The International Criminal Court, seated in The Hague, prosecutes perpetrators of war crimes, crimes against humanity and genocide. A Czech judge and leading expert on criminal law, Robert Fremr, is one of its 18 judges. What does this role encompass? What are Judge Fremr’s views on the Court’s current problems?
The interview was published in May 2017, in Czech, now we also present it in English.
Robert Fremr spent his whole career life focusing on criminal law. During his work as a judge, he worked on a number of courts and in 2004 he was appointed to serve at the Supreme Court of the Czech Republic. Apart from this, Judge Fremr taught criminal law at university and between the years 2006-2008 and 2010-2012 he served as ad litem judge at the International Criminal tribunal for Rwanda (ICTR). This international experience helped his candidacy for the International Criminal Court (ICC), where he has worked as a judge since March 2012.
When we look at your career, undoubtedly, criminal law lies in the centre. You started at the lowest national courts and progressed to the Supreme Court. Do you think that this gradual development played the deciding role in your appointment as a judge of the ICC?
For certain. In this case my professional experience played the main role. Back in the day there was criticism that some of the candidates were nominated based solely on past merits. The existing functioning of the ICC had proved that candidates who could contribute to an effective functioning of the ICC were needed. They were looking for people, who had proved during their professional careers that they were capable of managing big criminal cases. Thus, this called mostly for current or former judges, procurators and attorneys at the expense of diplomats and academics, who were implicitly not considered to be ideal candidates.
The fact that my candidature was supported by 20 years of experience in the Czech justice system and by five years at the ICTR surely facilitated my election. Moreover, during my pre-election campaign, I made the ICC subject to a mild constructive criticism in terms of not making the same mistakes as the ICTR. Notably, I suggested several ways to accelerate the proceedings. In my view, this played a very positive role. As a candidate of the Czech Republic, I was elected in the second round of the election, whereas the last elected candidate was not chosen until the fifteenth round.
The need to accelerate criminal proceedings
What specific suggestions did you make during your campaign in terms of accelerating the Court’s proceedings?
I promoted a more active role of a judge, which was lacking in written law and notably in the courtroom composed mainly of common law lawyers. If you have a look at the parties, 90% of lawyers originate in common law systems where the role of a judge is rather passive. In the common law system, the judges’ authority comes into play only if a party makes an objection or a proposal. Parties interrogate each other's witnesses, which is, in my point of view, a huge burden and the parties are in no way motivated to make the process faster. Due to this, a witness who would take only one day to interrogate at a Czech court, spends for example, five days being interrogated in the common law system.
At the time I suggested, and nowadays I do it also in practice, that we specify time limits for interrogations by the parties based on their proposed content. For instance, a party makes a suggestion that they would like to interrogate a witness for three days, however, the Chamber reduces the time only to six hours. On top of that, during the procedure itself, we try to determine whether the suggested question is relevant; however, this is somewhat complicated to assess in practise. At the beginning, the parties took this adjustment with displeasure, nevertheless they adapted to the new rules over time. Furthermore, proceedings dealing with the cases of Ongwenand Gbagbo that are presided over by judges from Germany and Italy started practising the same approach. Hence, it became obvious that this approach is in the best interest of the proceedings.
The first case standing before the Court, Lubanga, took six years to decide despite the fact that the indictment comprised of only one count, recruitment of the child soldiers. The case of Ntaganda, which I preside over now, comprises 18 counts of indictment and in my estimation it will take three and a half years to decide, which is a significant improvement of the speed.
You became judge in March 2012. The term of office is nine years, which means you have served a little over the first half of the term. Was it difficult to get used to the new role? Was there any significant difference from your previous experience?
Thanks to my time at the ICTR I did not experience any significant shift. The main difference from the Czech justice rests in the fact that I am, as the only Czech judge, surrounded by colleagues from five different continents. To come across judicial approaches from so many legal cultures is inspiring, yet it sometimes requires considerable patience; for instance, when I try to persuade my colleagues with different backgrounds about my arguments. I have to apply psychological approaches – differing ones depending on whether my colleague comes, for instance, from Nigeria or Japan.
