Editor’s note: At a difficult time for the International Criminal Court (ICC)—criticism over recent rulings, resistance from current and prospective members, and threats from the United States to sanction and ban its judges and prosecutors—Judge Bertram Schmitt encourages a long view. The following is adapted from closing remarks he gave in October at the annual Nuremberg Forum conducted by the International Nuremberg Principles Academy in the legendary Courtroom 600, the site of the major war crimes trials of Nazi leaders after World War II in the Nuremberg Palace of Justice in Germany. This time, the conference marked the 20th Anniversary of the Rome Statute that created the ICC. Judge Schmitt, who serves as president of the Court’s Trial Division, offers a message of resilience and determination.
Good afternoon, ladies and gentlemen.
Since this conference dealt with the 20th Anniversary of the Rome Statute, it seems apt to have the Rome Statute have its say at the beginning of these closing remarks. The Preamble describes its rationale with these emblematic words:
“Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished.”
Thus, crimes against humanity, war crimes, genocide, and the crime of aggression, as well as the victims of these crimes, must not be forgotten. The punishment of such crimes ought not to be left to history or the Last Judgment. They “deeply shock the conscience of humanity,” as the Preamble also formulates. They, therefore, concern all peoples and not only the ones directly affected.
It follows that national sovereignty never can be an argument for impunity for the perpetrators. If we bear this in mind, I think it is fair to say that the Rome Statute imposes quite an ambitious mandate on the Court, a mandate that raises a lot of hopes and expectations.
Have we been able to meet them? Or at least have we made progress in fulfilling this mandate?
Where do we stand today, and what are the prospects for the future?
We have come a long way since 1998. When the Rome Statute entered into force on July 1, 2002, the Court still existed only on paper. An advance team of five persons entered the empty offices in Maanweg 174 in The Hague and organized first the purchase of five telephones, a fax machine, some office furniture, and stationery. Since 2002, the Court has grown from five advance team members to 1063 staff members from over 100 countries. The new premises in Scheveningen are visible proof of the institutional growth of the ICC.
That sounds and looks impressive and seems to speak in favor of a steady progress in the Court’s work and its global impact. Alas, as we all know, the reality is much more complex. There is light, but there are also shades of grey; there are achievements, but there are also challenges that seem hard to overcome.
I want to share with you some thoughts on the achievements of the Court to date, on its challenges, and on the ramifications of the Court being situated in that delicate position between Justice and Politics.
To start on a positive note: What achievements can the Court claim? Let me mention just some of them.
It cannot be denied that the existence of the ICC and its operations are an essential contribution to the rule of law in international affairs. This is something the States Parties can and should be proud of.
The activities of the Court also are a sign that the universality of human rights moves on. The sheer concept of penalizing crimes against humanity before a permanent international criminal court underscores the recognition that rights belong to all human beings, without distinction. Insofar as the ICC constantly reflects the close relationship with human rights law and international humanitarian law in terms of goals, values, and terminology, it also symbolizes significant progress in terms of civilization.
Further proof for the dissemination of the principles of the Rome Statute is the fact that many countries have incorporated international crimes into their domestic legal framework. This is a precondition for the exercise of the principle of complementarity. It is also a contribution by the States Parties to the rule of law in international affairs. It is a contribution to the development of a global legal culture.
All of this is even more remarkable because it was achieved against the resistance of the so-called “superpowers.”
The Participation of Victims
Another major achievement of the Rome Statute is the participation of victims. For the first time, victims have the right to participate in proceedings and the possibility to receive reparations in case of a conviction. I personally see this as a unique feature of the ICC. I would even label it as one of the defining factors of the Court’s right to exist. Those who have suffered, those who have experienced first-hand the worst human rights violations imaginable, are not only the mere objects of scrutiny by the parties and the Judges anymore, but they are active participants in the proceedings. I think all of us who were present during the first panel today and heard the reference to the statement of witness 480 in the Bemba case will agree.
