Education, Ethics and Governance for an International Judiciary
Ladies and Gentlemen,
I speak to you tonight from a variety of different interconnected relevant experiences but I’m afraid that I will leave you with more questions than answers. As you know, I have had experience as a judge in Canada at all levels of the judiciary: trial, appellate and the SCC. I have also conducted a Commission of Inquiry, which brought me closer to the investigative role performed by magistrate in the continental system. I have been the prosecutor of the ad hoc international criminal tribunals, and, as high commissioner for human rights, I have overseen and supported many commissions of inquiry and fact finding missions.
Although these experiences will inform my remarks, I also want to stress that my reflection is anchored primarily in the many years I have spent as an academic, teaching criminal law, procedure and evidence. As the overall theme of your discussion is to explore the many ways in which domestic and international judges can learn from one another, I suggest that the most important thing to learn as we turn to the unfamiliar is to think from first principles, and to acknowledge that there is no pre-existing objectively superior point of view to organizational or institutional settings. I’m not speaking here of moral relativism.
I can recount the many shocks I had when I moved through the different stages of my career, from law professor to trial judge: I was overwhelmed by the importance of facts. I suppose I knew that in some abstract way, having taught in the common law case law methods despite having had part of my own legal training as a civilian. But it is when I entered the courtroom as a judge that I fully appreciated the overwhelming importance of a meticulous search for factual accuracy. This, of course, had to be preceded by a proper understanding of the relevant legal framework, and after the facts were ascertained, legal refinements must be brought in to assist in the proper legal disposition of the case. A recognition of the importance of factual rigor is in my view also an ethical issue, and it is of critical importance to a prosecutor, particularly one operating in an international environment in which expectations, including political ones, can easily be allowed to drive the agenda.
When I moved from being a national judge to taking the role of an international war crimes prosecutor, the transition was also very dramatic in many respects. Like most national judges, I had had limited experience with the subject matter, although my participation in the Ontario Court of Appeal appeal panel in the Finta case had given me some insight into international humanitarian law. But I was clearly no match for Antonio Cassese on the substance when I arrived in The Hague.
It is always difficult to remember what we imagined something would look like after we have seen it. However, I do remember that before leaving Canada I assumed that my work as ICTY and ICTR prosecutor would be in large part an exercise in comparative law, and that I would be running a kind of experimental laboratory in comparative methodology and procedure. I was in for another shock. There was not much time for academic musings in the pressurized environment in which we had to operate in 1996. But again, if I was struck by anything it was by the importance of the facts. Between plunging in legal texts on the applicable law, and reading everything from “The Death of Yugoslavia” to the then-emerging published accounts of the Rwandan genocide, it was apparent that as we were essentially in the investigative stage of our work, a mastery of the facts was once again going to be essential. Essential, but this time a lot harder.
And this is where I begin the theme of my remarks to you today. I believe that 15 years after the creation of the first international effort since Nuremberg to use criminal law as an instrument of peace and security in the international environment, we have yet to develop a truly indigenous international criminal law system. As it comes to occupy more and more of the field, there is no doubt that the International Criminal Court will serve as a catalyst for the growth of a uniform, standardized model. But in my view we must stress the necessity for a truly indigenous system, one that is responsive to the unique particularities of conducting investigations and prosecutions on behalf of the international community, unanchored in any particular legal system, and unsupported by a state.
Inevitably, we have at the outset borrowed heavily from national systems, and inevitably again, we have yielded to political pressures to create a hybrid forum, one reflective of some but not all of the features of the dominant world models. If this created a politically acceptable and a culturally comfortable result for the national jurists who would come to operate the emerging structure, I am not persuaded that we have refined that result to make it totally unique and self-standing. This is certainly true of the international judiciary. But it cannot credibly remain so forever.
