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LSE: Public lectures and events
The Future Development of International Criminal Justice: An Interdisciplinary Approach
00:51:38
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- [00:00]
A
Good morning, everybody. I think we are ready to start. First, to introduce myself, I know many of the people in this room, but I'm Professor Christine Chinkin, who's Professor of International Law here at the lse. And it's my very great honour to be welcoming President Song to the LSE today, as well as all of you. As you know, this is a public lecture which is hosted by the Law Department here at the LSE and is looking particularly at issues of the International Criminal Court. Again, as many of you in the room will certainly know, the International Criminal Court was of course, created by the Rome statute back in 1998. It came into existence in 2002, and now, what some eight years later, is really beginning now on its active work, with three trials underway, and therefore the real work of beginning to develop international criminal law, both procedure and substantive law, building both on the work of the ad hoc criminal tribunals, and of course, on the Rome Statute and the rules of evidence and procedure, the element of crime is now really getting underway. The court again, as I expect most of you know, has had both very strong critics and some very ardent supporters. And I think it's both critics and supporters who are really watching the Court now in this next important phase of its development. And so we are very honored to have to talk to us about this development of international criminal justice. President Song of the International Criminal Court. President Song was appointed president of the ICC in March 2009. He is assigned to the Appeals Division of the International Criminal Court. He has enormous practical academic and legal experience through a whole range of institutions. Professor of law for many years at Seoul University, also experience as a judge advocate in the Korean Army. He's worked as a foreign attorney in a New York law firm, so is extremely well qualified to take on this very important role of guiding the Court through its next stages. So we are more than honoured to have you here today. Welcome you very much to the London School of Economics, and look forward to your lecture on the future development of international criminal justice and interdisciplinary approach. President Song will talk for 20, 25 minutes or so, and then has also agreed that he will take questions from the audience. So again, we're grateful to you for that. So I hand over to you, President Song.
- [03:02]
B
Thank you, Professor Chinkin, for that very kind introduction. It is a great pleasure to be with you at London School of Economics and Political Science today. As a longtime law professor myself, I always feel at home in any law school, and your law department has certainly made me feel welcome. I hope, however, that there are students from Other disciplines also in attendance. I have come to talk about the International Criminal Court, which is of course a legal topic. But I would like to focus on the ICC's future and that of the entire system of international criminal justice. And the future development of this larger system of international criminal justice, of which the ICC is a key part, will require efforts that extend well outside the legal realm. But before looking toward this future, let us briefly review the past. The history of modern international relations extends over some 400 years. For most of this time, the international law concerned itself primarily with regulating the behavior and interaction of states. This was the predominant reality even with the end of the Second World War. The Charter of the United nations and the Statute of International Court of Justice, principal pillars on which the post war order was constructed, reflect this focus on interstate relationship. At the same time, the ravages of the Second World War lent momentum to making individuals to subject and object of international law. Individuals hold rights under international law, as recognized in the Universal Declaration on Human Rights and and subsequent conventions. They also possess duties for which they can and should be held accountable. In its judgment, the Nuremberg Tribunal famously stated, I quote, crimes against international law are committed by men, not by abstract entities. And only by punishing individuals who commit such crimes can the provisions of international law be enforced. The end of the quote. This prescient observation was the premise for the initial development of international criminal law. Then, almost immediately after this statement was uttered, the Cold War froze for decades the expectation of accountability for war crimes, crimes against humanity and genocide. In the midst of numerous proxy wars across Asia, Africa and Latin America, justice for these international crimes could cause setbacks for one bloc or the other. And so there was justice for none. Mass atrocities in such places as Uganda and Cambodia went unpunished. In December last year, I was in Bangladesh and visited a small liberation war museum commemorating the death of an estimated 1 1/2, up to 3 million Bangladeshes, mostly civilians, in 1971. At the time, these victims too were completely ignored. During the Cold War, leaders did not expect to be held individually accountable. Peacemakers knew not to try, and all too often, the atrocities continued. The Cold War eventually did end. Human capacity for barbarity did not. Now, however, the international community could agree on justice for some victims and some perpetrators. There were new trials for atrocities committed in such places as