The Prosecutor and the Judge
Benjamin Ferencz and Antonio Cassese - Interviews and Writings
Heikelina Verrijn Stuart and Marlise Simons
Interview with Antonio Cassese
Early Days at the Tribunal in The Hague
Question: Can we take you back to 1993, when you became a judge, and the first president of the International Criminal Tribunal for the former Yugoslavia? Louise Arbour became prosecutor a few years later. Referring to the two of you, she wrote about those early years: ‘We had both been re-incarnated as characters in a very complicated play.’ How complicated was it?
Antonio Cassese: We faced quite a few problems. The most obvious were that we had no budget, and little support from governments. Madeleine Albright has often said that in the Security Council, she was the only one out of 15 ambassadors who really believed in this tribunal. She said nobody thought that the tribunal would take off because it was seen as a sort of poor fall-back solution. That’s why there was no budget. And that’s why we could not pressure the UN.
The comparison with Nuremberg was obvious. There, Justice Robert Jackson only had to phone the American general in charge to ask for logistics, interpreters, secretaries, documents, evidence and so on. The tribunal was in an occupied country and had the whole us army behind it. So as the first international tribunal set up after Nuremberg, we immediately saw the huge gap between the enormous means available to the judges there and the total absence of means for us.
But I strongly opposed giving up. I argued that we could not kill what Claude Jorda from France and I often called ‘une magnifique aventure morale et juridique’. I said if we go home now, then we will never establish this precedent, and we will never know if we can apply international criminal justice. This helped us to wait for New York to decide.
I received great support from two people. Madeleine Albright supported us not only morally, but she also used her authority in the Security Council, and she had the us delegation put a lot of pressure on the General Assembly to adopt a budget.
Boutros Boutros-Ghali, the UN Secretary-General, was also extremely supportive. He came to The Hague in February 1994. At a dinner for him, I was to give a speech, so following tradition I provided my text in advance. My speech apparently convinced him that I was profoundly committed to this new idea of international justice. I was told that when he read it, he said: ‘Then I have to change my own speech.’ And his speechwriter prepared a new version, not the usual exchange of niceties.
Q: And you laid out in your speech…
Cassese: The huge moral challenge we faced to lay the foundations and meet the needs of modern international justice. And the obligation we had was that we could not fail, because through us, the whole international community would fail. I strongly felt that our failure would also mark the end of any international criminal justice.
Q: And Madeleine Albright?
Cassese: She came on her way from Bosnia to New York in January 1994. I was alone because all the judges had gone home to their countries. It was a Sunday, and she spent half a day with the whole delegation, including David Scheffer, her legal adviser who later became the American ambassador at large for war crimes. We had a lot of discussions, and as I was seeing her off, I asked her what she thought of trials in absentia. I had prepared a memo. I was very much in favor of trials in absentia, because we couldn’t afford to have our tribunal paralyzed by fugitives or people in hiding. We had no police force. So we had to proceed with or without a defendant in the courtroom. I remember vividly that she stopped and said: ‘Mr. Cassese, I’m not a lawyer, I’m a diplomat, but I can tell you that if you go for trials in absentia, you’re making a mistake. Trials in absentia will be perceived in the us, in the UK and all common law countries as something wrong, morally wrong. In the us constitution we have a right to be present at trial, which is a deeply rooted right.’ I dropped the idea. The next day the trials in absentia were dead.
However, I urged my fellow judges to accept some sort of legal provision for the eventuality that one or more senior indictee should remain at large. My colleague Sir Ninian Stephen, an outstanding Australian judge, thus proposed the substance of what then became Rule 61. While not strictly a trial in absentia and not providing for a finding of guilt, it allowed the court to receive and preserve prosecution evidence and have another look at the indictment (which had already been confirmed by one judge). Thus, the procedure was intended both to bring the charges preferred against the accused before the full Trial Chamber (consisting of three judges) and to publicly expose those charges. The Trial Chamber would then, by issuing an international arrest warrant, call upon all states to assist in bringing the accused before the tribunal. The President in his turn could alert the Security Council about any state’s refusal to cooperate. It was very innovative. Prosecution witnesses and other evidence could be presented, as we did in the summer of 1996 in the case of Karadzic and Mladic.
