Closing remarks by Gregory S. Gordon

I am honored to give concluding remarks for this august gathering here in the capital of international criminal law and in one of public international law’s most sacred shrines. But it is particularly meaningful for me to speak at the end of a conference devoted to this topic of “Integrity in International Criminal Justice”. Why? In the first place, I have had the good privilege of participating in the past few CILRAP conferences – those started here in The Hague and now, appropriately, we are back in The Hague. I feel a sense of organic growth of each of these following on the other. I have noted previously that the first conference on “Quality Control in Preliminary Examination” held here was about the machinery of international criminal justice. The second one, held in New Delhi, “The Philosophical Foundations of International Criminal Law” was about the ghost in the machine. The third one, on “Power in International Criminal Justice” was about who runs the machine. And now we return to The Hague for “Integrity in International Justice”, which is, I submit, about the ethical standards governing those who run the machine.

Have we arrived at the most critical vantage point in terms of understanding the international criminal law (‘ICL’) phenomenon? I think we have. Why study the logistics of ICL’s operations, its theoretical underpinnings and its sociological features, if not, in the end, to measure its moral compass? For that insight into its ethical orientation might be what ultimately saves it during its current crisis of confidence over allegations of professional responsibility lapses and resultant questions about its viability. It faces an existential crisis that calls for an ethical catharsis. And this conference could represent the starting point of that cathartic process.

But it is meaningful to me to offer these concluding remarks on a personal level too. In the early stages of my career, serving with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda (‘ICTR’), soon after its establishment (much like my co-panellist Teresa McHenry at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’)), what struck me as so problematic was not the newness of the venture, not the lack of jurisprudential guidance, logistical infrastructure or even legal-culture harmony – rather, it was the lack of ethical guidance. I reflect on Judge Erik Møse’s comments on those early days at the ICTR. As he suggested in the opening panel, there was a lack of regulation of the relationships between and among the judiciary, the OTP and the registry. And there were allegations of serious mismanagement and corruption. I had been trained in a system where there was an inherent, clear and structural separation of actors and powers – prosecutors, defence counsel (including public defenders offices), judges and the judicial infrastructure itself were all properly siloed and there were detailed regulations regarding ex parte communications, sharing of information and general interactions among the parties. Codes of ethics were well developed and ingrained in our practices. I rued the absence of these features at the ICTR.

Now, all these years later, we have those codes, we have those better-defined institutional relationships. And yet here we are assessing how far we have come, how much progress has been made and what remains to be done. And in harmony with the main theme of this conference, my thinking has evolved too. The issue is not so much about technical codes of conduct or developed procedures and/or protocols. It is about meaningful individual commitment to integrity. That is what is needed. What is the ethical culture of international criminal justice? What values animate its proper and effective functioning?

In retrospect, I can see that I was too strictly focused on sterile form and procedure. And that may have been, as well, the perspective of the other actors in those early years of professional responsibility development in international criminal law. But this conference has been so important for taking the growth of deontology in international justice to a new and better place. We have many of the important stakeholders here to determine how we should best do this. So what have we learned?

The programmatic and conceptual building blocks were laid out with the opening panel, whose distinguished members defined important terms and explained what was at stake.

International Nuremberg Principles Academy Director Klaus Rackwitz opened the proceedings. He powerfully, and succinctly stated the importance of this gathering and gave us a good sense of what would be explored and hopefully achieved in the days ahead. That led to the first extended remarks by International Criminal Court (‘ICC’) Deputy Prosecutor James Stewart.

1. ICC Deputy Prosecutor James Stewart: The Legal Requirement of Individual Integrity and the Prosecution of International Crimes.

Deputy Prosecutor Stewart compellingly explained that the challenge of individual integrity in prosecuting international crimes means living one’s core values. The ICC is to be commended for engaging in a searching process of determining what those core values are. And for trying different ways of disseminating and inculcating OTP staff with those values, including through promulgation of a Code of Conduct whose violations are meaningfully enforced. But where does that leave the OTP in terms of past and prospective misconduct? I paraphrase but the Deputy Prosecutor described the situation as the “elephant in the room”. Indeed, it is – but one has the impression that the Office of the Prosecutor (‘OTP’), and one would hope the ICC as a whole, is developing the tools needed to deal with such problems should they arise in the future. Not only is the OTP developing the proper mechanisms but it is trying to change the culture. And it is to be commended for that.