Rwanda, Bosnia and Sierra Leone. This new factor complicated peace processes. It led some to suggest that peace and just were at odds. Yet with the ad hoc tribunals for the former Yugoslavia, Rwanda, Sierra Leone, the beginning of operations at the ICC in 2002 and the launch of subsequent institutions, we have seen quite the opposite. Presidents and rebel leaders have begun to consider the specter of legal accountability for some victims. Perhaps seeing justice done has obviated an urge for violent retribution. Accountability for atrocity crimes has become a reality for a broader range of situations. More victims now have reason to hope that their tormentors will answer for their crimes. More communities can see that fair trial rights of the accused are vigorously defended, although difficult to prove. According to some observers, including top UN officials, fear of prosecution may have led some would be perpetrators to refrain from the commission of atrocities in the first place. If true, this already would be a great achievement. But creation of a court of last resort cannot be the final word in the development of international criminal justice. The system of international criminal justice must continue its progress. From the perspective of the icc, it is difficult to plan this development. The prosecutor can devise strategies for determining where and how to investigate and prosecute. The presidency and the registrar have been working in consultation with the prosecutor toward the ambitious goal of making the ICC a model of public administration. My presidency has committed to increasing public understanding of the icc, making several trips to meet with key partners in Africa and elsewhere over the past year. However, in our core activities, we are a judicial institution. We cannot take actions or decisions that will infringe on future judicial decisions. The ICC cannot overreach its mandate. The conduct of fair trials must remain the cornerstone of our work. The challenge of realizing the vision of a world of accountability and peace is even more difficult if one steps back from the ICC to look at the broader system of international justice. This system comprises numerous actors with widely diverging, sometimes confusing, conflicting mandates. Even acting at the best of its ability, the ICC is only one small piece of bigger puzzle. Some acts of war crimes, crimes against humanity and genocide fall outside the jurisdiction of the I. At the center of the Rome Statute is the principle of complementarity. This means that states retain the primary responsibility to carry out genuine investigations and prosecutions of atrocity crimes. Only if they fail to do so can the ICC step in. But even then, there are other restrictions. The ICC only has jurisdiction over crimes committed after the Rome Statute came into effect in July 2002. Apart from situations referred to us by the UN Security Council, its jurisdiction is limited to crimes committed on the territory of the state parties or by the citizen of state parties. And in any case, the ICC will only ever have the resources to focus on the most serious cases within its jurisdiction. All of these limits on the ICC's reach mean that it will take all parts of the broader system, working together within their respective mandates to achieve maximum impact. Specifically, I see three main areas for common action. First, the reach of the Rome Statute system can broaden through the addition of new state parties. This will not only extend the geographical reach of the Statute, but further enhance perceptions of its legitimacy. Each country will make a sovereign decision on whether to join the Rome Statute. It is important that this decision is taken not on the basis of myths and misperceptions, but of facts. We must continue to fight ignorance about the Statute, which, unchecked, can corrode support for it. The ICC is actively engaging with the Rome Statute, considering engaging with the States, considering ratification of the Rome Statute. To this end, over the past year I have traveled to Thailand, Indonesia, Nepal, Bangladesh and Laos. But states and international organizations can bring greater resources to bear. Second, the Rome Statute can strengthen through enhanced cooperation. Cooperation should come to be regarded as routine, not an exercise of extraordinary political will. This applies to states, parties and also states not yet parties. The ICC does not have tools to enforce its own decisions. It's up to the states who created the Court and its other support to to ensure that they are enforced. Third, the Rome Statute system can deepen by enhancing the capacity of national jurisdictions. As the ad hoc tribunals wind down, there will be increasing expectations for the court to act around the world. Existing expectations following decades of impunity, are already daunting. The ICC is a court of last resort. It will only ever be able to handle a relatively small number of cases at time. We must continue to work to ensure a realistic view of what the ICC can do. But more importantly, we must ensure that national courts are willing and able to act. Earlier, I mentioned the principle of complementarity. States have the primary responsibility to investigate and prosecute crimes, not the icc. The ICC has a very limited ability to assist states that lack it in developing national capacity. Our mandate is to investigate, prosecute and carry out trials of individuals. Even the ICC's ability to cooperate with and provide assistance to state parties conducting investigations or trials is limited. The bulk of the work of the developing national capacities will therefore fall to states, NGOs and international organizations. It is in this area of realizing complementarity where practitioners from