Programs in International Justice and Society

"Authority and a Judge's Role at the International Courts"

Attending the 11th Brandeis Institute for International Judges allowed me to witness a conversation that highlighted the prospects and challenges relating to the authority of the international courts. At the beginning of the conference, discussion revolved around the definitions of and differences between de jure authority (legal authority) and de facto authority (authority in fact).

During the institute, I learned from the participants that these two terms face subjective interpretations in terms of their meaning and role. It was remarked that de jure authority refers not only to the source of authority, but rather “is linked to authority of judgment itself, good quality judgment,” whereas, de facto authority refers to its “overall impact of the court on society.”

In certain international courts, it is common to have narrow authority in fact because states do not always comply with rulings. Many of the represented institutions at the BIIJ are globally recognized, but are not globally supported because certain states desire complete jurisdiction and sovereignty over their land, people and law. The International Criminal Court (ICC) is among these international institutions that are not globally accepted. During my time studying on the Brandeis in The Hague summer program, I was made aware of the fact that as a result of the ICC taking referrals from the United Nations Security Council as well as from states parties, there is a perception that the ICC is influenced by politics rather than being an impartial arbiter of justice.

From listening to the discussions held at the BIIJ, I can understand how acting on referrals can undermine de facto authority of the court. However, it was pointed out that the existence and legal authority of the ICs is not broadly contested. In one of the sessions, an iCourts scholar announced that courts can and do gain authority when they set new reference points, such as performance indicators and standards. Moreover, to overcome opposition from states, courts should show flexibility, but not unprincipled flexibility. Evidently, questions remain as to how much courts are required to bargain with states parties to accept their authority and rulings, and how final decisions in regards to referrals should be made.

Loss of authority that may result from the fragmentation of international legal norms was also a central topic at the BIIJ. Fragmentation exists because judges are human and naturally bring subjective experiences to the decision-making process. Nonetheless, it was stated that the issue of fragmentation could just be an over analysis on the part of certain academics because courts do consult with people in other judicial institutions and look at texts to reference other courts. That being said, as the number of international courts and tribunals increases, having contradictory interpretations of international law becomes a risk.

Further, it is not only claimed that there is fragmentation in jurisprudence among courts, but also, fragmentation within a court can undermine authority. Independent institutions do not mean institutions that have the right to apply the law any way that they see fit. It is unclear if judges should go beyond their individual mandates as judges, but, at the conference, it was stated that “building a coherent legal order is seen as a duty of international judges.” This links to the next topic that I will highlight: a judge's role.

I strongly believe that the quality of judges can make the difference between a respected, credible court and one that is not. The participants addressed the challenge of subjectivity amongst judges and the lack of a homogenous judicial culture. Specifically, the conversation shifted toward discussing whether judges are interchangeable parts and, if so, if the individual judge even matters. Unsurprisingly, the judges around the table want to matter, and made the point that judges represent different cultures, working backgrounds, levels of open-mindedness, and habits of engagement with legal scholarship. Some judges are more activist than others and while it is difficult to assess a judge, the quality of judgments is vital. Decisions should be clear, principled, and most importantly, I think that the judges should take accountability for the decisions in the public eye by openly speaking out and defending their decisions in the face of criticism. Newer courts have judges who are more activist in urging states to become members, and exposure to the media can increase a judge's accountability.

In terms of outreach to the general public, ICs face a challenge because some courts believe that they should only “speak” through judgments. Nonetheless, in a breakout session at the BIIJ, it was noted that judges should be careful of the statements they choose to make in public because de facto authority can be influenced by the comportment of judges. Specifically, maintaining strong collegial relationships and confidentiality are important elements for an image of authority. The question becomes what substantive actions judges can take for their institutions to gain de facto authority while acting appropriately to their position so as not to undermine de jure authority. It is difficult because context is relevant, and there is a fine line between a judge speaking out versus overstepping an ethical boundary.

The function of international courts is to attain justice, but defining justice is not an easy task. Unlike companies that use profit rates to analyze their success, it is significantly harder for courts to evaluate themselves. The assessment of the courts' authority and the international judges' role did not only address specific challenges, but also provided a forum for participants to engage with one another on a personal and professional level.

Observing and taking part in some of these interactions was fascinating because I was able to ask for career advice from eminent judges. In general, the judges were extremely willing to impart their wisdom to younger attendees at the BIIJ. An analogy that was made by one of the judges at the conference that resonated strongly with me is that human rights and justice can be symbolized as two beautiful flowers that cannot develop in soil that is infertile. Courts are the fertilization for the soil, meaning the courts help the “flowers” flourish by creating synergies with other entities, such as NGOs, lawyers, national judiciaries, and national human rights commissions.

Although prominent individuals sat around the table at the BIIJ, some judges admitted to not having strong views on certain topics as they were still thinking of the many parameters of the complex topics. The topics of authority and the role of judges were thought provoking and enabled the judges to learn from each other. The conversations that took place in Copenhagen at the eleventh BIIJ provided great support for the judges, even on an emotional level. I benefited through hearing judges share ideas with colleagues from a range of continents and courts. The judges represented many different courts that, while not technically connected, can relate as they share many of the same challenges and prospects in relation to authority.

"The Continued Hope to End Impunity"

Before attending 2016 session of the Brandeis Institute for International Judges (BIIJ), I had spent six weeks with the 2015 Brandeis in The Hague Summer program. Under the leadership and guidance of Professor Richard Gaskins, I learned a great deal about the different international courts and tribunals in The Hague and throughout the world, especially those that focus on international criminal law.