Fifteen years ago, very few jurists had had a relevant practical international criminal law experience. Some had worked on transnational criminal law investigations, in the field of terrorism, money laundering and the like. A few, like my former deputy prosecutor, Graham Blewitt, had actually investigated Nazi war criminals with a view to having them prosecuted nationally. But again there was no indigenous international criminal bar and bench. But now, 15 years later, international criminal law is taught in many law schools as part of a broad international law curriculum. Quality literature is being produced in surprising quantity. And there is an existing cadre of experienced investigators, analysts, lawyers, paralegals, interpreters, support staff of all kinds and of course judges who have grown with the work as it evolved.
When it comes to the judiciary, the model remains however relatively static. The method of appointment of judges and the required qualifications do not call for a unique expertise in the highly specialized field of international criminal litigation and adjudication. But eventually it should, as the field itself becomes better established. And I suggest that international and national judges would be well advised to take the initiative in developing the requirements for the constitution of a truly indigenous international criminal judiciary of the highest professional standards.
To be of any use, any such initiative would have to be in compliance with the Rome statute, which it is fair to assume is there to stay, and should preferably be consistent with other instrument creating ad hoc, specialized similar tribunals which are not designed as permanent. This should not be very difficult as the Rome statute is not particularly explicit about the judicial component of the court. It deals, obviously, with composition and administration of the court, which includes the appointment process, the terms of tenure of the elected judges and so on. The presidency of the court, consisting of the president and the two vice presidents elected by a majority of the members of the court, are responsible for the administration of the court.
Article 40, which is titled “Independence of the Judges,” states that judges are required to serve on the court on a full-time basis; it prohibits outside activities “likely to interfere with judicial functions or affect confidence in the independence” of the judges,” and contemplates that questions regarding that article shall be resolved by a majority of the 18 judges comprising the court. Article 41 deals with excuses and disqualifications. Under Article 52, the judges are given the power to adopt regulations necessary for the routine functioning of the court. Article 112 establishes the Assembly of States Parties, which is essentially the legislative body mandated, inter alia, to provide “management oversight” over the court, including the presidency, decide the budget of the court and so on.
In short, the Rome statute would be no impediment, quite the contrary, to initiatives designed to improve the training, including permanent judicial education, of existing or aspiring international criminal judges; neither would it impede, quite the contrary, the articulation of a Code of Ethics, or similar instrument, which could serve as a model for the conduct of international judges, and serve as a reference for the adjudication of any dispute, should some arise, for instance under Article 40 of the Rome statute.
As far as I can tell, very little attention has been given so far to the questions of self-governance and of continuing legal education for international judges. Most of the literature, and there isn’t very much, deals with the question of judicial independence. On this issue, useful work has been done by the International Law Association, leading to the publication of the Burgh House Principles on the Independence of the International Judiciary.
The principles, which are not a code of conduct or ethics per se, serve to enshrine fundamental principles of judicial independence and are modeled on the “United Nations Basic Principles on the Independence of the Judiciary” (1985). However, they are not accompanied by any commentary, in contrast to, for example, the American Bar Association Model Code of Judicial Conduct, and they leave many questions unanswered. They advocate for each court to establish rules to deal with a variety of issues such as withdrawal or disqualification, and complaints of misconduct. In light of the small number of such courts, and the small number of judges serving on each of these existing (and potential future similar courts), I would suggest that a collective effort towards a standardized approach might be more useful.
Justice Patricia Wald, former judge of ICTY and of the U.S. Court of Appeals for the District of Columbia Circuit, has written a very informative account of the many difficulties faced by the international criminal judiciary. ("Reflecting on Judging: At Home and Abroad," 7 U. Pa.J. Const.L. 219, 2004-2005). She illustrates convincingly that, as it presently exists, the international judiciary cannot be seen as the third branch of international governance, with all the consequences that follows from that observation. In particular, in my view, there are serious consequences not only because the absence of substantive dialogue between the branches that would otherwise favor an orderly evolution of the law, but because judges are much more left to their own devices, in particular to ensure that their independence is matched by appropriate accountability.