several disciplines will be called on to make contributions in developing a more comprehensive international system of criminal justice. Experts from fields including international affairs, political science and economics will be needed, as well as many good lawyers. To illustrate the needs, I would like to briefly tell you about the trip I took in December to the Democratic Republic of the Congo. The ICC is currently hearing the cases of three prominent commanders in that country's tragic conflict. But the number of alleged perpetrators is vast. More comprehensive justice means that domestic trials should complement those being held in the Hague. Among my meetings in the conflict zone of Eastern Congo, I met with the local military prosecutor. Under current Congolese law, or military prosecutors have jurisdiction over war crimes, crimes against humanity and genocide. To my great surprise, the military court in the town of Bunia is directly applying the Rome Statute. Already four cases have been completed and this military prosecutor frankly admitted that he and his team lacked the expertise to ensure proper trials. They lacked basic texts on international criminal law and the jurisprudence of the icc. The prison system is at shambles. There are concerns about political interference in the judiciary. And all of these problems are compounded by the fragile security situation in a region that has long suffered from a conflict involving many states and factions. Following up on this meeting, the ICC will be sending some French language legal text to the local military prosecutor's office. As you can well imagine, given the scale of the challenge, this represents a very, very modest contribution indeed. But if many other actors also make contributions, together we can gradually assist the Congo and other countries to develop the will and capacity to conduct fair domestic trials. With a large and interdisciplinary commitment. International criminal justice will continue, continue to develop. It may move faster at some times and slower at others, but it must keep moving. The changes we see on a day to day basis may be gradual, but the underlying move from a purely state based system of international law to a global culture in which individuals expect and can be expected to be held accountable for their actions is truly revolutionary. This is a revolution with roots in Nuremberg and Tokyo. It picked up momentum again in the 1990s and has come consolidated more of its progress through many trials held at the ICC and our sister tribunals. But we must continue to look forward. The ICC will always offer a last hope for justice in response to humanity's deepest depravity. We must work toward the day when there is a realistic chance of justice for every atrocity. Then the ICC will underpin a system that fulfills justice's promise to deter crime. Few will then doubt that justice sustains peace. Thank you very much.
- [26:02]
A
Thank you very much indeed. President Song. I think you have covered an enormous amount of material in a very short space of time, particularly with respect to the multiple functions of the icc. Obviously its judicial function, its public administration function, its educated function, and its interaction with national courts to build the vision that you taught of a global criminal justice. President Song has agreed As I said earlier, to answer some questions, we have about 15 to 20 minutes. What I suggest we do is take questions in clusters of three or four or so. Can you please say who you are when you're asking a question? Keep your questions brief to allow as many people as possible to be able to participate. And please ask questions rather than giving a mini exposition of your own. So, yeah, can we take up. Oh, there's a roving mic, so if you wait for it to be brought to you up at the back. Gentleman there. Okay. And then the person in front of you afterwards. Hi, my name is Jennifer. I'm in the government department here. And my question relates to enforcement mechanisms of the decisions of the icc. I was wondering, in cases in which there is a change in the government or their society becomes increasingly less cooperative, what mechanisms does the ICC have to enforce its decisions and ensure that justice is carried out? You can't. Okay. The President is having some difficulty in hearing, essentially it was a question about the enforcement mechanisms of the icc. In particular, where there's a change of government during the course of what may be a long process and what may transpire with respect to enforcement in that situation. Is that a fair summary of it?
- [27:56]
C
Thank you, President Song. Thank you very much for your fascinating speech. My name is Teddy Nicholson. I'm a student in the International Relations Department. You spoke several times that peace and justice supported one another. Unless I'm mistaken, there is a provision in the Rome Statute where the UN Security Council can put proceedings in the ICC on hold for a year at a time if they consider the proceedings to be a threat to international peace and security. Doesn't this somewhat contradict what you said and recognize the principle that in fact, proceedings towards international criminal justice, in fact can harm movements towards peace?
- [28:41]
B
You got that one?
- [28:41]
A
Okay, and we'll come down this side here at this point. Hi, thank you very much. I'm Laura Bruns, also a student, International Relations Department. It's quite a simple question about your take on the principle of complementarity. How can we ensure that these Congolese courts in fact properly use Rome Statute texts? Okay, again, would you like to answer those and then we'll have another round afterwards? I do realize there's a lot of people who want to ask.
