Probably one of the most remarkable results of the Rome Conference is that a comprehensive scheme for a world tribunal was agreed upon at all, given the extraordinary range of national judicial systems that were urged on the delegates as constituting the best model for adoption. This short piece is not the forum for an account of those highly charged discussions, but for anyone interested in the competing points of view, I commend the official reports and summaries which are readily available on the internet.
The clear animus of Joe Holmes’s elegant and interesting article (on a possible role for juries in the system of international justice) is a laudable desire to see the criminal law administered by tribunals that are truly independent, and which undertake their work uninfluenced by political considerations and the apparent demands of some that international trials should end in convictions. Although I believe that result is both critical and achievable, I confess I am dubitant as to the suggested route. As a current labourer in the boiler room of international justice, and a sometime case-management enforcer in the UK, I apprehend an unassailable array of practical problems.
International war crimes trials usually arise out of events that have seriously divided peoples and communities, and the author sensibly indicates that any jury should probably not be drawn from the countries where the alleged events occurred, because of the risk of partiality. But from where otherwise is an “entirely international jury” to be selected? If an attempt were to be made to achieve meaningful geographical representation, the array of languages would prevent such a body from functioning without an army of interpreters permanently on hand, in court and in the jury room. Our domestic problems of handling and accommodating jurors domestically (which can be considerable, and are arguably increasing) would pale besides the problems over jury selection – a panel of 100 – 150 drawn from around the world for the vetting process? – with the eventual jury of 10 or 12 asked to spend a year or two in The Hague during the trial. The cost of relocating individual jurors, to say nothing of their families given the length of the commitment, would be daunting. Ill-health, family commitments and the need to return to work for a period are merely a sample of the problems that confront judges in long trials in the cities and shires in the UK, and these would be magnified before international tribunals if bereavements, ill-health or a legion of other problems created the need for jurors to return to the other side of the world during a trial.
The experience of the first trials at the ICC is that the process of interpreting and transcribing the evidence of witnesses is a somewhat imperfect exercise (simultaneous interpretation between Swahili, English and French is necessary in the cases currently being tried from the DRC), and it is only after the court has risen and the perfected English and French transcripts are distributed that a firm and reliable understanding can be reached of the evidence that has been given during the day. These often run, each day, to over a hundred pages, and whilst professional judges can be expected to pour over them after court, this would be a wholly unreasonable demand for a lay jury. When would the jury read the transcripts, and how would such a disparate group get to grips with the thousands of pages of trial documentation, which is stored on the court’s electronic case-management system (the consequence, not least, of the considerable security concerns that exist for the extensively protected witnesses who have been brought from this war-torn country)? My experience has been that the language and document-management problems in war crimes trials are of a different order of difficulty to those found in even the most complex national fraud cases.
An underlying premise of Joe Holmes’s argument is that judge-alone trials are flawed, and that countries such as the USA will not cooperate because jury trial is a necessary precondition for their involvement. In fact, America has been an enthusiastic and generous supporter of a range of war crimes tribunals, all of which are presided over by three judges sitting alone, and the last administration made it abundantly clear that it was not prepared to accept what it perceived as the diminution in American national sovereignty consequential to granting jurisdiction to the ICC.
Judicial selection: the key
The critical ingredient, in my view, is that the tribunal is highly competent, fair-minded and fearlessly independent. For this the Assembly of States Parties bears a heavy responsibility, in that it must ensure that individual countries, during the tri-annual process of electing a portion of the judges, only advance the best national candidates: judges who are truly equipped to undertake this work. Indeed, I am sure that the quality of the judiciary is the principal element that, in the long term, will determine if this experiment in worldwide justice is deemed a success or a failure. If the judges can demonstrate their disregard of politics, Completion Strategies, excluded evidence and the other impermissible considerations, then I am wholly confident the court will gain legitimacy, underpinned by what should be its clear and readily accessible Decisions (whereas, I note, some forcibly argue that a problem with juries generally is the lack of published reasoning – a concern I hasten to add I do not share). Although I regret the self-serving nature of the remark, I was heartened that my Chamber during the ICC’s very first trial stayed the entire prosecution following the non-disclosure of a large body of potentially exculpatory evidence by the United Nations, our own founding father. Fortunately (and to our surprise) notwithstanding its firmly stated inability to provide this information to the defence or even to the judges, the United Nations served the material after the stay was imposed and the recommenced trial now approaches its concluding stages.
The Hon Mr Justice Fulford is a High Court Judge. He is currently a member of the International Criminal Court in The Hague.