This is major progress in international criminal law that should not be belittled. By recognizing and conceding the victims’ independent procedural rights in criminal proceedings against the alleged perpetrators, the concept of human rights is significantly expanded. How could it be different? As Amanda Ghahremani, the legal director of the Canadian Center for International Justice, rightly put it this morning: “Without victims, no international criminal law.”
And victims do participate in high numbers in the proceedings. This is a sign of trust and commitment to the Court that cannot be taken for granted and should be appreciated. Victims should not be viewed as annoying participants who delay the Court’s proceedings — an allegation that has never been factually proven. They also should not be seen as potentially endangering the rights of the accused to a fair trial. Article 68 (3) of the Rome Statute gives the judges the necessary legal leeway to balance the personal interests of the victims and the rights of the accused to a fair and impartial trial. It is up to the judges to exercise their prerogative in that spirit.
A Rule of Law Process to Establish the Truth
Another achievement of the Court that is often ignored is the effect of its mandate to establish the truth in a formal process that follows the rule of law. Accurate accounts of the facts and circumstances of a situation or a case contribute to truth-finding far beyond the individual criminal acts of an accused. They also help to establish the historical truth of a whole conflict and thus secure the right of the victims to truth.
I do not want to be misunderstood: I do not say that the purpose of the trials at the ICC is to write history. Far from that. The central purpose of any criminal trial is to find out if the accused is guilty beyond reasonable doubt. I also do not say that the ICC is actually writing history. I am far from overestimating our capacities in that respect.
Yet judicial truth and historical truth are connected in many ways. It becomes apparent that a side effect of the judicial proceedings is that, often, the facts that form the base of historical truth are established with more reliability than historians could ever achieve. This is because witnesses testify under oath, and their testimony is tested in the courtroom. If you will, their statements come about in a compulsory setting that is a completely different situation to a non-binding interview with a researcher. Furthermore, the authenticity of documents is checked and all the evidence – witnesses, experts, and documents – is assessed holistically by the judges.
It should also be mentioned that all details of the hearings are kept on record. This ensures that the objective content of the evidence is accessible immediately and comprehensively and for generations to come. Insofar as the trials at the ICC become part of a broader narrative of historical truth, that narrative stands independently of — and has legitimacy outside — the legal process. But the Court also gives the narrative meaning. This is not a minor accomplishment in times of “alternative facts” and when the dividing lines between facts and opinions are blurred.
I am now passing into the challenges section, which is – as you may have already guessed – a quite extensive one. Within the scope of these closing remarks, I can again only address a few: withdrawals, selectivity of justice, lagging cooperation, and the length of proceedings.
Withdrawals or threats to withdraw from the Rome Statute are one of the main reasons why the current state of affairs of the ICC is often labelled as a “crisis”. Withdrawals are, of course, a problem for the ICC. The fewer States Parties, the less the Court can claim universality and the more difficult it is to achieve the goal — to end impunity for the most horrendous crimes.
At the same time, withdrawals are, of course, the sovereign right of States Parties, and, as a result, the right to withdraw is inherent in any international treaty. Other international entities, like the European Union and UNESCO, recently have painfully experienced this phenomenon too. But withdrawals or threats to withdraw are not a sign of a “crisis” of the ICC. Instead, they tell us more about the situation in the States Parties in question. If you will, withdrawals are rather a sign of a “crisis” in the concerned State than at the ICC.
Withdrawals certainly do not influence our judicial work and should not influence our policies. If we tried to accommodate States Parties’ interests in order to keep them in the Rome Statute system, we would betray our mandate. The difficult situations in which the Court may find itself at times are meant to happen.
The Court is supposed to render displeasing and uncomfortable decisions. Challenging discussions regarding the question in which “situation” the Office of The Prosecutor decides to commence an investigation, or regarding cooperation of States and immunities of high-level officials like sitting presidents, are a natural consequence of our mandate and the statutory framework.
