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Transcript Ep 3 – Only human, judges at the ICC

Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

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[INTRO TUNE]

Justice plays an important role.

I consider this tribunal a false tribunal and indictments, false indictments.

Such abhorrent crimes should not go unpunished.

Proceedings will be long and complex.

All rise.

Janet H. Anderson

And we’re going to say hi!

Stephanie van den Berg

Hi!

Janet H. Anderson

Welcome to Asymmetrical Haircuts. It’s your different view of international justice with me, Janet Anderson.

Stephanie van den Berg

And me, Stephanie van den Berg. And we’re two journalists with asymmetrical haircuts who like to talk about international justice. And you’re here because you’re interested in that kind of stuff.

Janet H. Anderson

And mainly, we’ve got female guests, we have researchers, we get some activists and journalists, and they’re the kind of people who share our strong interest, sometimes we call it an obsession, with how and why justice happens for atrocity crimes.

Stephanie van den Berg

And today, we’re going to be talking about judges at the International Criminal Court. 

Janet H. Anderson

Oh, so let’s just try and paint a bit try of a picture. Can very, very broad brushstroke. For many years, there have been a lot of questions about how the ICC operates. And a lot of focus on how the prosecutor and her office is working on whether she’s making the right choices, whether she has enough money, whether she’s whether, she’s focused too much on African cases, all kinds of things. And then suddenly, here we are in basically in 2019, the whole issue of the judges at the ICC has become a real subject of discussion. 

So should we explain to start with how judges become judges at the ICC, because they’re a bit of a floating bunch, they’re not always the same ones year to year.

Stephanie van den Berg

They have a limited time, and they get elected by the Assembly of State Parties. And so it’s a bit of like the prosecutor, it’s a bit of a political game, who gets elected, who gets enough votes, which countries can can bring candidates.

Janet H. Anderson

It’s also a matter of a very complex system set up within the Rome Statute, running the ICC, where you have certain number of women, where you have judges who represent different types of law. They don’t all have to be absolute specialists in international criminal law. They have to have certain amounts of experience. And what we’ve seen over the years, I think, is a variety of qualities and abilities in… and experience from from the judges. And it’s, for me, at least, it’s been a bit of an open secret that everybody has been wondering, are they really up to the job, but now this has really become a big subject of discussion. Are they the right people for the job?

Stephanie van den Berg

Yes. And well, there’s several judges controversies, and we’ll try to kind of go by them systematically.

Janet H. Anderson

Oh, come on. Systematically? [LAUGHTER] I don’t think we will manage systematically.

Stephanie van den Berg

Yeah.

Janet H. Anderson

But we’ll touch on a few. So the first one, that’s…no, let’s not say it’s not the first one. But one of the ones that has definitely worked its way through all of the variety of mechanisms within the ICC to challenge one of the judges is a Japanese judge, Kuniko Ozaki, who apparently asked within the ICC… asked fellow judges if she could have some time off in order to go and be a Japanese ambassador elsewhere, just as a particular case was coming to a close. Can you tell us a bit more?

Stephanie van den Berg

She’s a judge in the case of the Congolese militia leader, Bosco Ntaganda, and the case is now kind of nearing its closing. And ICC judges when they’re elected, they have to promise to be full time judges. So you have to ask special dispensation to be a not full time judge. And the way this worked with judge Ozaki is that she asked compensation to be a part time judge. And it was granted because the case is almost to an end. And you don’t want to switch judges at the end of a trial because that gets complicated. 

Janet H. Anderson

But it’s also one of the things that they promise isn’t it… is to be kind of independent, to represent any any other interests. And here she is trying to go and become an ambassador for Japan

Stephanie van den Berg

She asked to be a part time judge. Didn’t say why. And then, a month later, surprise, surprise, she was named a Japanese ambassador. So then, of course, the defence went up in arms, because first of all, to have a part time to unpract(ical). But second of all, she is an ambassador, thus representing a country, and thus has kind of political interest. And you can wonder if that is compatible with the impartiality that the judge has to be.

Janet H. Anderson

And it starts to make us all ask the questions about what judges bring with them in terms of their national interests. In fact, in this case, in the Ozaki case, just as we’re recording this, we understand that the ICC, it said, No, the defence hasn’t really got a case to answer that… they can’t really, really challenge her. 

