1:30
>> Well, this is an interesting question, because I see that you are distinguishing
between the success of the Rome Statute, as such,
and the institution, the ICC as an institution, on the other end.
And I think that's correct, because the Rome Statues is broader than the court.
The Rome Statute is really about a system, and
the International Criminal Court is part of this system.
And some of the other very important components of this system is,
first of all, the treaty itself.
2:05
And I have to say that I agree with you that the treaty itself
has been a great success.
Because it has meant that many countries of the world have codified, in their
own systems, the international crimes over which the institution has jurisdiction.
And that, in itself, is a huge promotion of the rule of law.
I have to say, at least today,
we have at least 65 countries that have codified the international crimes.
So that is extremely important, and the main principles of international
criminal law, they have domesticated this in their systems.
This is very important, and this, in itself, is a great success of the treaty.
And of course, there's a lot of things to do yet, because I say 65, which is
not a bad number, but you can notice that not all the state parties have done it.
124 parties of the statute have our parties in the treaty, but
not all of them have implemented the system.
But already, this qualification of international criminal law is a great
success of the system.
Why?
Because the system relies mainly on national prosecutions.
This is really something that we have to remember, the importance
of national investigations and prosecutions of international crimes.
Because the system, the International Criminal Court, is based on this premises,
that it is for states to do the work in the first place.
Because the court is only a last resort court,
it's complementary to national assistance.
So that, on one end, I would say that already the qualification of crimes
is extremely important to that end.
3:54
Now, the court as such, as an institution,
as a judicial institution, indeed has many good things and
some others that have not gone so well in the first years of operations.
The first thing that I think we can all appreciate,
that already the fact that the court managed to start operating so
quickly after the entry into force of the treaty.
It's already a huge success, because the court had to really set up its teams.
It started to operate in a very difficult environment.
And the court managed to do that, and
is now investigating in nine situations of the world, and
has several cases, several trials that are ongoing.
So that is a great success of an institution, that when the treaty
was adopted, we were wondering, when is this court going to be operational?
Well, it has been,
and it has started to be operational much faster than we thought.
Now, one of the problems and the challenges that we need to now face
is that, indeed, the proceedings of the court are perceived to be slow.
The court is perceived to be too costly.
So we need to streamline the criminal proceedings.
We need to improve the efficiency of the court so
it can deliver justice in a more expeditious manner.
And that's why the efficiency and
effectiveness of the institution are indeed a top priority for the court, and
it's the top priority for me as the president.
Now, where we talk about efficiency, of course,
we talk about internal proceedings.
The court is trying to improve that, but many things are not under the control
of the court, because another challenge that the court faces is cooperation.
The court can only investigate and prosecute in an efficient manner
If sufficient preparation is forthcoming from external actors.
Because the court has no policemen, has no military,
has no intelligent services, has no planes.
The court is absolutely dependent on external cooperation.
So this is a challenge, and
this is a permanent challenge of an international institution.
And we also need cooperation to improve its effectiveness,
its impact, impact of the court in the external world.
The court is in investigating and prosecuting in the Hague.
It's far away, it's detached from the victims,
it's detached from affected communities.
So we must ensure sufficient impact in these societies.
We have to ensure that there is sufficient understanding,
that there is sufficient participation of all of them in the proceedings.
And that's why in order to improve effectiveness, we also have to ensure
an appropriate system of victims' participation in the court's proceedings.
7:42
>> Well, indeed, cooperation is the huge challenge of in any international court.
And you mentioned Antonio Cassese, and
it was a huge challenge for the ad hoc tribunals.
And continues to be the main, main challenge for
any international system, and of course for the court.
And as you will mention, the court is even in a more difficult position,
because it's a treaty-based institution.
It is not a subsidiary organ of the Security Council.
It is an institution that has been created by a treaty, so
only those who participate in the treaty are obliged to cooperate.
So already that establishes a certain limitations of a legal kind.
8:31
But of course, at the end of the day cooperation may or
not be forthcoming if it is voluntary.
What we need is really many states and organizations,
that come to cooperate with the court on a voluntary basis,
beyond what is absolutely a legal obligation for state parties.
This is indeed the challenge, and that is why it's so important and it goes
together, if the court is perceived as an efficient tool to administer justice,
then the trust of the international community in the court will grow.
