The following is an interview, conducted by Shehzad Charania, with former ICC Judge Sir Howard Morrison. Shehzad is is the Director of the Attorney General’s Office and International Law Adviser to the PM’s Office. His other interviews with ICC luminaries can be found here.
I spoke to Judge Sir Howard Morrison QC this month, a few days after the end of his ICC judicial mandate, and a week after the Appeals Chamber over which he presided handed down final judgments in the cases against Laurent Gbagbo and Bosco Ntaganda.
I begin by asking him to recall how he first became interested in international law and international crimes. He traces it back to his time at a military boarding school in West Germany, where Morrison’s father was deployed as a Royal Air Force pilot. When Morrison was 14, he went on a trip to the Bergen-Belsen Concentration Camp. It was a “raw and dramatic experience”, he says. It was also around this time he began reading about the Nuremberg trials and Anne Frank who died in Belsen at about the same age he was. He recalls finding her betrayal and murder as horribly shocking. Although decades passed before he would practice international criminal law, these memories implanted during his teenage years stayed with him. Morrison’s childhood and young adult life involved moving around a lot, in part because of his father’s occupation, but also his own interest in experiencing different countries and cultures. So from living in Egypt as an infant to teaching in a very remote school in northern Ghana before university, he eventually ended up studying law in the UK. A “fairly conventional” career at the Bar followed, with Morrison taking on whatever was thrown at him, from family law, medical negligence and commercial work, but ultimately it was crime, both prosecuting and defending, that made up most of his practice.
In 1985 Morrison saw an advertisement in The Times to become a resident magistrate in Fiji. He applied and was successful. While there, the country experienced two military coups which made life much more difficult than he had anticipated, although he ended up becoming Chief Magistrate before returning to the UK. “It was this period of my career that really piqued my interest in international law,” he says. “I began to look for something to do beyond my standard practice.” One of the applications he made was to put himself on the list of Defence counsel at the International Tribunal for the Former Yugoslavia (ICTY). Within a few months, he received a call from Zdravko Mucic, who had been convicted by the Trial Chamber of war crimes, and wanted Morrison to take on his appeal. Morrison ended up acting for four defendants at the ICTY, as well as acting for a Rwandan Cabinet Minister at the International Criminal Tribunal for Rwanda (ICTR). He was appointed Queen’s Counsel in 2001
Following his work as a defence barrister at the ICTY and ICTR, Morrison came back to the UK, and in 2004 was appointed a domestic court Judge. A few years later, the Special Tribunal for Lebanon (STL) was established, and Morrison successfully applied for a judicial position. Although he didn’t spend much time at the STL, he remembers being holed up in a hotel near Schiphol Airport with fellow judges, led by Antonio Cassesse as President of the STL, to draft the rules of procedure and evidence. A few months later, however, he received a call from the UK Foreign and Commonwealth Office asking if he might be interested in replacing the British Judge at the ICTY Lord Iain Bonomy. Morrison accepted, the temptation of probably being asked to sit on the Karadzic case too great to resist.
I ask him about that case. “It took far longer than anyone thought,” he recalls. “It was a huge case, with voluminous evidence, a lot of cross-examination, and everything having to be interpreted and translated. And with Karadzic representing himself, albeit with the assistance of counsel, and as a result the trial chamber deciding to sit four instead of five days to allow Karadzic time to prepare, this alone added 20 percent more time to the trial.” At the same time, Morrison understands that this was a seminal case, where the fairness of the proceedings would be “rightly” under the microscope. “What we delivered was more than just a legal judgment. Because a final decision was never delivered in the Milosevic case, we had to set out the full history of the events which took place, for example in Srebrenica, and the siege of Sarajevo. That’s why the judgment was 2,700 pages. It was an immense privilege to sit on that case. It was also exhausting!”
While Morrison was at the ICTY, he decided to throw his hat into the ring to become the UK’s judicial candidate for the International Criminal Court. Morrison had first worked on ICC matters in New York at the Preparatory Commission, where he campaigned for the defence to be an organic part of the Court. This was in part as a response to his experience of the early days at the ICTY where defence facilities were wholly inadequate. “It changed quickly, but at the start, as defence counsel we weren’t able to enter the library without an escort, and we couldn’t eat in the staff canteen. There was one room for all defence counsel, which meant we were crammed together, and we were given the OTP’s [Office of the Prosecutor] old computers. Incidentally, they hadn’t done a very good job of wiping all the hard drives!” Morrison is grateful for the assistance he received from the British delegation in his quest to ensure that the defence were not seen as some sort of “add-on”, and he reflects on the establishment of the Office of Public Counsel for the Defence as a victory.
