A Test of Our Resilience – An Interview with the ICC Deputy Prosecutor

In July, Shehzad Charania interviewed James Stewart, the Deputy Prosecutor of the International Criminal Court (ICC). Their interview covers Stewart’s journey to the ICC, his thoughts on the Court’s challenges and disappointments to date, and his hopes for the institution’s future. Click here to read Shehzad’s interviews with other key figures at the ICC and the world of international criminal justice.

ICC Deputy Prosecutor James Stewart (right) speaks with ICC Prosecutor Fatou Bensouda during court proceedings. (Photo: ICC)

ICC Deputy Prosecutor James Stewart (right) speaks with ICC Prosecutor Fatou Bensouda during court proceedings. (Photo: ICC)

Late last month, I went to the International Criminal Court to see Deputy Prosecutor James Stewart.  Stewart was elected by the Assembly of States Parties in November 2012, and took his oath in March 2013.  As he passes the three year point of his nine year mandate, it feels like a good time to take stock as second-in-command in the Office of the Prosecutor (OTP).

I begin by asking about Stewart’s journey to the ICC.  “It was not straightforward,” he laughs.  Stewart was a career prosecutor in Canada when by chance he met Richard Goldstone, then the Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).  Goldstone spoke to a small gathering, and praised the working of Canadians in Rwanda. Stewart was intrigued. “Who were these fellow countrymen doing such interesting work?” he thought. His next encounter in the world of international criminal justice was with Louise Arbour, a fellow Canadian and Goldstone’s successor as Chief Prosecutor. At the time, Arbour was also a Judge at the Court of Appeal for Ontario, and Stewart had appeared before her many times. He describes her as his inspiration in the field of international criminal justice. During a social occasion, he asked her whether she needed lawyers at the ICTR. Two months later, he got a call – the ICTR was looking for bilingual prosecutors. Stewart soon found himself in Arusha in the mid-1990s as Senior Trial Attorney.

In 1999, Stewart moved to The Hague to become the first Chief of Prosecutions at the ICTY.  He returned to Canada a few years later, thinking he was home for good. But in 2004, he found himself back at the ICTR, becoming the Chief of Appeals. This was an “extraordinary experience” for Stewart, as he began to build a whole new section from scratch following the decision of the UN Security Council to separate the ICTY and ICTR prosecution offices.  Stewart returned to Canada in 2007, but his biggest challenge was still to come. In 2012, he received an email from a friend alerting him to the role of ICC Deputy Prosecutor under the new Chief Prosecutor Fatou Bensouda.

But the process of having to go through an election to win the role did not come naturally to Stewart.  “I was completely and utterly lost – I had no idea what to do,” he says candidly. He soon realised he would have to “campaign” for votes, within the diplomatic community in New York, The Hague and Brussels. Although not a national candidate, he is grateful for all the guidance and logistical support offered by Canadian officials as he navigated the minefield of international legal diplomacy for the first time.

Once Stewart was sworn in, work began. His early feelings were positive. “I had the impression that under Fatou Bensouda, the Office of the Prosecutor was embarking upon a great shift in its way of working, and its culture.” He understood he was entering “an institution in flux, looking to redefine itself” after some difficult decisions and results in the courtroom.  Stewart saw gaining the trust of the Judges as one of his very first objectives.  “Without this trust,” he says, “the Prosecution cannot achieve anything.”

One of the reasons why the OTP, by its own admission, required a change in direction was because of the failure of the Kenya cases. In April this year, the Judges vacated the charges in the case against Deputy President William Ruto.  Last year, the case against President Uhuru Kenyatta collapsed.

“Very, very tough” is how Stewart describes the OTP’s experience with the Kenya cases. One of the worst aspects, he says, “was the sense that we had failed those individuals and communities who had no other recourse to justice.” But it was difficult in other ways too.  Stewart is used to the combative nature of the courtroom.  But it was the “diplomatic offensive”, on a number of levels and in a variety of forums, which he had never encountered before. “It brought home how difficult the work can be if you have people determined to undermine you at every turn,” he says. Stewart is keen to emphasise the findings of the majority in the Ruto case, in particular around witness interference and “political meddling”. This was not something the OTP had expected the Judges to say. At the same time, he is clear that the OTP is still learning lessons.  “We have had to go through a process of self-examination,” he says. This has yielded results, according to Stewart. Under a new prosecutorial strategy, the OTP now took more time and care to build their cases, aiming for those most responsible, ensuring trial-readiness as early as possible, and securing diverse forms of evidence. They had also become much more adept at framing requests for information and evidence from States. And they understood much better the importance of developing partnerships and relationships with key actors within Governments in situation countries.