A Prosecutor; Hard to Find
Q: So although you faced many obstacles, you had two of the most important allies you could have had, the American Ambassador and the Secretary-General of the UN. That’s no small matter.
Cassese: Right. Eventually, Boutros-Ghali simply asked me: ‘Tell me what you need.’ I said, ‘Of course we need a budget, but especially we need a chief prosecutor.’ The civil law judges — the Chinese, the French, the Egyptian and myself — thought it was appropriate to start work with the present deputy prosecutor because he could initiate proceedings and had the same powers as the prosecutor. But our common law colleagues felt differently. They argued that only the chief prosecutor himself can delegate his functions, and in his absence nobody can take any action.
I spent months, from January until late June 1994, phoning people in Latin America, in Africa, everywhere. One day I came across a French judge, Roger Errera, who had just been with South African friends in London who had fled there because they opposed apartheid. He mentioned Richard Goldstone, who had an impressive history and had headed the Goldstone Commission. I asked if Goldstone was Jewish? And he said: ‘I refuse to answer that question as a matter of principle.’ I explained I was asking because to us, a Jewish prosecutor would be excellent because we would have to deal with Catholics, the Croats, with Muslims, the Bosniacs, and with Orthodox Serbs. So a Jewish prosecutor would be an outsider. And I told him that, perhaps by coincidence, none of the four judges from Muslim countries were Muslims. The Pakistani judge was Zoroastrian, the Nigerian was a Protestant, the Malaysian was a Hindu, and the Egyptian was Catholic.
Q: And what were you?
Cassese: I was brought up a Catholic, but I’m an agnostic, and I respect any religion. My wife is Jewish, but she is also secular. And he said; ‘ I still refuse to answer your question.’ So I said, never mind, I will phone him. Finally, I reached Goldstone, and he sounded interested.
Q: But Goldstone wasn’t very eager to get the job.
Cassese: Right. He said that Nelson Mandela had just appointed him to the constitutional court of South Africa. So Boutros-Ghali phoned Mandela. Mandela agreed to lend Goldstone to the tribunal for just two years.
And so a few days later, Boutros-Ghali had a proposal for the ICTY chief prosecutor. The Security Council adopted it unanimously. That Friday evening at 8:00, I got a phone call that Goldstone had been appointed. I was all alone in the tribunal, and I typed – very badly because I couldn’t use the computer very well – a letter to all the judges who were away in their own countries, in Texas, in Australia and so on. ‘Dear friends, Habemus papam.’ I faxed this letter to all of them. I was so excited that I barely slept that night. It was a great success. In one week, between Monday and Friday, we had managed to get a prosecutor. And why? Because Boutros-Ghali was so good. He understood.
Judges from Different Law Systems; Writing the Rules of Procedure and Evidence
Q: Were all the problems solved by then?
Cassese: No, on the contrary. Inside the tribunal we were eleven judges, some with an excellent judicial record and others who lacked a judicial background. There were national judges who had always been judges in their own countries, like Gabrielle Kirk McDonald, an excellent federal judge in the us, the Pakistani judge Rustam Sidwa who was on the Supreme Court, Judge Sir Ninian Stephen from Australia, whereas some judges, from Egypt, China, myself, had never been on a bench. But we knew the international framework — we knew the treaties, the Geneva conventions, human rights law and so on. The Pakistani judge was extremely competent and a splendid man who had spent his whole life in Pakistan. So anytime we had a problem to discuss, he would pick up his Pakistani legal book, ‘Dear colleagues, the solution is very clear, it is here in article so and so of the Pakistani criminal procedure.’ And I would say: ‘Judge Sidwa, my friend, you cannot think that we are in Pakistan. We are in The Hague at an international tribunal. So we can’t apply Pakistani law. We have to take into account your law but also the American, French, Egyptian, Chinese laws, and so on.’