2. Judge Erik Møse: Reflections on Integrity in International Criminal Justice and Regional Human Rights Courts.

Judge Møse gave us the helpful perspective of the notion of “integrity” in a related field – human rights. We benefited greatly from his observations as a former ICTR judge and judge of the European Court of Human Rights (‘ECHR’). He is in a unique position to see how concerns regarding integrity in Strasbourg relate to his experience in Arusha and how that can apply in The Hague. He imparted valuable insights regarding the experience of handling judicial vetting at the ECHR and dealing with allegations of lack of integrity. One of his big takeaways from his time in Strasbourg is that we must improve the perception of the lack of integrity.

3. Judge Marc Perrin de Brichambaut, ICC Vice President: The Importance of Integrity in International Justice.

Judge Perrin de Brichambaut picked up on that same theme. International courts are a new way of meting out justice. In the long arc of history, they are an unprecedented form. They have to implement the same standards as domestic courts – thus, at these courts, to establish their legitimacy among the citizens of the globe, echoing Judge Møse, justice must not merely be done but it must seem to be done. This has both a normative and sociological dimension. From a normative perspective, we heard the powerful quotation of Socrates: “Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially”. Failing that, we must consider the concern of the Roman poet Juvenal – “Quis custodiet ipsos custodes?” – who will guard the guardians? And here, in terms of vetting judges, we had the brilliant suggestion that we should perhaps appoint a permanent “external committee” of judges or former judges themselves who are best equipped to assess what is needed for the job.

From a sociological perspective, Judge Perrin de Brichambaut reminded us that perceptions of integrity must be considered from the vantage point of players outside the Court’s personnel: (1) authorities of States where the ICC is investigating; (2) victims, who may have different needs and views from the States where they reside; and, (3) last but not least, defendants themselves as proper respect for due process will factor into public views on integrity too.

4. Morten Bergsmo: Integrity as Safeguard Against the Vicissitudes of Common Justice Institutions.

Professor Bergsmo gave us even greater perspective regarding the normative and sociological implications of the notion of “integrity”. From the normative angle, we must not lose sight of its meaning – it is a “statutory term” – not a mere “value” judgment or “moral” term. It is about “individual” integrity – not institutional – although one affects the other – and I daresay we saw that throughout the two days!

Moreover, “individual” efforts to achieve integrity have collective consequences. We must beware lest individual striving for integrity be thwarted via unhealthy group-think or collusion, that leads to paralysis of will.

Professor Bergsmo then laid out a compelling outline of our agenda for these two days. Part I of the conference would begin by exploring the foundational concept of integrity – from the Ancient Greeks to the early Christians, up through Islamic Law and then to more modern times via the legacy of the great UN Secretary-General Dag Hammarskjöld and the work of contemporary international criminal law institutions.

This would set the stage for Part II, which would consider the “Awareness and Culture of Integrity”. Parts 3 and 4 would then consider integrity from the perspective of key actors in the international justice process – States and the international justice mechanisms themselves. With all this context, Part 5 would examine integrity through the lens of specific cases. And Part 6 would conclude with what we might expect to be the most important takeaway value from all this – the role of “independence” in achieving and measuring integrity.

Professor Bergsmo concluded with the idea that the prospect of institutional actors entering into “Faustian bargains” should never be brooked. He instantiated a parade of horribles potentially arising from such bargains that included obstructing justice by retaliating against colleagues, profiting from insider information, conceding deliberate State instrumentalization, and, much to my horror, visiting prostitutes in Hong Kong!

For most of us, the memory of former ICC Prosecutor Luis Moreno Ocampo’s tenure certainly had to come to mind in reference to the effects of such ill-advised Faustian bargains – ones that Chinese or Islamic notions of rectitude in public service would never condone. But such conduct does not justify the Carl Schmitt-inspired attacks on the ICC made by current US National Security Advisor John Bolton. Rather, as exemplified in Fra Angelico’s inspired “Annunciation” fresco in Florence, instilling notions of integrity into the ICL process may yet allow international justice institutions and players to be guided by their better angels.

But how would we conceptualize such a turn to ICL’s better angels? The first panel gave us much food for thought. Chaired by Norwegian Ambassador Martin Sørby, this introductory set of presentations, devoted to the “Meaning of Integrity”, began with the ancient roots of the concept.

