Twenty years of international criminal law: from the ICTY to the ICC and beyond.

Position:International Criminal Tribunal for the Former Yugoslavia, International Criminal Court - International Law in a Multipolar World - Discussion

This panel was convened at 5:15 pm, Friday, April 5, by its moderator, Abi Williams, President of the Hague Institute for Global Justice, who introduced the panelists: Fatou Bensouda, Prosecutor of the International Criminal Court; and Theodor Meron, President of the International Criminal Tribunal for the former Yugoslavia, and President of the International Residual Mechanism for Criminal Tribunals.

THEODOR MERON

The creation of international criminal courts and tribunals has really been the creation of a new universe of international justice. It took a lot of time, but the achievements have been tremendous. The fact that at the ICTY we have, after some years, arrived at 100% law enforcement in the sense that all of our 161 indictees have been accounted for, is a feat that not all justice systems could have achieved. The fact that we have applied international customary law, not just in a few cases as in Nuremberg, but in case after case; that we have shown that even the most senior people, including heads of state, who have been accused of some of the gravest crimes known to humanity can be prosecuted; and that we managed throughout all of our cases to apply a panoply of norms of fairness and due process--I think these are tremendous achievements.

ABI WILLIAMS

Thank you. Prosecutor?

FATOU BENSOUDA

Good evening to you all. I am happy to be here and having this discussion. I also thank our host, the Netherlands, for giving us this opportunity, and, of course, the Society.

But to the question, I think the ICC has also accomplished a lot, and it is without doubt that now the Court has become a real player, an important player, in international relations, and this has been done in 10 years. Of course, we had a lot to learn from the ad hoc tribunals. They have set the jurisprudence, but when the Court started, we also had empty floors, empty corridors. We started from scratch. We have been able to develop policies of the office, we have been able to develop strategies, we have an operations manual, and in 2002 we did not have any case. Today we have at least eight situations which have generated over 10 cases before the Court, and this is something to be proud of. I think also the fact that the ratifications of the Statute are still ongoing. We are having cooperation from states who have signed and ratified, but also from non-state parties. And I will just give the example of what happened last week about the surrender of Bosco Ntaganda to the Court and the assistance of the United States and Rwanda, both non-state parties to the Court, assisting for Bosco Ntaganda to be transferred to the Court. We, of course, have still a lot to do. There are many cases that we still are looking at, but I think this idea that we had in Rome, this has been translated to an operational institute that has become very important in international relations.

ABI WILLIAMS

I want to follow up first on the point that Judge Meron mentioned, that one of the significant aspects of the ICTY was that it was the first international criminal tribunal since Nuremberg. The International Military Tribunal at Nuremberg in a sense had the luxury of having police powers to arrest and seize evidence. How do you deal with the challenge of arrest without such powers, which the Nuremberg Military Tribunal had?

THEODOR MERON

It's a very serious challenge. In fact, during the first lean years of the ICTY, my colleagues--and I, when I arrived--were really worried that the day may come that we would not have defendants before us. We are totally dependent on cooperation of states, and initially--for quite a few years--that cooperation was very slow in coming. It was only when the United States and the European Union reached the conclusion that peace in Europe and access by the states of the Balkans to the European Union required that justice be done and that those states should cooperate by delivering up to The Hague the principal defendants indicted by the Tribunal that things started changing.

It's not just a question of fugitives, important as that is. You cannot have a criminal trial conducted according to all the due process standards if you do not have the evidence. The evidence has to be collected thousands of kilometers away. For that, you also need supportive governments, and fortunately over time, and thanks to the credibility that the Tribunal has established, things have started changing.

I would like to acknowledge not only the role of the EU at large and the role of the United States in pressing states to deliver people indicted of very serious crimes to The Hague; the Netherlands has also played a very special role. When some kind of tribunal fatigue started setting in more and more in the European Union, the Netherlands remained the "last man standing," insisting that the rapprochement between Serbia and the European Union should depend upon the delivery of General Mladic. And General Mladic was found and delivered to The Hague, making him our 160th of 161 indictees accounted for, and for that we are eternally grateful to the Netherlands.

But this problem of a lack of police power continues to be a serious one. For example, when we, as judges, consider the question whether somebody should be given, as we call it, provisional release (or as we would say here, grant the person bail), we are deeply aware of the issue that if he fails to return, we would again be completely dependent on the state where he may be present to deliver him back to The Hague. And in terms of other questions, such as the protection of witnesses, we again continue to depend on the cooperation of states. And we remain dependent on the good will of the Security Council and the international community in making sure that that cooperation is forthcoming.

ABI WILLIAMS

Could I just follow up on that point about the relationship with the Security Council? Because the relationship between the international courts and tribunals and the Security Council is a delicate one. To what extent are you dependent on the Council? And how do you manage this delicate relationship with a body which is essentially a political body? And I would also like the Prosecutor to address that question as well.

FATOU BENSOUDA

With respect to your first question, on arrests. One of the biggest challenges that the ICC faces today is arrests--arresting those wanted by the Court and surrendering them or transferring them to the Court. As you know, the Court can only be able to function effectively if we have these individuals arrested and brought to the Court. But the system that has been put in place by the Rome Statute--I call it a system and not a court in the sense that we are the judicial arm of that system, we investigate, we prosecute individuals--requires that the decisions that the Court takes are to be executed by the states themselves.

As you know, the ICC is a voluntary institution in which states ratify and become part of the Court. Today we have 122 states members of the ICC. But the powers of arrests and executing the decisions of the Court remains with the states, and this is why cooperation for us also is huge. If we do not have this cooperation, if we do not have these arrests taking place, the Court will not be effective as we wanted it to be. So that is the system that has been put in place by the Rome Statute. We are not meant to go out and arrest individuals, and of course this is a challenge for us, but as I said, that is the system that has been put in place. We continue to call on states, we continue to call on all partners to assist us in this regard. We have many outstanding arrest warrants in all the situations that we are dealing with, and we are not able to proceed with those cases because those individuals are not before the Court. And if you look at the situation of President Bashir, for instance, who has been wanted by the Court I think since 2005 or 2006, an arrest warrant has been issued against him, and this has been a big challenge for the states but also for the Court. The situation of Sudan was referred to the Court by the United Nations Security Council, and President Bashir is all the time pushing the envelope, going to states that are parties to the Rome Statute, who have obligations under the Rome Statute to arrest and surrender him, but for one reason or another, sometimes political reasons, he is not arrested. And in situations like that, as you know, there is only so much that the Court can do, apart from reporting back to the Chamber and to the UN Security Council that the arrest is not taking place.

Maybe this brings me to the relationship between your second question, the Security Council, and the ICC. In the first instance, the Security Council can refer cases to the ICC, which they have done in the Sudan as well as Libya. They can also request the ICC to stop investigations or to stop prosecutions, suspend for a year. They have the power of referral and deferral to the Court. The actions that the UN Security Council takes or the decisions that they make affects us as a judicial institution to the extent that the ICC is being accused of double standards. I always get the question, "Oh, you are in Libya. Why are you not taking Syria?" The speaker is always unaware that Libya was referred to us by the UN Security Council because it's not a state party. So it is not the decisions of ICC that create that situation, but rather a political body. We have had all these discussions behind closed door, but for the first...

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