- [29:13]
B
Yes, these questions are all well taken and very important ones. Actually, as everybody knows, the ICC has no. Police force of its own or army or anything. So as far as enforcement of the sentencing or arrest warrant or whatever, We have to rely on the states for cooperation in this respect. So whenever I receive or visit, you know, the relevant government leaders. This is cooperation. You know, state's cooperation with the ICC is always an issue to be taken up very seriously. So we've been trying to conclude certain agreements with the states. For instance, relocation of witnesses agreement or enforcement of sentencing agreement agreement. And even before all these agreements we just urge the especially the states parties to adopt the national implementing legislations. You know, without this, all this enforcement related activities may not be legally possible or effective. And then you see the indeed UN Secret Council can refer any situation to the icc. As you see in the case of the the Sudan, you know, Sudan is not a state party to their own statute. Yet the Security Council decided to refer the situation to us. Actually in my view, while this kind of issue is discussed and decided at the Security Council, that's perhaps a full political debate or political decision. But once the situation is referred to the ICC then the whole situation has entered the judicial stage. So from that point of time we, the ICC judges are engaged only with judicial activities. You see, when the judges render a certain important judgment or decision, they would never take into consideration any political consequences or financial implications or things like that. Judges are jurists. So they establish the facts and review the presented evidence and then choose applicable law and then apply the law of their choice to this fact. And then they come up with their own judicial conclusion. So it's a hundred percent judicial activities. When we rendered Al Bashir against warrant, of course many certain corners of the world criticized isis. But if in my view, if any of our decisions happens to be a political hot potato, then it is primarily responsibilities of the states parties which had created the ICC to come forward and protect the ICC which since it's 100% judicial institution, so come forward and protect this judicial institution from unnecessary political dispute and complexities in this process. If UN Security Council finds some reason to defer the situations they had referred to us up to one year or so for certain reasons, well, it's up to them to make to engage in political debate and reach a political conclusion like that. And in this process the ICC had no position to take. It's up to Security Council. There is Article 16 which allows the Security Council to make such a deferral if they think it necessary. So then that, but despite a of lot all this Security Council involved political activities, we the icc should remain 100% judicial. And then actually then there was also question about complementarity. This is complementarity is very important fundamental principle on which the ICC has been created. And ICC has to operate As I said, we have to build large, I just imagine a large, you know, context of international criminal justice system. And then the ICC is perhaps the centerpiece of this larger international criminal justice system. Yet it is just one of the actors who will build up the larger system. Who will play the important role in this larger system. There could be NGOs or National Judicial systems or international organizations, what have you. These actors should all just get together and pool their wisdoms and efforts and everything together toward guidance of building larger international justice system. You see, this complementarity principle is one important difference from the ad hoc tribunals for ICTY or ictr. Those tribunals take primary steps, primacy over the national jurisdictions. ISIS is not like that. It's based on the complementarity. So it's a very important, I mean the capacity building of the national judicial system is a very important and just necessary and appropriate cooperation between the ICC and the national jurisdictions as very, very, very necessary. Actually, these and other. The issues you just raised in the question will be dealt with in depth at the upcoming review conference which will take place in Kampala, Uganda.
- [38:35]
A
I think we've got time probably just for three more and I'm afraid we will have to finish. Take one here. This is going to be very, very difficult here, take behind there and then another one over this side there in the middle. So here in the front.
- [38:56]
B
Thank you very much. My name is Nils Hahn from Development Studies at soas. It's often a critique of international law that says that international law is the rule of the stronger to dominate the weaker. What do you see as indicators that the ICC is not becoming an instrument of the stronger, to selectively use the ICC as an instrument to remove people that they do not like in the weaker states.
- [39:25]
A
We'll go up to behind. Just the gentleman behind there.
- [39:31]
C
My name is Harold Emanuel. Actually my question is related to the previous question in a way, namely that it's sometimes observed about the ICC that tends to approach the so called softer cases such as the drc, not that one would criticize for a moment its activities in that regard and has avoided approaching the so called harder cases such as those that relate for example to the Israel Palestine conflict, which is a matter that I believe is close to the heart indeed of Christine Chinking for chinking rather for obvious reasons. And I wonder what observations the President has in regard to how the ICC's role may fan out in relation to matters relating to the Israel Palestine conflict.
- [40:21]
A
And I said, somebody over here, where was it there? Yes, the woman there, the lady in the middle.
- [40:29]
D
Thank you. My name's Sophie Stevens. I'm from the Development Studies Institute here at lse. My question is all also kind of an addition to this theme. It's been observed that the ICC has operated predominantly in weak and failing states. And I'm sure this has got a lot to do with complementarity because these states will have less capacity to deal with the cases themselves. But I wondered if you could comment on how you think this will affect the possibility of the ICC of prosecuting stronger states even if their courts are not in line with international standards. And whether you think that's going to happen because so far it's not been possible. Thank you.