The main difference from the ICTR lies in the enormous political pressure put on the ICC, mainly coming from African countries and their media. Just the idea that any erroneous decision or omission can contribute to criticism of the ICC is to some extent binding.
The criticism of the ICC
From the historic point of view, the emergence of the ICC is seen as an important step in the battle against impunity. Yet the Court is often criticized for its inefficiency, length of proceedings and the distance of The Hague from the crime scene of prosecuted crimes and from the victims. Criticism is also directed towards the first prosecutor, or the excessive focus on African states. What is your opinion on the criticism?
I reckon that the criticism is, to some extent, justified. I do strongly support the idea of the ICC, nevertheless, I do not claim that it has been realized in an ideal way. Although lately we can see considerable acceleration, the proceedings still take too long to reach a final decision. During our internal meetings, we quite often discuss how to make the proceeding faster.
Some of the problems are of objective nature. Most of the events discussed before the Court took place in countries with very different infrastructures, dysfunctional registry of citizens, justice etc. Investigations in these countries are extremely complicated.
The argument that the ICC Prosecutor focuses excessively on African states fades in the light of statistics. Out of ten ongoing investigations, only three were initiated by the Prosecutor, the other five were initiated by the states themselves and the remaining two were referred by the UN’s Security Council.
Despite that, I am not able to assess to which extent the Prosecutor takes into account political criteria. Just by having a glance on the list of countries where preliminary examinations are currently conducted (for instance Afghanistan, Palestine, Iraq, Ukraine), it is obvious that these states fall directly or indirectly into the sphere of the interests of superpowers. At the moment, the only non-African state where the Prosecutor started investigation, is Georgia. I believe that this trend will carry on in the future and the Court will not focus purely on African cases.
What do you think about the recent attempts some African states undertook to leave the jurisdiction of the ICC? Do you perceive it as a possible start of a dangerous trend?
In light of the most recent African Union summit, in the ICC’s point of view, it is a dangerous trend. It is also dangerous for the given states because the Court was not established to protect the leaders. On the contrary, it was established to protect individuals from illegal activities of those leaders. Withdrawal of any state would not only weaken the position of the Court but would also weaken the possibility to successfully prosecute the leaders who are suspected of committing crimes. The only option to seek justice would be though the UN Security Council. However, the chances for leaders’ prosecution would be lower and the deterrent effect from committing international crimes would thus become less effective.
The proximity of the Court and the victim
One of the ICC’s tasks is to bring justice to the victims. However, the Court is geographically very far from them. How can the Court bring its proceedings closer to the victims?
During my visits in Africa I often felt that the Court is both geographically and mentally distant. The victims have no real chance to follow what is going on at the Court. The opportunity of following the Court’s webpage, including online broadcasts of hearings in the courtroom, is being used by only a small number of Africans.
I was a member of the Chamber that wanted to sit in Africa twice – Article 3 para 3 of the Rome Statute enables this. We planned to do the opening statements of the parties in the case of Ruto, in Nairobi. Therefore, we made an informal proposal that was forwarded to the plenary of judges who made the final decision, which was rejected by a close vote. The main argument was that our presence would be misused by the perpetrators for the politicization of the case.
The second time we intended to sit in Africa was in the case of Ntaganda when the opening statements were planned to take place in the Democratic Republic of the Congo in the city of Bunia, the centre of the Ituri region, the main venue of the investigated crimes. The primary problem in this case was the lack of technical guarantees of safety as both the Prosecutor and the accused would have to travel to this location. Afterwards, information about armed groups located in close proximity emerged. There was a potential risk that those groups might try to assassinate the Prosecutor.
In addition, the supporters of Ntaganda might be keen on attempting to set the accused free. Finally, the opponents of the accused operate in the area as well and might attempt to kill him. Due to these security risks, the proposal was not approved. However, we intend to carry out an on-site visit in the Ituri province to investigate the crime scene and get in touch with the victims to inform them about the ongoing proceedings.
