“We had no precedent to work from” – An Interview with Former ICTY Judge and ICC Assembly of States Parties President, O-Gon Kwon

The following is an interview, conducted by Shehzad Charania, with O-Gon Kwon, former Judge of the International Criminal Tribunal for the Former Yugoslavia and President of the ICC Assembly of States Parties (ASP). For Shehzad’s other interviews with prominent figures in international criminal law, see here.

Judge O-Gon Kwon speaking at event on the 20th anniversary of the Rome Statute of the ICC (Photo: ICC)

Last month, I spoke with former Judge of the International Criminal Tribunal for the Former Yugoslavia and President of the ASP Judge O-Gon Kwon. We discussed his career as an international judge and the challenges of being ASP President. 

I begin by asking him about his journey to the ICTY. Kwon served as a Judge for 22 years in South Korea but says he couldn’t turn down the chance to adjudicate on behalf of the international community over the most serious crimes. He refers to his election as “pure luck” because of how competitive the process was, and how States tended to favour continuity and therefore the re-election of incumbents. He recalls that the Malaysian incumbent Judge Lal Chand Vohra had decided not to stand again, which he suggests – rather modestly – helped his own chances. “Perhaps I wouldn’t have won if he had stood,” he says. He says his experience as a judge in South Korea was also important, noting that States generally prefer electing practitioners over scholars or diplomat lawyers

Kwon was immediately thrust into action when he was assigned to the case of former Serbian President Slobodan Milosevic. He remembers vividly how “excited” he was on the day of the opening of the case that the entire world was following, and also how shocked he was when he heard the news of Milosevic’s death on a Saturday morning some four years later. At that point, Kwon considered returning home, but felt he had “unfinished business”.  He had also been re-elected a year before Milosevic’s death, the ICTY Judges’ terms being only four years. He says that it was “kind of funny” that he had to campaign for his re-election in the middle of such an important case.

His second case was Popovic et al, the largest case at the time regarding the events of Srebrenica, and the first case at the ICTY to deal with conspiracy to commit genocide. Once again, following the end of the oral proceedings, Kwon considered a return to South Korea, in the knowledge that he would be given a higher judicial role there. But then the President of the Tribunal asked him to preside in the case of Radovan Karadzic who had just been transferred to The Hague.  It was a challenge he couldn’t turn down. But it was also the busiest period of his career; as he began the proceedings in Karadzic, he was still writing the judgment in Popovic et al.    

During his 15 years as a Judge at the ICTY, Kwon also sat in the Appeals Chamber in the case of Strugar and was involved in a number of pre-trial and contempt of court cases. “At one point, I had the heaviest caseload of any of the Judges.”

Kwon did not come to The Hague as an expert in international criminal law but that was not the biggest challenge. “The novelty of the issues and the procedural law we had to devise were among the most interesting experiences. As an international tribunal, we were a hybrid system which incorporated both common law and civil law. We had no precedent to work from. The procedures we established were a response to the issues as they arose, and the lessons we learned. Through this experience I was able to learn about different legal systems and practices very quickly.”

We reflect on the Karadzic case, one of the most high-profile in international criminal justice since Nuremberg. “All three of my big cases had a Srebrenica component. So, I was able to view events there in a really comprehensive way. The Popovic case was exclusively related to Srebrenica; the first time a defendant was convicted of genocide. Karadzic was the highest ranking official and was prosecuted for two counts of genocide – in Srebrenica and the local municipalities. We convicted him for the former and not the latter. We therefore had to be especially meticulous in our reasoning on how we as a Chamber arrived at our finding on genocidal intent.”

I ask Kwon how, as Presiding Judge, he handled the fact that Karadzic represented himself. It was, of course, not the first such occurrence – Milosevic had famously represented himself, as had Vojislav Seselj. However, Karadzic’s case was “a bit peculiar”, he says, because Karadzic worked so closely with his “excellent” legal associate, Peter Robinson, who helped Karadzic with procedural issues such as the disclosure violation motions, and advised him, for example, to seek adjournments where further time for preparation was needed.  But it was clearly a testing set of circumstances. “If I could change one thing about the ICTY,” he says, “it would be not to allow defendants to represent themselves. We had to strive always to strike the right balance – we could not prohibit the accused from eliciting the evidence he wanted to introduce which would usually be relevant even if only in some marginal way. As Presiding Judge, I would always have to ask Karadzic about the relevance of a particular submission, and I had to be vigilant in ensuring the trial kept moving along.”

I ask about the length of the case – over six years. He accepts that it took a long time, and reels off the statistics: 350 prosecution witnesses, 250 defence witnesses, a transcript of 55,000 pages, 95,000 pages of case filings, 190,000 pages of exhibits, 1,000 oral rulings, and several hundred written rulings. It was therefore unsurprising that deliberation and judgment writing took 18 months. The final judgment was 2,600 pages. Kwon is adamant that the rights of the accused were at the forefront of the minds of the Chamber, and that it was time well spent. He does think that the indictment could have been more focussed, and that this would have shortened the length of the trial, but the Prosecutor, he says, was clear that he could not ignore the numerous victims by artificially limiting the charge sheet.