Unlike the ICC, we judges drafted our own rules of procedure and evidence. It took about three months, and it served as an important learning process for a new institution. It is something the judges in Nuremberg and the Tokyo tribunal also lacked, because the rules of procedure and evidence had been drafted by the four allied countries in Nuremberg and by MacArthur and his legal advisors in the case of Tokyo. The judges did not have this moment of collective education, collective training, and a collective exchange of experiences and adjustments. Each of us had to adjust to the experiences of the others. And then this process of collective learning and reciprocal intellectual adjustment proved to be crucial.
The only country that had already proposed a draft set of rules was the US.
Q: How much of the document the US presented was changed and how much survived?
Cassese: The people from the civil law countries made quite a few changes. It largely reflected us procedure, without a jury, because we were professional judges. But in a trial where the prosecution has the examination in chief, the cross-examination and so on, the judges had no say. For instance, we suggested that the judges should be able to ask questions at any time or call witnesses, something that is not admissible in American law. We judges from civil law countries agreed that we should try to take the best elements of our own systems and to try to inject them. But the basics remained common law.
Cassese, a Prosecutor?
Q: In one of her comments, Louise Arbour said that you should have been the prosecutor, and she should have been the judge. Could you see yourself as a prosecutor?
Cassese: No, but what she meant, and she was right, was that I was very pushy. I was always prodding the prosecutor. I was so impatient, in a way; I was even more pushy and inquisitive than any prosecutor. She probably felt that I lacked distance, coming from a civil law country where there is no watertight division between prosecutor and judge. Perhaps I was over-stepping my duties as a judge. But I explained many times that I was not only a judge, passive and waiting for the prosecution. I was acting as a president of an international tribunal. Leadership meant to push for action also. I was the only one with a pass able to go to Goldstone’s office. Other judges were not allowed to go up to the prosecution floor. But I would go up almost every day and talk to Goldstone when he was not travelling. Of course we never talked about specific cases – this would have been utterly improper. We spoke about his prosecutorial strategy, so that I could among other things decide quickly to what Trial Chamber to assign the forthcoming cases.
Q: You recalled the educational experience of judges sitting together and writing the rules, exchanging thoughts and experiences. It’s completely different now at the ICC of course. Judges come in, and a readymade system awaits them. That is normal in every criminal court. It has its rules, judges come in, and they simply have to work with the system. But is there something lacking now? The spirit of pioneers?
Cassese: When the statute for the ICC was drafted, of course the writers knew of our experience, and they knew that we had drafted and amended our rules about 30 times. But they started with the national idea that a code of criminal procedure is supposed to be drafted not by judges but by parliament, by the legislators. To my mind that was short-sighted. They had the wrong impression of why we needed to redraft or amend our rules of procedure and evidence. We were the first court, opening the way. The draftsmen of the Rome Statute during the negotiating process simply did not trust judges.
I was told there was also this fear of the ‘Cassese approach’, namely judges overdoing it, becoming dangerous by, say, producing judgments that can be innovative. For example, at the ICTY, we said for the first time that war crimes could also be committed in internal armed conflicts. This was breaking new ground. You go beyond the black letter of the law because you look at the spirit of law.
Q: Do you have more examples of the ‘Cassese approach’?
Cassese: In January 1995, I pushed all the judges in the ICTY, saying, we cannot go on confirming indictments against people like Nikolic, or trying suspects like Tadic, these low-level alleged criminals. We have been set up at the expense of the international community, we have an important task, and so we have to go after the leaders. But when I summoned Richard Goldstone, the prosecutor, to a plenary meeting of the judges, he came with four people, including the chief of investigations and chief of prosecutions, and he set out his ‘pyramidal vision’ of criminal strategy. I asked how he intended to go about this? It’s a pyramidal strategy, he said, we start at the bottom and go up to the summit. I said, it will take you twenty years to get to the leaders, Karadzic, Mladic, Milosevic and so on. Can we wait twenty years? This was also what Louise Arbour hinted at when she said that I should have been a prosecutor and not a judge.