The competition to become the UK nominee was fierce, but few others would have been able to demonstrate the same deep level of international criminal law experience, as counsel or judge. Little did Morrison know that his successful nomination was just the start of a process. “The real work began when I had to lobby for votes,” he recalls. It was not an experience he relished. “I accept the system is unlikely to change, and that States will want to retain control of the process. But if I had my way, there would be an independent judicial appointments commission, which would appoint judges based on experience and merit, and not horsetrading. There have been too many candidates over the years without sufficient knowledge or understanding of international humanitarian law and international criminal law, or simply just the experience of being a judge.”
Morrison’s time at the ICC has been particularly intense. I ask him about the case which generated most headlines, the majority decision to acquit Jean Pierre Bemba Gombo. “I was surprised at how weak and inconsistent the evidence was against Bemba,” he says. “As a judge, I regard my principal duty as having to ensure fair trial standards. I would not have done my duty if I had upheld the Trial Chamber’s decision. I feel for those victims who might take a view that the majority decision meant that justice was not done in this case. My heart goes out to them. But it surely can’t improve someone’s suffering to convict anyone on very weak and inconsistent evidence. If I had been trying this case as a trial judge in England, I would have invited a submission at half time that there was no case to answer.”
I ask Morrison about the criticism the majority received (noting that there was also widespread approval in the commentary), but also whether he felt there was a suggestion that the ICC was failing as a result of the acquittal. “I fundamentally disagree with a narrative that says the ICC failed in any way because of our judgment. From my perspective as a Judge, I cannot accept that the success of the ICC can be determined by its conviction rate. The key indicator is the fairness of the trial. The same was the case with the ICTY and ICTR.”
I pause here, noting that the criticism against the ICC more generally is not acquittals per se, but rather the ratio of convictions on the one hand with unsuccessfully prosecuted cases on the other. Morrison accepts that investigations and evidence may not be as robust as they need to be, but notes the much more difficult task the ICC has compared to the ICTY and ICTR. “It’s comparing apples and pears,” he says. “The ad hocs were dealing with limited geographical parameters, few languages, and Chapter VII powers which meant that along with other incentives cooperation was more forthcoming. The ICC has a worldwide mandate, with cooperation very difficult to obtain. We cannot fairly compare the ICC with the ad hocs or domestic systems”.
I note that the Bemba judgment also gave rise to a renewed debate about judicial collegiality, something with the Independent Expert Review also focussed on. Morrison accepts that this is an issue which must be resolved. He sees the three-yearly turnover of six judges as a root cause of the issue. “One of the big differences with the ad hocs was that there were permanent judges, so we all got to know each other. Our initial differences in approach, depending on whether we came from a more common law or civil law background or some other background entirely, eventually diminished as we learnt to adopt a more homogenous approach. This is much more difficult at the ICC where you lose one third of the Judges every three years. Judges retain their national approach for longer. It’s also of course undeniable that some Judges are easier to get on with than others, but that is due to States who nominate candidates and the ASP who elect them.”
One of the greatest controversies among the ICC judiciary was in a different courtroom. In 2017, a number of past and present Judges filed a claim at the International Labour Organisation Administrative Tribunal arguing for increases in their salaries and pensions. Morrison did not join the suit. I ask why. “It was not because I disagreed in principle with the grounds. It was a fundamental flaw that for 20 years the salary had remained the same without any mechanism for even reviewing the level – this would surely be unheard of in any mature organisation. And the slashing of the pension from 50 percent of the salary to 12.5 percent was done without any proper consultation. It was no longer a pension which anyone could live on. But I didn’t join the action with the other judges because I didn’t think it was morally justifiable. I do not criticize those who took a different view, it is very much a personal decision. However, it is undeniable that the salary of an ICC judge is a good salary, to say the least when you compare it to the parts of the world where the ICC carries out most of its work.”