The credibility of the court will grow.
And we hope that in this way also cooperation will be more forthcoming.
9:18
So, cooperation in fact we have received, and that's why we are investigating and
prosecuting cases, is because we've had enough cooperation.
But of course, sometimes this is not coming on the most expeditious way,
and we need these to come as we proceed in our work,
in order to be able to do this in an expeditious manner.
We need cooperation on a technical basis.
We need cooperation to collect evidence, we need cooperation to arrest,
we need cooperation to surrender individuals to the court.
We did cooperation to protect our witnesses.
This is hugely important.
And sometimes the protection of witness requires the possibility of
relocating witnesses in a third state.
For that we need voluntary agreements from states
to receive individuals in their own territories.
10:12
We need cooperation to enforce our sentences.
The convicted individuals by the court do not stay in the Hague.
They need to serve the sentences in the territory of their state,
and we need more states to sign agreements with the court to enforce sentences.
So, we need real, concrete cooperation for activities.
And we also need political support.
That's also part of the cooperation, because the court needs to
be shield from any interference.
We need to preserve our independence, and
we need also to be helped in that from the external world.
So this is extremely important.
And of course, the fact that not all states are now parties in the treaty, and
that was part of your question, is of course a problem.
11:14
It's a court that in order to investigate and prosecute,
needs that states where the crimes have been committed, or
the states of the nationals, of the perpetrators of the crime.
Any of these states need to be parties in the treaty.
So you need either the state of the territory, or
the state of the perpetrator to be parties to the treaty.
If not, the court cannot intervene in any situation.
So, unless the Security Council
of the United Nations refers the matter to the court.
So, indeed the universality of the treaty is of huge importance.
The court has a global mandate, but has not yet universal participation.
At this moment, 124 states are parties, so we need 70 more at a universality.
And not being universal undermines global mandate,
has the potential of creating this perception of selective justice.
Because the court can go in certain situations but
not in others, because of the legal limitations of the treaty.
But in terms of perception, this perception is created.
And so it is absolutely important that more states join the treaty.
Powerful and not powerful, this is extremely important.
13:08
The court must be able to act in all situations,
where crimes within jurisdiction are being committed, and
are not being dealt with by national systems.
So, the important is that the court may be able to act in all of them.
Of course the court cannot act in all of them at the same time.
Because it has limited resources, as any national institution as well,
you cannot do everything at the same time, and
it may well be that the court is over stretched, I don't think so.
I think the court is acting with it's own capacity.
But of course there is this problem of making sure that what we do,
we can do, and that we can do it right.
But this is not so much about the numbers of situations,
we also have to remember that the court is a last resort court.
What is extremely important, that states do not forget,
that the existence of the court,
does not mean that they don't have a duty to investigate and prosecute.
It's extremely important that states do their part, because the only way
to really be effective, fighting impunity for
these type of crimes, is that altogether on a complimentary basis, do our part.
And states do need to investigate and prosecute, so
the court remains indeed a last resort court.
>> President Fernandez.
14:53
>> Well indeed, many times when I've said that my top priority was to
improve the efficiency and effectiveness of the institution, some have said to me,
well, be careful because the more you do, the more you'll be criticized.
>> [LAUGH] >> And maybe what you say is right.
The fact that we are being increasingly criticized by some quarters,
may be the signal that indeed the court is proving that it is
providing teeth to the enforcement of the law.
And that it's not just a giant without legs and without arms,
but that indeed the court is becoming more efficient and more effective.
16:06
>> Well, as I said before the court is and must remain a last resort institution.
And should not be replacing national systems that can and
should Intervene to investigate and
prosecute international crimes within their own jurisdictions.
And so it is, this in no way can be considered
It a threat to the court that states do investigate and prosecute on the contrary.
This is the essence of the system.
And I believe that enforce by regional institutions or
mechanisms or hybrid systems are also a compliment and a good compliment.
What is important is that all efforts are done in a genuine way, of course.
That because the ultimate goal Is to punish,
and investigate and punish what necessary, certain crimes.
But to the extend that these efforts are generating, they are not a challenge.
On the contrary, they're a great complement and a very necessary one.
18:12
I believe that indeed we can improve the way in which we administer justice.