While Kenya has been the biggest challenge for the OTP, the ICC has also had to deal with rumours and threats of a mass withdrawal of African States Parties from the ICC. Stewart doesn’t think this will happen. “But it would be tragic if it did,” he says. African countries had played a critical role in establishing the Court, and it would be “very sad” to see them leave. Stewart notes that the OTP has a very good relationship with most African countries. He points to the last AU Summit as an example of many African States speaking up for the Court. He also points to the invaluable role that Bensouda plays. She is “uniquely positioned” he says, “to connect and communicate with Heads of State in Africa”. And although the OTP is now investigating its first non-African situation – in Georgia, Stewart is clear that the OTP “has not abandoned Africa”. The focus must remain, he says, on the victims and affected communities, who want the ICC to be present in Africa. “We are an African Court,” he proclaims.

And what of the talk of more ad hoc and hybrid international tribunals, for example in South Sudan, Central African Republic, or to deal with Daesh crimes? Was this a threat to the role of the ICC? Stewart sees such developments positively, as part of the bigger picture of delivering justice and holding perpetrators to account. For example, the OTP had always taken a constructive position towards the development of a criminal jurisdiction for the African Court on Human and Peoples’ Rights. Stewart notes that the Malabo protocol ensures that serving Heads of States and Government, as well as “senior state officials” will never appear before it. For these people, “the ICC remains available”, he says. Stewart notes also that the Special Criminal Court in the Central African Republic is a positive development. By design, the ICC will only ever be able to prosecute those most responsible for serious crimes. The Special Court could then deal with those further down, ensuring that there was no impunity gap. All this said, Stewart is keen to point out that the international community created a permanent criminal justice institution in order to ensure there was no need for ad hoc tribunals in the future. “It would be wise to take advantage of the ICC as an institution with serious expertise in delivering justice,” he says.

We then turn to the OTP’s successes. Stewart’s response is immediate. “Resilience” he says firmly. “Resilience in the face of adversity and disappointment,” he continues. This would be required even more in the coming years as the OTP enters new situations outside Africa, and encounters new challenges and hostility. Stewart also cites the shift in culture within the OTP over the last few years as an achievement. Staff today feel the difference, he says. The OTP must be perceived as “independent, impartial, objective and fair”.  This would come through living the OTP’s core values – Dedication, Integrity, Respect. While the OTP could point to tangible successes in the Courtroom, namely the unqualified success in confirmation decisions since 2012, the first conviction for rape in the case against Jean-Pierre Bemba, the Court’s first guilty plea in the case against Ahmad Al Faqi Al Mahdi, among many others, what was most important was to ensure the correct elements were in place to ensure longer term success.

But what about Stewart’s life outside the office? How does he combine work and family? There are few legal roles as intense and demanding. Family life is clearly important to Stewart, in particular being “present” in the lives of his children. That said, Stewart admits the job is stressful. But, he says, he would never have contemplated taking up the role were it not for the fact that he would be working for Bensouda. Stewart and the Chief Prosecutor had worked together briefly at the ICTR, and had enjoyed a productive relationship. To Stewart, she embodies the three values of the Office. And as Prosecutor she has helped foster a climate of loyalty and affection within her staff. “We have each other’s back,” he says.

So would he ever want to succeed Bensouda as the Prosecutor? Stewart says that this has never been his ambition. He sees his role as continuing the work he is doing for the next six years, and then ensuring a smooth transition in 2021 over to Bensouda’s successor. “I’m happy being Deputy Prosecutor,” he says, smiling.  Happy, and clearly full of energy for the challenges which lie ahead.

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About Mark Kersten

Mark is a researcher, consultant and teacher based at the Munk School of Global Affairs in Toronto, Canada. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.
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