad hoc tribunals was really this much better or efficient? There is this impression today that, given the perceived failure of the ICC, the ad hoc tribunals were perfect. But let’s not forget how long proceedings took at the ICTY! Most famously, Milosevic died before the end of his trial, some years after it began. But a number of trials at the ICTY were extraordinarily long, because, among other reasons, of the Prosecutor’s ‘everything and the kitchen sink’  approach to indictments. How do we know that a more robust confirmation of charges process at the ICTY would have not ultimately forced the Prosecutor to be more focused in his indictments and that time would not ultimately have been saved?

Who is Responsible?

Douglas rightly points out problems both at the OTP (under former and present management) and in the judiciary which have affected the smooth functioning of the Court. I again share most points made and the need for broad internal institutional change at the OTP and in Chambers. However, we must not remove from the equation the role of external bodies on the conduct of these two organs.

For example, it is first and foremost for the Chambers to sanction Prosecutorial improprieties in a strict way. And generally, this has not been done. The Lubanga case is a perfect example. As noted by Douglas, throughout the case, the Prosecutor was reprimanded for various dubious conduct as well as for the less than professional conduct of his investigation. This is all very nice, but there is no pedagogic effect whatsoever if the case is ultimately allowed to proceed, the Prosecutor able to secure a conviction and claim a victory. At some point, there have to be consequences which go beyond a mere slap on the wrist. 

There is also a role for the ASP, which has the power to initiate a removal procedure of the Prosecutor, but never did, despite the seriously unprofessional conduct in the Lubanga case.

Equally, when it comes to Judges, the blame ultimately lies with the ASP in electing these judges and as long as the election of Judges will be more the result of diplomatic horse-trading than discussion of the actual competence of the Judges, there is little chance of any improvement of the general quality. 

The Problems with the Judiciary

Which brings me to some final thoughts in relation to Douglas’ points on the judiciary. 

First, I don’t believe that lack of collegiality, as noted by Douglas, is per se a problem. There have always been strong dissents produced by Judges of international criminal tribunals (let’s not forget Pal) even at the ad hoc tribunals. I would say that it is a sign of a healthy institution where such debates can be had in the context of the judicial process, especially when it comes to fundamental issues such as the presumption of innocence and the burden of proof. The alternative where all Judges would agree on rules of procedure that would be detrimental to the Defence does not sound particularly appealing to me.

Second, while of course it is correct to point to the diverse legal background of the Judges to explain the sometimes conflicting approaches they take to various issues, I do not believe, as seems to be the new trend, that the solution lies in promoting a policy of compromise between these various legal cultures. On the contrary, it should be made clear that Judges are expected to apply the sui generis procedural framework of the Rome Statute, without constantly trying to apply what they learnt domestically. 

This of course requires that the ASP actually clarify a certain number of procedural questions in the Statute and the RPE themselves, one way or another, rather than leave it to the Judges, which creates a large amount of legal insecurity, depending on the composition of the Chamber. It is simply incredible for me that some key issues, such as the mode of evaluation of evidence or the applicability of immunities to non-State party nationals be left to the discretion of the Judges, who are essentially allowed to legislate in lieu of the ASP. It also requires that we accept the fact that new judges need to be trained specifically in international criminal law and international criminal procedure, rather than continue the fiction that they already know everything  about the intricacies of the Rome Statute through the miracle of their election.

Which brings me to my third point: I’m increasingly unconvinced by the selection of Judges based on the 2 lists (list A for criminal law competence and list B for other international law competence, as provided for in Article 36 of the Rome Statute). We are dealing here with criminal trials and most of the daily work of a Chamber relates to the concrete conduct of criminal proceedings. It is essential that all judges elected at the ICC have actual courtroom experience in criminal law matters in order to understand the dynamics of criminal procedure, which today is definitely not the case. I would therefore suggest to scrap list B altogether and include knowledge of general issues of international law as a subsidiary criterion for the selection of judges.

In conclusion, I believe the healthy debates proposed by Douglas need to include an open discussion about the role of the ASP in making the changes that are necessary to bring about the improvements in the output of the Court on every level. Self-reflection on the part of the various organs of the Court, while necessary, will not be enough if State Parties, beyond the yearly grand statements about the importance of the ICC in the “fight against impunity”, don’t actually do their job.