Sabine Nolke: “That's what you get when the governance of a court is given into the hands of political actors”

JUSTICE INFO: How difficult is it to get a group of 21 ambassadors to make such a momentous decision?

SABINE NOLKE: I think it's quite difficult, frankly. They come from different backgrounds with different motivations, political and otherwise. The fact that they didn't say what their decision was in and of itself is telling. The wording of the communication probably took up much of the discussion, because everybody who made a call on whether to say, ‘yes, he did engage’ or ‘no, he did not engage’, would probably want to have their views reflected. And the fact that none of that was made public speaks to the sharpness of the division within the Bureau on the issue. I can imagine that this took a very, very long time to resolve and to draft. 

How much depends on the personality of the president of the ASP – currently Päivi Kaukoranta of Finland – whether they're able to pull people together?

That has a large impact. I know Päivi Kaukoranta very well. She was the ambassador in The Hague when I was there, and we've known each other for over 30 years. I know that she is very capable of herding the cats. In this particular case, I'm sure that she would have tried her best to get a unanimous decision but would have seen by the sharpness of the division that that was going to be impossible. Her job then was to try and steer the decision through so as to minimise the directive that would be emanating from the Bureau – because it was so divided.

“This represents really the compromise outcome: just toss it all to the ASP without a recommendation from the Bureau.”

Does it look like they resolved it? 

If you look at the rules on these issues, the Bureau is supposed to make a recommendation to the ASP. I'm not sure that they are going to be doing this, if they are not even going to say what decision they made. Probably they decided ultimately that they would not make a recommendation, that they would instead just throw the whole issue to the ASP. This represents really the compromise outcome: just toss it all to the ASP without a recommendation from the Bureau. Even that would be a very difficult compromise for Ambassador Kaukoranta to achieve and get out of the Bureau in the first place.

There was a press release from the presidency, the three top judges at the ICC. Not only did they ask the ASP to get on with the process, to do it as swiftly as possible because presumably there's a bit of lacuna damaging the court but they describe the ICC as “one of the most significant achievements of human civilisation”. Do you agree?

No. The idea, yes. The actual brick and mortar reality and its governance? No. One of the fundamental problems with the ICC is that you have a judicial institution that is governed by states. And that problem works both ways. When it's convenient to the court, they will just ignore what states tell them: ‘no, we're independent, don't talk to us, go away’. But the other way, there are states thinking that they can influence the court and then states actually influencing the court through the personnel that they elect to serve on it. Even general issues of governance, determining the budget through a politically negotiated, state-driven budget process – essentially what the court can and cannot do, what resources it is given – that's problematic. Write the check and get out of the way, frankly, is how it should look.

“It is a fundamental flaw, in the court that any state should give themselves the right to determine whether or not a prosecution is appropriate or not.”

So, when you ask me if the court the greatest thing since sliced bread, the answer is no because there's this inherent tension between judicial independence and state dominance. The example is the political storm that the Netanyahu indictment brought [Israel’s Prime Minister Benjamin Netanyahu is prosecuted by the ICC for crimes against humanity and war crimes in Gaza]. It is a fundamental flaw, in the court that any state should give themselves the right to determine whether or not a prosecution is appropriate or not. If the crimes are there and if you have the evidence and you have jurisdiction, then there should be a prosecution, it doesn't matter who it is. We don't just prosecute the people we don't like.

In the same reaction from the ICC presidency, they said they wanted everyone in the court and all stakeholders, which presumably means the states and staff, to place in the forefront ‘the interests of the institution’. Not justice. In your view, what is this all about really? Is it about circling the wagons and getting the institution back on track again and stopping the slow decline, or is it about actual justice for those involved?

What does protecting the court mean in this case? Does it mean showing that the court is an institution that deals with these matters of sexual harassment upfront and honestly and properly? Or does protection of the court mean ‘Karim Khan has done a great job, so we need to keep him on and there was a flawed process’? I would hope that what the presidency meant was ‘get on with it, and let's get us back on track’. If what they meant was ‘resolve this case not in the interest of the victim or of protecting the rights of the accused’, but in the interest of the institution of which they happen to be a part, then, that’s not good. So I give them the benefit of the doubt and will say that it was about getting on with it and stopping the slow bleed.

What kinds of issues are states considering when making this kind of decision? What are they balancing: Protecting the court? Protecting the staff of the court? There’s no word about the complainant, the alleged victim. Protecting her? What comes into the mix?

