Shehzad Charania joins JiC for this interview with outgoing President of the International Criminal Court Silvia Fernandez de Gurmendi. Shehzad is the Head of International and EU Law at the Attorney General’s Office and International Law Adviser to the Prime Minister’s Office. Between 2013-16, he was the Legal Adviser and Head of International Law at the British Embassy in The Hague.
This marks the second time that Shehzad has interviewed Fernandez. The first interview was conducted in January 2015 when Shehzad was her first visitor at the Court’s newly opened premises. This time, he interviewed Fernandez as part of her very last engagement before leaving the Presidency and the Court for good. The interview focussed on her legacy, her view of the Court today, and her hopes for the future. It was conducted on 9 March 2018.
Outgoing President of the International Criminal Court Silvia Fernandez de Gurmendi is in a reflective mood, for obvious reasons. It had been a “moving day”, she says. She has just that morning presided over a ceremony of the swearing-in of six new Judges, while the day before the Appeals Chamber issued four judgments. “We had to work like mad,” she says, “so I haven’t until now had the chance to reflect.”
To add to the sense of finality, while we are speaking the Court issues the President’s End of Mandate Report setting out progress against the priorities she outlined at the start of her term in 2015. She hails the emphasis on expediting and improving the judicial process. “I was so proud that we even managed to have a discussion on it,” she says. Previously, many of the Judges had not wanted to enter into a dialogue around judicial processes, citing judicial independence as the concern. In the end, it has been a collective effort to improve trial procedures, and establish a “more cohesive judicial culture”. By issuing the report, she hopes that the new bench, including the six new Judges, will continue the dialogue. “Much has been done,” she says, “but there is much more to do.”
In addition to the work on the judicial process, Fernandez also picks out the focus on restorative justice in the report and, in particular, her efforts to integrate the Trust Fund for Victims into the work of the Court. “The Trust Fund is a crucial part of the Rome Statute system,” she says. While the Trust Fund zealously guards their independence, she is clear that the “Court needs the Trust Fund and the Trust Fund needs the Court”. She has recently undertaken a trip to Uganda with the Trust Fund to see some of their work being carried out in the field. Fernandez describes it as “one of the highlights of my Presidency”. She says she saw first-hand how much could be done with relatively little resource. “The new leadership should continue the engagement with the Trust Fund,” she advises, “because of the centrality of victims in the work of the Court.” Improving judicial process is key, she stresses, but it is equally important to raise awareness of the plight — and role — of victims, and the work of the Trust Fund.
What if she had another three years, I ask? She is keen to emphasise that, in her view, three years is sufficient for a Judge to hold the Presidency. While it means that there is a limited amount of time to drive through an agenda, it means that you are “truly independent” because you are not spending your time “trying to make friends to ensure your reelection”. It is now time to pass on the torch, to bring in new ideas, she says. During her time, she has had to make hard choices which not everyone has agreed with or been happy about. If she were to have another three years, she would focus on harmonising the system for victims’ applications and participation. But she doesn’t think she could have done much more than she has. There needs to be a greater degree of experience in these areas, she says.
So no regrets, I ask? “I did what I could,” she says, “and maybe I could have done better, but I wanted to be the President because I had a clear idea of what I wanted to achieve.” The biggest challenge had been to bring others with her in her vision for the Court and the judiciary. But, she says sombrely, “there will always be a few individuals who do not want the same thing.”
As President, one of Fernandez’s responsibilities would have been dealing with the politics of the institution and the role of States in particular. The role of the ASP has grown, she notes. She doesn’t think that the extent of the role as it stands today was envisaged in Rome. States Parties in The Hague had in the past a tendency to “micromanage” the Court, she says. While Fernandez notes that she maintained good relations with States, and has no doubt about the key role they have to play, she has tried to persuade them not to interfere with the day to day running of the Court. “We need space to function,” she says, “so we need to find the right balance, because we need the ASP and we must engage with them.” But, she continues, “States need to think about whether they believe in the goals of the Rome Statute as they were envisaged twenty years ago, around accountability and sustainable peace.” If States want these aspirations to become a reality, she says, they have to face down the lack of cooperation and other current disputes, such as around immunities.