And many of us have been done,
take in stock of the first 12 years of the institution.
I have to say that the first 12 years, way that difficult for the court.
For many reasons but also in terms of the legal criminal procedure,
we know our system is a hybrid system,
a combination of elements of different systems of the world,
different traditions, civil law, common law, and this combination
has produced a hybrid that is not always easy to interpret and apply.
And judges in the first cases have really struggled to do their best
with a system that is not familiar to any system in particular which was deliberate.
Be that it was perceived that an international criminal court,
a universal court, has to be detached from the particular legal system.
It cannot represent one system.
It has to represent the more.
And that is why we worked so hard to produce this hybrid.
But this has been in itself, a challenge.
Now, after 12 years of proceedings, we are trying now to taste talk
of what we have done, identify best practices, harmonize them.
We have, this of course needs to be done collectively by
all the judges of the court, and we are [INAUDIBLE] in that process,
we have produced certain amendments for the system, for the legal framework.
But also we tried but unless amendments are essential
we try to produce agreements that are reflected for instance in a manual.
We have produced a manual, a chambers manual.
That is, of course, not complete.
We are going in phases, and the first part was mainly focused on
pre-trial proceedings, certain elements that are common
to all phases of the proceedings, and we are going to continue in this way.
So we are trying to streamline, so our proceedings are more predictable and
simpler and we also well in a way that are more harmonized between chambers.
Now, we also and your question is how you assess if we are doing better?
Well, in addition to streamlining the proceedings,
we're also trying now to work In developing performance indicators.
That will indeed allow us to measure how we are performing at the court.
This is not an easy exercise, we have just started because we're
assessing justice is not just about assessing how fast we go
because proceedings not only need to be expeditious, they need to be fair,
they need to be transparent, they need to allow for participation of victims.
So we need to define what are the key goals that we identify as
part of the essential performance of the court and the measure certain factors or
activities, to see how we are progressing in this areas.
We are trying to do that.
We are developing performance indicators.
We are producing the force in this effect.
I will see how this goes.
But with or without performance indicators.
We can already see that the latest cases of the court
have proceeded in a much more expeditious way.
Proceedings at pretrial have been much more streamline and cases have
gone to trial in a more, I would say in a simpler manner and more expeditious way.
So I can already see in very complete terms that we are improving
around the standing of this hybrid complicated system that we have.
22:40
intervention that of course, streamlining proceedings
doesn't mean that we believe that the ultimate goal is to go fast,
this is absolutely not the ultimate goal.
Where we want to have, when we talk about efficiency and effectiveness,
we mean exactly that we need to be able to produce justice of high quality.
And high quality is expeditious
justice because there is a right of the accused to be tried expeditiously.
So it is a human right also.
So part of being fair and just is to be expeditious.
It's not just about being less costly, it's that indeed for
the person this is extremely important.
And also is important to safeguard evidence.
In many ways expeditiousness is part of the quality of justice.
But of course, this kind of goal in a sense that undermines the right
of the defense to investigate, to defend themselves and
also, we have to also be careful not to undermine
the possibility of victims to have access and to participate.
The international criminal court has A very innovative
system of participation of victims in the proceedings.
This was new, completely new at the time.
It has then been adopted by other tribunals.
But at the time,
the International Criminal Court was the first one to try this system.
That brings victims to the proceedings.
Not just as witnesses because that was already
part of criminal proceedings in other tribunals.
But to express their views and concerns and
to ask for reparations if there is a conviction.
So we have to make sure that there is sufficient time to allow for
participators to come forward and participate.
So that is why when we measure or
assess the performance of the court, we have to first have a common understanding.
Is what we believe are the key goals of the institution,
because that is the performance we're talking about.
But first we need to have a sheer understanding that these are the goals.
And for me, fair, transparent and
expeditious proceedings with sufficient participation of victims
is indeed part of this performance that have to be measured.
>> The ICC governance structure differs from the one of the ad-hoc tribunal.
At the ad-hoc tribunals,
judges had the power to amend the rules of procedure and evidence.
At the ICC judges lack that power.
25:37
>> Well indeed it's in the first place a great difference.
It's the first time ever that a court
is obliged to apply exclusively state made law.
And this was completely unprecedented.