All of the above, plus a few things you will never hear uttered out loud. Let's not forget there were two decisions here: the decision whether or not he engaged in serious misconduct, and the decision on how to frame that decision. Those are two separate things, but they're not unrelated. The considerations that would go into the decision on the misconduct would be very much evidence driven. Beyond the Bureau members, nobody has officially seen the full investigative report along with the panel of jurists’ recommendations, except via selective leaks. We are not sure whether the evidence was credible or not. Right there you have issues for states representatives to seize on: Whether the misconduct happened, does it actually constitute misconduct, and how much does the process matter? People are split and this is why the ASP really needs to make the ultimate decision.

“Nothing to do with the substance of the case, the credibility of the victim, or the process. But that's what you get when the governance of a judicial institution and the quasi-judicial process that you're looking at here is given into the hands of political actors.”

And those hidden elements?  

Karim Khan is a divisive figure. He's done great things at the court. He has had some very, very good successes. Then there is his personality: he's not a warm and fuzzy guy. So there may be people who have animus against him.

The Palestine indictments were politically very divisive. So, there may be governments issuing instructions to their representatives saying, this is as good an opportunity as any to get rid of this guy – while hiding behind the current process. I don’t know that this is happening, but I can see it happening. Because I've seen discussions where what is on the table isn't really the issue.

On the other hand, Khan has a lot of support among African states, having been a defence attorney on the Kenyan case [Prior to being elected as prosecutor of the ICC, Khan defended the current president of Kenya William Ruto who was then prosecuted by the ICC. In 2016 the case was terminated for lack of evidence.] and having also garnered a reputation for moving the court's eye off Africa, which was a really big issue during the time when I was ambassador in The Hague. So there may be people who want to protect him because they like him. Again, nothing to do with the substance of the case, the credibility of the victim, or the process. But that's what you get when the governance of a judicial institution and the quasi-judicial process that you're looking at here is given into the hands of political actors.

“Frankly, I doubt very much you will get a coherent Western Europe and Others Group position on this. I don't see block voting. I see a very divided ASP.”

So if we look ahead to a special session of the ASP, are the dynamics that you've just run through, the same ones that we would see at play for each of the 125 members?

I would absolutely think so. In some instances, you may see states voting by regional blocks. But given the divisiveness of the issues here – protecting the victim, protecting the rights of the ‘accused’, a flawed process – how do you deal with that? If this was a criminal justice matter, I think there would be an acquittal given the flaws in the process. But it's a disciplinary issue. In this case, states will do what they think is right under the circumstances, for whatever reason.

Frankly, I doubt very much you will get a coherent Western Europe and Others Group (WEOG) position on this. I just don't see it. On the Palestine issue, for example, there are different approaches within WEOG. And if that features into the decision-making, it will split WEOG. So I don't see block voting. I see a very divided ASP. 

This process has been characterised by selective leaks. How do you think a media campaign plays with states? Does a campaign for exoneration work or does it perhaps backfire?

There's no clear-cut answer. Media campaigns can backfire, especially if they come from one particular obvious camp. Then you can label it, you can package it up and you can dismiss it. If it comes from a coalition of NGOs, for example, Western countries might be more susceptible.

Looking back at my role as chair of the committee to elect the prosecutor, there was a very concerted campaign by NGOs to consider the issue of sexual harassment as part of our vetting and our assessment of candidates. That pressure was so considerable that we created a vetting process specific to that issue, even though it wasn't part of our terms of reference, and it was not in existence as a process for elected officials within the ICC system until that point. So, media campaigns or NGO campaigns – lobbying – can have an impact.

Are the vetting procedures at the court now robust enough?

Yes and no. We did the vetting. The problem with those processes, of course, is that you are talking to previous employers so it’s a limited sample. Doing a social media trawl, I think is necessary. But I have a real problem with inviting submissions. When I was the chair, I got unsolicited letters on one or two of the candidates. What do you do with those? There's a credibility of evidence issue: What's your motivation in sending me this letter? Are you actually a victim? I got a bunch of hearsay letters. As a lawyer, I've been in court a few times on criminal issues. So I would not consider those to be reliable evidence, and dismiss them.

But what we did as a committee, in response, is to build into the interview process a question specific to the issue of sexual harassment: ‘Have you ever been the subject of a complaint. And if you were, how would you handle it?’ That was a question we asked, and we got some interesting replies from different candidates. So that needs to be part of a vetting process, I think, or of an interview process. 

