One of the original four candidates that came out of the ICC election commission process, Richard Roy is a Canadian prosecutor with almost 30 years experience in complex cases or organised crimes, economic crimes and terrorism cases. He also tackled a genocide prosecution – Désiré Munyaneza – who was convicted for crimes against humanity and war crimes for his role the 1994 Rwandan genocide.
In his talk with us he refers extensively to independent expert review of the ICC which came out in September. Be sure to also check out his answers to questions from the International Criminal Court Bar Association and to the NGO’s united in the Coalition for the International Criminal Court.
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Richard Roy [00:00:00] Initially, when the case came to my desk, what I had were transcriptions of witnesses and having never been in Rwanda, not having an understanding of the history of the country, sometimes I read things in the transcripts and I couldn’t I couldn’t understand it. Sometimes in my mind it felt it was not realistic. When I went to Rwanda, when I went to see the victims, when I listen to them. I understood.
Sabine Nolke [00:00:29] We looked at all the qualifications. It was a big picture.
Priya Pillai [00:00:35] The capitalised Prosecutor.
Diane Amann [00:00:37] We can’t expect someone to be an inspiring world leader, a deft diplomat, a brilliant boss and an incisive legal strategist, all at the same time. But in fact, we do. Impeccable personal and professional integrity.
Priya Pillai [00:00:54] I mean, a list of really, really incredible sort of characteristics.
Sabine Nolke [00:00:58] We can’t conjure them up.
Diane Amann [00:01:01] And we can only hope that that person will have some pixie dust.
Sabine Nolke [00:01:06] Our job was to come up with the most highly qualified candidates. We did that.
Stephanie van den Berg [00:01:14] Welcome to our special edition of what we are calling the Prosecutor Files for Asymmetrical Haircuts.
Janet Anderson [00:01:20] In this series, we’re trying to interview all the candidates for the International Criminal Court prosecutor. And in this episode, we’re talking to Richard Roy.
Stephanie van den Berg [00:01:30] Hi, Richard.
Richard Roy [00:01:31] How are you?
Stephanie van den Berg [00:01:32] We’re good, thank you. Thank you for joining us on this Sunday from Canada.
Richard Roy [00:01:36] Well, it’s a pleasure to be here.
Janet Anderson [00:01:38] Richard Roy is a Canadian prosecutor with almost 30 years’ experience in complex cases of organised crimes, economic crimes, terrorism cases. He also tackled a genocide prosecution, Desiree Munyaneza, who was convicted in the end for crimes against humanity and war crimes for his role in the 1994 Rwandan genocide. And Richard is one of the four listed candidates. The short list that came out of the election process at the ICC.
Stephanie van den Berg [00:02:08] And the standard line in his application letter for me was when he talked about his Rwanda prosecution saying, I learnt the importance of listening to witnesses and victims and to pay attention to their security and well-being. It also forced me to challenge my own preconceptions of the case and of the evidence.
Janet Anderson [00:02:25] So our first most basic question, Richard, is why on earth do you want this job?
Richard Roy [00:02:31] Well, it’s basically a willingness to serve, as you alluded to in your introduction. I’ve been a prosecutor now for 30 years, and all of my professional choices have been dedicated towards serving justice and serving the public interest. And doing so through the application of the rule of law in investigations and prosecution of complex and serious crimes, sometimes international. Now, I believe, and in my career, the most significant contribution I did is in the case you alluded to the case of genocide against Mr. Desiree Munyaneza for his participation in the genocide in Rwanda. In that case, it brought me the opportunity to deliver justice to victims of atrocities and crimes that, to the level that I had never, of the level of seriousness I had never encountered in my career. That’s the very reason why I became a public servant 30 years ago. And when the opportunity came, I reflected upon it. And I believe in the mission of the Office of the Prosecutor. It’s what I’ve been doing all my career. So I decided to offer my services. I decided to offer the knowledge and the experience that three decades of law enforcement has given me to that office, to the court for the service of international justice and the fight to end impunity.
Stephanie van den Berg [00:04:06] Just briefly, because you alluded to the importance of the Rwandan genocide in that quote, we have you said it forced the case, forced you to challenge your own preconceptions of the case and of the evidence. I’m curious if you could just briefly touch on how it did that.
Richard Roy [00:04:22] Well, I can explain it in this way. And it comes back to the importance of a sophisticated understanding of the situation country, the political and social context of the evidence that you receive. Initially, when the case came to my desk, what I had were transcriptions of witnesses. And having never been in Rwanda and not knowing the history, not knowing the context – I heard in the news and reports – but not having an understanding of the history of the country and the political context of the country and even the geographic of the situation where the events that the witnesses were narrating in the transcription, how things were unfolding. Sometimes I read things in the transcripts and I couldn’t, I couldn’t understand it. Sometimes in my mind it felt as if this couldn’t happen. It was not realistic when I went to Rwanda, when I went to see the victims, when I listen to them, when I got to see the communities and found out how small they were, I understood. And it made me understand that what the witnesses were saying was actually credible. An example, a witness was talking about various crime scenes that he had seen in a very short period of time. And I was wondering how could he go to all these crime scenes in such a short period of time? When I got in Rwanda, when I met the witness and when I saw the place, I found out that it was a very small community. So what the witness was saying was real and was actually credible. So that’s a type of example, I mean, where my preconceptions, after reading the case in the first instance were challenged in regard to how I was appreciating, for example, the credibility of testimony at first glance.
