Without information, no reconciliation

Testimony of an International Criminal Court Judge

Testimony of an International Criminal Court Judge©ICC/CPIBulgarian Judge Ekaterina Trendafilova
4 min 56Approximate reading time

Bulgarian judge Ekaterina Trendafilova left The Hague in March after nine years at the International Criminal Court (ICC), during which she presided a court, became an appeals judge and came face to face with most of the ICC accused. She talked to Justice Info about her nine years at the ICC.  

How do you perceive the work of an ICC judge?

A lot of destinies are dependent on how we do our job. The destiny of those who are brought to justice, the destinies of victims and the destiny of a new institution. Law is really, I wouldn’t say complicated, but it is not easy. It is a sophisticated field of human knowledge activities.

How do you conduct proceedings at the ICC?

It’s a very strange feeling when, for the first hearing in a new case, the parties want to test the Chamber, in particular the presiding judge. Judges have to show when they are dealing with a case that they know absolutely everything, inside out. At this moment, the Judge is the face of the ICC. At the first appearance of Wiliam Ruto (editor’s note: Kenyan Deputy President, on trial with journalist Joshua Sang for crimes against humanity), I was told that he is an arrogant person and will mock the Court. Before entering the courtroom, the court officer came and told us, “you know, Mr. Ruto and Mr. Sang are not in the courtroom. They went to the toilet.” And, it was just a way to show disrespect for the court. I made the point at the beginning of the hearing.

Are trials different at the ICC from national courts?

The main difference between national systems and the ICC is the amount of documents and pieces of evidence. For the two Kenyan cases, for example, it was 110,000 pages and before the confirmation of charges hearing we were working all summer. I was in Sofia, and my advisors were working from Sicily, from Egypt, from Greece, from France, from Slovenia.

It is the type of evidence that surprised me most when I joined the Court. In the Bemba case (editor’s note: Congolese Senator Jean-Pierre Bemba is on trial for crimes committed in the Central African Republic in 2002 and 2003), for example, I have seen UN reports, NGO reports. This is not a typical type of evidence. After some years, we have to understand why we cannot just totally rule out such pieces of evidence and not rely on them. For a trial, a conviction decision can never be based solely on such pieces of evidence. But they could be corroborative.  

At a preliminary stage, it’s different. In the Ntaganda case, for example (editor’s note: Rwandan Bosco Ntaganda is charged with crimes against humanity committed in the DRC), I had to rule on his request for interim release. Amongst his arguments, he said that he had surrendered voluntarily to the court. But some months prior to his surrender, we received information that he feared for his life. The only way to save himself was just for him to surrender to the Court. One of the legal arguments I had to take into consideration was the fact that he had the means to escape from justice if released. When he surrendered to the Court, we received information from press articles and NGO reports on his alleged financial resources, such as money from taxes collected from commercial trucks crossing the border, his ownership of a fuel station, a bank account in Rwanda in his wife’s name and his involvement in regional networks of dealers selling real and counterfeit gold. I could not take the risk of releasing Mr. Ntaganda, even if he said that he surrendered. Even when I am dealing with a very minor issue, I try to see the issue within the whole context of the case. I wanted to be sure he wouldn’t disappear in the Schengen environment, because he had the means to do so.

During your mandate, you were faced with ministers, political personalities but also lowly militiamen. How do you handle that?

In the proceedings there is very clear terminology, and there is no terminology like President and so on. For the court, they are suspect or accused, convicted or acquitted person, that’s it. Their status is for me of no importance, of no value at all. But there are different situations.  At the first hearing of Dominic Ongwen (editor’s note: Ugandan child soldier turned commander of the Lords Resistance Army, jailed at the ICC since January 2015), I was quite sorry for Mr. Ongwen because he was abducted as a child. He was destroyed psychologically, it was like he was not given any choice to have a different life, different behaviour. But for me, there is no difference between one suspect and another, whether they are a minister or not. 

During the confirmation of charges hearings in the Kenyan cases, you asked the lawyers to take off their wigs. Why?

It was said a little bit in a joky way. We are one Court, we want to establish ourselves in the international arena, with our own face. It is perceived as the world court. Can you imagine a Bulgarian lawyer coming to court in traditional dress?

How do you see the ICC’s cooperation with States?

We don’t have any enforcement organ. We depend a lot on the cooperation of States. The Court has benefitted from good cooperation with States but there have also been instances where I was not fully satisfied, such as the decision to provisionally release Jean-Pierre Bemba. Mr. Bemba asked to be located in 7 countries. And all seven countries come back to me just making the point we don’t want him on our territory. I wanted a public hearing, I really wanted to press them against the wall.  And to give me good reasons. There was not a single piece of evidence to advise me to keep him in detention. But the Appeals Chamber reversed the decision, saying that prior to releasing someone, the Court has to ensure that a State party or another country is willing to accept the person on their territory.

Don’t you think the Court practises a form of clientelism with regard to States, for example in the Senoussi case?  

The Court doesn’t practise this favouritism you are talking about. But the Court still tries to see the complexities. And if the law provides reasons to soften the Court’s approach, I think that’s what the Court does. I did not participate in this Libya case.  (editor’s note: In August 2013, the Court agreed to let Libya take the case of  Abdallah Al Senoussi, Gaddafi’s former intelligence chief, despite the absence of lawyers and witness protection  and despite use of the death penalty). Of course I know the admissibility decisions. There is a reason that is deeply rooted in the Rome Statute. During the deliberations in Rome, the Italian delegation made a proposal with regard to the integrity of the proceedings, which was not accepted. There is nothing in the Statute with regard to the integrity of the proceedings, about the fairness of the proceedings. How can we accept proceedings where a State is willing and able to prosecute, but where there is the death penalty, there is torture as a means to achieve confession? These are problems. I am very critical sometimes towards some of our decisions, because I always like to improve. Maybe there should have been a broader interpretation of “able”, to see if a State is able according to international standards. I think that at the subconscious level, we all want --  and this is my dream -- that the ICC be supported by more and more States. And there are States who are fearful to join the ICC.

 

 

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