Former ICC Judge Attacks ICC Registrar’s Proposal to Restructure the Court

ICC building, The Hague

 UK’s first ICC judge attacks proposed restructuring of international court

Sir Adrian Fulford, who served at ICC from 2003 to 2012, says changes could make court institutionally  lopsided.

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.”



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