Part I: Meaning of Integrity
Chair: Ambassador Martin Sørby

5. Professor Emiliano J. Buis: Greek and Roman Pre-Christian Notions of ‘Integrity’.

Professor Buis took us back to the occidental origins of the notion of integrity. On a personal note, I always remember reading TheIliad and thinking how alien its world was to the one of today. But focusing on the core ethical concerns of works like The Iliad, Professor Buis reminded me of what a great debt we owe to the Ancient Greeks – indeed to the Ancient Romans as well – for our modern normative view of right thinking and acting.

6. Judge Hanne Sophie Greve: Christian Sources and Reflections on Integrity in Justice.

Judge Hanne Sophie Greve’s remarks were the perfect follow-up to those of Professor Buis. She enlightened us on the idea of “integrity” via the notion of virtue ethics – an Aristotelean doctrine – as filtered through Christian theology. This was a crucial conceptual foundation that needed to be set down for this conference and I will return to it in my final remarks herein.

7. Professor Adel Maged: Primary Islamic Sources on Integrity in Justice.

Professor Maged gave us an excellent overview of the primary and secondary sources of Sharia law. Through this framework, it was fascinating to learn of the significant overlap and common themes with the Ancients and the Christians. Forbearance, impartiality, and piety – these aspects of integrity certainly resonate with the other traditions.

And there was more – a problem that has hung over these proceedings for which Islamic Law provides the ideal advice: “If you render a judgment that you later find out is not right, do not hesitate to go back on that judgment in order to do justice”.

Human institutions and individuals are fallible – to admit that and fold it into the integrity calculus is, I reckon, essential.

8. Gunnar M. Ekeløve-Slydal: Sir Thomas More and Integrity in Justice.

Gunnar M. Ekeløve-Slydal gave us insights into the chief iconic embodiment of this conference’s aspirations – Sir Thomas More. His life has loomed so large during these proceedings as he died rather than compromise his conscience over Henry VIII's marriage annulment and England’s consequent break with Rome. As Ekeløve-Slydal explained, More exemplified different forms of personal integrity, in particular, integrity as: (1) self-integration and consistency – in public service, he was uncorrupted, principled, fair and loyal; (2) standing for something, not giving in to pressure but willing himself to reason; and (3) moral purpose and virtue.

His exemplification of individual integrity can be summarized in his widely quoted words: “I die the king’s faithful servant, but God’s first”.

9. Hans A.V. Corell: The Dag Hammarskjöld Legacy and Integrity in International Civil Service.

The other great role model for this conference, and perhaps the most appropriate given its international law focus, is the second UN Secretary-General, Dag Hammarskjöld. His 1961 speech “The International Civil Servant in Law and in Fact” is the basis of Ambassador Hans Corell’s remarks. Through the life and work of Hammarskjöld, Ambassador Corell reminded us of an important point in Professor Bergsmo’s concept paper for this conference – “integrity” must be judged “on the basis of the total behaviour of the person concerned. Such elementary personal or private qualities as honesty, truthfulness, fidelity, probity and freedom from corrupting influences, are clearly included”. Hammarskjöld himself equated “integrity” with “conscience” and “respect for law and respect for truth”.

10. Juan Carlos Botero Navia: Towards a Global Understanding of Integrity in Justice.

Professor Juan Carlos Botero Navia’s “World Justice Project”, which gathers and analyzes rule of law indicators for 113 countries, drawing both on statistical surveys and expert interviews, reveals that the leading drivers of global perceptions of justice are decisions that are reasonably quickly resolved, cost-effective and reliable. If we are to understand how justice must be perceived to be done, Professor Navia’s contribution is vital.

11. Olympia Bekou: Integrity Standards in the Statutes of International Criminal Jurisdictions.

Professor Olympia Bekou offered an extremely helpful overview of the relevant integrity standards in the ICL statutes. In such statutes, there are references to such lofty phrases as “high moral character” and “the highest standards of efficiency”. But she rightly questions whether, in the absence of more, this represents mere empty language.

At the end of this session, during the question and answer period, Dr. FAN Yuwen offered some very helpful insights into the notion of integrity in Chinese culture, with excellent insights regarding the philosophy of Confucius and Mencius. But I want to respond to something she said about contemporary China’s position on the ICC. She indicated that China was watching the ICC to see if it would conduct itself effectively and ethically. And if that were the case, China would be pleased to join the Court. I must say that I am incredulous. Rather than sitting on the sidelines “waiting” for the Court to become a paragon of virtue and efficacy, the most populous nation in the world should be a part of the Court. If it wants a better ICC, is would do well not to act merely as a passive and critical observer. It should get involved constructively. If China truly respects the rule of law; if it really cares about effective international justice, it should engage with the Court and shape it constructively on the international plane.

