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THE INTERNATIONAL CRIMINAL COURT AND THE BURDENS OF NON-TRADITIONAL EXPECTATIONS*

Raul C. Pangalangan**

TABLE OF CONTENTS

I. INTRODUCTION ...... 237 II. CRITICISMS DRAWN FROM NON-TRADITIONAL EXPECTATIONS...... 239 III. THE SHIFT FROM STATE RESPONSIBILITY TO INDIVIDUAL CRIMINAL RESPONSIBILITY ...... 242 IV. MASS ATROCITY CRIMES...... 244 V. THE PRINCIPLE OF FAIR-LABELLING ...... 245 VI. SKEWED CHRONICLING OF HISTORY ...... 245 VII. HOW THE ICC HAS ADDRESSED SOME NON-TRADITIONAL CONCERNS ...... 246 VIII. CONCLUSION...... 247

I. INTRODUCTION

The idea of holding individuals responsible for war crimes began in a big way after the Second World War at the international trials in Nuremberg and Tokyo. It was a historic moment. In the words of Justice Robert H. Jackson, Chief U.S. Prosecutor at Nuremberg, “the first trial in history for crimes against the peace of the world[, for] wrongs ...so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it

 This article was edited by the staff of Gonzaga Journal of International Law. * This article is an adaption of the keynote address delivered by Honorable Raul Cano Pangalangan at Robert F. Kennedy Human Rights Italia in Florence, Italy on June 3, 2019. The address was given as part of Gonzaga University School of Law’s symposium, Freedom of Expression as a Human Right. ** Judge, International Criminal Court, and President, Trial Division. He sat as Presiding Judge in the Al Mahdi case involving the of attacking cultural and religious heritage, and currently sits in the Ongwen case involving war crimes and crimes against humanity.

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238 GONZAGA LAW REVIEW Vol. 55:2 GONZAGA JOURNAL OF INTERNATIONAL LAW cannot survive their being repeated.”1 It was path-breaking because for the first time, an international court was enforcing the responsibility of individuals, not of states.

This principle of personal liability is a necessary as well as logical one if international law is to render real help to the maintenance of peace. An international law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare. . . . Only sanctions which reach individuals can peacefully and effectively be enforced.

Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.2

But the “novel [] experiment” to punish individuals for mass atrocity crimes would lie fallow for almost the next half century until the early 1990s when the Security Council overcame, albeit too briefly, the Cold War-era voting deadlocks and created the ad hoc criminal tribunals for the genocidal wars in Yugoslavia and Rwanda. By 1998, there was sufficient global consensus to create a permanent tribunal—the International Criminal Court (ICC), to “put an end to impunity” and ensure that the “most serious crimes of concern to the international community as a whole must not go unpunished.”3 Today, more than a decade and a half since the Rome Statute, the ICC’s founding charter, entered into force in 2002 and more than a decade since it began its first trial, the ICC is criticized for having fallen short of the grand rhetoric at its founding and more specifically that its procedures were too tedious and cumbersome; its operations too slow and expensive; its work unduly fixated on small countries in Africa while letting the big fish swim merrily; and its jurisdictional reach clipped by scant cooperation from member states and outright hostility from non-member states that include major players like the

1. Robert H. Jackson, Opening Statement before the International Military Tribunal, Second Day, Wednesday, 11/21/1945, Part 04, in TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL. Volume II. Proceedings: 11/14/1945– 11/30/1945 (official text in the English language); Nuremberg: IMT, 1947, at 98 [hereinafter, Jackson, Nuremberg Opening Statement]. 2.Id. (emphasis added). 3. Rome Statute of the International Criminal Court, Preamble, Jul. 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. PANGALANGAN 2/11/2020 12:48 PM

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United States, Russia and . Authoritative and respected voices have raised legitimate concerns.

We see a growing gap between the unique vision captured in the Rome Statute . . . and some of the daily work of the Court. . . . We have all committed ourselves to the ICC, driven by a belief in the central role of accountability for the most serious crimes of international concern and the conviction that the ICC offers a unique opportunity to fill the impunity gap.

But the powerful impact of the Court’s central message is too often not matched by its performance as a judicial institution. We are dis- appointed by the quality of some of its judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential.4

II. CRITICISMS DRAWN FROM NON-TRADITIONAL EXPECTATIONS

At the outset, allow me to state that ICC cases typically arise from mass atrocities involving multiple crimes committed against hundreds and even thousands of victims. It cannot be expected to move with the same speed and facility of a domestic court trying, say, the murder of a specific victim, or of international tribunals enforcing justice writ large against a state. On top of that, if the historic scale of these evils is brought to bear upon individual defendants, international criminal proceedings are especially called upon to meet the highest fair trial standards. Justice Jackson at Nuremberg cautioned those inclined to the “unthinking cry for vengeance which arises from the anguish of war” as against the “demand for a just and measured retribution.”

