Welcome to this video on the role of the judge in international criminal proceedings. My name is Joe Powderly, and I'm an assistant professor of public international law at the Grotius Center for International Legal Studies. Over the course of the next few minutes, we will look at the profile of international criminal judges and consider three core roles they play in the international criminal process. First, we will look at their role as interpreters of the law and explore whether or not they should have a responsibility to progressively develop legal norms. Second, we will focus in on their role as fact finders and ask if they should strive to establish an historical record in their judgement. Third and finally, we will discuss their role as administrators of justice and whether they are properly equipped to take on this role. But before we address these issues, let's consider how the role of the judge is commonly viewed. If I asked you, what is the role of the judge in an international criminal trial, most people would start by thinking about the functions that a judge performs in their own criminal justice system. That's perfectly natural, because whether we realize it or not, our legal culture tends to shape our philosophy of what law means, what we understand by a legal system, and what roles we think the different actors in that system should play. That applies to judges, too. For example, a judge from a common law jurisdiction would see themselves as the umpire in an adversarial process between the prosecution and the defense, which is played out in front of a jury who will ultimately decide the facts. To them, the function of the judge is to answer questions about the law, to guarantee the rights of the accused, to manage the proceeding, and, if there's a guilty verdict, to determine the sentence. However, on the other hand, this concept would seem very passive to a judge from a civil law country with an inquisitorial process where the judge has the primary power to call evidence, question witnesses, and ultimately decide on the guilt or innocence of the accused. For over 20 years, international criminal law has tried to find a middle ground between these two models, applying a mixture of the adversarial and inquisitorial process. It can be very difficult for a new judge to adapt to such a novel and different legal culture, where they're expected to multitask and perform several functions simultaneously. An international criminal judge has three hugely important tasks, interpreting the law, fact finding, and administering justice. Before we discuss these rules, let's get an idea of who these people actually are and where they come from, because this can have an impact on how they view and perform their functions. So who are these people? You may be thinking old white men but, in fact, they don't really conform to any stereotypes. The essential requirements for election as a judge are high moral character, impartiality, integrity and qualification for judicial office. The ICC, for example, has 18 judges drawn from a broad range of ethnic and geographic backgrounds. At the moment, 6 of the 18 judges are women, including the president and both vice presidents. Article 36 of the Rome Statute requires ICC judges to have competence in either criminal law or international law, but their professional backgrounds tend to be very diverse. Many of them have been judges before, but others were diplomats, government legal advisors, or professors. It is important to remember that judges are elected by the Assembly of States Parties, so there is a political element to their appointment. But all judges swear an oath of office to perform their duties independently and impartially. Let's now look at the first of those duties, interpreting the law. The most significant role of the judge in any illegal proceedings is to interpret the applicable law. However, we need to ask ourselves whether or not judges also have a role in the progressive development of the law. Judges are the guardians of the law, with the power to determine the meaning of legal provisions and how they should be applied. International criminal law is still in it's youth, so its judges have played an incredibly important role in putting flesh on its bones. For example, when the International Criminal Tribunal for the former Yugoslavia was established in 1993 the statute was a very basic document without any detailed definitions. And the only relevant precedence for interpreting it were from Nuremberg and Tokyo 50 years before. The judges had to use their own creativity to fill the gaps in the statute and make it effective. They had to not only interpret the law but also progressively develop it. It was extremely controversial for judges to take on that role. Some people saw it as encroaching on the separation of powers and the role of states. Others were concerned that such judicial creativity could affect the fair trial rights of the accused or the principle of legality by holding someone individually responsible for actions which did not constitute a crime at the time they took place. From the outset, though, the Yugoslavia Tribunal adopted a Golden Rule, whereby any interpretation of the law they handed down had to conform with customary international law and be consistent with the principle of legality. By following this methodology, they could protect the rights of the accused while also making the law effective. The ICTY judges went on to develop key aspects of international criminal law such as the definition of rape, the elements of crimes against humanity, and the law and modes of liability, which were accepted and largely included by states during the drafting of the Rome Statute. However, in the context of the ICC, states have clearly attempted to limit the power of the judges to develop the law. The Rome Statute and elements of crimes are very detailed, and Article 21 makes clear that the text of the Rome Statute is king. Judges can only depart from it in very limited circumstances, and their interpretation must be consistent with internationally recognized human rights. It is inevitable, though, that circumstances will arise that require creative interpretation from the bench to ensure that justice is done. The second major role of the judge is fact-finding. So what does this fact-finding role entail? Well, there are no juries in international criminal trials. A panel of three judges hear the arguments and evidence submitted by the prosecution, defense, and victims and ultimately decide the facts. The prosecution must persuade the judges that the evidence proves the guilt of the accused beyond all reasonable doubt. International criminal trials can take years and involve hundreds of witnesses and items of evidence. Article 74(1) of the Rome Statute requires that the three judges on the trial bench must be present throughout the proceedings. They can ask questions of witnesses, request additional evidence, and even undertake site visits to alleged crime scenes. Article 74(2) requires the judges to evaluate the totality of the evidence when reaching their judgement. Each judge must consider all of the evidence and then share their assessment with the other judges during confidential deliberations. Trial chambers are encouraged to be unanimous, but judges can submit separate or dissenting opinions if they disagree on the law or the facts. Should they arrive at a guilty verdict, the bench must also determine the appropriate sentence to be served. A controversial question is whether the judges as fact finders also have a responsibility to create an historical record. In the past, judges have attempted to do this, but it was unrealistically ambitious and often just resulted in judgements which were hundreds of pages long. So do you think this is appropriate or should history be left to historians? The final role we will discuss is the judges' responsibility to ensure the proper administration of justice. This means they have to manage the proceedings in a fair and efficient way while also guaranteeing the rights of the accused. In short, there must be a judicial process, so that justice is not only done but is clearly seen to be done. Central to this judicial process are the rules of procedure and evidence. At the Yugoslavian Rwanda Tribunals, the judges could draft and amend their own rules to respond to new or overlooked issues. At the ICC, that rule is reserved for the Assembly of States Parties. Because international criminal proceedings are so procedurally and factually complex, they must be carefully managed. The ICC introduced a pre-trial stage, to allow judges to establish the parameters of the case, assess the evidence and characterization of charges, and deal with any challenges to jurisdiction or admissibility. But how did the judges protect the administration of justice? Well, for example, Article 70 of the Rome Statute gives the judges the power to institute proceedings for offences against the administration of justice, such as providing false evidence, interfering with witnesses, or bribing Court officials. Judges can also use the doctrine of inherent powers to take any necessary action to guarantee the proper administration of justice. Related to this is the judges' power to ensure that states parties fulfill their obligations to cooperate with the court. Cooperation and compliance are hugely controversial issues as we saw in the Kenya situation, since a deliberate failure to cooperate can completely derail the administration of international justice. The importance of the judicial role in the administration of justice can not be underestimated. Without it, international criminal trials would have little or no credibility. Hopefully with this video, you now have a better sense of the role of the judge in an international criminal trial. We have seen that the men and women who make up the International Criminal Judiciary come from very different backgrounds. We have examined the three roles they play in the International Criminal Justice process, interpreting and developing the law, fact finding, and the administration of justice and how they carry the burden of ensuring that justice is done for the victims of crimes that shock the conscious of humanity. Thank you for watching.