I note that some NGOs have stated that there is a “capacity crisis” facing the Court, due to underfunding. There are different expectations about what the Court should be doing, says Fernandez, but the Court is in a no-win situation. She explains, “We are criticised by NGOs for carrying out insufficient outreach, or for not having better external messaging, or not providing better access for victims to the judicial process. But you also have certain States who think that the Court should not get too involved in these areas because it is not part of the institution’s core function.” One of the key tasks over the coming years will be to try and align expectations, because, as Fernandez says emphatically, “the Court cannot do everything.”
I suggest that one of the key issues around the Court’s credibility is that only one new State has joined the Rome Statute during her Presidency, while one has withdrawn and another has submitted a notice of withdrawal. She agrees. “The lack of universality risks undermining legitimacy, points to selective justice, and limits the effectiveness and relevance of the Court.” She is equally clear however that we should not expect an “avalanche” of new States becoming party to the Rome Statute any time soon. And in relation to withdrawals, she is sanguine. “We must maintain dialogue and engagement,” she says, “but in the end it is the decision of a sovereign nation.” Fernandez is clearly disappointed that States have withdrawn or are considering doing so. “When the Court was created in the 1990s, it looked like a much more benign period than today, but the difference now is that the Court exists, it works, and it has improved a lot.” But while she does not shy away from accepting that there is more for the Court to do, she is equally clear that States have a responsibility to stand up for the Court when it comes under attack. This means more high level representation at the annual session of the Assembly of States Parties, and a renewed attempt to focus on the big picture, not just the budget and finances of the institution.
I remind Fernandez that at the last ASP session, she challenged States to think about where they wanted the Court to be in another 20 years. It was, she said last December in New York, “an open question for States to answer”. What is her answer, I ask? She is a “natural optimist”, she says, but she is also “frustrated” that on the one hand there is talk of “grand principles” such as accountability and justice, while at the same time insufficient follow through with the cooperation the Court requires. So while Fernandez still believes there is support for the Court and the Rome Statute system, and the new initiatives for Courts and safeguarding evidence demonstrate the importance States place on the principle of international justice, she is clear that “we must use this moment to discuss how we can move the conversation forward and strengthen the principles we have worked so hard to establish.”
I pick up the point around the emergence of new international criminal justice initiatives, whether that is about establishing new tribunals or evidence gathering mechanisms. Do these moves risk marginalising the ICC? Fernandez is emphatic. “Definitely not,” she says. Most of the initiatives are not competing with the ICC, she notes. On the contrary, they reinforce an expectation of justice, even to the extent that where there is no existing court with the jurisdiction to try crimes being committed today, there is an expectation that evidence should be safeguarded until such time as an appropriate tribunal is able to step in. But, she emphasises, “the ICC has a central role to play because it remains a Court of last resort when all else fails.”
Fernandez accepts that the Court has not made life easy for itself. The recent leak of emails from the email account of the former Prosecutor was “dreadful”. It has to be taken very seriously, and she hopes it will not have a long-term effect on the Court. The response had been swift. She asked the Court to re-examine the various structures and frameworks inside the Court, including the codes of conduct. For example the Code of Ethics for Judges had been adopted many years ago, and needs to be revisited to ensure it is in line with modern day best practices.
I note that with all the institutional and political challenges, her role is one of the most difficult in international criminal justice. While she accepts that being President is “pressurised and sometimes lonely”, Fernandez’s support network comes from many quarters. She cannot speak highly enough of her “wonderful” immediate office as well as her fellow Judges in the Presidency. But she also acknowledges that as President you have to build relationships across the Court, starting with fellow Judges, in particular those who may not have voted for her, and the other Principals: the Prosecutor and Registrar.
As our conversation draws to a close, I ask her about her best moment at the Court. She doesn’t hesitate. “I was so honoured to be the President when our permanent premises were inaugurated,” she says. It was a deeply moving and emotional ceremony. She had been at the Rome Conference when the Statute was adopted, and she felt she had come full circle to be the President presiding over the ceremony that day, joined by all those she had celebrated with almost twenty years previously. She is clearly attached to the building. “I love it,” she exclaims, “the serenity of the water, the dunes in the background, the walk through the corridor to my office.”
Today is a “real and final goodbye” she notes, having previously left the Court when she worked as a senior member of the Office of the Prosecutor. She didn’t see herself coming back to The Hague back then, but this time, it truly is goodbye to the ICC. “But not to my time working on international criminal justice,” she is quick to add.
The Court will miss Fernandez. No single person embodies the principles of the Rome Statute more than her. I have a feeling we will see her in an equally important role very soon.