Britain’s first judge at the international criminal court (ICC) has said he fears it may become “institutionally lopsided” as the result of changes proposed by the court’s registrar.
In a public lecture delivered at Chatham House last week, Sir Adrian Fulford, who served at the court from 2003 to 2012, expressed concerns that defendants and victims would be left insufficiently represented while very considerable power remained with the prosecutor.
The judge, who now sits as Lord Justice Fulford in the court of appeal for England and Wales, said the department that represented victims at the court had been his brainchild. So was the section that supported defence counsel. Both were set up in the early days of the ICC when its judges were drafting the court’s regulations.
The court’s registrar, Herman von Hebel, is its principal administrator. A former civil servant from the Netherlands, he served as registrar at other international criminal tribunals before joining the ICC in The Hague last year. His restructuring exercise is known as the ReVision project and its recommendations are expected by next summer.
According to Fulford, Von Hebel wants to merge two defence departments at the court to save money. “The present opportunity for the Office of Public Counsel for the Defence to represent an individual accused, at any stage of the proceedings will disappear,” said Fulford, “along with the existence of a body, essentially independent of the registry, that represents the interests of the accused.” Fulford thought the merged defence office would become a prime candidate for financial cuts.
As the ICC says, one of its great innovations was giving victims a chance to present their views in court. In the Lubanga case, where Fulford was the presiding judge, each victim’s application to participate was individually considered.
But that was not required in the current case involving Kenya. The judge believed that this risked undermining one of the central elements of the court’s foundations.
Where may we end up? If the Kenya formula is followed, anyone who chooses to register … is treated as a victim. He or she, in reality, may be a perpetrator seeking to hide or to influence the proceeding. The individual may have no link whatsoever with the events in question. They may be a fraud … And if the registrar’s proposal is implemented, this potentially vast group of wholly self-selected individuals will simply have their positions represented – in the main, if not exclusively – by court-based lawyers who frequently will have no connection with, and personal knowledge of, the terrible events in question. I doubt if this represents the intentions of those who carved out this inspirational part of the Rome statute.
Fulford explained that in the Lubanga case – one of only two to have been completed since the court opened in 2003 – judges tried to give victims a role in the trial while not unbalancing the proceedings.
He feared that the proposed reforms would emasculate victim participation, reducing it to a symbolic gesture. “The managerial and financial problems that accompany significant victim participation in individual trials should not be an excuse for partially or substantively abandoning the whole project,” he said.
Unlike many of the judges at the ICC, Fulford had real experience as a criminal lawyer and part-time judge before going to The Hague. That’s far from universal: the Japanese judge was a legal academic and diplomat but had never practised as a lawyer, let alone sat as a judge, before joining the court. Fulford’s achievement in bringing the court’s first case to a verdict was something of a triumph, given the difficulties that resulted from the way the way the case was investigated and prosecuted.
So Fulford’s concerns about defence and victims – “two creatures of my 2003 imagination” as he put it – deserve to be taken seriously. The two representative bodies were created, he said, only because “everything was possible in those early, heady days”. But it seemed too him that they were doomed to an early demise. “Once lost,” he concluded, “they will be truly irreplaceable.”