In December 2019, the Assembly of States Parties to the International Criminal Court (ICC) established a comprehensive ICC review process and invited various stakeholders to make submissions on issues under the mandate of the review. This blog is part of a series highlighting recommendations the Open Society Justice Initiative is making to the Group of Independent Experts, Assembly of States Parties, and ICC as the review process continues throughout 2020 and beyond.
Qualified judges are key to an effective judiciary. Judges ensure proper management of proceedings, safeguard fair trial rights, and secure institutional stability. This is no different at the International Criminal Court (ICC). The Rome Statute establishes a comprehensive set of technical and moral requirements for individuals to qualify for ICC judicial service, as well the process for judicial appointments.
In 2019, the Open Society Justice Initiative published Raising the Bar: Improving the Nomination and Election of Judges to the International Criminal Court. The report relied upon primary source interviews with various stakeholders, including current or former ICC judges and staff, representatives of governments, members of civil society, and former members of the Advisory Committee on Nominations of Judges (ACN). Several interviewees expressed concern regarding the lack of preparedness of incoming ICC judges and their need for foundational induction, as well as the need for continuing professional development for all judges of the court.
Based on this report, as well as our ongoing research on the matter and additional interviews, the Justice Initiative made a submission to the Independent Expert Review (IER) regarding the importance of judicial training at the ICC. Our submission outlined three areas: the main problems, recommendations for professional development initiatives, and suggestions on how to organize induction and continuing professional development for ICC judges.
The Main Problems that Emerged Through Our Interviews
Some judges do not possess the required knowledge or skills
While the Rome Statute sets out criteria meant to ensure that the judges elected possess certain specified qualifications, those we interviewed indicated that many elected judges do not meet these requirements. For example, ICC judges are required to “have an excellent knowledge of and be fluent in at least one of the working languages of the Court,” English and French. Interviewees revealed that a number of ICC judges are unable to converse effectively in either of these languages hampering their ability to deliberate and to engage with the parties in the courtroom.
Some judges also lack skills that, although not expressly required by the Rome Statute, are essential for enabling them to exercise their role effectively. For instance, ICC judges are nominated from two lists: List A and B. List A contains candidates who have competence and experience in criminal law and criminal proceedings, whereas List B contains candidates who have competence and experience in relevant areas of international law, such as international humanitarian law or human rights law. This separation results in the majority of ICC judges lacking competence in one or the other of these fields. A number of interviewees expressed the view that all judges should possess, at a minimum, a basic understanding of both.
Incoming judges lack sufficient knowledge of the Court and the Rome Statute system
Even where candidates with the required experience and skills are elected, the ICC presents a new, unfamiliar legal framework for most incoming judges, regardless of their professional background. Interviewees told the Justice Initiative that judges often start their tenure without basic knowledge of the court, its governing law, and key legal texts and concepts. The majority of elected judges lack familiarity with basic ICC case law. Interlocutors also expressed concern that many judges lacked understanding of the court’s institutional structure—in particular the role of different ICC sections (e.g., confusing the roles of the sections and offices dealing with victims and witnesses), which can lead judges to make improper decisions. One judge noted that most ICC judges spend their first three years trying to learn the Rome Statute system and navigating internal court dynamics, while at the same time required to take up judicial functions.
Some judges lack knowledge of how to assess evidence and manage court proceedings
Almost all interviewees expressed concern about the ability of some judges to effectively examine witnesses and assess evidence. Some judges have difficulties with courtroom management. This may be due to a judge’s domestic legal background or the fact that some judges, particularly List B judges, do not have prior judicial experience. Several interviewees noted that judges often engage in key procedural issues differently depending on their domestic legal tradition.
Some judges do not prioritize jurisprudential consistency and overly rely on their domestic legal systems
Most interviewees expressed concern that judges too often take inconsistent approaches on key questions of law and procedure and are not interested in developing a coherent body of jurisprudence. According to one staff member, fragmented jurisprudence results from judges basing decisions on their own personal views, or on the practice from their own domestic systems, rather than authoritative sources. This problem is aggravated in some instances by a lack of collegiality and lack of flexibility to learn and adapt. Inconsistencies also exist in relation to evidence admissibility and judgement drafting.
Problems of collegiality, ethical considerations, and lack of management skills
Interviewees expressed considerable concern regarding infighting and mutual distrust among ICC judges. A number of interviewees noted that judges often fail to cooperate collegially or treat their staff and other judges with due respect. Some mentioned problems with the culture of deliberations within chambers and an inability to reach compromises.
Lack of field exposure
A number of those interviewed mentioned the judges’ lack of exposure to cultural and social contexts in ICC situation countries, particularly those pertaining to specific communities. According to an ICC counsel representing victims, judges “are often disconnected from the situation’s environment, and so are not sufficiently informed when ruling on matters of fact.”
Recommended Professional Development Needs
The Justice Initiative’s research demonstrates a clear and urgent need to provide education to both incoming and current judges. Based on the most consistently raised concerns, we suggest professional development in the following seven areas:
- For all incoming judges, an immediate intensive course on the Rome Statute system and structure of the ICC, the court’s principal legal instruments and sources, the various stages of proceedings, key elements of ICC jurisprudence, and the role of the different organs and sections of the court. Interviewees suggested that this course should be mandatory for all newly elected judges and take place through intensive induction retreats before or immediately after judges are sworn in.
- Enrollment in language courses, if needed. The court’s languages service section could be asked to assess the level of incoming judges in the two working languages of the court and to advise on any courses needed to improve their main working language.
- Continuing professional development opportunities aimed specifically at narrowing the knowledge gap between List A and List B judges.