There will be elections of judges at the next full ASP. Vetted?

Judges don't get interviewed. They may get grilled by NGOs; that's about the extent of it. But what goes into the election of judges, contrary to what went into the election of the prosecutor, is that when it comes to higher judicial office, that's a matter of national interest. Having your national sit on an international bench elevates your reputation as a state. And what that means is that those elections become part of a bargaining system.

“We ran an election campaign for a judge who is now on the bench. And what I saw during that process, it just makes your skin crawl. The horse trading that goes on on the floor of the ASP at the very last minute – like ‘we'll vote for you for the Tribunal on the Law of the Sea if you vote for my judge here’.”

You mean the UN system of giving and taking on votes?

The stuff that I saw when I was ambassador! We ran an election campaign for a judge who is now on the bench – one of six electees. And what I saw during that process, it just makes your skin crawl. The horse trading that goes on on the floor of the ASP at the very last minute – like ‘we'll vote for you for the Tribunal on the Law of the Sea if you vote for my judge here’. It has nothing to do with the qualification of the candidate at that point; it becomes, you know, trading cards. And so you can have as robust a vetting process as you want, as robust an assessment process as you want, those interests will override everything at the end.

If you look at the judges’ election that I was part of, there was a committee that assessed the qualifications of each of the candidates. As I recall, at least two of the candidates that were finally elected were categorised by that committee either in the middle or at the bottom, but not as the “most highly qualified”. So you can already see how the voting isn't impacted very much by considerations of vetting or assessment of qualifications.

Is that the same way that states would approach what might happen with a potential election of a new prosecutor?  

Look at what happened with the election process surrounding the eventual election of Karim Khan. States created this committee that I ended up chairing. The terms of reference were not good. They were not helpful. I, as Canada's representative, sent a three-page note to the Bureau on where I considered the draft to be flawed. This was completely disregarded by the Bureau.

One of the biggest issues that I had noted was the consensus requirement. The committee was required by the terms of reference to have consensus on the candidates it recommended to go forward. That literally blocked candidates. So we had a short list. One of the big things was we wanted a real professional prosecutor who can take a really complex case and run it and get the job done. I started getting phone calls the day our recommendations came out: ‘What the hell were you guys thinking?’ What I heard back from the states was: ‘But there's nobody famous here’. That’s why we were then asked to give them the entire long list of people we had interviewed, which of course was ludicrous because some of these people were hilariously unqualified.

“The issue of electing high international office will always be less merit-based than it will be political.”

Might we see that instinct towards celebrity again or is this once bitten twice shy? 

When it comes right down to it they will want to have somebody whose name they recognise rather than superb professional qualifications in someone they're not familiar with. Take a look at the two reports that our committee sent forward including our assessment of the candidates. I remember that we were being very, very diplomatic. We were requested to release the names of additional candidates, including Karim Khan. The one thing that stuck out was that he was very happy to talk about his own accomplishments. What does that mean? That's diplomatic speak for ‘he has an ego the size of an elephant’. We did mention the red flags, without trying to prejudice the candidate too much, but they're there. There was a write-in campaign from Africa, on Khan’s behalf, in a supposedly confidential process when nobody was supposed to know who the candidates were. So how does that happen? The issue of electing high international office will always be less merit-based than it will be political. 

What do they need to do next time? 

All you can do is a bit of damage control based on lessons learned. The ICC really needs to have coherent terms of reference – and maybe listen to what we, as a committee, had to say about where the problems arose out of the terms of reference that we were given. We had already not that great a pool of candidates, frankly. Are we going to get the best candidates this time? When people see what happens, they may just say ‘listen, this is a mess, I'm not going to even touch this one’. So, I think we will probably be operating from a fairly shallow pool, built with national interest candidates. Again.

One thing I would really like to see as an outcome of this is the creation of an actually functioning process, or an ombudsperson within the court who can address issues of staff concern, whether it's sexual harassment, workplace harassment, discrimination. Create an ombudsperson who can deal with these complaints; don't ad hoc yourself out of these problems, one crisis at a time. Because that's when you end up with the situation you're in now.

You know, creating these ad hoc mechanisms, it's the same thing with the terms of reference for electing the prosecutor: they changed every time there was a prosecutor elected. For God's sake, create a system that actually works and then stick with it and don't let your politics influence and sway it every time you get the chance. That's my parting advice.

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