Janet Anderson [00:06:43] Let’s turn to one of the big issues that’s facing the court at the moment, and in particular facing the current prosecutor and may well face the future prosecutor. You know that there are sanctions against her and a senior member of her staff. You know that that’s from the United States in relation to the investigation into Afghanistan. How are you going to respond? You’re from Canada. You must have some close connexions to the United States. How would you cope if you or maybe other staff were going to be sanctioned by the United States?
Richard Roy [00:07:22] Well, the first one has to I mean, today follows the American election. And we see that a new administration will come in January and the United States.
Janet Anderson [00:07:38] Are you saying that you think that sanctions will change everything? You know, it’s all going to change and it’s going to be a better relationship for you?
Richard Roy [00:07:48] I won’t go that far. I’ll say that the decision is an executive decision. It’s not a legislative decision. So it will be up to the next administration to decide whether to keep those sanctions. Nevertheless, I’ll answer your question. Presuming because the sanctions are present and they’ll be present till January, I understand that the next job has political ramifications. And as you’ve seen and what I’ve said in the public hearings, I have experience in working in political sensitive cases as a prosecutor, including in matters that are unpopular even to by certain governments and even in the past, my own government here in Canada. But to me, the most important thing is that the prosecutors act independently, impartially, and that they don’t succumb to political pressures from any sides. Now, if in the event that myself or anyone in my staff would be objects of sanctions, well, I would obviously have to evaluate the situation and to determine how to best defend and maintain the independence and the impartiality in the execution of my own functions. It seems to me to seek expert advice from outside counsel. I would certainly be interested to know if the Office of the Prosecutor right now has received such advice on the impact of sanctions. It could mean creating a wall around certain staff to avoid and to prevent any conflicts of interest that could arise as a result of me being sanctioned. And I would also work with all the other organs of the court in the event that such sanctions impacted my functions. I read in the Independent Expert Review the comment that the best vehicle for mounting a defence of the court towards the sanctions was the Assembly of States Parties as well as governments of the members of the Assembly. I would work with the court to what other organs of the court to liaise and to provide information to the Assembly to mount a defence, vigorous defence of the international court. But I think the Office of the Prosecutor should impact. Sorry, should evaluate. And should audit and document the impacts of the sanctions have on its operation. What impact do the sanctions have on recruitment? Are there people in the staff right now that the sanctions make that they want to leave the office? How does the sanctions impact the capacity of the office to seek cooperation from states, from even from victim groups in affected communities? I think that’s the most important subject matter that needs to be looked into, and that information must be provided to the Assembly of States Parties in order for them to properly defend the court. And me personally, I don’t have I don’t have any preoccupations. I have I’m not a U.S. citizen. I don’t have personal assets in the United States. So the sanctions wouldn’t affect me personally.
Janet Anderson [00:11:22] You’re talking about the bigger effect of the sanctions and the work of the court. But would those kinds of sanctions, that kind of political pressure make you stop continuing the investigations into Afghanistan?
Richard Roy [00:11:37] The answer to your question is no. I would follow the saying that was posted by the British government in the preparation for World War Two, and that is well known: I would keep calm and I would carry on. As I mentioned earlier, my main responsibility as a prosecutor would be to act with independence, impartiality, and not to succumb to political pressures from any sides, and that those are the principles that would guide my approach towards the Afghanistan investigation.
Stephanie van den Berg [00:12:11] You as a prosecutor wants to be obviously politically independent, but there is also a need to kind of galvanise political support, given the very sensitive cases in the pipeline. And not only Afghanistan, but there are also Ukraine, Palestine, Philippines. Now, you’ve talked about trying to rally the ASP to explain the court a bit, but what would you do to galvanise political support apart from trying to work it through the ASP?
Richard Roy [00:12:42] I think the most effective way to galvanising support of the work of the office is, first of all, to enhance the office’s standing and credibility and to demonstrate the office’s commitment to undertaking high quality and effective investigations and prosecutions and to do so in an independent and impartial manner. If we do our job well, we will garner support from the parties. The most important constituency that needs to be galvanised are the victims and the affected communities. They are the ones who can provide the information and the evidence to the office so the office can proceed to investigations that would success and that could lead to convictions after a fair trial. If you look at the questionnaire I answered for the civil society organisation I laid out in there, many of my thoughts, my initial thoughts as to how we could galvanise victims and affected communities, I talk about better informing the public about the officer, the prosecutor’s capabilities and activities through leveraging the social media access to field office partnerships with the Registry. I talk about a dedicated community outreach officer for each investigation so that the OTP has a broader communication strategy with the victims in the affected communities. I talk about communicating strategies for each examination and even each Preliminary Examinations with a comprehensive outreach plans that reach these communities. I talk about building relationships with local law enforcement and community organisations, and I talk about community meetings, meetings with the local community members, which I think is an essential way. To ensure direct engagement with the impacted populations, if we have the support of the communities and the populations, then states will take notice. That could galvanise state support to the officer’s activities. At least that’s what I believe.