So therefore in late January of 1995, there was a stormy meeting of the tribunal judges. I pushed my colleagues and was supported by some who shared the feeling that we should go after the leaders. But other colleagues did not consider it our job as judges; we simply had to wait for indictments and not impose a strategy on the prosecutor. But as the president I had to try to push for the notion behind this international tribunal. This tribunal had to be selective. Once I asked Goldstone how many people he thought had committed crimes in the former Yugoslavia. He said about 200,000 people. And I said, all right, so we cannot try 200,000 people. We can try only maybe 100. And these 100 must not be people like Tadic or Nikolic.
So then we had that stormy session of the judges. At the end of the session, we adopted a resolution where we set out in cautious terms, since the Security Council in its May 1993 resolution spoke of the great criminals, our deep concern about the prosecutorial strategy. When we were about to adopt this resolution, I said I had a moral duty toward Richard Goldstone to show him this draft resolution. We didn’t mention him, but it was very clear that it was totally against his prosecutorial strategy. So I felt obliged to go and talk to him. He read the proposal, became terribly pale and said: ‘You are fighting me, I will fight back, and you will see what I will do.’ He was terribly upset and rightly so.
However, shortly before we were to resume the meeting of the judges, Goldstone came to my office with two people and said, ‘Well, on reflection, if you change a few words I could even go ahead and subscribe to this resolution.’
And here I saw the clever politician. A fight would have meant going before the Security Council, before the Secretary-General, and he knew that we were supported by Boutros-Ghali and that it would be painful. He was extremely wise and politically savvy, understanding that he could negotiate. So I took out the poison, and we made some changes.
Q: Were these crucial changes?
Cassese: No, but of course we toned down the whole spirit of the resolution. It was no longer aggressive, and in the end we issued a joint statement, a press release, indicating that the prosecutor shared our concern. This was on the 1st of February 1995. Five months later he issued the indictments for Sarajevo of Radovan Karadzic and Ratko Mladic, the civilian and military leader of the Bosnian Serbs, respectively. They were confirmed in July 1995.
The President as Father Figure
Q: The public face of the tribunal, and of the ICC today, has been the prosecutor. When Carla del Ponte left as chief prosecutor after eight years, the media reacted as if the tribunal was closing shop.
Cassese: The prosecutor has to feed the judges by giving them indictments and can be aggressive, can afford to talk to the media, whereas the judges have to be reserved. Except for the president, who has to be a driving force, which has not been the case at every tribunal and seems to be lacking at the ICC, too.
Once in New York, when I was appointed as a monitor for the Special Court of Sierra Leone, I spoke to an American lady who had been in the office of the prosecutor in Sierra Leone and had resigned within two years. I asked her why she had resigned, and she said: ‘What we missed in the Special Court for Sierra Leone was a sort of father figure, a leader, as you had been in the ICTY. Somebody who can be there from the outset, whereas in our case, the president had never been in Freetown.’ And she was right. The judges would elect the president of the Sierra Leone court and then he could go back to London or Sri Lanka and communicate by fax or email. Ridiculous! You have to be there! Everybody must see you working there every day and being concerned and preoccupied, talking to the diplomats, going to see ambassadors, going to the UN.
Q: You say the ICC was lacking a father figure?
Cassese: The first ICC president, Philippe Kirsch, is an excellent diplomat and lawyer. He has been extremely cautious. When you are at the top, you are overwhelmed by a lot of problems, including minor ones (for example, you have to confront judges who take too many holidays, stay away from The Hague for the wrong reasons, and so on. You cannot please them all). At the ICTY I had a fight with one of my best friends, an outstanding judge. He said that it should be acceptable for ICTY judges to sit on arbitrations. The judges of the International Court of Justice do, so why couldn’t we do the same? But I wouldn’t allow it. He had two arbitrations scheduled, and he also wanted to stay home and teach. However, I told him that he had a full salary as an international judge and could not stay at home and come only to The Hague for the plenary meetings of the judges and on top of that also sit on arbitrations.