Not a Comfort Zone
The Court is not meant to be a comfort zone. It must remain a staunch defender of those principles enshrined in the Rome Statute and not try to be complacent in reaction to the current international political climate. I am convinced that, in the long run, the Court will benefit from being perceived as a principled and firm judicial institution.
Instead of focusing its efforts on preventing withdrawals, the ICC and the Assembly of States Parties should actively try to promote universality. It should make efforts to motivate more states to become Parties to the Rome Statute.
There are a lot of blank spots on the map that should be filled or where I see at least potential to fill them. I am not talking about powerful states or those that want to be seen as such. However, there are a lot of other countries that might be willing to break free from the firm grip of more powerful states, and which might decline to let other states dictate to them what to do and what not to do.
Potential candidates I can think of first are the 30 states that have signed the statute but have not yet ratified it. In some regions of the world — Asia, for example — respective initiatives are underway; we have to support and intensify them. Actively engaging to let states join the Rome Statute is definitely better than waiting until the political environment changes.
It should also be mentioned that the ICC is one of the few international institutions where all States Parties actually have – and not only on paper! – an equal right to voice their position or concerns on any matter of substance, irrespective of how big, powerful, or rich they are.
That is a striking difference from most international organizations that are governed by the usual political, military, and economic powers. The so-called “superpowers” do not dominate the ICC simply because they are not States Parties.
Selectivity of Justice
Another huge challenge for the ICC is the selectivity of justice that it has the capability to deliver. Such selectivity is not something negative in itself. With regard to practicability and gravity, a selection of situations and cases will always have to take place. It is also a sign of autonomy of the Office of the Prosecutor — you obviously cannot catch all.
Yet it has to be admitted that international criminal law still exhibits a little bit of “catch as catch can” procedure. It is realistic that the Court will predominantly have to deal with accused individuals who have lost their power base or their support from the “superpowers.” This is, however, not a principled objection to international criminal justice, but rather an incentive to improve the system and create precedents that can be applied worldwide in the future.
We all know that most of the situations and all of the cases that we deal with still originate from Africa. Given the global situation, this is not a satisfying state of affairs. It is important for the future that the ICC is able to demonstrate that it is not exclusively focused on Africa. This is, of course, easier said than done. Attempts to go outside Africa are in the record, but we all know that such steps are extremely difficult. In these situations, political resistance is particularly fierce and political support and cooperation often insufficient or non-existent.
However, the Court should not be disheartened. It must remain relevant in the international discourse. The Court, including the Office of the Prosecutor, must be seen as reacting in a more timely manner to international developments and conflict situations. The latest successful request regarding the Rohingya people could be an example for such a policy.
Selectivity would be a lesser problem if the United Nations Security Council would meet its responsibilities. However, any such hope might not seem realistic in light of the present political dynamics. It is regrettable that there is a blockade by certain Security Council members regarding referrals of situations, for example in Syria, Yemen, and South Sudan. It is also rather disappointing that the Security Council has not reacted to the ICC’s numerous decisions in relation to findings of non-cooperation of certain states.
However, the ICC must be ready in case conditions change. That might not be easy to imagine today. Yet, looking over the past decades — look at the fall of the Berlin Wall and the collapse of the Soviet Union, for example — I can only say that no political state of affairs lasts forever.
Regrettably, cooperation by states also leaves much to be desired. It suffices to mention that warrants of arrest against 15 individuals and corresponding surrender requests are still outstanding. The ICC is fully and entirely dependent on cooperation with states. Simply put: No cooperation, then no activities in The Hague. The ICC is only as strong as the states allow us to be.
Length of Proceedings
The reasons for the length of proceedings are manifold and complex. I can only touch upon them superficially. When we criticize the Court in that respect, it should not be forgotten that the nature of the crimes subject to the jurisdiction of the Court entail long and resource-intensive proceedings. To prove, for example, a “widespread or systematic attack” as an element of crimes against humanity or a “plan or policy” as an element of war crimes requires comprehensive investigations by the Prosecutor and clarification in the courtroom that goes far beyond the individual criminal acts; it extends to a whole, often very far-reaching and complex, conflict.