Over the course of my time in The Hague, I studied a great deal on the subject of the authority of international courts and institutions and the setbacks that many have experienced. The opportunity to listen to judges discuss and reflect on these impediments was enlightening.

Since the establishment of modern international courts and tribunals, many of these institutions have faced major setbacks and difficulties due to challenges to their authority. Based on the structure and framework of the international justice system, most courts rely heavily on the support and contributions of various states.

This past June, BIIJ 2016 was organized around the theme of authority. Judges serving on the benches of five international criminal tribunals and courts were among the group of 14 participants, and they had the opportunity to discuss how this theme connected to their own institutions and type of jurisdiction, especially in the midst of difficult landscapes and situations.

The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) marked a new age for international criminal justice. The United Nations Security Council (UNSC) is connected to the authority of these courts because they were established under Chapter VII of the United Nations Charter. According to a number of BIIJ participants associated with these tribunals, the backing of the Security Council allowed them to be as successful as they were. However, they endured issues with cooperation from the regions of conflict that they were established to address as well as early difficulties with prosecuting alleged criminals, both of which threatened their future success.

One BIIJ participant noted that the stability of post-conflict Rwanda fostered greater communication with the ICTR, compared to the instability that ravaged the former Yugoslavia during the beginning of the ICTY's mandate. Due to instability in the Balkan region, the ICTY originally had major struggles with arresting alleged criminals because its jurisdiction was not accepted in the region. As most regional conflicts were resolved by the early 2000's, the ICTY was able to successfully apprehend and prosecute all indictees, while the ICTR was unable to do the same. Over the course of their tenures, the ICTY and the ICTR weathered the threats to their authority through their own persistence, the backing of the United Nations, and the support of individual states.

Following the creation of the ICTY and the ICTR, new tribunals have taken different forms as hybrid courts, like the Special Tribunal for Lebanon (STL), or treaty-based courts, like the International Criminal Court (ICC). However, both the STL and the ICC have confronted a number of setbacks due to the question of their authority. As a hybrid court, the STL prosecutes individuals based on both Lebanese and international law. Although it receives backing from the United Nations, the Tribunal has endured a number of conflicts with the Lebanese people and their government. For instance, when Al Jadeed TV, under the leadership of Karma al Khayat, allegedly released identifying information of people who Al Jadeed TV claimed were confidential witnesses in the main trial being held at the STL, then President David Baragwanath decided to hold the television company and Ms. Khayat in contempt.

When I participated in the 2015 Brandeis in The Hague Summer Program, I had the opportunity to see the closing argument in this case. My professor impressed on my class the significant implications that Judge Baragwanath's decision would have on the international judicial system if people can possibly be held in contempt. Since his ruling at the STL, Jean-Pierre Bemba, along with four members of his defense team, were convicted of obstructing justice in October of 2016, the first judgment of its kind at the ICC. Ultimately, the decision of Judge Baragwanath, who attended BIIJ 2016, was intended to make a statement to Lebanon that the STL stands for justice and accountability, but his assertion has paved the way for offenses against the administration of justice to be properly tried on the international stage.

The ICC has also made strides recently to transform its reputation on the international stage. In June of 2015, President Omar al-Bashir of Sudan, who has a warrant out for his arrest, visited South Africa for an African Union summit. The Office of the Prosecutor responded with a clarification of South Africa's obligation to arrest and surrender al-Bashir immediately. Ultimately, before the South African government could determine if it was able to disregard al-Bashirs immunity in order to arrest him, he fled the country and returned to Sudan, possibly with aid from the government. As a treaty-based court, the ICC has had a different experience with respect for its authority compared to the ICTY, the ICTR, and the STL. The ICC relies upon the full support and assistance from the states that are party to the Rome Statute, rather than a pre-established international institution like the UN.

ICC President Judge Sylvia Fernández de Gurmendi, also a BIIJ 2016 participant, recognized this necessity when she called on the United Nations General Assembly in October of 2016 to maintain and expand states' participation at the ICC. This call to action came shortly after the announcement that Burundi, South Africa, and Gambia intend to leave the ICC, which has been the most recent threat to the Court's authority. In addition, despite the fact that the UNSC referred the case of Darfur to the ICC, which led to the arrest warrant of al-Bashir, its support has not proven to be enough to apprehend him. It is of great significance that the UNSC has supported international courts and tribunals in their efforts to end impunity. Hopefully, in the future, the United Nations can help garner support of the ICC in order to better expand the Court's authority.

It was most surprising that, despite the burdens they have faced and the obstacles they have overcome, these judges continue to hold the international justice system in high esteem. They think that there are changes that need to be made, but they continue to trust this system and wholeheartedly believe in it. I took away a great deal from the international criminal tribunals and courts at the BIIJ because of the vast amount of time I had spent studying them on my program a year and a half earlier.

Even though each judicial institution has endured its own struggles and hindrances, I find it extremely interesting how many people continue to believe in their effectiveness. In addition, I think that it is most notable that with the creation of new judicial institutions, the failures and shortcomings of past tribunals are assessed and remedied with the hope of improving international justice for the future.

The authority of international courts and tribunals has always been brought into question. However, the response of judges and prosecutors has had lasting impacts on their own jurisdictions and the international stage as a whole. These figures will continue to expand the breadth of their courts' authorities and the authority of future courts and tribunals. The most important part of the Brandeis Institute for International Judges is the continued discussion of the authority of international courts and how it can be strengthened in the future.