But it really has kind of set this discussion going: Who are these judges?

Stephanie van den Berg

It has, but it also what happened is also that she then withdrew from this ambassadors post because of the stir that it was caused. So there was some consequence for her… the direct consequences, he withdrew as an ambassador, and that was back to being only a judge on that case. But it put the spotlight on, indeed, how these judges get elected, what they do with their time, what kind of stuff they can do in the meantime. But also, there was a big question of how honest has she been? How, what… what about her integrity if she asked to be a part time judge, and then suddenly, she’s named an ambassador, that seems like that would be an ongoing process. You don’t go from Oh, I have nothing to a month later you’re named an ambassador, then obviously, she knew that she was being considered. And she didn’t mention that. So there’s a also that whole part of integrity and then yeah, do these judges take their national interest with them on the bench? And can you switch that off?

Janet H. Anderson

And the same defence team led by the indefatigable Stéphane Bourgon, who’s very good, isn’t he, at emailing us journalists with with lots of details of what he’s up to, has also, that defence team has also targeted another judge. The French judge, Marc Perrin de Brichambaut, who’s… they found some old footage of him or at least they found a transcript. And they asked specifically for the footage to be provided the actual video of that judge talking to some students in Beijing about how the ICC worked. What was the big controversy there?

Stephanie van den Berg

Well, there he spoken the judge, the French judge spoke very candidly. And it was kind of an…

Janet H. Anderson

That’s diplomatic speak for not saying the right things, isn’t it.

Stephanie van den Berg

In a…in a way it’s slightly diplomatic speak for making gaffs I think in the way that Prince Philip speaks candidly. But so they found this footage where he’s basically saying, oh, you’re Europe pays for the court, but the Africans supply the suspects, which is obviously going into this whole discussion, or is it the neocolonialist court and the ICC has got a lot of criticism from Africa that they’re only targeting African people, and then to have a judge come out and say something like that is, of course, very undiplomatic and unpleasant for the court that he comes out with that. Then, but that’s mostly like, okay, this is bad PR, but he’s kind of maybe saying when everybody’s thinking. On the other hand, a lot of legal scholars on Twitter especially exploded over that he was kind of explaining how cases are done. And he said about one case that we agree that we wouldn’t take any… wouldn’t allow any interlocutory appeals. 

Janet H. Anderson

What’s a interlocutory appeal? Or is it important for us to know what an interlocutory appeal is let’s say?

Stephanie van den Berg

Maybe not the term but what it means is that for… for a lot of things that the ICC you have to if a trial chamber makes a decision, you have to ask that trial chamber for permission to appeal to a higher instance. 

Janet H. Anderson

So let’s say the trial chamber makes a decision that either defence or the prosecution, but mainly the defence doesn’t like, then, and they want to challenge it, then the trial chamber has to decide whether they might have a good enough point to be able to allow another court to to answer

Stephanie van den Berg

Exactly. 

Janet H. Anderson

And he said that they had decided between themselves as judges, that they weren’t going to have any of this.

Stephanie van den Berg

Exactly. And so not even at the point where somebody had filed this request, but at the point where they made the decision that they thought a request might have been made before the… so that’s basically saying beforehand, no matter what argument people come with, we won’t allow them to appeal it, we will never give permission to appeal it. So that’s, you know, legally, they have to consider these requests for appeals. And they have to consider the reason so you can say beforehand, I’m making this decision and whatever appeals come, I’m not going to accept them.

Janet H. Anderson

He’s also in the firing line that we’ve seen, again, as we recording this podcast during the last few days from the defence team in new Malian case, the Al Hassan case, which is still got to come to confirmation of charges. And they are complaining that Brichambaut is really too close to the French authorities because of some of the other positions he still holds. The kind of advice that he still gives. And they… one of the quotes from their complaint is that he’s still quote, wearing the hat of a French political military advisor. Whoo, that’s a tough one. 

I’m just wondering how realistic this idea of a judge to be completely completely independent is?

Stephanie van den Berg

Well, I think you can you can look at it a different way. Because in this case of Brichambaut, you can say he can be independent, but maybe not in the Mali case, because the French government intervened in the Mali conflict. 