Stephanie van den Berg [00:14:57] What you’re saying now is the kind of essentially an overhaul of the outreach and communication strategy of the Office of the Prosecutor, wouldn’t that mean a lot more people to have to get on board and a lot more people to manage?
Richard Roy [00:15:13] One will have to evaluate once we’re there whether we can expand the resources that may be highly unlikely in the context of the covid pandemic. The independent expert review does talk about synergies that can be achieved working with the Registry and the use of the field office, working with, I think, the public information unit of the registry, if I’m not mistaken. So there are other ways to try to reach these objectives. I certainly believe.
Janet Anderson [00:15:49] Let’s turn to the independent expert review, we actually reached out and asked members of our community what kind of questions they would like to put to candidates. International lawyer Priya Pillai rose to the occasion and she even recorded her questions. So we’re just going to play one from her.
Priya Pillai [00:16:11] What are the recommendations of the independent expert review that need to be addressed urgently? And how do you propose to do so?
Richard Roy [00:16:19] The report talks about an OTP-wide committee mandated to review the recommendation and institute the reforms, I would want to first put into place such a committee and to discuss with staff how to institute and implement the reform. And that should be done in what I would describe on a rolling basis. Now in regard to what particular recommendations of the of the expert review, I think, need to be urgently addressed, well I see that the independent expert make findings regarding management and leadership at the Office of the Prosecutor. I’ve written down the words here. They talk about work and culture that appears to be hierarchical. I’m sorry for my English. I mean, they talk about clear divisions between senior management and other staff. They talk about frustrations arising at a lower level for lack of empowerment processes. They talk about bureaucratic processes. The report talks about little contact from the prosecutor and the deputy with the integrated teams handling the situation. In these cases, they talk about a perception that the real power in the OTP rests with the directors. So I think the first issue I would look into is management and leadership, because no reform can happen without management and leadership reform, without the management and leadership that they require. What I noted in the report also is issues regarding decision-making processes and the regulatory framework of the Office of the Prosecutor. They talk about an absence or lack of definition of the roles and responsibilities of those in senior levels of management. They talk about the lack of clarity in decision making processes. They talk about the absence of a lessons learnt compliance mechanism. They talk about an operations manual, a guidance document that is of absolute importance for investigation. Well, the report mentions an operations manual that has not been updated. And that is and that as even being I was surprised to read that abandoned. so…
Janet Anderson [00:18:57] You sound you sound a bit shocked, a bit surprised by all of these lapses.
Stephanie van den Berg [00:19:04] But that’s what I was wondering. If you read that report, do you still want to work at the Office of the Prosecutor? Because it doesn’t paint a very pretty picture of an organisation you might you want to head?
Richard Roy [00:19:15] Well, when I read it, it actually motivated me even more. These types of fixes regarding management and leadership and particularly regarding decision making and guidelines and procedures. Well, I’ve lived in that for thirty years. That is something in which I have expertise and that’s something that I can bring to the table at the Office of the Prosecutor. So it actually motivates me to try to bring about that change within the office. And I would certainly consider the recommendations of the independent expert group regarding issues like I’ve alluded to; to creating a deep, wide working group that would look how to implement the recommendations, particularly the ones regarding the regulatory framework. To me, it’s paramount that the operations manual be updated and consolidated. The experts review talks about incorporating all the internal guidelines and the policy papers within the operation operations manual. And to me that makes sense. They talk about clarifying which guidelines within the framework regulatory documents which are mandatory, in which are optional. These are all things that the organisation I belong to right now in Canada does. And to me, doing that job and providing that guidance and making sure that the Office of the Prosecutor has an operations manual that will last and provide long term guidance is absolutely essential for the office to conduct high quality investigations and prosecutions. And I would give priority to that.
Janet Anderson [00:21:09] From everything you’ve been reading, do you actually believe that there is systemic or and or institutional racism at the ICC and if so, what concrete measures will you take if elected to address it? That question came in from academic and commentator Mark Kersten.
