International justice remains a work in progress, said Marc Perrin de Brichambaut, Judge of the International Criminal Court (ICC), adding that the institutions in place are continually exploring new areas which have not been covered before, creating new measures and laws on many issues.
Mr. Brichanmbaut said that the ICC has moved to a more effective, justice-rendering mode where it would provide references for a system of law that can be picked up by national authorities to make decisions.
“Ultimately I stress that it is national jurisdictions which have to do the job, or as much as possible, of fighting against impunity,” he argued.
Speaking with IPI Senior Adviser Warren Hoge, Mr. Brichanmbaut highlighted the importance for the ICC of having support by all the key players, which can include the private sector and the media. “You can leave a few out, if needed, but it is indispensable to have all the major powers of the day,” he said.
Palestine, which has pressed the ICC to charge Israel over war crimes, is going to be a difficult case, he noted. It addresses a number of issues within the Rome statute which have never been covered, such as occupation. Another issue would be the problems that arise in providing evidence and witnesses.
“If you put yourself from the vantage point of the prosecutor, who is she going to try and determine as the potential culprits?” he said. “Who is she asked to be referred to the court or arrested? And that goes for all the actors.”
This discussion was part of a series of interviews done on the margins of ICM’s tenth retreat on justice, human rights, and the international legal system, held on December 11-12.
Last night as we were pondering the fact that there will probably be an accord on climate change, a far-reaching accord, signed in Paris, you were saying it puts you in mind of 1998, when the Statute of Rome was being established, that created the International Criminal Court (ICC). Thinking back to that period, are there things that are instructive that happened then that would be helpful for people to consider now as we go forward with this new accord?
The adoption of the Rome Statute of the ICC was a moment of enthusiasm, a breakthrough. It was an unexpected compromise on a text which was imperfect, but nevertheless had a great merit of existing. But it was also a moment of selection when a number of key partners decided not to go along and kept out, and those key partners never rejoined after that, meaning that the tool which had been created to fight impunity was not a universal tool and among other things, lacked a significant part of the membership of the U.N. Security Council, which had an impact on its effectiveness thereafter.
The lesson to be drawn from this is how exceedingly crucial it is to have a quasi-consensus support by all the key players. You can leave a few out, if needed, but it is indispensable to have all the major powers of the day. I am not going to name them because we all have them in mind, and they’re not always countries; they can be the role of the private sector, the role of the media, now social media.
I think the biggest difference between then and now is the enormous awareness in global media of the problem. In itself, the Paris Climate Conference (COP 21) is a success because it forced people to look at the issues and become more aware of them, which creates the conditions for the follow-up to whatever agreement or machinery is set up.
Now that you are a judge on the court, how are you finding the tools of international justice?
I think international justice, in terms of its international institutions, remains a work in progress. It is not a finalized construction. There is an institution, but it is forever exploring new areas which had not been covered before in the international field. I am currently working on issues of compensations, of reparation, where we are first, so we have to create a sort of new jurisprudence and on many other issues, like the way witnesses have lied in certain circumstances. We are also exploring new areas, so there’s still a lot to do.
There’s still a whole caseload to build. There is still a whole set of homogenous practices among judges which come from a background of common law and from a background of Germanic-roman civil law. I can tell you the differences when you are on the bench and when you’re dealing with concrete circumstances in the court or in a hearing are quite sharp. That will take time.
Therefore the court was still in a sort of experimental and exemplary mode where it was putting together all the elements which it needed to work better on a permanent basis, but it had to move to a much more justice-rendering effective mode where it would be faster and where it could really provide some references for complementarity, i.e. jurisprudence that can be picked up by national jurisdictions.
Ultimately I stress that it is national jurisdictions which have to do the job, or as much as possible, of fighting against impunity. Pick up the cases, not be afraid of putting resources and man power into picking up those cases and not relying too much on some faraway institution in the Hague, which potentially might (if the circumstances are right) do something about the most difficult cases.
Looking forward for the court and some of the greatest challenges you are facing, could you discuss with us a little bit the challenge that the Palestinian case represents with the court?
The Palestinian case is going to be very difficult for many reasons. First, it addresses a number of provisions within the statute which once again have never been covered—issues like occupation. I would rather not go into persecution and the use of torture and a number of details like that, where we haven’t had a chance currently to define a little bit how we interpret their own statute.
Then, of course, there’s the huge problem in providing evidence, providing witnesses, and if you put yourself from the vantage point of the prosecutor, who is she going to try and determine as the potential culprits? Who is she asked to be referred to the court or arrested? And that goes for all the actors. As you know, we’re on a common-law based system there—unless there is an arrest warrant which has been implemented, you cannot start a trial. You can go as far as a confirmation of charges is concerned, but you cannot start a trial. You have to have somebody in the dock to start a trial. So this might prove an absolutely insurmountable obstacle to some of the potential accused—let’s put it that way.
The rest, it’s your judgement as good as mine. Neither Palestine nor Israel are usual entities. There’s a lot of power, there’s a lot of culture, and there’s a lot of human potential that goes around those, so it’s likely to be extremely demanding approaches if ever those cases come to the court.
Finally, last night in your remarks you mention the book The Fog of Peace, the excellent book by Jean-Marie Guéhenno, and you said in passing that Jean-Marie is not a fan of the court. In fact, peace makers are often not a fan of the ICC because they imagine that a referral would interrupt their peacemaking chores—it would take away the tool they have of offering immunity and exiles. It’s a little surprising that accountability and peace, which seem to go hand in hand, have emerged in these cases as things at odd with one another. It goes by the shorthand of peace and justice. Is this an unsolvable problem?
Well, to be fair to Jean Guéhenno, the two quotations I read were from where his chapters on Sudan and the Democratic Republic of Congo and referred to moments where, the fact that there was an arrest warrant by the court was uncomfortable for the type of peacebuilding process he was trying to achieve, and as a perfectly honest and straightforward person he highlighted it.
It’s never going to be simple. One has to have a clear, conceptual vision. Yes, the two ought to go hand in hand, but when you are confronted with an authoritarian, potentially criminal person, whom you have to convince to sign a peace deal or interrupt operations which greatly hurt civilian populations—well, you are after the peace deal, and this is your number one preoccupation. So, one can understand the motivation.
Then, of course, afterwards if you have, or in between, if you have sufficient political support to also call for accountability to this authoritarian character, even better. But he might have thoughts about whether or not he does a deal under all those conditions. Surprisingly, many of the people who are in jail now in Scheveningen are former authoritarian characters who handed themselves over. They gave up because it’s rough to be a warlord. Ultimately you end up being threatened by other warlords, so if you have the option of a cozy retirement with three meals a day in a not too bad place, you might consider it.