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.

4. Prince Zeid Raad Al Hussein, Bruno Stagno Ugarte, Christian Wenawesar, and Tiina Intelman, The International Criminal Court Needs Fixing,ATLANTIC COUNCIL (Apr. 24, 2019), https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-criminal-court- needs-fixing/ (emphasis added). PANGALANGAN 2/11/2020 12:48 PM

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If [the Nazi accused] are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law.

Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.5

Today I will focus solely on criticisms from one direction, namely, the non- traditional expectations faced by the ICC, namely, of ICC decisions being seen “as a source of communal therapy and welfare support, as chronicler of the factual record and vehicle for historical closure”6 and situate these criticisms in the larger framework of ICC’s core—and traditional—function as a court. For instance, in a case where the ICC Appeals Chamber reversed a conviction by a trial chamber and acquitted a Congolese politician and former rebel leader of murder, rape and pillage as war crimes and crimes against humanity, the victims said that they, having turned to the ICC as the “only exception to the ‘climate of total impunity’” were “disappointed and ha[d] lost faith in the justice process.”7 The Court had earlier stated that the ICC’s concern is “not with righting socio- historical wrongs” but rather with the “individual responsibility and culpability” of the accused.8

What we do suggest is that we stop viewing the International Criminal Court’s reparation procedures as (part of) a mechanism to restore social justice and to heal the wounds of societies that have been torn apart by aggression, genocide, crimes against humanity or war crimes. Only if we do that will it be possible to manage victims’ expectations, and can we relieve International Criminal Court prosecutors and judges from

5. Jackson, Nuremberg Opening Statement, supra note 1. 6. R. Pangalangan, Victims and their Claim to Justice: Challenges to Reparations in International Criminal Law, 89 REVUE INTERNATIONALE DE DROIT PÉNAL102, 101 (2018). 7. Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3653, Final decision on the reparations proceedings, ¶ 6 (Aug. 3, 2018) [hereinafter Bemba Reparations]. 8. Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute” (June 8, 2018) [hereinafter Bemba Appeal Judgment]; Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Anx2, Separate opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison (June 8, 2018) [hereinafter Bemba Separate Opinion]. PANGALANGAN 2/11/2020 12:48 PM

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potential pressure that is currently imposed upon them to secure convictions at all cost.9

While the ICC deals with mass atrocity crimes, it is first and foremost a court of law. It is not designed to meet non-traditional demands, e.g., to root out the “communal origins of the evils committed, the societal scale of the harms caused, and the collective remedies required to make the victims whole again.”10 Indeed, the ICC has had to emphasize that we “must respect the limitations of this Court.”11

An acquittal may mean that hundreds or perhaps thousands of potential victims see their claims for reparation evaporate. We recognise that this will generate disappointment and frustration. We are not blind to the human drama. Yet, this may not be a factor in the decision whether or not to convict an accused. It is emphatically not the responsibility of the International Criminal Court to ensure compensation for all those who suffer harm as a result of international crimes. We do not have the mandate, let alone the capacity and the resources, to provide this to all potential victims in the cases and situations within our jurisdiction.12

The Court’s President confronted that “potential pressure”13 in an address before the American Society of International Law:

But, I do maintain, ladies and gentlemen, that it remains an impoverished acceptation of justice—even dangerous—if a positive view of the judicial process must depend on an expectation of convictions (either exclusively or in favourable comparison with acquittals), rather than an insistent regard to the due process of the law.

I must urge a serious reconsideration of that attitude. For it comes with a real risk of miscarriage of justice.14

9. Bemba Separate Opinion, supra note 8. 10. R. Pangalangan, supra note 6. 11. Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3653, Final decision on the reparations proceedings (Aug. 3, 2018), ¶ 3 [hereinafter Bemba Reparations]. 12. Bemba Separate Opinion, supra note 8 (emphasis added). 13.Id. 14. C. Eboe-Osuji, A Tribute to Robert H Jackson—Recalling America’s Contri- butions to International Criminal Justice, Keynote Speech delivered at the Annual Meeting of the American Society of International Law (Mar. 29, 2019) https://www.icc-cpi.int/items Documents/190329-stat-pres.pdf. PANGALANGAN 2/11/2020 12:48 PM

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He cites Justice Jackson’s lament about “farcical trials” that erode judicial institutions.