Part II: Awareness and Culture of Integrity
Chair: Hanne Sophie Greve

12. Brigid Inder OBE: Conformity, Leadership and the Culture of Integrity.

The ICC is in a precarious position with respect to its institutional integrity, Dr. Inder reminded us. It has been a slow burn but, recently, it has gotten appreciably worse. She identified three areas of vulnerability for the ICC: (1) serious incidents of impropriety have occurred; (2) check-and-balance mechanisms lack rigour (and have been compromised); and, (3) there is limited infrastructure to support ethics education and enforcement at the ICC.

13. Christopher B. Mahony: Integrity, Indebtedness and Great Power Instrumentalization of International Criminal Justice Personnel.

Chris Mahony’s chronicling of the “Del Ponte Moment” was one of the powerful junctures in the conference. And it became a dialogical point of reference since he introduced it. We cannot consider integrity in international justice without considering great power instrumentalization of the various institutions’ personnel.

14. William H. Wiley: Truthful Communication as a Precondition to Integrity in International Justice.

Dr. Wiley provided, along with Teresa McHenry’s later presentation, an excellent insight into the practical aspects of integrity in conducting ICL investigations and operating in teams. Dr. Wiley has developed these insights in the context of a private initiative to investigate atrocity crimes and this could be a model for similar investigations in the future.

15. Andrew T. Cayley: Decency as a Prerequisite of Integrity in International Justice.

This presentation was delivered by one of the people in ICL whose ethical standards I admire the most – Andrew Cayley. I have had the good fortune of working with Andrew for a training program at the ECCC and, the way the programme was designed and run by Andrew, professional responsibility considerations were at the fore. In that regard, his observation that “decency requires complete candor – even if it might undermine the case” is spoken with complete credibility. Thus, I very much appreciated his quoting Winston Churchill that “[t]he only guide to a man is his conscience; the only shield to his memory is the rectitude and sincerity of his actions. It is very imprudent to walk through life without this shield, because we are so often mocked by the failure of our hopes and the upsetting of our calculations; but with this shield, however the Fates may play, we march always in the ranks of honour”.

16. Payam Akhavan: From Empathy to Equity: Reflections on Integrity and Institution-Building.

It was one of the most powerful and eloquent presentations of the conference. Professor Akhavan’s focus on victims helped bring home the importance of why we are here. Despite all the scepticism, indeed, in many ways, cynicism regarding recent developments in ICL, we should not forget that victims lie at the centre of our conceptions of ethical practice in the field. And his warning that – after many have made their names in the field these past two decades (as well as lived comfortably navigating the conference circuit), we should not let careerism blind us to the importance of the ICL mission – resonates very much.

17. Marina Aksenova: The Role of Aesthetics in Furthering Integrity.

Professor Aksenova’s presentation offered a unique perspective on how to connect analytical categories of knowledge with the experiential dimension that art offers. In this way, we can connect legal judgments and their impact in the region and the community. The cultivated contemplation that art fosters, she eloquently explained, allows better internalization of values promoted in international judgments, which is instrumental to the integrity of the relevant stakeholders.

18. Julija Bogoeva: Only the Best Should Prosecute and Judge in International Justice.

Ms. Bogoeva’s presentation was an authentic examination of the ethical dimensions of leadership in ICL institutions. Delivered from the vantage point of her personal experience in the field, she persuasively explained that, for the high-stakes endeavour of ICL, only the best should judge the worst of humanity to demonstrate how justice can best be rendered and how the better angels of our nature can prevail.

Part III: The Role of States
Chair: Viviane Dittrich

19. Karl Theodor Paschke: On the Efforts to Uphold Standards of Integrity Through the Work of the United Nations Internal Oversight Services.

The 1990s post-Cold War era of good feeling resulted in the creation of an Office of Internal Oversight Services –for which our esteemed speaker was made Under-Secretary-General for Internal Oversight Services. His account of horizontal and vertical transparency in that institution, as well as the creation of effective internal oversight mechanisms, led to a culture of integrity. This logistical analysis cum hortatory account added much to the proceedings.