Janet H. Anderson

So maybe he should just recuse himself from that one. 

Stephanie van den Berg

Exactly. So the sense is that he could do Colombia, whatever, somewhere where, for instance, and have something in the game.

Janet H. Anderson

Yeah. I’m also wondering, having been through just as I’m sure you have for having been through so many different times in Rwanda cases at the Rwandan tribunal, where defence would use kind of any mechanism possible to undermine the legitimacy, some of which were were quite good critiques. And some of which were less good critiques. And I’m just, I’m, again, wondering, I’m concerned as a journalist, that I shouldn’t get swept along by assuming that yes, this is all right.

Stephanie van den Berg

Well, I think yeah, it’s it’s obvious, we see the job of the defence to pick apart these things. So I think it shows that they’re very good defence lawyers. So I think we’re going to see it more and more at the ICC, because they’re, you’re now seeing that there’s this possibility. And then in the beginning of those international trials, it was more complicated. I think the defence have gotten in a sense better at finding these things. And using all the whole possible arsenal of the tools to get to see if you can get judges disqualified to see if you could kind of shake the proceedings a bit.

Janet H. Anderson

In that sense it’s a… it’s a sense of maturity of the court that people are actually paying attention.

Stephanie van den Berg

Yes, I think so. I think the defendants rights are becoming more and more central in cases. And that means that this is a fair system, where we don’t have that in the beginning, it was this idea that whoever shows up is almost…

Janet H. Anderson

Guilty by default.

Stephanie van den Berg

Guilty by default, because why else would he be there? And then, of course, that’s difficult for for defence lawyers. But I think that now, it’s maturing in a system where, you know, let’s see, this is all up for debate, maybe the judges are biased? Not biased! I mean I know, if you’re a defence lawyer, you would want to make that argument. I’m not suggesting that the judges are biased that the ICC.

Janet H. Anderson

We’ve got to be really careful of this. Nobody is ever going to talk to us! [LAUGHTER]

Because that’s the latest thing we’ve got, we were really, really lucky to be able to talk to a judge about one of the other big things that’s going on. What happened was, we didn’t know much about it. There were a few rumours circulating over the last year that some of the current judges have a labour dispute with their employers, the International Criminal Court. They’re complaining that their pay and their pension rights are not keeping pace with those other Hague based judges. 

You managed to track down a judge, former judge from the ICC, who was prepared to comment on this. So who was it? And what did she have to say?

Stephanie van den Berg

I managed to find a former Botswana judge Sanji Monageng, at a drinks thing, and kind of cornered her and asked her about this. We can listen to what she has to say. And then we can see because I asked her, you know, how do you as a former judge, feel about what this labour dispute is doing for the image of the court?

Sanji Monageng

Because this is in the public domain? Let me put it this way. ICC judges are employees, like any other employee, they’re employees like you and me, and I, I have not understood, quite understood, why they’re being criticised so badly for saying, look, can you improve our conditions of work. And as a former employer, myself, I find nothing wrong in the judges saying, we have been, we’ve been waiting for nine years, we are our conditions have not improved. We have tried to talk to the powers that be we have not been listened to. And I think even the people were criticising the judges are also wrong. The matter of the judges is so advanced now, it is before they the tribunal in Geneva. And all right thinking people know that the matter is sub judice and they should not be talking about it in such terms. And it is also very surprising because this matter is not new. It has been going on for years. So I’m not saying this because I’m a former judge. But I’m also.. I’m saying people should tread a little bit softer on the judges, they’re human beings. They might be wrong in what they are looking for. But this is labour related issues, that employers should adhere to, should listen to. And I say nothing wrong in the… in the judges trying to ventilate their rights.

Stephanie van den Berg

So she formulates this very much as… as a labour dispute.

Janet H. Anderson

Well, I think that she has some a couple of good points there. That yes, this is basically a labour dispute. And that’s that’s certainly a good way of saying it. And secondly, that that, yes, they’re human. I mean, and any human being wants to be paid commensurately with with what they’re worth, and wants to be able to argue it. 

The problem arises, though, that she doesn’t seem to understand how badly this is seen. And can we explain that a bit better?