On the other hand, this peculiarity of the international judicial environment opens the door for the kind of self-governance that many national judges would crave for. In particular, even though the statute of the ICC vests in that court the authority to oversee some — but not all — matters related to judicial conduct and discipline, it is silent in matters of judicial education and training. There, more than anywhere else, the general needs transcend the competence ratione materiae of any particular court. Among these general needs, I would single out the need to bridge misunderstandings between judges formed in a continental, civil law tradition and judges educated in the common law (and as time goes by the presence of judges coming from legal systems somewhat distant from these two dominant systems may prove a reality); to a less obvious degree, some intellectual bridging is in my view also necessary between jurists who come to the task primarily with an international law background, often as academics or diplomats, and jurists who come primarily from national criminal law practices.
I would also signal the desirability of developing a contextual body of general knowledge about international criminal adjudication, essentially from international judges talking to each other, and inviting outside expert assistance, so as to develop a collegial culture, a sense of belonging to a unique and valuable experience. This is particularly true since international judges do not typically have life tenure — indeed, many have a relatively short term of office — and their international experience may not weigh as much as it should upon their return into their national systems. Frankly, I don’t think that it is a hard case to make to assert the desirability of international judges taking the leadership in establishing themselves, collectively, as a strong and credible body of highly trained professionals. And it’s not as though there was much competition from a largely absent legislative and executive branch to oversee this development.
Enough experience has been gained already, much of it reflected in Patricia Wald’s article, to demonstrate that there are significant differences between national, transnational and international judging, and, I suggest, between international criminal adjudication and other forms of international judicial or quasi-judicial dispute resolution mechanisms. The criminal law environment has it own set of objectives and imperatives. In the existing international environment, it operates within a body of law, international humanitarian law, that, until a decade ago, was fairly exotic. It imposes, correctly, a high standard of proof on the prosecution, but relies on fact-finders that, for the most part, have no cultural roots — and often not even any language affinities — with the environment in which the facts occur. If it wishes to rely on judicial notice as a fact-finding technique, it must again ensure that those taking judicial notice can comfortably and credibly do so, in environments where historical revisionism is quick to take roots. Meanwhile, international criminal law is increasingly the subject of sophisticated academic scrutiny and commentary, as well as being taught in many law schools, with a flow of interns learning and assisting the judges on a daily basis. This provides a critical support system that also increases the need for excellence in the discharge of international judicial functions.
In conclusion let me point out that the professions that assert and cherish their independence have a responsibility and a self-interest in putting in place a transparent system of self-governance which will best ensure their credibility and their trustworthiness. That, in turn, is the cornerstone of their real and durable independence. I should stress that judicial independence has to be understood not just as a personal professional attribute, but as an institutional feature that belongs, collectively, to all the judges of a given “college” of judges. The reputation of the college — in terms of quality, suitability, performance and integrity of its members, cannot often be greater than its weakest member, much like the strength of a chain being at the mercy of its weakest link. I don’t know of any judge, existing or aspiring, who strives to be that weakest link. And I think all are entitled to the institutional support that will match their expectations.
I would, therefore, very respectfully encourage current office holders in the privileged position of the international judiciary, and their national friends and supporters, to take steps towards greater self-governance, particularly in the area of continuing judicial education. In practical terms, I believe that there are offices within the United Nations, such as the Office of Legal Affairs or, particularly, the Office of the High Commissioner for Human Rights, who would be well placed to offer considerable assistance in that respect, as would, I am sure, many academic institutions.
However, I would urge international judges not to abdicate, even by default, their entitlement to collective self-governance nor to blindly defer to any particular national modus operandi, no matter how sophisticated, until they have collectively identified and articulated the particularities of their own environment. It is from that exercise that will emerge a truly indigenous, independent, highly sophisticated international criminal judiciary, which, thankfully, is now an institution that is here to stay.
Thank you very much for your kind attention.