20. Dieneke de Vos: Recent Developments in Ethics Standard-Setting and Mechanisms in the UN.

Dieneke de Vos’s presentation was remarkably informative regarding the UN regulatory framework, the UN Ethics Office and, sadly, the continuing problem of sexual harassment in international institutions. This last phenomenon is singlehandedly one of the most corrosive influences with respect to both individual and institutional integrity.

21. Marta Hirsch-Ziembinska: Integrity and the Work of the European Ombudsman.

Marta Hirsch-Ziembinska’s paper was an insightful exploration of how the Ombudsman deals with: (1) the “revolving door” problem at the European Union (‘EU’) (conflicts of interest of EU staff coming there from the private sector and those leaving the EU and going back to the private sector); (2) experts working with the EU, which creates the need for better transparency and being vigilant regarding potential conflicts of interest; and (3) the ethically ever-challenging activities of lobbyists. In dealing with these phenomena, the Ombudsman adheres to the principles of the European Code of Behavior for Civil Servants emphasizing, among others, integrity, fairness, impartiality, and independence.

22. Devasheesh Bais: Towards Greater Independence in International Justice: Lessons from the Indian Collegium System of Judicial Appointments.

This presentation was particularly enlightening. The procedure used by India for vetting judges seems eminently transplantable to the international realm as long as we take to heart Devasheesh’s advice that there be more transparency, better gender balance and an overall diverse group of individuals forming any possible international collegium.

Part IV: The Role of International Justice Institutions
Chair: Klaus Rackwitz

23. Salim A. Nakhjavani: Code of Ethics and Ethics Charter.

Salim A. Nakhjavani reminded us that words matter – we cannot have good rhetoric with no meaning behind it. The key drivers to making such texts meaningful are (1) effective management as well (2) a healthy organizational culture. We need more collegiate discussions among colleagues – to identify patterns of behaviour, trends in offices that leads to informing managers so that a culture that lives by and respects integrity can thrive.

24. FAN Yuwen: Reconstructing Integrity Standards in International Criminal Justice: From Common Minimum Standards to a Proposal on Model Code of Conduct.

Dr. FAN Yuwen’s paper perspicaciously made the case for why we need a model code. At the same time, it outlined the scope and applicability of the posed code, as well as its content, binding nature and enforceability. Her eloquent presentation allowed us to visualize a workable charter.

25. Matthias Neuner: International Jurisprudence on Sexual Harassment.

Matthias Neuner’s presentation picked up on and added to Brigid Inder’s insights regarding the corrosive influence of sexual harassment on integrity in domestic and international justice institutions. In addition to chronicling the problem in a dedicated fashion, Neuner’s remarks laid out the origins and development of the relevant law and all the normative and behavioural work in this area that remains to be done.

26. Karim A.A. Khan: Integrity and the Limits of Internal Oversight Mechanisms.

Karim Kahn powerfully emphasized the insight from Morten Bergsmo’s position paper that “A prosecutor [has fallen], time for the court to rise”. Integrity is not merely a box to tick; rather it is at the heart of our efforts to facilitate the ICC’s healing and growth in regard to past malfeasance. Internal oversight mechanisms are needed for this endeavour. Khan’s concluding with Samuel Johnson summed up the task ahead quite gnomically: “Integrity without knowledge is weak and useless, and knowledge without integrity is dangerous and dreadful”. Indeed, it is.

27. Cyril Laucci: The Wider Policy Framework of Ethical Behaviour.

Cyril Laucci spoke about noted that a strong policy and legal framework alone are not guarantees for integrity. But, by the same token, policy gaps can and will undo integrity. International civil servants can easily avoid these gaps. So we need to provide a proper framework to facilitate this. And Mr. Laucci did just that – outlining a set of nostra that fill in the policy gaps.

28. Shannon E. Fyfe: Integrity and Prosecutorial Ethics in International Criminal Justice.

I will comment on Professor Shannon Fyfe’s insightful analysis in my final thoughts below. Suffice it to say, at this juncture, that she provided an extremely helpful philosophical framework to help situate and contextualize the proceedings. And she gave a powerful example of how individual and institutional integrity can collide in ways we may not fully understand. Fatou Bensouda’s reaction to the Bemba decision illustrated that perfectly.