This is a decision that was taken for the court that defers from
the approach that was followed from the ad-hoc tribunals, ICTY,
ICTR, but also the International Court of Justice,
The International Tribunal for the Law of the Sea.
All tribunals in all areas have been allowed the judges to
adopt their own rules of procedure and evidence.
The ICC was the first one.
That the states believe that all
the law had to be adopted by states and
amendments as well.
Now that we are embarked in this process of trying to improve,
streamline proceeding and sometimes this requires to propose amendments
that now we see the challenge of the system that has been adopted.
Because the court can propose amendments,
in certain urgent circumstances we can even apply the amendments.
But we see how the adoption of the amendments by the court proposed
by the court, by the assembly of state parties is taking a long time,
is becoming increasingly difficult.
States, in addition are trying to do these always by consensus and
the Rome statue doesn't oblige them to do that.
They could do it by majority, two-thirds is required not unanimity.
But all these components together
have proven to be extremely challenging for the adoption of amendments.
So I would say that the system of amendments is too cumbersome.
It doesn't necessarily need to be amended as such, in legal terms, but
at least it should be applied in the way that it was foreseen in the treaty.
Because if not, the venue
of amendments is being really close for court and that is not good because we
are really testing a system that is completely unprecedented in itself.
It's a system that is a combination of civil law, common law,
it's completely innovative in many ways.
So it is normal that when we proceed in the application,
we realize that there are certain issues that need to be amended.
That is normal, and we need to have these possibility open.
And right now the process is extremely cumbersome, almost impossible.
29:28
>> It is a huge challenge, I very much favor this
system because I do believe that particpation of victims.
And the reparations of victims.
No matter how difficult, it doesn't have the legitimacy of the institution.
Very much.
So, we really need to make this system really,
to apply it in the best possible way.
But it is indeed very challenging.
We see also how the system has evolved.
And how the number of victims is increasing case by case.
So you go from the hundreds to the thousands.
So indeed that shows that the work of the court in disseminating information
about the proceedings and reaching out to victims is very good because more and
more victims know about us and want to participate but
this makes of course is the entire system more challenging.
Of course when we talk about thousands of victim that want to participate
in the criminal proceedings, they do it through legal representatives.
So, we don't have thousands of victims in the court room,
sometimes you have two, three legal representatives.
That represent groups of victims, categories of victims.
So here the challenge is not so much how many victims
are allowed to participate, but to ensure that the legal representatives
really channel the voice of the victims and that it is effective participation.
True legal representatives but genuine participation.
So we have different systems that have been applied in different cases.
I don't think we can say that we have a perfect system yet but I think we are all
aware that the main challenge is to make sure that the voice of the victims is
really the voice that we hear In the courtroom, that is on legal participation.
Now, reparation is indeed, yet not tested.
We hear two cases, the first two cases of the court, Lubanga and
Katanga, that are now in the reparation phase, but no reparations have yet
been really made effective in any of these cases.
So, we still have to see how the system works.
Of course reparations are not only necessarily financial compensations.
But there is an element of financial compensation as well.
And this requires resources They said trust fund for victims,
which is an independent institution that can channel collective reparations,
and can help in providing financial compensation to victims.
But of course, this requires funds.
So in all my presentations I always encourage everybody to donate
to the trust fund because that is also key to make the system effective in practice.
33:50
>> Is there any practical contribution that civil society can make,
to make the court-.
>> Absolutely.
>> In addition to of course, students are also welcomed at the court as interns.
And many of them come, and I think that is wonderful as a contribution to the court,
and I hope the court contributes to them.
They can join the court in many ways, but also civil society in
general we all engage in a dialogue with them in many ways,
through round tables, dialogues, seminars, events of all kinds.
In order for them to understand better what we do and how we work,
and for us to be able to explain and what exactly
what are activities but also to listen to their own concerns and preoccupations.
Students are also very much welcome to participate in moot courts.
We organize, these are the court this week we are having,
today we're having the Russian edition of the moot court.
These are also extremely interesting events that help
students to understand the system and also help the court to
disseminate its own activities in the academic world.
>> Thank you so much, President Fernandez.
It's been a pleasure that you've joined us today and
we truly benefit from your remarks.
Thank you so much.
>> Thank you very much.