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

Published on April 1, 2019        Author: 
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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. Read the rest of this entry…

 
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