Part V: Integrity and the Lens of Cases
Chair: Karim A.A. Khan

29. Teresa McHenry: Reflections on Integrity in the Prosecution of Cases.

Teresa McHenry’s talk focused on the practical aspects of measuring integrity. In the investigation and prosecution of cases, when should we file charges, which charges and how quickly should they be filed? How does a prosecutor demonstrate integrity by resisting the pressure to indict or charge? How do we deal with witnesses who have various challenges such that evaluating credibility is difficult? When we have persons interviewed by 8 different countries for different reasons and possibly given compensation – how do we deal with them? How do we make sure that disclosure is handled appropriately? And that is why, as Teresa noted, Andrew Cayley’s observation that, in terms of evaluating the proper course of conduct from the integrity lens, “it’s always easy” is not, in fact, always the case.

31. Mohamed Salah Eleiwa A. Badar: The Disqualification of Judge Frederik Harhoff.

Professor Badar’s presentation raises fascinating questions about whistle-blower protections in the international criminal law setting. And this is doubly important given that we are talking about a judge as whistle-blower in this instance. If we do not have sufficient infrastructure and rules in place to facilitate insiders coming forward with incriminating evidence about an institution, do we need more effective oversight mechanisms? I spoke parenthetically about the disqualification of Judge Harhoff at the CILRAP “Power” conference in Florence (including references to the Gotovina and Perisic cases, which were the focus of Judge Harhoff’s complaints in his e-mails to friends, as well as the judge’s removal itself). The Seselj case, from which Judge Harhoff was removed, has loomed large in my own scholarship. So I appreciate that Professor Badar has taken on this subject in a dedicated manner in the context of this conference on integrity. He has helpfully called into question the Harhoff disqualification from the perspective of Dag Hammarskjold. How would the second UN Secretary-General have dealt with this situation?

32. Gregory S. Gordon: Measuring Integrity in Post-Conviction Proceedings: The Anatomy of an Early Release Decision at the International Residual Mechanism for Criminal Tribunals.

As just alluded to, my own presentation here was a follow-on to my Florence talk related to Judge Theodor Meron’s unilateral decision to release Radio Télévision Libre des Mille Collines founder Ferdinand Nahimana after the mastermind of the Rwandan Genocide’s chief communication apparatus had served only two-thirds of his sentence for convictions as to incitement to genocide and hate speech as persecution. Nahimana’s original life sentence had already been reduced by an appellate panel, on which Meron was a member, to 30 years, with Meron dissenting that the reduced sentence was still too long. Given that Meron was an appellate judge on Nahimana’s merits case, dissented as to one of the key bases of conviction that was upheld and explicitly called for a reduction of his sentence, his impartiality was arguably called into question. Could a reasonable observer apprehend bias in respect of this early release decision? In light of this, should the measurement of the early release eligibility period, as well as the manner in which early release eligibility decisions are made at the Mechanism for International Criminal Tribunals (‘MICT’), be revisited? I really appreciated the opportunity to present on this subject in this different normative framework, which is so topical as we meet for these proceedings.

33. Antonio Angotti, Basil Saen and Shan Patel: Individual Integrity and Independence of Judges: The Case of Judge Akay.

The travails of MICT judge Aydin Sefa Akay made for a powerful presentation. The arrest, conviction and non-reappointment of Judge Akay is a frightful insight into the challenges of personal integrity in international criminal law. Under Turkish law, Judge Akay technically no longer possesses the qualifications to be a judge on the MICT. In response, Judge Meron used every avenue to defend judicial independence. In this instance, according to the presenters, Judge Meron acted with integrity and should be commended for that. The same is true for defence counsel Peter Robinson. The consistent silence of the prosecution will be the object of further study but when conditions are dire the involved individuals should display the highest levels of integrity to protect fundamental values.

Part VI: Independence and Integrity
Chair: Ivana Hrdličková

34. Richard J. Goldstone: Prosecutorial Language, Integrity and Independence.

I really appreciated Justice Richard Goldstone’s remarks. I have very vivid and happy memories of my early days at the ICTR where Prosecutor Goldstone used language so effectively to speak with OTP staff. His superior communication skills were key to helping us strategize and his good listening skills fostered critical apprehension in The Hague of ICTR developments taking place in Africa. Such use of language and processing of information helps promote prosecutorial independence and is an aspect of integrity too. But Justice Goldstone provided additional examples of this in respect of his dealing with the press, the Secretary General and, more specifically, cases of sexual violence during his time as ICTY/ICTR Prosecutor.