- For all judges, regular continuing professional development opportunities on matters such as evidence analysis, organization of proceedings, and comparative criminal law and procedure. This could include best practices on testimony analysis, evidence credibility, different types of evidence (including new developments such as open source intelligence), how to address witnesses and victims, and courtroom management.
- Interviews indicated that some ICC judges could benefit from opportunities to develop legal drafting skills, particularly the drafting of decisions. As with languages, an assessment of needs could be undertaken when a judge arrives, and tailored professional development could be provided if necessary.
- Coaching and support on matters such as management of a judicial office and staff, effective communication and deliberation between judges, and collegiality. Many civil law countries routinely provide this type of training to judges and prospective judges.
- Judges should consider visiting situation countries and affected communities – security permitting, and in a way that avoids compromising their independence – in order to gain a better understanding of the cultural, social, and political context and the background to the relevant proceedings (necessary, among other things, to interpret evidence and understand witness accounts).
How Could Legal Education for ICC Judges be Organized?
Practice to date
The ICC lacks a formalized system for judicial professional development. Currently, judges take part in retreats and contribute to the Chambers Practice Manual. Periodically, external institutions organize and host events for ICC judges on an ad hoc basis.
ICC judges have engaged in joint activities with judges from other institutions. For instance, together with judges and presidents of other international criminal courts and tribunals, they issued the Paris Declaration of 2017 on the effectiveness of international criminal justice. Among other things, the declaration advocates for continuing education of judges, including through partnerships with national institutions tasked with training of judges and prosecutors. In 2019, the ICC hosted The Hague Judicial Club Colloquium in which ICC judges gathered with judges of other international courts and tribunals with the stated purpose of sharing knowledge and discussing similar challenges. While such activities are worthwhile, attendees expressed concern that these events are excessively formalized, do not involve substantive discussions, and are not sufficiently educational.
Complete information on learning and development opportunities for ICC judges is not publicly available, and it is difficult to evaluate their impact. Based on the Justice Initiative’s research, while such initiatives may be well intentioned, they are infrequent, sporadic, and largely dependent upon external institutions rather than generated internally.
Attitude of ICC judges towards education and training
Some judges may be reluctant to participate in learning initiatives for fear the need for training might be perceived as incompetence or suggest that judges are not qualified for their role. Some advised that using terminology such as “workshop” or “exchange,” as opposed to “training” might help ameliorate this concern.
An interviewee suggested that the Advisory Committee on Nomination of Judges (ACN) could ask candidates during the interview process whether they would be willing to undergo judicial training. This may encourage prospective judges to appreciate the demands of the position and commit to reinforcing their skills. The ACN could consider the answers when evaluating candidates.
Examples from other international criminal tribunals
When the International Criminal Tribunal for the former Yugoslavia (ICTY) was newly established, judges had limited experience in conducting international criminal trials. In response, the ICTY organized weeklong training courses for incoming judges on criminal law and procedure, adopting a roundtable format with the aim of encouraging participants to exchange ideas on substantive and procedural issues. Reportedly, judges who participated were receptive and appreciative of these initiatives. More recently, the Kosovo Specialist Chambers (KSC) organized training opportunities for its judges. KSC judges also took part in a roundtable event with the purpose of identifying potentially contentious issues that could arise during proceedings, and compiled findings on how best to address them.
Recommendations for organizing professional development for judges at the ICC
Immediate and concerted action, along with strong leadership, are required in order to remedy the problems highlighted in this submission. The Justice Initiative recommends the following as a starting point:
- To show leadership and signal its importance, the ICC Presidency should spearhead the development of a comprehensive and coherent program of legal education for ICC judges, with the support of the Assembly of States Parties and the Registry. This should happen rapidly in preparation for the new cohort of judges elected in December 2020.
- The program should incorporate a range of activities aimed at reinforcing and building knowledge and skills, including in the areas listed above. Activities should include a mandatory induction course for incoming judges, initiatives targeted at supporting judges who require specific enhancements, and other events aimed at providing mandatory continuing education for all sitting judges.
- Activities could also include exchanges with judges from other international courts and tribunals, as well as with domestic judges with experience in conducting complex criminal cases.
- While the court itself should take the lead in building the program, and some activities could be organized within the court, the court may benefit from seeking external cooperation, such as national judicial training institutions, academic institutions, and others with the necessary specialist knowledge.
Some interviewees pointed to the need for action to facilitate judges’ access to key information and resources. Interviews recommended the following: improving the court’s jurisprudence database to be more user-friendly and accessible; compiling a handbook on how ICC case law has addressed legal and procedural questions that commonly arise; and developing the Chambers Practice Manual further to act as a more comprehensive and useful reference on the court’s practice, reflecting consensus while at the same time not impinging on judicial independence.
The ICC could look to other tribunals for inspiration. For example, judges at the KSC prepared so-called “green papers” on matters such as how proceedings could be managed efficiently within the KSC’s legal framework and issues of admissibility of referrals. Judges developed these green papers with a view to illustrating different possible approaches and as a way of reflecting on issues in a non-binding way. Similarly, the KSC is currently working on a manual for judicial proceedings.
Implementing concrete, practicable measures seeking to promote induction and continuing legal education for incoming and sitting judges can address many of the ICC judiciary’s shortcomings. The ICC review process presents a unique opportunity to introduce novel initiatives aimed at improving the institution across the board, enabling it to assume its position of prominence within the international justice community.
Yassir Al-Khudayri is an Aryeh Neier Fellow at the Open Society Justice Initiative focusing on advocacy, international justice, and anti-corruption. He holds an LL.M. from Leiden University and a Bachelors in Law from the University of Lisbon. Follow him on Twitter: @yassirkhudayri. The author would like to recognize Fiona McKay, Senior Managing Legal Officer, Open Society Justice Initiative, who contributed to the drafting on the IER submission and to this blog.