We must not use the forms of judicial proceedings to carry out or rationalize previously settled political or military policy. Farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people.

[A]ll experience teaches that there are certain things you cannot do under the guise of judicial trial. Courts try cases, but cases also try courts.15

Elsewhere the ICC President emphasized that the “Rome Statute does not require any particular outcome as a consequence of the judicial process.”16 The ICC Appeals Chamber has said:

The quality of a criminal court will indeed not be measured by the number of convictions, but by the fairness of its proceedings.” [Quoting a distinguished former ICC Judge, t]here is no such thing as an endemic right to a guilty verdict. The endemic right lies in a just verdict.17

III. THE SHIFT FROM STATE RESPONSIBILITY TO INDIVIDUAL CRIMINAL RESPONSIBILITY

This brings us to the first constraint on the ICC’s capacity to respond to non- traditional expectations, namely, the threshold distinction between state responsibility and individual criminal responsibility. The ICC is generally seen as but the latest of the global institutions created to protect human rights. That is correct. But it is fundamentally different from most of the other human rights bodies that focus on the responsibility of states. In contrast, the ICC deals with

15. R. Jackson, Rule of Law Among Nations, Speech at the Annual Meeting of the American Society of International Law (Apr. 13, 1945), https://www.roberthjackson.org/ speech-and-writing/rule-of-law-among-nations/. 16. C. Eboe-Osuji, Remarks at Ceremony for Opening of Judicial Year (Feb. 18, 2019), https://www.icc-cpi.int/itemsDocuments/190118-opening-judicial-year-president-stat _ENG.pdf. 17. Bemba Separate Opinion, supra note 8 (quoting Anthony Thomas Aquinas Carmona, President of the Republic of Trinidad and Tobago, Address at the International Criminal Court’s Inaugural Ceremony for the Opening of then Judicial Year 2018, at 12 (Jan. 18, 2018)). PANGALANGAN 2/11/2020 12:48 PM

2019/20 SYMPOSIUM 243 INTERNATIONAL CRIMINAL COURT individual responsibility and imposes punitive sanctions that in turn entail the most exacting safeguards of procedural fairness. For example, in a desaparecido case before the Inter-American Court of Human Rights—in other words, in a case involving state responsibility, not individual criminal responsibility—the Court held that, in determining the responsibility of a state, it will consider “[c]ircumstantial evidence, indicia, and presumptions” because enforced disappearances are precisely aim to suppress all evidence of the “whereabouts and fate of the victim.”18

The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible.19

Contrast that to the burdens of the ICC which is held to a higher evidentiary threshold (proof beyond reasonable doubt20 and the presumption of innocence21) and stricter procedural safeguards (the right against self-incrimination,22 to be informed of the charges against him “in a language that [he] fully understands and speaks;”23 to counsel of his own choosing;24 to confront the witnesses against him and to call his own witnesses).25 The ICC President stated:

The outcome must follow the process of the law. And here, the pivotal question is whether the evidence shows that the accused person was proven guilty beyond a reasonable doubt. Proof beyond reasonable doubt does not ask whether the concurrence of news reports leads us to conclude that the accused person is guilty. It means—more exactingly— that a reasonable person who has actually, fully and fairly reviewed the evidence on a first-hand basis, would simply walk away with a settled

18. Velásquez-Rodríguez v. Honduras, Judgment, Inter-Am.Ct.H.R. (Ser. C) No. 4, ¶ 131 (July 29, 1988). 19.Id. ¶ 134 (emphasis added). 20. Rome Statute, supra note 3, art. 66, ¶¶ 2–3. 21.Id. ¶ 1. 22.Id. ¶ 1.g. 23.Id. ¶ 1.a. 24.Id. ¶¶ 1.b–1.c. 25.Id. ¶ 1.e. PANGALANGAN 2/11/2020 12:48 PM

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feeling in their hearts that the accused, a fellow human being, had committed the crimes as charged.26

Finally, the first function of a criminal court is to punish the guilt and acquit the innocent. The non-traditional notions of the symbolic and therapeutic expectations of the courts are secondary to this punitive function and the duty to respect the rights of the accused.