- [41:06]
A
Three very related questions.
- [41:08]
B
Well, in terms of the triggering mechanisms of the case, you can find in the Rome Statute there are three different kinds of triggers mechanisms among the four situations we've been dealing with so far. The first three, that is to say the Uganda situation, Democratic Republic of the Congo situation and Central African situation, these three situations were brought to us by themselves. We never reached out or selected these countries. We never selected these countries as weak countries or easy to handle or something along any reason along that line. President Museveni, President Kabila and, and these presidents visited Hague and in front of the Prosecutor he said Mr. ICC, we cannot simply handle our domestic armed conflict, please come and help us. That's how we started all these investigations and prosecutions. We had no intention of targeting only Afghanistan. We never reached out on the Africans. We never choose these countries because they are weak. That's what happened. And then the fourth situation happens to be again Africa. But it was a referral made by the Security Council. So I just referred to two mechanism triggering mechanisms. One referral by the the State Party and second one referral by the Security Council. Now the prosecutor is currently sort of trying to start the fifth situation for the first time by his own initiative. We call it appropriamotu triggering. He actually in order for a prosecutor to start a new investigation proprio moto he has to get a judicial authorization to start the investigation. So he submitted his request for authorization to the pre trial chamber of the icc. So his such action or move is subject to quite strong judicial scrutiny. Why? This provision was introduced at the Rome conference days. Actually some countries raised some sort of fear what if prosecutor just, you know, start investigations and prosecutions out of political motivation. There is no checking mechanism against that. So in, in order to deal with this kind of worry or fear, this prosecutor's such initiative was made to subject to the judicial Scrutiny. So I don't think I cannot agree with the very question if it talk about we have chosen or dealt with weaker ones rather than strong ones. There is no such a thing. And then in connection with Gaza or the Palestinian issue, The prosecutor made it public some time ago that he's making some sort of preliminary analysis on certain other situations outside the African continent. For instance Afghanistan, for instance Georgia, for instance Colombia, for instance, Gaza. Well, he will sooner or later come up with his own decision one way or the other decision about these situations. But especially in the case of Gaza, the Palestinian Authority visited the court more than once actually and made a declaration to accept the ICC's, you know, jurisdiction. As you know, the Rome Statute allows that kind of thing to happen. I mean, we have another occasion like that. The Cote d' Ivoire also made a declaration to accept our jurisdiction before the Palestinian Authority did. And here, Of course, there are many complex legal issues involved in connection with the Gaza situation. One of which, for instance, one of which would be whether the Palestinian Authority is a state, does it enjoy a statehood legally enough to be, you know, a party? I mean, this issue will eventually, will eventually have to be decided by the judges. Perhaps if it would be appealed, then it would have to be decided by me. So at this point I have to, I would rather refrain from making any prediction or any expressing my view on this. I do have some view, but I have to refrain from doing so. So I must admit there's a certain criticisms against the ICC in certain part of the world. When I went to Africa, some southern parts of the African continent, their criticism seems to be why only Africa.
- [48:56]
C
You.
- [48:56]
B
Know, why only Africa. ICC is frontal organization of Western European economic interest which badly needs oil, oil from Sudan, for instance. That's why you are doing all this kind of issuance of arrest warrant against the sitting president in Africa and so on. It's just not true. As I said, we never targeted or chose only African countries, countries at all. And. We this. And then they also said your justice delivery is very selective. And you just accused us of duplicity. It's not all true. This is, this is, I'm very proud to report to you when this court has established itself very solidly, it's now fully functioning judicial institution. When the 18 judges arrived in the Hague in March 2003, inauguration taken off, even the judges ourselves were not terribly sure whether this new baby called the ICC would be able to survive all the skepticisms and hostilities shown by big powers and so on. We, some judges just, you know, publicly said this court might just collapse altogether in two, three years. But seven years later, we are well established, fully functioning judicial institution. I must emphasize that more than 50 decisions, especially rendered by my chamber, a peace chamber, have been been very well received around the world, and I'm very proud of him.
- [51:24]
A
That seems a very good moment upon which I'm afraid we are going to have to finish. I would like to conclude by thanking President Song very much again for his willingness.