Welcome, we're here at the International Criminal Court.

It's been branded as a peace palace of the 21st century.

Today, we will meet ICC president Silvia Fernandez de Gurmendi, who

will talk to us about the effectiveness of international criminal justice.

So please come and join me.

We're here with ICC president Silvia Fernandez de Gurmendi.

She has been involved in the Rome Conference and

the drafting of the rules of procedure and evidence.

She's been in the Office of the Prosecutor of the ICC, and she's ICC president.

She's made effectiveness and efficiency of proceedings a top priority of her work.

Today, we will interview her about the effectiveness and

efficiency of international criminal justice.

So Madam President, the Rome Statute has been a huge success as a legal instrument.

If we look at the ICC as an institution, it has performed well

in some situations, but there are challenges in other situations.

So looking back over the years,

what would you regard as the main successes of the court?

And what are its main challenges today?

>> 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.

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.

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.

>> President Fernandez, you've made effectiveness and

efficiency proceedings a main priority of your work.

The late judge Antonio Cassese said that the ad hoc

tribunals were giants without legs.

The ICC has even less enforcement powers than the ad hoc tribunals.

And some of the major powers have not exceeded to the ICC statute.

In what way does this affect the effectiveness of the court?

>> 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.

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.

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.

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.

It's a problem also because the court, as you know,

is not based on a system of universal jurisdiction.

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.

>> Some say that the court may have too many situations on

it's docket, and ultimately less maybe more.

Would you agree with this?

>> Well, I have to say that this is also related to what I was indicating before.

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.

Is critic of the ICC also a sign that

the court might actually become more effective?

>> 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.

>> President Fernandez, one of the corner stands of the ICC statute,

is the principle of complementarity.

The ICC has been criticized for turning complementarity into primacy

They're also more ad hoc tribunals, hybrid courts and regional initiatives.

Is this a threat to the ICC?

>> 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.

>> As you said already, from the outside,

ICC proceedings are sometimes perceived to be slow and ineffective.

How can we assess whether the ICC is actually effective and efficient and what

are some of the main areas in which the efficiency of proceedings can be improved.

>> Well, indeed, and as I said at the beginning, indeed,

the court is perceived as being slow and costly.

Well, we have to say that justice,

criminal justice is in general, slow and costly.

An international criminal justice even more so.

So the question is not whether we are slow and costly but

whether we are too slow and too costly.

And that is what we cannot allow because

that would undermine the credibility of the institution.

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.

>> Under your presidency, Johnson have adopted new measures to streamline and

to harmonize proceedings.

How can this measures streamline proceedings without

compromising the rights of the defense?

>> Well, absolutely and I already said it in my previous

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.

Is it a strength or is it a weakness of the ICC system?

>> 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.

That's why we are trying to reflect agreements and

best practices in the manual.

In one sense,

this is good, because then we don't need to go into formal amendments, and

we can really, the manual offers a certain flexibility that is very interesting.

But there are points, there are moments that we need to be able to amend.

So the system that we have is indeed [INAUDIBLE].

>> As you said, the role of victims is crucial

to the legitimacy of the court but it also poses new challenges.

How can ICC proceedings be organized in an effective, and

an efficient way if thousands of victims want to participate in ICC proceedings?

And want to claim reparations.

>> 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.

>> International criminal justice is still a relatively new area of law and

to some extent, a revolutionary idea.

What can ordinary people and students of this course, for instance, do to

improve the effectiveness and efficiency of international criminal justice?

International criminal justice is still a relatively new and

in some ways maybe revolutionary idea.

So how can ordinary people and

future generations, maybe even students who are following this course

actually contribute to make international criminal justice more effective?

>> The students can contribute by studying and I mean it.

By really studying themselves trying to understand what is this system about,

because too many things are said.

Too many cliches are repeated, and students should not follow these cliches.

Should really try to understand directly, follow the proceedings,

understand what is behind to try to contribute to the system in a genuine way.

So the best contribution for students is to really study and understand the system.

>> 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.

Interview with ICC president: Silvia Fernández de Gurmendi

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