UN Security Council and the ICC
Do you see any difference between investigations referred to the ICC by the UN Security Council’s resolution, those initiated by the Prosecutor or those referred to the Court by a state?
The role of the UN Security Council represents one of the main pillars of the ICC; however, it also represents a reason why the Court is criticized for selective justice. In this case, the critique is justified. The UN Security Council as a political body formed by diplomats, influences who will be prosecuted. Three of the permanent members of the Security Council have not ratified the Rome Statute yet, which cannot be explained other than as a sign of distrust towards the ICC. On the one hand, such state does not trust the ICC enough to comply with its jurisdiction. On the other hand, it can report any suspicions about international crimes committed by another, including third-party states, and grant the relevant jurisdiction to the ICC. This occurred, for example, in the case of the crimes in the Sudanese region of Darfur.
Another glaring example is the comparison of Libya and Syria. Libya stood in front of the Court approximately one month after the riots broke out. Muammar Gaddafi did not receive support from other countries which he had friendly relations with before. In my view, the situation is Syria is way more serious and there is no doubt that war crimes and other illegal acts are being committed there. However, the Security Council rejected the referral of Syria to the ICC due to the veto used by Russia and China. Thus yes, the Court is subordinate to selective justice and this has a negative effect on its reputation.
When we look at the situation in Syria, do you think it is possible to give priority to seeking peace rather than seeking criminal justice?
Regarding the possibility of arranging a peace treaty, it must be pointed out that letting the perpetrators go unpunished in exchange for peace is always risky. We will be left with bitterness and discontent from the victims and a potential for taking justice into their own hands.
Personally, I can imagine that cooperation of the perpetrator to find peace could be handled as an extenuating circumstance. However, the perpetrator should not get away with his crimes unpunished. No matter who is going to be accused in the end, the ICC should deal with the situation in Syria.
Robert Fremr’s cases at the ICC
What case rulings have you taken part in so far?
I have taken part in three cases. The first two originated in Kenya, which was the case of President Uhuru Kanyatta and then the joint case of the Vice President Ruto and journalist Sang. None of these reached judicial decision. The Kenyatta charges were withdrawn by the Prosecutor due to a lack of evidence and the proceeding in the joint case of Ruto and Sang ended once we found the evidence of the prosecution to be insufficient.
Both cases were connected to post-election violence between the years 2007 and 2008. The ICC was a subject to critique for alleged imperialistic motivation to interfere into Kenyan internal affairs. Once Kenyatta and Ruto undertook their new functions, evidence became very scattered and began vanishing. Some of the witnesses refused to come to The Hague, others changed their testimonies, so the evidence of the prosecution was considerably weakened.
In the case of Ruto we decided on ‘vacating the charges’, a procedural decision similar to acquittal; the difference lies in the fact that there is a possibility to renew the prosecution in a case where more evidence will be found. Both cases suffered from insufficient cooperation of Kenyan authorities.
Currently, I am working on a case of a Congolese rebel, Ntaganda, who has been prosecuted because as the head of an armed division of the political movement UPC (Union des Patriotes Congolais), he is alleged to have committed war crimes and crimes against humanity.
Your Chamber issued a decision concerning sexual violence in the case Ntaganda, which has been noticed by expert media. Why was this a significant decision?
The defence objected against charges alleging that Ntaganda is also responsible for the war crimes of rape and sexual slavery of his child soldiers, committed by the members of his own army. The defence claimed that these charges fall out of the ICC’s jurisdiction because, according to Article 3 of Geneva Conventions, war crimes cannot be committed by members of armed forces against their fellow members.
We have reached quite a complicated interpretation which concluded that this would be against the purpose of international humanitarian law that seeks to eliminate any suffering coming out of an armed conflict. Regarding the interpretation of Article 8 para 2 (b) and (e) of the Rome Statute, we argued that child soldiers are also protected from violence committed by members of the same armed group. This decision will definitely be subject to an appeal procedure and is not a final decision.