IV. MASS ATROCITY CRIMES

The ICC is tasked to punish “grave crimes threaten the peace, security and well-being of the world” and “unimaginable atrocities that deeply shock the conscience of humanity.”27 Given the societal scale of the injuries caused, it is not surprising that the Court is seen as a source of welfare support and communal therapy for the victim communities. The courtroom itself is seen as a forum where these horrors are documented with credible evidence, tested and vetted through cross-examination. On the other hand, these lofty non-traditional roles lead to procedural complications and prolong the proceedings. “Justice delayed is justice denied” and in this case, it is denied all parties, Prosecution and Defense alike and— unique to the ICC—there is yet another party represented in the courtrooms, namely, the victims. This leads to the irony that the ICC’s progressive approach to victim participation and victim reparation can actually work at cross-purposes with both its punitive and non-traditional functions. To start with, if in the typical courtroom, there are two sets of counsels, at the ICC we have three: Prosecution, Defense, and counsel for the victims. They each have their turn to question the witnesses and to file submissions and comments. The proceedings likewise have three stages. The first is the trial proper that, in the end, determines whether the accused is innocent or guilty. The second is the sentencing phase, where the court, having established guilt, then punishes the accused. Finally, the third is the reparations phase, where the Court awards compensation and other measures to the victims. It is thus no surprise that ICC proceedings take long not just because they grant the accused the highest fair trial standards, but because they deal with massive crime involving thousands of victims and allow these victims to participate and to claim reparations. All these good things come at a price in time

26. C. Eboe-Osuji, supra note 16 (emphasis added). 27. Rome Statute, supra note 3. PANGALANGAN 2/11/2020 12:48 PM

2019/20 SYMPOSIUM 245 INTERNATIONAL CRIMINAL COURT and money. But more than that, with the sheer scale of victimization in ICC cases, meaningful reparations may actually be better suited to welfare agencies and humanitarian aid institutions designed for massive and complex assistance in the field.

V. THE PRINCIPLE OF FAIR-LABELLING

The enlightened wisdom underlying victim participation is that, for the victims, part of the justice they seek is to have their victimization heard and recorded in court, and to confront the accused with the evils he or she has committed. That wisdom is extended further to the charges or indictment, which is to say, the accused must be punished for exactly the crime committed against them, and that it is not enough that the accused is punished for generic charges that do not describe the evil committed and do not reflect the pain they suffered. This explains for instance the drafting of the crime against humanity of “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.” 28 Consider the crime committed against the so-called “comfort women” who were kept in onsite “comfort stations” in Japanese military camps during the Second World War where they were forced to have sex with soldiers. That can very well be punished under the catch-all clause “any other form of sexual violence of comparable gravity” under the Rome Statute, but the Statute saw fit to codify it specifically as the crime of “sexual slavery.” In the former Yugoslavia, Bosnian women were raped by the Serbs and then forced to carry the pregnancy to term as a form of ethnic cleansing in that they will give birth to babies with Serbian blood. Again, rather than deal with this in the catch-all generic clause, the Rome Statute codified it as the crime of “forced pregnancy.”29 From a purely prosecutorial standpoint, a generic indictment may offer the “low-hanging fruit” that can, in itself, guard against impunity, the proverbial Al Capone strategy of convicting a hoodlum for the milder but easier to prove crime of tax evasion. Yet if we consider the new, non-traditional demands upon courts today, that wouldn’t satisfy the victims’ sense of justice.

VI. SKEWED CHRONICLING OF HISTORY

If we push the victims’ perspective further, we can also see the courtroom as a forum to document a mass atrocity crime, as an arena for recording history with

28. Rome Statute, supra note 3, art. 7, ¶ 1.g. 29.Id. ¶ 2.f. PANGALANGAN 2/11/2020 12:48 PM

246 GONZAGA LAW REVIEW Vol. 55:2 GONZAGA JOURNAL OF INTERNATIONAL LAW authoritative record of the evidence. For sure, courts ascertain the facts with more safeguards and precautions than journalistic and non-governmental organization reports. Courts are designed to be neutral, and in criminal cases, even shift the burden to the Prosecution to prove guilt sufficient to overcome the statutory presumption of innocence. Courts filter the evidence for their credibility and reliability. For the families of fallen victims, just finding and recognizing the truth of what happened to their loved ones is a form of justice. For the victim communities, these records are a repository of collective memory, and can bring closure to a traumatic episode in their lives. As with many good things, vetting this evidence through a fair trial entails time, elaborate procedure and, of course, considerable resources. But more than that, the court records will of course show the facts through the prism of the charges filed by the prosecutor, who may choose to focus only on the charges for which the evidence is at hand, even if other crimes may have been committed. If the victims understandably want the fair labeling of the charges and will choose the indictment that most faithfully reflects their ordeal, in contrast, the prosecutor will choose only such charges that will stick in court, which is to say, only those charges for which there is ample evidence available. And if the most provable charge is not the most faithful to the victims’ suffering, the Court’s record will scarcely reflect the whole historical truth. Going back to Al Capone, if we derive the historical record solely from his judicial conviction, all we have is a dull account of a tax evader done in by inter alia otherwise inadmissible bookkeeping ledgers.

