Imagine being in a team of just two and having the responsibility of opening the first-ever permanent international criminal court. That was the unique and challenging task that Sam Muller and Phakiso Mochochoko faced in 2002. Today, with the ICC entering its new premises, it is an opportune time to look back on the very first days of the Court’s existence. Continuing his series of interviews at JiC, Shehzad Charania, Legal Adviser and Head of the International Law Team for the British Embassy in The Hague, recently spoke with Sam and Phakiso, the ICC’s very first staff members. Shehzad asked them about those early days, the work involved, the challenges they faced, how the Court has progressed through the years, and their hopes for the future of the ICC.
The Idea of an Advance Team
The Advance Team was the idea of the late Hans Peter Kaul, the Head of the German Delegation at the Rome Conference, and later Vice President and Judge of the ICC. The Court became a reality less than four years after the Rome Conference and the speed of ratifications had taken everyone by surprise. There had been those who had thought the milestone of sixty ratifications [required before the Rome Statute could come into force, and the ICC established] would take at least ten years. But by 2001, 47 States had ratified, and it became clear that there would be 60 within the year.
There was, therefore, a fear that once the UN Secretary General received the 60th ratification, there would be no physical premises ready to begin work, which would have a serious impact on the ICC’s credibility. Many recalled that when the ICTY was set up, the Judges had to work out of the Peace Palace until a permanent building was established; this meant it was slow to get off the ground.
At the same time, John Bolton, then the US Permanent Representative to the UN was leading a campaign against the ICC, in particular going round the world persuading States to sign up to so-called “Article 98 agreements”. This was proving damaging to the ICC’s image, especially as there was no physical institution through which the Court could respond.
Members of the Advance Team
Once the Bureau of the Assembly of States Parties (ASP) had overcome the opposition to an Advance Team, the next step was to appoint its members. This proved controversial. The larger states took the view that those individuals who were part of the Advance Team would gain an advantage in shaping the structures and personnel to reflect their national legal system. To avoid such a situation, the Bureau appointed Sam and Phakiso, nationals of the Netherlands and Lesotho, on the basis that they were considered as “not posing any danger” to the interests of larger member-states.
Eventually, the Advance Team created a number of positions: Sam as the Head of the team, Phakiso as the Legal Adviser; and other positions which would eventually be filled dealing with IT, security, public information and human resources. Later, experts on IT and law (Klaus Rackwitz), the Office of the Prosecutor (Morten Bergsmo) and chambers (Gilbert Bitti) were also brought in.
The Advance Team reported their early progress in monthly reports to the Bureau of ASP. They would apprise the Bureau of every small detail, including the fact that they had acquired desks and chairs, mobile phones – as well as an intern. Because of the ICC’s lack of legal status, Sam was paying for this from his own personal funds.
And even in those early days, they were asking the same “big” questions the ASP, the Court, and commentators are asking now: what should the ICC look like in five, ten or twenty years? What should its optimal capacity be? How should the courtrooms be designed?
The Day the Court Opened Its Doors
On Monday morning, 1 July 2002, Sam and Phakiso were ready to meet the press outside the ICC building in Voorburg, having worked all weekend (with the expert assistance of Claudia Perdomo, Public Information Officer) to ensure everything would run smoothly. The building still had the sign for KPN (the Dutch Telecoms Company) blazed across it. This was Sam’s first experience of facing the cameras; but he had rehearsed what he was going to say all weekend. He made a barnstorming speech, concluding with the announcement that the ICC was as of that day open for business. After answering questions, Sam and Phakiso turned around and purposefully marched into the building. Once in, they had to wait until the media throng had departed before they exited though the back. Their offices had not yet been set up, so they returned to their temporary location at the Dutch Ministry of Foreign Affairs to continue their work.
The ICC was beginning its life from scratch. There was a statute and there were rules of procedure and evidence. But there was no broader governance structure beyond that. The Advance Team soon entered into negotiations on behalf of the Court with the Government of the Netherlands in order to conclude a Relationship Agreement, so that the ICC would have legal status. Sam and Phakiso also began negotiating an agreement with the Netherlands Forensic Institute, to ensure that any evidence they received, for example, bullets, or even body parts, could be stored safely, and correctly. They also had to think about letters/submissions from the public/third parties (i.e. Article 15 communications). There was not yet an Office of the Prosecutor (OTP) which could formally receive such communications. But they all had to be acknowledged and recorded regardless.
Dealing with the Dynamics
The Advance Team was later replaced by the Directorate of Common Administrative Services headed by Bruno Cathala, who would later become the ICC’s first Registrar, while Sam and Phakiso remained as Deputy Director and Legal Advisor respectively.
The Court then saw the arrival of the first set of elected Judges and the first Prosecutor. This created a new dynamic as the Court began to grow and become a fully-fledged and fully-staffed institution. The Judges soon elected a President, and then selected the Registrar. The three organs of the Court were now a reality.