Stephanie van den Berg

Well, I think the.. the problem is, and I’ve asked her about this, we’ll listen to that in a second as well, is that I mean, she’s saying all this and yes, conditions, blah, blah, blah. But what she’s not saying, or what we know is that they get paid 180,000 euros a year, tax free, which is a big deal in the Netherlands, because 30% is

Janet H. Anderson

Tax is heavy!

Stephanie van den Berg

Tax is heavy. And schooling for children is paid. So they’re… they’re, they have a salary that is huge. Compared to…

Janet H. Anderson

Mere mortals like us.

Stephanie van den Berg

Yes. [LAUGHTER]

Janet H. Anderson

I know. 

Stephanie van den Berg

They’re big, they’re big, yes, they get a lot of money, objectively, but their complaint is they’re not getting the same amount as judges at the International Court of Justice, which is the UN’s highest court and they get I think, 230 or something so… so now these ICC judges have asked for 26% increase in salary.

Janet H. Anderson

In order to… to balance themselves up with their peers. 

Stephanie van den Berg

And of course, the argument from mere mortals like us, and also a lot of NGOs is like, that’s a lot of money that you’re getting, do you really need that much money. And also, that’s a very big salary for judges who have managed in the past 17 years to get only three convictions on core crimes that… how busy is the ICC docket for judges, because there’s not so many cases ongoing? I mean, at the moment, if you look at the website, it’s fairly empty. It’s just the only one case has sittings. And yes, they have pre trial things and stuff. But it’s not a full roster of cases. So you wonder what these judges are doing? Or at least I do. 

But I put this to her that what does it look like? People will say, you know, you get a lot of money anyway. And this is what she had to say about that.

Sanji Monageng

Of course, I…from my experience at the court it is going to be harder. But at the same time, there has to be a balance. These are employees, like all other employees, whose conditions are… are revised every year, if you like. And I don’t think that the judges are asking for something that is… irresponsible. I think there’s always been need for the judges and employers to sit and talk. 

And for me… if that had happened, I didn’t think the matter would have reached Geneva. And… and I say this with… with a lot of respect to both parties. But what can we do? This is it.

Stephanie van den Berg

What I got from her is that she was mainly so annoyed that as a former judge, she seemed to be saying that the judges have tried to talk about this and tried to get their conditions improved and tried to do this within the ICC and then didn’t get anywhere and only took it to the to the Geneva tribunal as a last resort, and now are getting kind of blasted for being unreasonable.

Janet H. Anderson

What I still don’t see from her and I wonder whether that applies to the majority of judges, I suspect that it only applies to some and not to everyone, that they don’t see how this is interpreted more broadly. How this plays into a particular narrative about who the judges are, what they represent. And whether the ICC as a whole is an effective institution. It’s a… you know it’s a difficult one, I think, but I think that they need to understand that will be interpreted in a particular way.

Stephanie van den Berg

Yeah, I think maybe also, the feeling of the judges is that they have that already. So and then and this is fair and balanced. And they have all these kind of legal reasons or this legal argument why they shouldn’t be making as much as their peers. So if we, if they just explained it, we would all understand and then go “Yes, of course, that’s reasonable!”

Janet H. Anderson

Or maybe they feel that…just making this argument, it can’t get any worse. So it’s a watch this space kind of thing, as we say in journalistic terms that we’re going to be covering this and maybe coming back to this again.

So you’ve been listening to Asymmetrical Haircuts. That’s me, Janet Anderson.

Stephanie van den Berg

And me Stephanie van den Berg.

Thanks to our editorial intern Hannah van der Wurff, our website guru Joost van Egmond. Music is by Audionautix.com.

Janet H. Anderson

And we also say thanks to our hosts. We’re sitting here in Humanity Hub in The Hague, which is our joint space for co working with lots of other people who are in the peace and the justice world. And sometimes you get the sound of coffee machines or people going up and down the stairs behind us and it just shows how busy it all is, even on a Friday lunchtime.

Stephanie van den Berg

So if you like this podcast, don’t forget to give us a rating on whatever you use to listen to our podcast or you can visit us on our website which is asymmetricalhaircuts.com.

Janet H. Anderson

And make sure you check us on Twitter as well. Speak to you soon. Bye!

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.

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