VII. HOW THE ICC HAS ADDRESSED SOME NON-TRADITIONAL CONCERNS

Despite these difficulties, the ICC has actually adapted itself to some of these non-traditional demands through doctrinal innovations while being careful not to detract from the traditional judicial constraints. One, given the scale of mass atrocity crimes and the reality that individual perpetrators will not be able to pay meaningful reparations to their hundreds or thousands of their victims, the Rome Statute provided for a separately funded Trust Fund for Victims (TFV) “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.”30 Two, considering that in criminal cases, the victims get reparations only when the accused is found guilty and that, under ICC procedure, the victims may

30.Id. ¶¶ 79, 1. PANGALANGAN 2/11/2020 12:48 PM

2019/20 SYMPOSIUM 247 INTERNATIONAL CRIMINAL COURT have proven their injuries even if the accused is himself or herself innocent, the ICC Rules of Procedure enable the TFV to help victims even pending a trial and before conviction, and even in case of an acquittal. It distinguishes between two ways by which the TFV may help the victims, namely, its judicial reparations mandate31 and its assistance mandate32 which can move forward independent of the trial. Three, the Rome Statute next reconciles its “retributive and restorative”33 aims by applying a lower evidentiary threshold on victims’ claims for reparations. Stated plainly, when it performs its restorative function and determines the reparations for victims, it applies “a standard less exacting than that for trial” namely a mere “balance of probabilities”34 in contrast to the high bar of proof beyond reasonable doubt that is applied during the main trial when the Court performs its punitive function. Fourth, the ICC, having thus broadened the scope of who may be considered victims, has also widened the range of the reparations that it can give them. The Rome Statute does not limit the claimants to individual reparations but likewise allows collective reparations which do not have to be documented painstakingly at an individual level. In effect, once the collective award is authorized by the court, it de-judicializes the reparations process and allows the TFV the elbowroom needed it needs in the field. The Statute also allows for reparations with “symbolic, preventative or transformative value”35 which are more attuned to community needs, like for instance, the memorialization measures to help communities recover from the destruction of their religious and cultural heritage.

VIII. CONCLUSION

We must distinguish between two kinds of legitimacy by which the ICC is judged. Hitherto it has been evaluated first and foremost as a court of law which derives its legitimacy from its adherence to the rules, the soundness of its juridical reasoning, and the fairness of its procedure. Today, however, it is increasingly judged as a creature of history, and has to face non-traditional

31. Int’l Crim. Ct., Rules of Procedure and Evidence, Rule 98, ¶¶ 1–4 (2002), https://www.icc-cpi.int/iccdocs/pids/legal-texts/rulesprocedureevidenceeng.pdf. 32.Id. ¶ 5 (“[o]ther resources of the Trust Fund . . . for the benefit of victims”). 33. THE TRUST FUND FOR VICTIMS, https://www.trustfundforvictims.org/en/about/ legal-basis. 34. Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-3129-AnxA, Order for Reparations, ¶ 22 (Mar. 3, 2015) [hereinafter Lubanga Reparations]. 35.Id. ¶¶ 33–34. PANGALANGAN 2/11/2020 12:48 PM

248 GONZAGA LAW REVIEW Vol. 55:2 GONZAGA JOURNAL OF INTERNATIONAL LAW expectations as a source of welfare support, as a historical chronicle, as a catalyst for communal therapy or closure. I propose that the first kind of legitimacy is indispensable to the second, not the other way around. A court must first adhere faithfully to its chief mandate, namely, to determine guilt and innocence, before it can respond to the loftier claims of history. First it must be a proper court before it can be anything else. It is true, as Justice Jackson has said, that “[c]ourts try cases, but cases also try courts”36 but, when history makes that judgment, let the ICC be judged qua court, as a true and authentic court, and with the same sense of fairness by which it sought to do right by all.

36. R. Jackson, supra note 15.