35. Christopher Staker: Integrity and the Inevitably Political Exposure of International Criminal Justice.

Christopher Staker’s presentation was, in many respects, more of a searching enquiry than merely a presentation. He reminded us why this conference is so essential – we need to bring together as many minds as possible to calmly discuss the needed ethical guidelines in international criminal justice institutions before the next crisis erupts.

36. David Donat-Cattin: Integrity and the Maintenance of Independence in International Criminal Justice.

David Donat-Cattin’s presentation was made from the double perspective of an NGO official as well as an individual with vast experience in international criminal law. It is fair to ask difficult and searching questions regarding individual integrity in this field but protecting existing institutions should be our priority and, rather than bring them down, we should rather aim at their reform in their most vulnerable aspects, such as judicial nominations and elections.

37. Adedeji Adekunle: Integrity and Independence: Common Standards and the Uneven Cost of Implementation.

Finally, Adedeji Adekunle closed the conference’s panel presentations. Being mindful of the different backgrounds of the ICC staff, Adelunke emphasized that we should take into account that the higher pressures placed on persons in higher positions. In particular, we must be mindful of selection of judges and financial pressures linked to job prospects after their terms are finished. We should institute a reasonable, but sufficient, “cooling period” for job searches post-end-of-judicial-term. We should be proactive and focus on the prevention of potential ethical breaches early on rather than repairing their nefarious effects once it is too late.

Having heard from such a diverse and accomplished roster of panellists over the two days, there was much food for thought and potential for taking constructive action. And so, if we are to advance the professional responsibility agenda of international criminal justice, what are the key take-away points from these two days of intense, rich and probative presentations and discussions? I would like to offer some thoughts. First, as suggested above, it has become clear to me that my early career notions of rules and institutions to deal with ethical compliance in international justice were too narrow. These rules and institutions are mere empty words and vessels without a proper culture of integrity. So I now find myself looking at the broader conceptual/normative framework of ethics in legal practice. And it occurs to me that, consistent with Shannon Fyfe’s remarks, we need to be guided by all three major approaches to normative ethics – virtue ethics, deontology and consequentialism.

After these two days of theoretical and practical exploration of the dimensions of integrity, if we are to successfully integrate it into international justice practice and culture, it seems to me that the virtue ethics approach is paramount. The virtue ethicist would tell us to “act as a virtuous person would act in the given situation”. Aristotle taught us that a virtuous person is someone who has ideal character traits – those may derive from natural internal tendencies, but they need to be developed and nurtured. My notes on what the conference presenters have highlighted as such characteristics for the success of international justice (indeed, for any justice enterprise) repeatedly reference certain core traits – incorruptible, impartial, modest, honest, prudent, temperate and just.

In this regard, it is important to recall that virtue ethics has developed three main branches: (1) Eudaimonism; (2) agent-based theories; and (3) the ethics of care. The first branch seeks “eudaimonia” or “human flourishing”, which alludes to both individual and community well-being. Rather than deriving the normativity of virtue from the value of eudaimonia, agent-based virtue ethicists stress that virtues are determined by common-sense intuitions that one would judge to be admirable traits in other people. The third branch of virtue ethics, the ethics of care, has feminist roots and teaches that ethics should not centre solely on justice and autonomy; rather more feminine traits such as caring and nurturing, should be at the fore. We have seen this weekend the serious ethical lapses that have arisen in international justice institutions in connection with the plague of sexual harassment. The ethics of care go a long way toward addressing this behavioural scourge from the standpoint of integrity. All three branches of virtue ethics, I believe, have been implicitly, if not explicitly, alluded to by our panellists this weekend.

So virtue ethics is an essential approach if we are to develop a culture of integrity. But that culture needs a framework. And that is where deontology comes in. This derives from the Greek word “deon”, or duty. It posits that the morality of an action should be based on whether that action itself is right or wrong pursuant to a code of principles, as opposed to the virtue of the individual or the consequences of the action. It takes up Immanuel Kant’s categorical imperative. I believe our discussions these past two days have made it clear that we need to establish and vigilantly develop and enforce such principles. But we have also seen a multiplicity of codes and a disturbing lack of consistency. A good example of this actually came out in the Q&A via the remarks of Xavier-Jean Keita, Principal Counsel for the Office of Public Counsel for the Defence. He explained that the disciplinary procedures for the ICC OTP and the Office of Public Counsel for the Defence (‘OPCD’) differ greatly. The OTP has a process that is strictly internal but the OPCD has an external procedure. Why are these different? Should they be? I think one of the outcomes of this conference should be scholarship on the fragmentation of professional responsibility in international justice and how, perhaps, it could be better harmonized.