Richard Roy [00:21:26] I have not worked at the ICC, so I don’t have personal knowledge of it. So it’s difficult for me to say definitely that there is systemic or institutional racism at the ICC. But I can say this is certainly my experience and it’s certainly my knowledge generally that in organisations and in the workplace, there are prejudices and biases that affect minorities and people of certain races disproportionately. And I it wouldn’t surprise me, and I would certainly understand that that’s I don’t I don’t see why the ICC would be immune to that and will be different. And I think in regards to measures that could be put in place, the first measure is diversity in the workplace. The independent expert talk about gross disparities in diversity amongst the staff. They talk about the fact that the recruitment, the number of staff within the ICC, it seems to me also within the Office of the Prosecutor that the group of the Western and other European, Western, European and other states, which includes North America where I come from, is grossly disproportionate when compared to other regional groups. And I think that issue needs to be addressed. I think that diversity is critical to the success of the International Criminal Court, and I would be dedicated for the Office of the Prosecutor to have a diverse workforce, especially at the senior levels. To me, it’s not only a principle matter, but it’s important in how the office can work because it needs staff that can be better understand and communicate with the major stakeholders, the victims and the impacted communities. So how will we proceed? Well, I think the Office of the Prosecutor should prioritise geographic diversity in all its new hires, particularly in high level positions. Again, it’s not just at the senior level, pretty much throughout the staff. I think the office should proceed in recruitment through targeted outreach to underrepresented communities. And I think another way to address the issue of systemic and institutional racism is through training on diversity issues. As a member of the Law Society of Ontario, as a member of the Quebec bar, and as a member of the Public Prosecution Service of Canada, I have to follow such training. And I’ve experienced such training, really. I allowed me to identify the prejudices and the bias that I had without really knowing them. So I think it’s absolutely important that all the staff and most particularly senior management follows such training.
Stephanie van den Berg [00:24:27] I’m talking about these kind of issues. There was also a lot to do in the independent experts report about misconduct and climate of bullying and harassment. So we’re going to just be very blunt with you. Have you ever been accused of bullying or other misconduct yourself?
Richard Roy [00:24:46] For me, courtesy, respect is a duty of a lawyer, is a duty of an officer of justice. And I’ve always abided by that. So no, within I have never been accused of bullying, harassment or sexual harassment in 30 years of my career. And I am a member in good standing of the Law Society of Ontario and Quebec Bar.
Richard Roy [00:25:13] And have you ever been you know, even if you so very courteous, what we see from the independent expert report and what other experts say is, is that this kind of behaviour seems to be maybe even endemic in law offices. That is still very much ingrained, some of the bullying behaviour at least. Did you ever witness this type of behaviour in an office where you worked in? What did you do?
Richard Roy [00:25:38] I’ve never and I was fortunate, I’ve never experienced personally witnessed a situation of bullying or harassment or sexual harassment within the offices I’ve worked and would do.
Stephanie van den Berg [00:25:53] If you found now that OTP staff were involved in workplace misconduct, including sexual harassment, what measures would you very concretely take to prevent that?
Richard Roy [00:26:03] Well, as I stated in the public hearings, healthy office culture for me is very important. And I stated that I’m committed to building what I would call a talented and passionate workforce. And I said and I repeat, that would operate with it, with integrity and commitment to the office’s mandate. And what does that mean? Well, it means an office where people respect each other and the stakeholders, and it starts with how people work together. I would want to build an office where people of diverse backgrounds and views and experience can do their best work and support one another. And how would I proceed to address these issues to prevent sexual harassment and bullying and misconduct? Well, I think the first rule for changing office culture and any compliance officer of a major organisation will say the same is tone from the top. The prosecutor and senior management at the office of the prosecutor must send continuously the clear message that there’s no place for sexual harassment, bullying and harassment generally of any kind in the workplace. So the first message is also to state that I and management would take a hard line on inappropriate behaviour to ensure that everyone who works in the office feel safe and respected. Now, the second thing that needs to be done to address these issues is that the procedures are improved to address harassment and misconduct, and that is referred to in the independent expert review and means clarifying the ways by which the employees in the workforce can raise safety concerns without fear of retaliation because reporting misconduct takes courage. So I think care and support must be provided to people who raise these concerns. And if a complaint is found to be valid, well, there must be consequences for the offender. And that could go up to termination of employment, particularly if we’re talking about a hard line and a zero tolerance. There are other issues that need to be addressed to prevent sexual harassment in the workplace. One of them and I already alluded to it, is training thing. Managers should receive training, so they understand the impact and cost of bullying and harassment and discriminatory behaviour on the individuals working in an organisation and on the organisation itself. In the last issue, I think, particularly in the sexual harassment context, is gender diversity at the upper level of the office, particularly in managerial positions. Gender balance appears to me to be an effective preventive measure, particularly in regards to sexual harassment. I’ve seen how my office, the organisation I belong to, has promoted and achieved, have been successful in achieving gender balance at the upper levels of management of the office. And I’ve seen the impact it can have on the functioning of our organisation.
Janet Anderson [00:29:14] Let’s turn for a moment now to some of your actual work plans during the ASP organised hearings, all of the candidates spoke about the need for higher conviction rates. Do you have a view as to why the Office of the Prosecutor has failed to achieve that and what you’re going to do differently?