While it is the declared ambition of the Court to hold proceedings expeditiously, this is not an end in itself. The speed and costs involved cannot be decisive factors; rather, quality and excellence should be added to the assessment.
This consideration is not meant to be an excuse to stubbornly preserve old ways that have been proven inefficient. Not every unfamiliar attempt to conduct proceedings more effectively can be simply dismissed as unfair. The ICC still has to find satisfying, practical solutions on how to blend the Common Law and Civil Law elements in the Rome Statute.
To this end, it has to be accepted that the drafters of the Rome Statute did not favor one of these main legal systems of the world over the other. Instead, they deliberately created a unique procedure combining both. Many provisions in the Rome Statute even allow different answers for the same procedural problem that are all legitimate under the Statute, whether implementing more Civil Law or more Common Law concepts.
Examples are the admissibility of evidence and the conduct of the proceedings. To establish feasible solutions within the framework of the Rome Statute requires openness towards perhaps unfamiliar systems of justice and the attitude that no legal system is superior to another.
IV. The Court Between Law and Politics
Let me conclude with a few general remarks on the Court and politics. I think it is fair to say that the current trend in international affairs is not in favor of international organizations and entities. It is not in favor of a global order governed by internationally recognized rules.
Nationalism and ruthless enforcement of national interests seem to be predominant. I am always astonished when I realize how many countries think they are special or, most notably, better than all the others. The laws of logic do not seem to support such a pretentious attitude.
However, The ICC also feels this general tendency. Realpolitik fights back vehemently against the loss of sovereignty, power, and influence. Critics of the Court are often fierce and even verbally aggressive. The challenges to the Court’s authority are enormous, the resistance is huge; we act constantly under pressure to demonstrate legitimacy, and we sometimes have to fight exaggerated expectations.
But no one could have expected that it would be easy to break with the culture of impunity for international crimes that existed for thousands of years. Resistance and setbacks were inevitable and must be expected. The implementation of the Rome Statute’s ideals and the development of the ICC is a learning process that has not been completed. The evolution of international criminal justice was never and will never be a linear progress.
`The Power and the Will to Stay the Course’
And yet words and conferences and celebrations will not be enough to narrow the gap between the objectives and promises of the Rome Statute, on the one hand, and the reality of our time, on the other. What we need – more than ever – is the power and the will to stay the course for the ICC. We have to shape the future and not succumb to the imposition of current political circumstances.
When I speak of “we,” I am referring to all those favorably inclined toward the ICC — primarily the States Parties themselves, the Court, and its principals. I also mean civil society and all those who so crucially support the cause of the ICC, many of them present in this room.
Above all, a source of hope is the young generation. All over the world, there are young activists and dedicated jurists who are not willing to accept the idea of impunity for the most heinous crimes dictated by Realpolitik.
In July, the annual Nuremberg Moot Court took place in these premises. More than 50 teams from all over the world participated. Many of them came from countries that are not Parties to the Rome Statute, for example from China, Russia, the United States, India, and Pakistan. You could sense how impressed they were by the atmosphere in this historic Courtroom 600. They were full of enthusiasm for the ideals that the Rome Statute symbolizes and for the ICC as an institution.
Compared with at least most of the speakers and panelists during this conference, they have one advantage: They are young, the future belongs to them, they could be multipliers for the objectives of the Rome Statute in their countries, and they could be the ones who shape the future for the better.
I know we have a tedious task ahead, but it has never been different in the history of the Court and it will never be any different in the future. We have come a long way, but the road ahead will also be long. And yet it is worth supporting the Court and the idea it embodies. The mandate of the ICC is as important and relevant today as it was 20 years ago.
Let ́s let the Rome Statute have the last say at this conference:
“Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes … and Resolved to guarantee lasting respect for and the enforcement of international justice.”