But the establishment of the organs also created natural tensions. All of the principals – with very different personalities, demeanours and styles of working – clung steadfast to their independence. The Coordination Council was, therefore, set up to deal with issues of common concern. One of the first major areas of disagreement was over who should be running Field Offices, the OTP or the Registry. Another pressing issue was deciding whether the OTP should have its own, separate, staff rules, or if there should be one set common to the ICC as a whole. Further complicating matters, each organ also wanted control over its own services. While the Division of Common Services had been established to provide services common to all three organs, it soon turned out that each organ wanted to retain ownership over services as much as possible. This immediately reinforced the idea of three very separate, independent organs, rather than a one-court principle.
There was a further divide in the early days: those who were at the Rome Conference, such as the President and many of the Judges versus those who were not, such as the Registrar and Sam. The latter were respectful of what had been agreed to in Rome but understood the practical difficulties of translating much of this into reality and felt that grimly clinging to memories of Rome was stifling creativity, something which an international legal institution desperately needed. This was particularly true for the ICC given that the space for innovation at the Court had been limited by the drafters of the Rome Statute by, for example, not allowing Judges to amend the Rules of Procedure.
Another issue that aroused controversy, which evoked tension then but is taken as a given today, arose when the Court was considering its logo. The Advance Team had carried out significant research into symbols of justice around the world. From this, they had concluded that, in many cultures, what signified justice was a tree connecting the ground to the sky. This symbolised a place of shelter, where justice could be delivered in safety. Similarly, another idea, inspired by traditions in East Timor, was the idea of justice as a carpet, spread out to create a confined space from where justice spoke. The Registrar was particularly keen on looking at non-western symbols of justice. In the end, the Judges went for the current logo, which was not universally appreciated within the Court.
Another further point of contention arose relation to performance indicators. Sam and Phakiso, in conjunction with the Registrar, had tried to create clear benchmarks, or indicators for success, so that the Court would be able to measure its progress in the future and be able to communicate its successes more effectively to the wider public. But the idea did not survive a meeting with the Judges. It is, therefore, heartening that President Fernández is now leading the way on re-visiting this issue.
The First Situation
Pressure soon began to grow on the Court to begin a case. Atrocities were taking place around the world. States began to push the ICC, as did the media. At the same time, the remainder of the elected Judges were waiting in their home countries ready to transfer full-time to The Hague.
Sam’s view was that the Court should take its time to find its first case. It would be standard-setting, so if it took three years so be it. Any delay could be explained. He wanted to avoid what he considered to be the ICTY’s mistake in its initial case selection.
In the end, the first announcement of an investigation came from a self-referral by Uganda. Many in the OTP at the time considered this a “simple” case; Joseph Kony was a “bad guy”, the Ugandan government wanted him captured and would cooperate readily with the ICC, and Kony could be tried before the Court relatively quickly. The reality turned out somewhat differently.
First UN Security Council Referral
According to Sam and Phakiso, the first referral by the UN Security Council to the ICC Prosecutor came as a surprise. And in hindsight, it might have been useful to consider whether this was a good thing for the Court. There were certainly internal debates at the time as to whether it was a smart move to seek an arrest warrant against the President of Sudan. It brought into conflict those with more judicial instincts against those more diplomatically focussed. On the one hand, there was cautious optimism that the US attitude towards the Court had turned a corner. On the other hand, court officials understood the difficulty of getting a reluctant Head of State before an international court in The Hague.
The ICC as Anti-African
Despite the fact that the Court’s first three investigations were in Africa (Uganda, CAR and DRC), it was not until the Prosecutor sought and obtained an arrest warrant against Bashir that the accusations of the Court being “anti-African” began to surface. As an African, Phakiso had been called a “traitor” and a “money-grabber”. But Phakiso was not phased by this. He explained that he would never work for an institution which unfairly targeted Africans. He believed in the ICC and its mission and in no way subscribed to the idea of an anti-African bias. Phakiso conceded that there was hostility against the ICC in much of Africa. But this was because, in his view, if you repeat a lie often enough, it becomes part of the everyday fabric. It was the duty of the Court to continue to counter these accusations. It could not be said often enough that the majority of cases before the Court had come through “self-referrals”: this showed Africa’s amazing willingness, openness and commitment to facing justice.
Phakiso recalled that one of the Court’s most important cornerstones was the principle of complementarity. This was the key to the Court’s future success and meant that domestic capacity had to be strengthened. While this was primarily the role of States, the Court had a part to play, including through their engagement with domestic processes and preliminary examinations. If the ICC was genuinely a court of last resort, this would mean a limited caseload and a much smaller budget. But, currently, the Court was still a first port of call for many States.
Sam recalled how, with the establishment of the ICC on that summer’s day in July 2002, a justice component was added to the international peace and security architecture set up in 1945. But we still did not understand fully how this worked. The idea had been to create a more peaceful and just world, through fair processes. But it was difficult to say that the Court had created a real deterrent effect when you looked at what was going on around the globe. And assuming that the ICC was synonymous with convictions misunderstood the nature of justice. Too much hope should not be pinned on the already heavy shoulders of the Court. The ICC could not be the only tool through which to bring about peace and reconciliation. Rather, it must be combined with other non-justice related initiatives.