Richard Roy [00:29:33] There’s no easy answer to this. As a prosecutor, and I’ve lived it throughout all of my career, I can tell you that trials are inherently uncertain. Trials are what a superior court judge once described as organic processes. You don’t necessarily know how they’re going to end. I can say this, a decision to prosecute is premised on the reasonable prospect of conviction. So no prosecutor can guarantee a conviction, especially when dealing with international complex crimes. To me, the only way to improve the conviction rate is to ensure high quality investigations that respect the rights of the accused and that respect the rights of victims. 30 years as a prosecutor has taught me that a successful prosecution, well, it’s entirely dependent on effective investigations and effective investigations require having high quality and experienced investigators from diverse backgrounds in the context of genocide, crimes against humanity and war crimes in country experience is incredibly important. So there’s a human resources aspect to this. I know that it’s been reported in the independent review, but also in other reports that many Office of the Prosecutor investigators lack the adequate experience and that results in the failure to them to accurately assess the viability of cases. I read in another report that the people involved in the investigation of a situation in a particular country had no knowledge or experience working in this region. And these concerns are echoed in the independent expert review. Now, if I was if I was elected as a prosecutor, I think one of my first task would be to review the investigation division to ensure that we hire and promote the right people, especially in today’s investigative challenges. If you look at the independent review finding, well, I agree when they say that the work of investigations require people with law enforcement backgrounds and experience and large criminal scale investigation. They need cultural awareness and knowledge of domestic politics and the context of the country they are with. The office also needs people with specific skills, cyber investigations, financial investigations and military investigations. And in regards to the human resources aspect of the investigative division, I noted the passage in the independent expert review regarding the lack of resources to talk about an imbalance of staffing between the investigative division and the prosecutorial division. They even state that the investigation division is the one that is the most understaffed. It’s never been my experience as a prosecutor in any case I’ve undertaken that there are more prosecutors involved than investigators. So if elected, that’s an issue I would look into in regards to the investigators. Again, training is an issue I was very surprised to read in the independent expert review that there is widespread agreement within the Office of the prosecutor that there’s an absence of consistent training and development plans relating to issues as basic as the fundamentals of criminal evidence collection. I would definitely give consideration to have within the OTP an officer responsible for training and development to address the issues that need training of the office. And I would finally say, and I’ve alluded to this earlier, investigative documents and processes like the operations manual. These are absolutely essential for the office to that. They need to be updated and they need to be applied and they need to me to reflect the best practises in investigations and to standardise the way the office works and so that you can provide long term processes and success in, for example, evidence collection. These are, to me, practises that are successful to making to having an investigation that is of such quality that it will bring up the conviction rate. And lastly, I would mention the talk about the report and taking consideration of a of a policy or guidelines regarding guilty pleas. I think that should be looked into and that could obviously assist in the. In a higher conviction rate.
Stephanie van den Berg [00:34:35] This is all very internal process, so if we kind of look out towards more the communication and how the ICC is seen, you said something already about the wanting to increase outreach to affected communities. But if you become the ICC prosecutor, you will become, in a way, the face of the court. And we, of course, try to Google you before we interviewed you and you have a very low profile online. This is going to drastically change for you if you do become prosecutor. Are you ready for that kind of scrutiny and having to be the public face of international justice?
Richard Roy [00:35:15] Well, well, well, I am. First, let me explain to you why I have such a low profile online. I’m senior general counsel of the Public Prosecution Service of Canada. So I kind of have an obligation to keep a low online profile. I perform my duties in the public eye. And even though you don’t you haven’t found me on Google searches in particular points in my career, I have done prosecutions that within my own country have attracted significant media attention and even attention of the Parliament and the House of Commons of Canada. As senior general counsel, I can’t compromise my ability to do my job in the future through statements that could be found online and taken out of context. I represent the Director of Public Prosecutions and I must take care and caution not to undermine her authority. And I would have to say also that there are security reasons why I have to have a low profile, particularly in social media, due to the nature of certain investigations and prosecutions in which I’m involved in. As I said, I’m very prepared to deal with this. I understand that the situation would drastically change if I would be elected prosecutor. I give media training within my organisation, so I have experience and knowledge in how to conduct myself in the public eye and in relation to the media. And I’d say I continue to act as I’m doing as a senior general counsel for the Public Prosecution Service of Canada. That means what, that means, well, communicating with the media and the public on all matters that involve the work of the Office of the Prosecutor, it means providing the media with timely, complete and accurate information on all matters relating to the Office of the Prosecutor. I would relate to the media and the public in a matter of I’ve always done so as senior general counsel. That is, I would address the public in a manner that is courteous, dispassionate and free from provocative rhetoric. In making public statements. I would, as I’ve done so in the past, always respect the confidentiality of the information that the office has. I would make sure that any comments I make not undermine fair trial rights of accused. And I would never say anything that would compromise the confidence of the general public of the wider public in the International Criminal Court. These are all duties of a crown counsel like I am in Canada, and I think they’re completely coherent and they’re the same for the person who needs to act as the next prosecutor. And so in that sense, I think very prepared to deal with the scrutiny.