As we come to the end of our time, I ask Morrison where he sees the future of international criminal justice. He notes the “permanent handicap” the ICC will face without the US, Russia, China and India as members, and of a sense of “schizophrenia” of those same countries nonetheless “recognising” the Court through Security Council referrals. He feels the worldwide rise in populism will not help the ICC, and at the same time that “States will not welcome an institution which places their actions under the microscope, at which point they will change their stance from support to hostility”. But Morrison also sees a bigger picture. “As the population continues to grow, we will see playing out an even greater struggle for a share of world’s resources, where conflicts occur over lack of fair distribution. These conflicts will be resolved by law or war. In the future, we could witness wars over water and living space as a result of climate change with rising sea levels eradicating crops and people’s standard of living. We will then see migration on a mass scale. Law will be crucial to dealing with some of these scenarios, and we will have to consider how to deal with crimes like ecocide, and therefore go beyond our current narrow perception of the core crimes. The ICC should be a central part of this conversation.”
Finally, I ask Morrison about his future plans. “I have been doing this for far too long to let it go,” he says. “My interests continue to lie in teaching, and promoting good governance and anti-corruption around the world, but also in considering how courts and tribunals can deal with current crimes taking place as well as environmental crimes. So I’ll still be bouncing around – I’m only 71 after all!”
TERRORISTS MUST BE TREATED AS UNLAWFUL BELLIGERENTS & NOT UNLAWFUL COMBATANTS
Four Geneva Conventions of 1949 and two Protocols Additional of 1977 determine among others the status of individuals during armed conflict, establish their protections etc. IHL is founded upon a paradigm that makes a division between international and non-international armed conflict.
Common Article 3 provides a less comprehensive, summarized set of protections that apply during internal armed conflicts.
In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism, set out in its resolution 49/60, stated that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes” and that such acts “are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.”
The UN Security Council in Resolution 1566 (2004), referred to “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a Government or an international organization to do or to abstain from doing any act”. Later that year, the Secretary-General’s High-level Panel on Threats, Challenges and Change described terrorism as any action that is “intended to cause death or serious bodily harm to civilians or noncombatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act” and identified a number of key elements, with further reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004).
Terrorism aims at the very destruction of human rights, democracy and the rule of law. It attacks the values that lie at the heart of the Charter of the United Nations and other international instruments: respect for human rights; the rule of law; rules governing armed conflict and the protection of civilians; tolerance among peoples and nations; and the peaceful resolution of conflict.
Terrorism has a direct impact on the enjoyment of a number of human rights, in particular the rights to life, liberty and physical integrity. Terrorist acts can destabilize Governments, undermine civil society, jeopardize peace and security, threaten social and economic development, and may especially negatively affect certain groups. All of these have a direct impact on the enjoyment of fundamental human rights.
Threatens the dignity and security of human beings everywhere, endangers or takes innocent lives, creates an environment that destroys the freedom from fear of the people, jeopardizes fundamental freedoms, and aims at the destruction of human rights;
Has an adverse effect on the establishment of the rule of law, undermines pluralistic civil society, aims at the destruction of the democratic bases of society, and destabilizes legitimately constituted Governments; etc.
Under Geneva Convention III, lawful belligerents comprise members of the armed forces as well as the members of militias, voluntary corps, and organized resistance groups who are commanded by a person responsible for his subordinates, have a distinctive sign, carry arms openly, and conduct operations lawfully.
Common Article 3 explicitly states that when parties to the conflict apply its provisions this “shall not affect the legal status of the Parties to the conflict.” Additional Protocol II contains a similar provision guaranteeing the sovereignty of States and their responsibility to maintain law and order, national unity and territorial integrity by all legitimate means (Article 3 of Additional Protocol II).
NIACs can and do spill over into neighbouring countries because of the continuity of hostilities, but they cannot spread to third countries. The IHL criteria of intensity and organization required to constitute a NIAC would need to be fulfilled in the territory of each individual third State for the applicability of IHL to be triggered.
FOREIGN TERRORISTS AND COMMON ARTICLES 2 & 3
The concept of “foreign fighter” is not a term specified to the IHL. The applicability of IHL to a situation of violence in which such Foreign Terrorists may be engaged depends on the facts on the ground and on the fulfilment of certain legal conditions stemming from the relevant norms of IHL, in particular Common Articles 2 and 3. Thus, IHL will govern the actions of foreign terrorists, as well as any measures taken in relation to them, when they have a nexus to an ongoing armed conflict.
Written by :
Hakimi Abdul Jabar (A.J. Hakimi)