International Criminal Courts: Their Virtues and Vices

So, I have realised that I have been making somewhat of a mockery of my blog’s title of late. I have resolved to rectify this egregious behaviour and thought I would make a start by writing about a fascinating debate that I attended at the weekend, at Ustinov College, Durham.

Entitled ‘International Criminal Courts: Their Virtues and Vices’, it was organised by four post-graduate students, in conjunction with Inner Temple, and placed us in the company of those who have truly served at the coal face of the international criminal justice system – the International Criminal Court.

Advancing the case for international courts was Iain Morley QC of 23 Essex Street Chambers, who acted as prosecuting counsel for the UN in the ad-hoc tribunals for the Rwandan genocide and Hariri assassinations. Advancing the case against was Steven Kay QC of Nine Bedford Row who, in amongst other notable cases, defended Tadic in the very first case of the ICTY. The debate was presided over by The Rt. Hon. Lord Justice Laws and his interesting jumper; a summary of the arguments (with a few observations of his own) was given by Professor Michael Bohlander.

Opening remarks were delivered by The Rt. Hon. Lord Justice Laws. Although he emphasised that he did not consider himself  by any means an expert in the field of international criminal law, he made a series of acute observations. He noted that issues of sovereignty were of paramount importance in such matters and that there was, quite often, constitutional difficulties in the administration of justice on the international stage. Similarly, there is always potential for tensions between proponents of differing legal systems, rules of evidence, procedures and so on, but given that compulsory criminal jurisdiction is not enforceable, it behoves all to proceed by consent and find a way around these problems.

Iain Morley QC began his case by stating that, although there were problems with international criminal courts, on balance he believed that the world was a better place for their existence. It was his view that international criminal law began properly not with the Nuremburg trials, but with the fall of the Berlin Wall. This event ushered in a new world order and brought about the cessation of geopolitical infighting, allowing true international criminal law to develop.

Mr Morley then turned to a criticism often levelled at the international criminal courts, that of their cost. It transpires that the permanent International Criminal Court costs somewhere in the region of five to eight million dollars per month to run. Yes, you read that right. Per month. The Tribunals for both Yugoslavia and Rwanda ran to a total of one and a half billion dollars a piece. (Mr Morley, you may have your work cut out here). It turns out though that this cost accounts for less than 1% of the annual cost of conflict in the world, and conceivably the existence of such courts might go some way to reducing the overall expenditure by reducing instances of war crimes and crimes against humanity. Ultimately, he said, money is not and should not be the issue. It is the efficiency and speed with which cases progress that should be held up to the light; cases can and usually do take years to complete. The Courts’ virtue lies in the fact that we have a system that can be improved, which is infinitely preferable to having no system at all. That said, cases are getting faster. Mr Morley attributes this to the ‘army’ of young lawyers and experienced judges toiling away at the Hague, developing both jurisprudence and a homogeneity of approach that is beginning to diminish the inefficiencies of previous years.

So, what is the point of an international trial? Mr Morley identified five critical points that he believed tip the scales in favour of international criminal courts, the first of which is empowerment. The development in victims’ minds of a sense of empowerment comes from seeing those who have wronged them being brought to justice. Often this is in circumstances where entire communities have suffered a lack of control over their existence for generations, and these trials can be part of the healing process. This consequently leads to the second point, an end to the idea of impunity. Accountability increases, as does the deterrent effect of international justice. The third point is the issue of record. History consists of many interpretations of events, from many different vantage points. In the records of the courts, future generations can benefit from a definitive script that tells both sides of the story and is evidence-based. Diversity is also a principle virtue of the international criminal courts. The Hague is full of all colours and creeds working together to achieve a just outcome and this is something to be valued and further encouraged. Mr Morley’s final point was that of homogeneity. At last, we have something approaching universality in how to conduct trials, born of a better understanding of different legal traditions and this is working to improve the conduct of trials in other countries. The younger generation that work in the courts have considerable influence in helping develop principles and are not tethered to archaic practices. Mr Morley held that, although he would not disagree with anything raised by Steven Kay QC, it was his belief that the virtues of the international criminal courts outweighed the vices.