Janet Anderson [00:38:25] There’s a question related to this that came in from Priya Pillai. Let’s hear it now.
Priya Pillai [00:38:31] For civil society organisations with engagement with the ICC look any different with you in charge.
Janet Anderson [00:38:38] Now, Priya’s question about civil society; you may have already mentioned a little that you say you think it’s important to engage with victims’ communities. So what specific change are you going to make?
Richard Roy [00:38:51] I understand that civil society organisations are what is described, I think, in the report as a ‘force multiplier’ for the court in promoting and carrying out the work of the court. And I understand that particularly support from local civil society is key for the office to have to acquire cooperation from the affected populations and the victim’s groups and also to put pressure on political organisations within the situation countries. With the independent experts, the civil society organisations, raised the issue of the need for the court, but they mentioned especially the Office of the Prosecutor, to recognise that civil society can constitute a strong partner. But with both sides retaining their independence, the experts point to the fact that there are no guidelines for civil society organisations to follow to ensure that their work is complementary to that of the Office of the Prosecutor. I think they’re right that in the guidelines right now, they fall outside the category or what is described as intermediaries. So this is something I would look into in order to build this strong relationship with civil society organisation. The report also mentions difficulties in communicating with the Office of the Prosecutor, the fact that there’s no focal point for non-governmental organisations to have contacts with the Office of the Prosecutor. So I’ve looked at the recommendations of the independent experts and I would certainly give consideration to many, if not all of them. And I’ll point to some of them more precisely: appointing a female staff member to be responsible for relations with relevant civil society organisations and doing so jointly with the Registry’s outreach staff. I would consider the recommendation that when the Office of the Prosecutor visits situation countries, that side events be done with local civil society organisations. And as I alluded to, I think it’s worthwhile looking into how the guidelines and the relationship between the court and in particular and civil society organisation could be formalised. And I would look into that. And if it becomes a policy, I would want that to be also included in the operations manual.
Stephanie van den Berg [00:41:33] If you look at the crimes, the international crimes that the office is now focussing its energy on, what for you are the most pressing crimes today, what would you like to see? Maybe more prosecuted, maybe get extra attention from the Office of the Prosecutor?
Richard Roy [00:41:50] Investigating must always be information driven, prosecuting and charging decisions must always be evidence driven. So it depends on the information received and, on the evidence, collected, the types of crimes we’ll investigate. That being said, I think consideration must also be given to reflecting as much as possible the full breadth of the criminal conduct that is being investigated in a situation or in a in a particular country. And that will obviously depend on the conflict. It would depend on the evidence and it will depend on the strategy that the Office of the prosecutor can follow. I’ve read and seen how the Office of the Prosecutor is responsive to the specificity of conflicts, and I agree with that. For example, the al-Mahdi case where the accused was charged for crimes of intentionally directing attacks against or documents or buildings dedicated to religion. I notice that the Office of the Prosecutor has demonstrated the same in the alHassan case, charging forced marriage as a crime against humanity under other inhumane acts – sections of Article 7 inhumane acts causing great suffering or injury to physical and mental health. So I would continue such approaches if I would be elected as prosecutor. I have found interesting, and this is something I would look into definitely more, the perspective views that the office has already mentioned of the crime of enslavement as a crime against humanity and how, in certain circumstances it can be used regarding trafficking in persons and in particular women and children. I know that the office has mentioned that the situation of migrants and international human trafficking in the Libya situation has attracted the Office of the Prosecutor. In December 2013, the prosecutor stated that the Assembly of State Parties that she was to develop a policy paper, namely on modern slavery and human trafficking. I would certainly want to continue to develop this policy to do with a view to investigate and prosecute modern slavery and international human trafficking within the Rome Statute framework. Another issue, and this is an issue in which I have particular significant experience, is financial investigations. I believe that a greater emphasis should be placed on investigative private actors, including corporate ones who are responsible for increasing hostilities and worsening conflicts. These could be the role of the private sector in the exploitation of natural resources, in issues like increased arms trafficking and exploitation, which contribute and are vital to the commission of the international crimes. I would look into targeting such actors and using the Statute’s expansive modes of criminal liability to make sure that we have results and holding such individuals accountable. And I think that could garner great state support. It could also reduce the trafficking weapons and the supply of to armed groups into conflicts and therefore have an impact in reducing the violence within these conflicts.
Janet Anderson [00:45:24] I want to turn now to Preliminary Examinations, one of the tools that the prosecutor has in his or her toolbox. So I’m going to wrap a few questions up together, but I hope that you’re going to tackle all of the different elements. So during the ASP-organised hearings, you seemed to suggest that a preliminary examination should be transparent. How do you balance that against confidentiality? In the expert report there was some criticism that we’re not getting exit strategies out of how to get out of these Preliminary Examinations. Is that a way that PEs are not being used correctly now? And we had a question in from one of our community, from Dave Borden, the executive director of Stop the Drug War, in which he says during remarks [Fatou Bensouda] said that the Rome Statute might say you have to have an investigation, you should have an investigation. Do you always think that this is the case despite resource constraints and cooperation? So three different questions about examinations all wrapped into one. Give it a go.