Q: So did he resign?
Cassese: Yes, he resigned.
Interview with Benjamin Ferencz
Room for Immunity; Protective Intervention
Q: Do you see any room for immunity in international law? The ICTY and the Special Court for Sierra Leone have both ruled that no immunity agreement or amnesty can be admitted before their courts where charges of war crimes, crimes against humanity or genocide are involved. Do you see any situation where immunity could be acceptable?
Benjamin Ferencz: Not for immunity. There is room for something else, and this has been ignored and perhaps we need to spell it out, and that is using force as part of the responsibility to protect. There are situations in international law where you know what is the right thing to do, and you cannot, because you don’t have the arms to do it, or you’re not getting Security Council support because of political reasons, and yet you feel something must be done. The classic example is Sarajevo and Kosovo. People, civilians, are being shelled; they are being killed by aggressors. The Security Council refuses to act, or is unable to. If you use force without its authorization, it’s illegal, a violation of the charter. I discussed it with David Scheffer, who was then the us Ambassador for War Crimes issues. His response was: we cannot let the people die.
I said, you have to let them die. Because if the rule of law dies, many more will lose. I have regretted that opinion. I have changed my mind on that.
I believe there are situations where there is a responsibility to protect. They came up with a nice title for it: ‘humanitarian intervention’. But it was too difficult to codify, to differentiate between humanitarian intervention and aggression disguised as humanitarian intervention.
Q: And that’s what you wrote about: illegal force with ‘good intentions’.
Ferencz: Yes, in the context of the ICC, which is what you are asking about, there may be a situation involving the responsibility to protect. It would require that the amount of force is restricted to the amount necessary to achieve that goal, that you have exhausted every other remedy without success, that you will cease as soon as possible and get out, and that it is clear you are not seeking an advantage for yourself or your country. Under those circumstances you could do what you have to, in order to protect people, knowing that you are violating the law.
Q: And this would provide immunity for a leader?
Ferencz: I am against immunity. But what happens then? Possibility number one: The prosecutor is authorized under the statute to take all circumstances into account. The decision to proceed or not is up to him. He can say it is not criminal behavior, but behavior to save human lives. Possibility number two: The judges reach the same conclusion. The prosecutor may say he is obliged to prosecute, to put the facts on the table. The judges then examine them and say: although it is a violation of the law, we will exercise judicial restraint. We issue a suspended sentence for violating the law under these circumstances.
Q: So the question is settled in the sentencing.
Ferencz: That is correct. If the judges do not take the motivation into account, the prosecutor can file an appeal. So you have an opportunity there for intelligent, decent judges. The judge is not there to punish people for noble behavior, but for evil behavior. In the sentencing they can acknowledge that the law is deficient in not being able to distinguish that type of case, except in the punishment procedure. So there you give effect to what they called: it was illegal but lawful.
It is an old ecclesiastical principle. Don’t use more force than necessary to achieve the objective and cease as soon as you can. And it’s the measure of last resort.
Q: At the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, all sides, all parties to a conflict can be prosecuted. At the ICTY, most cases have involved Serbs, and the ictr in fact has only prosecuted one side because the current government, and its foreign supporters, are opposed. Could the same happen with the crime of aggression if the ICC had jurisdiction, that is, prosecute all parties to the conflict?
Ferencz: Absolutely. The law applies equally to everyone. It’s a fundamental principle. It is not only about the first shot. Aggression can be faced with other aggression. Failure to stop when the enemy has been defeated is also aggression. That’s the question of proportionality.
Q: Countries that are afraid of the power of the ICC can use the argument of complementarity. They can deflect any action by the ICC by prosecuting the crimes at issue at home. They have the right of first refusal.