But even virtue ethics and deontology do not adequately cover the scope of work that lies ahead of us. None of the considerations just discussed can be divorced from the ultimate goals of international criminal justice. Judge Perrin de Brichambaut reminded us of the sociological aspects of integrity. Let us not forget the key constituents, the central stakeholders in all of this. If international justice is about fighting the culture of impunity, then we must never forget victims, as Payam Akhavan so eloquently explained. But if it is also about upholding human rights standards, we cannot forget the defendants either, and core notions of due process. And this is where consequentialism comes in. This theory informs us that the consequences of one's conduct are the ultimate basis for any judgment about the rightness or wrongness of that conduct. Thus, if victims’ interests are shunted aside and defendants facing the machinery of international justice are mistreated or railroaded, then I think we can conclude that integrity has not been integrated or given effect as it should be.

So, if integrity does eventually emerge as a honed, dynamic and instrumental principle undergirding the functioning of international criminal justice, can this great enterprise that we have embarked on survive in the long run? I believe it can. Certainly, we live in troubling times. Integrity is clearly not an issue in international criminal justice alone. As an American, I am particularly concerned by what I see happening in the White House. Dishonesty, self-aggrandizement, greed, corruption – these seem to be the order of the day.

But I do not think they will win out in the end. We all have our role models. Over these two days, we have heard a lot about Sir Thomas More and Dag Hammarskjöld and others. But let me tell you about my personal hero – US President Harry S. Truman. A regular citizen from an agricultural background in small-town Middle America, early on in life he learned the value of hard work and honesty. He struggled with unproductive farms, failed businesses and personal tragedy but was ultimately able to cultivate the traits of heroism and leadership, first as an artillery commander in the First World War, Jackson County administrator and then as the junior Senator from Missouri. His rise in politics would not have come without the tacit assent of the so-called “Pendergast Machine”, a party organization headed by “boss” Tom Pendergast that doled out political favours in return for support. Pendergast supported Truman because his son raved about Truman as an officer in the war. But once in power, despite the support of the Pendergast Machine, Truman built a record of service that was as clean as the driven snow. He never did anything corrupt or out of personal interest. The political machine respected him so much that they let him operate out of his own sense of integrity and personal principles, without any interference. And then, once he became president, he was able to look beyond his own Victorian-era small-town, Midwest upbringing and do what his conscience told him was right – support civil rights, working people in unions, and universal health care for all Americans. Rather than luxuriate in the opulence of the White House, he moved to small quarters in Blair House across the street because he felt the Executive Mansion needed repairs and it was incumbent on him to do it. He treated public office as a trust. He was there to work for the people and the people’s interests and he never forgot that.

Now, all of this may seem like a digression at this conference. But I do not think it is. Let us not forget that it was President Truman who threw his support for what would become the birth of international criminal justice – the Nuremberg trials. And I submit to you that those trials, which came about through the persistence and genius of the person President Truman deputized to see that justice was done among the rubble of a ruined Europe – Justice Robert Jackson – those trials are where we should now focus. I believe that they were informed by a genuine sense of integrity. That integrity came from the top, from President Truman himself, and was embodied as well by Justice Jackson and his staff, as well as the other Allied prosecutors and judges who participated in that epochal justice enterprise.

Was it perfect? No. And I must submit my belief that imperfect justice, striving for integrity, is better than no justice at all. That does not mean we should be satisfied with justice tainted by the problems that we have discussed this weekend. We certainly must do better. But let us not look at the American political landscape of today – or, indeed, the world’s political landscape for there are certainly troubling signs around the world, including in Russia and China. International criminal justice is only part of what we need to fix. But if we always keep in mind from whence it came and remember that, victor’s justice or not, it laid an indispensable foundation upon which a just edifice could be built. If we do that, then we will, despite recent setbacks, continue to build on that edifice. I would like to think of that edifice as a kind of temple. Let us take what we have learned these past two days and continue to fortify that temple with integrity as our guide. I believe our foundation is strong and our future is bright.

Thank you.