Richard Roy [00:46:33] Well, I’ll do my best. First of all, let me say, as I said at the public hearings, that I don’t believe that lengthy preliminary examinations necessarily ferment positive complementarity. I’ll come to it later, but I think one of the major challenges and one of the major difficulties of Preliminary Examinations is the length. I read in the Kenya Human Rights Commission report where it stated that in some instances the situation on the ground worsened and the crimes continue being committed, while the Office of the Prosecutor was still assessing the genuine nature of domestic accountability efforts. To me, Preliminary Examinations should stick to their primary goal. And the primary goal of a Preliminary Examination is the timely determination of whether the office will seek to exercise the court’s jurisdiction and whether to open an investigation. So in regards to time, I think a preliminary investigation should last as long as it’s required to fulfil this purpose, not regarding the issue of putting pressure on states to have local investigations or prosecuting and deterring atrocities. To me, if there is a limited prospect of encouraging national prosecutions, well, then I believe that the office should proceed rigorously and in a timely fashion to determine whether or not to initiate an investigation. And that’s important. It’s important in order to maximise the opportunities for timely collection of reliable evidence witnesses. But the long passage of time, their memories fade. I’ve seen that and I’ve experienced that in my career. So it’s important to have access to them and have their statements at an early point. And there is other types of evidence, such as evidence found on social media that can disappear with time. Now where the prospects of encouraging national prosecutions or higher, well, then what I propose is the increased use of benchmarks of specific steps that we asked that we look for in the efforts of local authorities in investigating and prosecuting these crimes. And the use of these benchmarks can serve also as a signal, a signal to civil society organisations as to how they can better amplify the office’s efforts. I’ve read many recommendations in the Independent Expert Review that need to be looked into. For example, they talk about an updating of the policy paper of Preliminary Examinations. I think that is something that I would look into, definitely. And it’s in line with what I’ve told you in updating the documents and the investigative processes of the office, they suggest adopting a higher threshold of gravity in the assessment at preliminary investigations. I would look into that. And they also make the interesting suggestion of not taking into account feasibility at the Preliminary Examination assessment stage. I think that’s worth looking into also – that could allow for decisions that are taken more rapidly. I think also the delay in processing Preliminary Examination can undermine the confidence that the situation countries and the stakeholders, the victims have in the Office of the Prosecutor and could result in contributing to impunity and even denial of justice for victims. Now, regarding the issue of transparency. Well, first of all, I want to clearly state that I would continue the prosecutor’s tradition right now of providing annual reporting on Preliminary Examination, but I believe more has to be done. I think it requires when you open every Preliminary Examination, that there be a comprehensive outreach plan and that there are communication strategies that are made in order to be able to reach communities such as minorities, women and children. They are the ones who can provide the information upon which the office will make its assessment. Now, when you craft such strategies, you need input of ground experts. You need the input of community leaders to ensure that these strategies are sensitised to the local circumstances. I would want for every Preliminary Examination that a communication plan be drafted to make sure that all the important stakeholders are informed of the Office’s activities and in particular, as I said, victims and affected communities. And I would require for every Preliminary Examination that their strategy is put in place to organise small meetings either with local law enforcement or community organisation, so we better inform the public as to the court processes and the rights of victims, witnesses and suspected persons. But by doing so, of course, always respecting the confidentiality obligations of people who provide information to the office in the context of the Preliminary Examination assessments.
Stephanie van den Berg [00:52:03] Now talking about decisions that need to be transparent and swift. And need a lot of have a lot of experts commenting on them and need input. There is a process ongoing now in the court that you’re very much a part of, namely the choosing of the candidates for the prosecutor, where there’s a lot of criticism about, uh, it’s not going very fast. It’s not very transparent. How do you feel it’s gone so far? And do you welcome this whole discussion about possibly opening up the list of candidates to more than just the four that were chosen initially?
Richard Roy [00:52:46] Well, first of all, let me assure you, it’s going well, but I will say this: this is the most challenging job application process I’ve been implicated in my life and I’ve been implicated in a few. But I appreciate the opportunity to be part of this process. And frankly speaking, I think all of the process from the application to the interviews with the committee to the public hearings, to the different meetings I had with the delegations of state parties, to the questionnaires I’ve answered and even what we’re doing right now, this podcast, all of this, I think, prepared me even more to assume the position of the prosecutor. In regards to the decision of potentially other candidates to be considered, well, the States Parties can, under the processes of the Statute and of the International Criminal Court, can nominate candidates themselves for the position of prosecutor. So as a candidate, I don’t think it’s up to me to comment on what candidate they should consider. But what I do believe and what I do believe is important is that the next prosecutor be chosen by consensus. I think we can see that the challenges of the next prosecutor are enormous. The challenges of the court are enormous. To me, it’s important that a consensual candidate be found to make sure that the next prosecutor has the support of all state parties to undertake this challenging mandate and to implement the important reforms that are required.