Kwon returned to South Korea in 2016 at the conclusion of the Karadzic case. A year later, the South Korean Ministry of Foreign Affairs approached him to stand for election as the President of the Assembly of States Parties (ASP) of the ICC. He was initially discouraged by prominent figures within the NGO community. “Bill Pace [then Convenor of the Coalition for the ICC] and Richard Dicker [Director of Human Rights Watch’s International Justice Program] felt that the President should be an Ambassador who was based in New York, who understood the diplomatic scene, and knew the key players.” Were they right? 

“They had a point,” Kwon responds, “but I travelled a lot, at least pre-Covid, and otherwise sought to make myself available as much as possible. I must have spent a third of my time either in The Hague or New York. And in the end, Bill and Richard accepted they had been wrong, and in particular appreciated what I was able to bring to the IER [the Independent Expert Review of the ICC] as a former Judge. I see as a positive reflection of my tenure that my successor is also a Judge [former ICC President Silvia Fernandez de Gurmendi].” 

We turn to the IER. What did he think of the conclusions and recommendations? “Excellent,” he says, without hesitation. “It was a critical exercise because serious concerns were being raised about the performance, effectiveness and efficiency of the Court. And while it wasn’t the subject of the IER, we had also received a lawsuit from some of the Judges about their salary, which was particularly disappointing. There was also alarm at how the Chambers were being administered as well as the inconsistency in the jurisprudence. And there was a lot of concern among stakeholders of the Court at the length of preliminary examinations and investigations within the Office of the Prosecutor.”

I ask Kwon how he reacted to the Op-Ed of four former ASP Presidents in the Atlantic in 2019 entitled “The Court Needs Fixing” when they talked about how they were ‘disappointed by the quality of some of its judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential’. “I couldn’t have agreed more,” says Kwon. “We knew that the only way to deal with the situation we were facing was to conduct a review, carried out by independent experts. This was something we were already discussing within the ASP Bureau, and we set up a retreat where we came up with the ‘matrix’, linking to the key areas which needed to be addressed to enhance the performance of the Court and to strengthen the Rome Stature system.” There were two other challenges Kwon had to navigate.  “The Terms of Reference for the experts were the subject of intense negotiation.  At one point you had two key blocs of States arguing about the placement of a comma.”

The other big challenge was identifying the experts. “It was the responsibility of the ASP Presidency to identify experts, and for the Bureau to recommend a final list to the wider ASP.  This took the full duration of the Assembly session to negotiate. It was frustrating for sure, but in the end, I was happy that we had appointed the best qualified people. I know that parts of the report are controversial but as I see it this is the start of a process.”

We move onto the other major challenge of Kwon’s Presidency – the election of the ICC Prosecutor.  Kwon is careful to note that there is a process of lessons learned that is ongoing, and that he doesn’t want to pre-empt it. But he notes that he was well prepared, kicking off the process for the establishment of the Committee for the Election of the Prosecutor (CEP) and Panel of Experts two years in advance, as well as agreeing the Terms of Reference within a few months. I ask him about the Terms of Reference and the issue of the vetting of candidates. “We could have thought about this more in hindsight,” he admits. “It was raised in an early Bureau meeting, but we didn’t give it sufficient consideration in the early days. Even when this became more of an issue later on, as the Presidency, we didn’t receive any specific allegations against individuals. Yes, there were rumours, but obviously we couldn’t act on anything that wasn’t substantiated. We did use the security section of the Court to carry out checks during the CEP process, and when we extended the shortlist to include additional names from the longlist we collected declarations from all the nine candidates.  But there was not much more we could do within the parameters of the Terms of Reference and without any specific factual basis to any allegations.”

I ask about the reception to the issuance of the list of shortlisted candidates. “States Parties were very divided,” he says. “Some wanted to continue to find consensus on one of the shortlisted candidates, while others were adamant that this would not be possible. So eventually, as a compromise, and after many – too many – months of negotiation, we agreed to open up the longlist.  This was the right thing to do. Covid was perhaps a reason why it took time to get to this point, but the main barrier was the lack of agreement between States.”

I ask about the choice of Karim Khan QC as the next Prosecutor. “Obviously he wasn’t on the original shortlist,” Kwon says. “But the result is the best one because he was elected by States as the culmination of a legitimate, democratic process. And it is imperative that the lessons learned exercise we are carrying out should not impact on the legitimacy of the eventual choice of States.”    

As we wind up, I ask Kwon about his journey from Judge to chief diplomat of the ICC, and the political nature of the role. He is grateful to his two ASP Vice-Presidents in The Hague and New York who helped him navigate this new world. “I learnt that with diplomacy the most important thing is never to give up because with hard work and dedication a solution will almost always emerge.”  He does have one bugbear though: “I found the rule that you must obtain consensus on almost everything quite bizarre, because it inhibits effective and efficient decision making.”

We talk finally about his view of the future of international criminal justice. “It will always be a work in progress,” he says. “No-one will ever be 100 percent satisfied. The modern international criminal justice project is now 30 years old and it will continue to improve iteratively. As for the ICC and the ASP, the biggest challenge now is to assess and to implement the recommendations of the IER. The report has the potential to leave a great legacy for the Court. Only time will tell!”

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Assembly of States Parties, ICTY, International Criminal Court (ICC), International Criminal Justice, International Law, Interview, Interviews and tagged . Bookmark the permalink.

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