In advancing the case against the international criminal courts, Mr Kay began by harking back to the origins of the court. Article 7 of the UN Charter included the intention to establish a court to restore and maintain peace. This was unprecedented as the United Nations has never before involved itself with courts, more matters of sanctions and the use of force. The UN established the International Court of Justice through the General Assembly; the International Criminal Court came through the Security Council, as they were sure that it would not pass if put to a General Assembly vote. Mr Kay referred to Cassesse, terming him a crusader, and noting that there was no chance of ‘dispassionate’ judgement of the legitimacy of the court from him.

Mr Kay touched briefly on his experiences defending Tadic at the ICTY. The case began on 8th May 1996 and  he saw it as a time of optimism, with justice on the horizon. He was very hopeful as to where it may lead in the future. Fifteen years later, he is disillusioned. Has there been less war? Less aerial bombardment? The alarm bells first rang for him in May 1999, on the lead up to the Kosovo War. He watched news reports in confusion as Clinton built up forces around Kosovo. There had been no resolution from the Security Council and NATO’s Charter only permitted self-defence in the event of an attack. Surely this must be illegal? At this point, Mr Kay quietly stated that 95% of people killed in war are now civilians; military installations are rarely targeted any longer.

His confusion turned to disbelief in the wake of some ‘ludicrous’ judgments from the International Criminal Courts against Kosovo and Serbia. Further still after the indictment was taken out against Milosovic, which Kay considered to be an overtly political act. He was dismayed that the issue of legality of the war had no consequence for the NATO side.

Mr Kay also drew on more recent examples of events that had disillusioned him further, during the Libyan conflict. He recalled a headline from a British tabloid that read “Troops taking Viagra to rape women”. On further investigation, he discovered that this was a quote attributed to Moreno-Ocampo,  the ICC prosecutor. The office of prosecutor is meant to be independent, not a tool for the Security Council.

A further cause for concern came in the form of Kenya and the definition of crimes against humanity. Mr Kay drew attention to Article 22 of the Rome Statute which states, ‘The definition of a crime shall be strictly construed and shall not be extended by analogy’. The International Criminal Court is not a world human rights court. Does it really serve international criminal justice?

Mr Kay considered the development of jurisprudence to be helpful, but took grave issue with the quality of judges that sit in the permanent court. Likening their appointment to horse-trading in New York he raised the Celebici case, where one of the judges gently slumbered his way through the admission of evidence, and pointed out that in some countries one did not require a law degree to sit on the bench. He also expressed concern about the number of youthful, inexperienced people working at The Hague. They draft long, lumbering judgments because they do not know which bits are important. Citations are frequently either wrong or missing altogether.

Mr Kay concluded by noting that divisions not only remain at the Court, but are overt. Resentment is building in Africa, as its countries are becoming bitter and disillusioned with the failure of the ICC to deal with significant legal conflicts that occur outside of the African continent.

Professor Bohlander spent two years at the International Criminal Court, and like Mr Kay, very quickly became disillusioned. He noted that the theory of international criminal law does not often reflect the practice and was struck by the number of people undertaking work there purely for CV enhancement. He had observed that states were treated very differently within the system, contrary to the principle of equality of sovereignty. Professor Bohlander further agreed that the Court was costly, but considered this to be less of a point if it offered value for money. He wasn’t sure if he was convinced of that argument.

He violently disagreed with Mr Morley that the number of young people, straight out of law school, working at the Court was a cause for celebration. He thought it nonsensical that they were launched into writing extremely important judgments. The notion of empowerment was also one that he took issue with, citing reliable sociological research that contradicted this argument. This is particularly relevant in cases where conspiracy to commit genocide attracts a lower tariff than a single murder would in the domestic courts. Professor Bohlander also observed that the primary function of the International Criminal Court was not the development of the international criminal law, rather to put people away. To claim otherwise is only to try to expedite the acceptance of international criminal law worldwide.

A poll was taken of the students present, both before and after the debate, to gauge how persuasive we found the arguments of each side. Movement could be counted in terms of individual percentage points, with Iain Morley QC edging slightly ahead by close of the debate. This was both enlightening and entertaining, and I thoroughly enjoyed it.

This debate was part of the Cafe Politique series of seminars and debates, at Ustinov College, Durham University.