Janet Anderson [00:54:27] Well, let’s say that you do get elected and you do take over for I think it’s a nine-year period. We had a question in from Sterling Mancuso, who’s a fellow Canadian of yours, I believe, a student at the University of Toronto faculty of law.
Sterling Mancuso [00:54:45] My question for the candidates is, assuming you are elected at the end of your nine-year tenure, what are three criteria you would like the world to use to judge whether you were a successful or unsuccessful prosecutor?
Richard Roy [00:55:01] One, I would want to be remembered as someone who brought this organisation to a point where it could conduct investigations and prosecutions that are of the highest quality that is sure for a fair trial to defendants and that that provide justice to victims and affected communities by these atrocities. That’s one. Secondly. I would say a higher conviction rate, but not at any cost. It’s a higher conviction rate after a fair trial to the defendant and in a proceeding where victims and affected, communities can be heard. And third, I would say that I’ve contributed to conflict resolution through bringing healing to communities affected by strong conflict and by atrocities, but through the means of justice and through the means of the fight and ending impunity for such crimes. I think that if I could achieve that legacy, I would want to be remembered for that. Definitely.
Janet Anderson [00:56:12] And finally, finally, what are you currently reading, watching, listening to that you might like to recommend to the audience?
Richard Roy [00:56:21] Well, in regards to reading, I have a particular habit. I speak four languages. I speak French, English, Spanish and Italian. So I tend to read a different book and change in a language to sort of keep me up to speed. Right now, I am reading a novel from the Peruvian author Mario Vargas Llosa. The Spanish name is Tiempos Recios, which means Fierce Times. It talks about the situation in Guatemala and how efforts for democracy early in the 50s had been have been undermined and the consequences. It makes the chronology of the evolution of history in Guatemala and the successive dictatorial states that happened. So it’s a very interesting read. Mario Vargas Llosa often looks into historical moments of Latin America and managed to narrow them in a very novelistic form that I find absolutely fascinating. So that’s what I’m reading. That’s what I’m reading now. I would certainly recommend it’s reading. The last book I read in English was recommended to me by a superior court judge here in Quebec in my last jury trial. And it goes with a recommendation of a podcast also. And the book is written by Preet Bharara. Preet Bharara was the US attorney for the Southern District of New York. The judge who asked me to buy the book, said that it should be required reading for any prosecutor. The book is called ‘Doing Justice A Prosecutor’s Thoughts on Crime Punishment and the Rule of Law’ and the criminal process, in society in general. I highly recommend anyone who’s interested into justice and in particular in regards to how prosecution services must function, investigative agencies must function, and how lessons from the criminal process can be taken for society in general. I think it’s a definitely recommend reading. And since then I’ve been asked to listen to his podcast. Stay tuned with Preet Bharara. So I guess this would be my recommendations. I think my last recommendation for a podcast would be your own podcast, which I’ve recently discovered, and that I strongly recommend to viewers and that I will continue to listen to in the future.
Janet Anderson [00:59:14] Well, thank you very much. That’s very kind of you. And we’ve taken up an awful lot of your time. So thank you very much for letting us chat to you. We’ll see what happens.
Stephanie van den Berg [00:59:24] Yes. Thank you very much. And good luck with the rest of the process. Well, thank you.
Richard Roy [00:59:28] It’s been a pleasure talking to you. And hopefully we’ll get another chance to talk and I’ll remain myself, available to be sure.
Janet Anderson [00:59:38] This was an episode from the Prosecutor Files, a special series in which we interview candidates for ICC prosecutor. We are Asymmetrical Haircuts, your International Justice podcast. And I’m Janet Anderson.
Stephanie van den Berg [00:59:50] And I’m Stephanie van den Berg. If you want to check out our huge archive of interviews with international justice experts or read the show notes, please go to our website, Asymmetrical Haircuts Dot Com.
Janet Anderson [01:00:00] And there you’ll also find all the ways to subscribe and ensure that you never miss another episode or update. You can give us a rating on any major podcast platform, or you can follow us on Twitter: @AsymmetricalH.
Stephanie van den Berg [01:00:13] This episode in the series of the prosecutor files has been produced with sound editing support from Open Society Foundations. Music is by audionautix.com. Stay safe.
Janet Anderson [01:00:22] And have a great day.
Disclaimer: This transcript was generated using online transcribing software, and checked and supplemented by the Asymmetrical Haircuts team. Because of this we cannot guarantee it is completely error free. Please check the corresponding audio for any errors before quoting.
For The Prosecutor Files we want to interview all listed candidates for ICC prosecutor. The four original candidates, plus the five who were added later, were all approached but not everyone agreed to appear on the show. We will continue to try and interview them and any other additional candidates as the process continues – Stephanie and Janet
This series of podcasts has been produced with sound editing support from the Open Society Foundations