Ferencz: If I were at the Department of Justice in Washington, I would introduce a little bill saying any crime that was listed in the Statute of the ICC is subject to punishment by federal courts of the United States. Period.
Q: But states are not willing to prosecute their own leaders.
Ferencz: No, except if there’s a change in government. But then, in many countries, they’ll kill the old leaders. Often you’ll have to wait. Transition takes time.
Q: First it was only possible to hold states responsible. Then international criminal law became a booming business, and the attention shifted to individual liability. Shouldn’t states also be confronted again?
Ferencz: State responsibility cannot be ignored, but it’s met by reparations. Individual responsibility is met by individual punishment, and whether reparation will be useful or not depends upon the circumstances. We learned in World War I that if you demand too many reparations, you’re going to create a World War II. But there is a clear distinction. You cannot punish a state. Crimes are committed by individuals, not by states. States can be held accountable financially, by reparations of various kinds, as was the case in Germany.
Q: But prosecuting a sitting or former head of state, like Omar Al-Bashir of Sudan and Slobodan Milosevic of Serbia, is also a way of striking at the state. Inevitably, it means more or less indicting the state.
Ferencz: I don’t know how you go after a sitting president if you want to respect the principle of sovereignty. You can only promote a revolution against a president by his own people, which is the way it is often being done. The CIA’s pretty good at that.
Q: There is an arrest warrant out there now against the sitting president of Sudan.
Ferencz: What makes you think that you’re going to have the court move forward without problems? To begin with, there is no international military force.
True, as long as Al-Bashir is there and has not been locked up, he will be defended and protected by the state. It is not possible to go in and declare war on Sudan in order to get him out.
Q: The argument is made that the state can be stigmatized and excluded from the political peer group.
Ferencz: I don’t see stigmatization as a very productive approach, and anyway it creates more hatred.
Can International Criminal Law Deliver Justice?
Q: You have talked about the arbitrary nature of events in Nuremberg, the trials of people you happened to catch, the space available in court. The number of trials you scheduled. This obviously also confronts today’s international tribunals, albeit on a different scale. Does that make international law less valid, or valuable?
Ferencz: It makes it less effective, but not less valuable. The value is there, the ability to enforce that value on a greater scale, and to carry it out and have it adopted as part of the customs and habits of a people. That is the goal that we hope to achieve by using these examples. Without that value, you’re condoning the wrongful behavior.
You’re pointing to the problems to which we have not yet found adequate solutions. But what you do is you do the best you can under the circumstances. I have given the example of the German de-Nazification proceedings, which are generally regarded as not very successful.
In the end, you certainly don’t get perfect justice, it’s imperfect no matter what you do, but it’s better than no justice.
I always believe responsibility starts at the top, not at the bottom. It’s not the private on the firing squad who pulls the gun who is responsible. It’s the head of state who says we must eliminate all of our opponents, even if he never leaves his desk.
When a person has assumed a leadership position and is capable of directing mass crimes, it is not a given that he will be deterred by laws. There is a learning process, even at the highest level, and there is some deterrent effect. When the British were considering joining the United States in the war against Iraq, the head of the British military said, I’m not going unless I’m sure its legal. I don’t want to end up in the dock like Milosevic. So we see the deterrent effect right there.
Q: You were given an ovation in 2005 at the American Bar Association when you said that President George W. Bush and his leading cabinet members may have distorted the facts and committed the crime of aggression when invading IraQ: Do you believe there will ever be any legal consequence?
Ferencz: It’s up to the lawyers. Everyone is entitled to a presumption of innocence. In my address I said that we have an obligation as lawyers to ascertain the truth. If as appeared from a London Times report, the president and members of his government may have lied to the country, knowing the facts they used were wrong, then it’s our duty to investigate the facts. We’re not under Goebbels here. The United States is a great democracy. In my judgment, the use of armed force without Security Council approval constitutes the crime of aggression. Other competent lawyers have another view. The public is entitled to know the truth. That’s what democracy is about.