Sudanese president still at large
Regarding the arrest warrant of Sudanese President Omar al-Bashir, who remains at large, the question of the head of states’ immunities has been discussed for a long time. Do you see any positive trends regarding this topic?
Unfortunately, actually the opposite. African states collectively object to this and a contradiction comes up with Article 27 of the Rome statute, which states the irrelevance of the official capacity of a prosecuted person (e.g. a president), and Article 98 para 1, according to which no state can be forced to act inconsistently with its obligations under international law, which also applies to respecting immunities of state officials.
Furthermore, a recent resolution of the African Union refers to this principle; however, it controversially expands the concept of immunity to senior government officials. That would lead to the complete dulling of the international ability to prosecute the most common perpetrators of war crimes. In addition, the culprits in political positions would have an additional motivation to keep their positions for as long as possible. Thus, we can observe two trends – one that ignores the ICC and the other that shows endeavour to limit its jurisdiction and powers so that it becomes toothless.
Life of a judge in The Hague
What does a work week of an ICC judge look like?
The ICC is comprised of three types of Chambers: Pre-Trial, Trial and Appeals. In the Czech Republic I have gone through different levels of courts, and while working at the Supreme Court, I lacked more frequent contact with witnesses in the courtroom. That is one of the reasons I expressed my interest in becoming part of the Trial Chamber, where I was subsequently selected.
It is a very time-consuming activity. Last year we had hearings in so-called blocks. We sat five to six weeks in the courtroom every day and then there were three-week breaks followed by another trial block. After a hearing at the Court, administrative paperwork needs to be done, so the working hours are de facto from 8 am until 7 pm. Furthermore, during the break between blocks parties submit several written proposals that need to be decided on, so even during this time the workload does not decrease.
What keeps me alive is cycling. No matter what weather or season it is, I cycle to the headquarters of the ICC. It is 12 kilometres in total and a very refreshing ride.
Ad hoc tribunals and the ICC
International criminal justice has developed from ad hoc tribunals, through hybrid tribunals, to the ICC. How do you see its future? Do you think any new ad hoc tribunals will be established or rather more cases will be dealt with by the ICC?
Establishing an ad hoc tribunal is mainly a political issue requiring a UN Security Council resolution. In case the resolution is adopted, there are some obstacles, such as securing material background, for instance a building, sufficient security, technical equipment, electing judges, agreeing on applicable law, etc. It takes approximately five years until the first trial can start. The uncertainty wrapped around such tribunal’s establishment weakens its deterrent effect and provides enough space for political games.
On the other hand, the ICC is theoretically able to start investigations and trials immediately after the crimes are committed as it operates with all necessary attributes, including case law (although still sparse). Ad hoc tribunals do not have case law and thus deal with loads of new questions. Ideally, the ICC should fully replace ad hoc tribunals. In reality, this matter is highly dependent on political factors.
Can you say if you are optimistic or pessimistic about the future development of international criminal justice?
During its development, humanity has reached an understanding that international justice is significant. Examples include the e Nuremberg and Tokyo Tribunals following the Second World War. Despite the fact that they were established under time pressure, the Nuremberg principles are applicable to this day.
When the Cold War ended, the ICTY and ICTR were established and the idea of the ICC formed. Nowadays, we can observe a backward tendency. Leaders are worried that this mechanism could turn against them. In my view, societies in some African states, in which presidents suggest withdrawing from the ICC statute should stand up because the ICC is here to protect them. Unfortunately, in those countries, politicians have enormous influence, including influence on the media.
I believe that in general, states will continue supporting the ICC. I even believe that one day the USA will join the ICC. It must be initiated from the bottom though, from the people. With regard to Africa, this exceptionally courageous initiative is being formed by NGOs. That is why any time I have an opportunity to meet their representatives, I try to thank them and encourage them in their admirable activities.
The Czech version of the interview was published in May 2017 and can be viewed here.
Judge Robert Fremr in his office in The Hague, source: Robert Fremr, ICC
05/01/2019 - 13:13 Jan Lhotský